State Consumer Disputes Redressal Commission
Dinesh Chand Luckchaura vs Ganga Ram Hospital on 31 August, 2007
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 31-08-2007 Complaint Case No. C-182/1997 Dinesh Chand Luckchaura, Complainant S/o Sh. Harish Luckchaura, R/o J-137, Saket, New Delhi. Versus 1. Sir Ganga Ram Hospital, Opposite Party No.1 Through its Director Incharge, Sir Ganga Ram Hospital, Rajender Nagar, New Delhi-110060. 2. Dr. P.S. Maini, M.S., Opposite Party No.2 Consultant Surgeon Orthopaedics, Sir Ganga Ram Hospital, Rajender Nagar, New Delhi. R/o 430, Tower II Mount of Kailash, East of Kailash, New Delhi. 3. Dr. A.K. Kochar, M.S. (Ortho), Opposite Party No.3 Consultant Ortho Surgeon, Sir Ganga Ram Hospital, R/o 39/1, East Patel Nagar, New Delhi110008. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Complainant has alleged medical negligence and deficiency in service on the part of OP No. 2 and 3 of OP No.1 hospital and claimed compensation of Rs. 6,75,061/-.
2. Case of the complainant in brief is that he had fracture in his right leg at Vikyasen Distt. Almora (U.P.) some time in January 1993 which was attended by the local Doctor Ganesh Kumar who put plaster and the same was removed after prescribed period. The fracture was set right and there was no problem. After some time occasionally he was feeling uneasyness in free and fast walking. He came to Sir Ganga Ram Hospital Delhi and was examined by OP No.2 Dr. P.S. Maini on 27-01-1994 and was advised that his leg bone is weak and requires fixing of supporting iron rod for which he was asked to come in November 1994 (winter season) when he wouldl be admitted in the hospital of OP No.1 for proper treatment and operation.
He paid Rs. 250/- as consultancy fee vide receipt No. 1926 besides X-ray charges.
3. Accordingly and as advised by OP No.2 the complainant again reported to OP No.1 for treatment by OP No.2 and was admitted on 11-11-1994. He was thoroughly examined with various tests and X-ray and after seeing reports the OP No.2 referred the case to a team of doctors OP No.3 Dr. A.S. Kochar and Dr. Bhargava for fitting of iron rod in the right leg of the complainant. Doctors of OP No.1 under the control and supervision of Dr. Maini, (OP No.2) fitted iron rod in the right leg of the complainant and thereafter he was discharged on 16-11-1994 with necessary prescription. The complainant paid all dues of OPs and came back with assurance and advise of OPs.
4. Despite taking regular medicines and after due precaution, the pain continued to persist even after six months of fixing of iron rod and as such the complainant could not rely much on the post operation treatment and advise of OPs. With sincere suggestion of near relatives/friends, the complainant thought it appropriate to consult and show it to some other doctor. Accordingly, he again came all the way to Delhi and visited AIIMS hospital on 8th July 1995 where the attending doctor diagnosed that the K. Nail (Iron Rod ) has not been properly fixed and infection had developed for which they advised removal of K. Nail.
5. As advised by Dr. Farouq of AIIMS hospital, the complainant was again admitted on 29-01-1997 and the metallic foreign body (a small portion of drill) left while drilling to fit iron rod by OPs was removed by operation on 30-01-1997. OP No.2 and 3 had left broken portion of drilling machine at the time of drilling to fix iron rod.
6. The complainant has suffered mental agony and torture and set backs due to irresponsible deficient service by said acts, omissions, firstly in leaving broken part of drilling machine at the time of drilling to fix iron rod and secondly by fixing iron rod defectively. Complainant has sought compensation in terms of following components:-
(i) For expenditure towards Hospital charges of Delhi.
Rs. 13,500.00
(ii) For expenditure towards medicines.
Rs. 12,141.00
(iii) For expenditure towards regular dressing charges Rs. 22,620.00
(iv) For expenditure in transport by ambulance and taxi conveyance, food, lodging at Delhi during treatment and after upto date.
Rs. 38,800.00
(v) Compensation towards pain and suffering for mental shock.
Rs. 3,49,000.00
(vi) Towards irreparable financial loss suffered in business during this treatment period.
Rs. 2,24,000.00
(vii) By way of expenses for prosecuting the complaint petition.
Rs. 15,000.00 Total Rs. 6,75,061.00
7. OPs filed replies and affidavits by way of evidence independently. In its affidavit Dr. Harsh Bhargava, Consultant (Orthopedic) of OP No.1, who was one of the members of Unit II, stated that as per the rules and practice any of the consultants of the unit can operate upon a patient and he performed this operation under supervision of Dr. P.S. Maini. That prior to the operation the complainant and his mother who was present as an attendant were fully explained the nature of the surgical procedure. That during operation the medullary canal was cleaned and widened to the size of the K. nail which was proposed to be implanted. This was done by using surgical tool known as Reamer. The reamer is made of steel and the same material is that of the K. nail. While performing the procedure the tip of the reamer measuring about half inch accidentally broke right at the bottom of the tibia. That the only way to have removed the tip at that time involved a fresh incision at the place where the tip was broken and embedded. This process could have affected the blood supply to the area of the fracture. Therefore, a conscious professional judgment was taken collectively by team of doctors to leave the broken tip embedded in the bone and it was thought medically appropriate to remove the broken tip at the time of removing the K. nail at a future date and at appropriate time which is usually done after one year post operatively if there is no infection and the fracture gets solidly united, clinically and radiologically.
8. That the complainant had contacted OP No.1 hospital during December, 1994 when it was noted that infection was persisting and accordingly he was advised to get removal of the implant or K. nail. He was advised to take date for readmission in Sir Ganga Ram Hospital for removal of the K. nail but unfortunately and for the best reasons known to the complainant, he never turned up.
9. Dr. A.K. Kochhar, OP No.3 was Consultant with OP No.1 wheres Dr. P.S. Maini was Senior Consultant and Head of the Orthopedics Unit. Dr. Kochar was an associate Consultant whereas Dr. H. Bhargav and Dr. V.B. Bhasin were the Junior Consultants. According to OP No.3 the complainants sustained injury was a result of road accident which was a serious injury and was treated by a doctor who fitted an external fixator initially. He denied that the complainants facture had healed by the time he visited OP hospital and there was no problem. On the contrary as borne out by the hospital record, upon his admission on November 11, 1994 the complainant related the history of the injury to Dr. Bedi, the medical resident at the time. According to the complainant, he was hit by a Mazda Motor vehicle while riding a motorcycle.
10. That the complainant suffered a compound fracture of the right tibia which was treated by a local doctor but the wound and fracture developed an infection. Indeed his leg was in plaster even at the time of admission and apparently had been so continuously for almost two years. The fracture simply had not united or healed despite an external fixator being applied. He visited the OP-Hospital as he sought consultation for his injury, as it had not healed and not because he was feeling uneasy and couldnt walk fast.
On the contrary, the injury had developed complications due to persistent infection and he wanted a second opinion on his treatment.
11. That Dr. P.S. Maini on January 27, 1994 examined the complainant but it is specifically denied that he was told that his leg was weak and required a supporting rod. Dr. Maini gave no such advice and complainant has deliberately failed to file the prescription of this date. Nor did Dr. Maini ask the complainant to report almost 11 months later in November, 1994 for admission. Admission dates are at best given within a month or two. The records establish the falsity of the complainants case. He was examined by Dr. Maini on May 26, 1994. On that date the injury had still not healed and noted as an old case of infected non union. The X-rays done on that day showed a gap non-union tibia, as mentioned on the prescription slip. In Dr. Mainis opinion the necessary treatment required posterolateral bone grafting and fixation of an Ilizarovs external fixator. The reason for this advice was that despite a lapse of one and half years the complainants fracture was failing to unite. It had to be stabilized, and the gap in the tibia packed with bone grafts taken from the iliac crest. The external fixator would obviate the need for a plaster cast.
Even on this date the complainants leg was in plaster. Dr. Maini advised admission and asked the complainant to takea date from the concerned assistant. Dr. Maini does not personally give dates of admission as alleged by the complainant.
The complainant, however, for reasons best known to him, did not report for admission despite having taken a date for July 16, 1994 for surgery on July 18, 1994. Instead, he consulted Dr. Maini again on July 25, 1994. On this occasion the complainant informed Dr. Maini that he did not want an external fixator applied. It appeared that he had experienced, discomfort and infection when the external fixator had been applied originally, after the accident.
In the circumstances, Dr. Maini advised him to go ahead with the bone grafting and plaster. Once again Dr. Maini advised the complainant to take a date for admission. He again was slow and reluctant to take a date. The date of admission on September 4, 1994 for an operation on September 5, 1994 was cancelled by him few days earlier on September 1, 1994 when he informed the Hospital that he did not want surgery. The complainant was clearly reluctant to be admitted for necessary treatment.
12. That complainant eventually agreed to be admitted on November 11, 1994 for an operation on November 12, 1994. In the complaint, filed by the complainant, he admits that he was thoroughly examined and various tests and X-rays carried out. After the examination on November 11, 1994 it was clear that there had been no infection for more than a month and that the infection had either subsided or become dormant during the previous month. In view of this it was decided that K. nail would also be implanted.
13. That prior to the operation the complainant and his mother, who was also present as an attendant were explained the nature of the surgical procedure, with special emphasis on the inherent risks involved. In this branch of medicine, the most common problem with fractures and implants is that of infection. Infection may set in at once or after some time. The bone may unite slowly or not at all. In addition, the implant may break or fail to have effect. These risks together with the usual risk attendant with surgery arising out of general anesthesia or blood transfusion were not only explained to the complainant in the vernacular but also written down on the consent form. The complainants consent form therefore was with information and voluntary.
14. OP No. 2 Dr. P.S. Maini has by way detailed affidavit reiterated what Dr. Kochhar stated in his affidavit.
15. Complainant has in support of the allegations of medical negligence on the part of the OPs heavily relied upon affidavit of Dr. Farooque, Department of Orthopaedics, All India Institute of Medical Sciences that a metallic foreign body (small portion of grill) was left while operated for K. nail by the OPs and was removed by operation on 30-01-1997 which resulted in the pain, sufferings and second operation for removal of those foreign bodies. But according to OPs the affidavit of Dr. Professor M. Farooque has absolved the OPs from the negligence in leaving the broken tip embedded in the bone. His affidavit in this regard is as under:-
That I have had a chance to go through the case file of the said patient for the treatment he had earlier undergone at Sir Ganga Ram Hospital during Novemebr 1994. I have read the notes from the case file of the said patient and that according to those records K nailing of the tibia was done. In the notes of Sir Ganga Ram Hospital I also observed that it is clearly recorded that the tip of the surgical tool called reamer of the size of about 1/2 had broken. Since the only way to remove the broken tip was to give another incision, which could adversely affect the supply of blood to the area of fracture. All the doctors at that time had decided to leave the broken tip embedded in the bone and remove it at the time of removing the K-nail at a subsequent and appropriate period.
16. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles 00worth & Percy, ibid., para 8.02)
17. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
18. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
19. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
20. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence.
The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
21. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
22. In an identical case we have come across with a medical literature on the subject in question i.e. Open Intramedullary Nailing of the Femur Orthopedic Clinics of North America-Vol. II.No.3 July, 1980 (Annexure A). In this regard the opinion is of Joseph Schatzker, M.D., B.Sc. (Med.), F.R.C.S. (C) which is as under:-
It is common knowledge that the intramedullary nail has become a favorite device for the stabilization of femoral shaft fractures. An intramedullary nail is an intramedullary splint. It renders the bone sufficiently stable to permit early resumption of function, but the stability is never absolute and the bone union most commonly seen is through the formation of callus. The intramedullary nail stablizes the bone by virtue of an interference fit of a straight nail driven into an undulating reamed medullary canal with highs and lows. The more extensive the reaming of the insthmus, the broader the contact area between the nail and the surrounding bone, the greater the frictional resistance. As such if used properly, it allows rapid rehabilitation of the patient and much earlier weight bearing than any other method of internal fixation. The proper application of the technique requires careful preoperative planning with proper patient selection, meticulous attention to operative detail, and proper postoperative care. Failures of this technique or its complications can be far greater in magnitude than those with any other methods of internal fixation. Thus this procedure should not be embarked upon casually.
23. In our view such kinds of problem crop up when attended by junior or not fully experienced doctor or team of doctors on the instructions of the Head of the Unit.
Whenever K.nail of the tibia is done utmost precaution has to be taken i.e. what is prescribed by the medical literature with regard to the K. nailing tibia. However, it appears that during the operation some of the juniors might have inadvertently not noticed that the tip of the surgical tool called reamer which was of the size of half an inch was broken and left inside. It was this tip which was causing immense pain and suffering from time to time and it was this tip which was taken out by the doctor of AIIMS.
24. Intramedullary nail, if done properly and perfectly is a process that renders the bone sufficiently stable to permit early resumption of function. If such are the adventages, failure of this technique or its complications can be of greater in magnitude than those with any other method. Hence the need for expertise and extra care and caution to be exercised by the Doctor is greater. Any shortcoming, inadequacy or imperfection amounts to negligence and negligence can be easily inferred from result. If the remedy proves to be worse than the disease, inference is that of negligence or deficiency of one kind or the other. It is why caution is given to all the Doctors who, in over- zealousness of results, are warned to not to resort to this procedure casually.
25. However, taking over all view of the matter and finding OP No.1 hospital alone guilty for deficiency in service or negligence as it was full team of various doctors who were attending to the complainant we find that a token compensation of Rs. 25,000/- would meet the ends of justice as the complainant has not come up with any material or details as to how much amount was spent by him towards second operation through which the foreign object was removed.
26. Payment shall be made within one month from the date of receipt of this order.
27. Complaint is disposed of in aforesaid terms.
28. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
29. Announced on the 31st August, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj