Delhi District Court
Master Karan (Minor) vs Union Of India on 31 January, 2008
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IN THE COURT OF SH. RAJ KUMAR CHAUHAN :
ADDITIONAL DISTRICT JUDGE : DELHI
Date of Institution : 22.2.2001.
Date on which the
Judgment has been
Reserved : 22.1.2008.
Date of Judgment : 31.1.2008.
In the matter of: -
Suit No. 347/2004/2001.
Master Karan (Minor)
S/o Sh. Suraj Bhan
R/o 16/194, H Bapa Nagar,
Arya Samaj Road, Karol Bagh,
New Delhi-5
through his next friend/father
Sh. Suraj Bhan. ... Plaintiff.
Vs.
1.Union of India Ministry of Health Government of India
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Nirman Bhawan, New Delhi through its Secretary (Health).
2.The Medical Superintendent, Ram Manohar Lohiya Hospital, New Delhi.
3.Dr. B.S. Murthy, Ortho Surgeon, Ram Manohar Lohiya Hospital, New Delhi.
4.Dr. Nischal, Ram Manohar Lohiya Hospital, New Delhi.
5.Dr. Atul, Ram Manohar Lohiya Hospital, New Delhi.
6.Dr. Basant, Ram Manohar Lohiya Hospital, New Delhi.
7.Dr. Ghosh, Ram Manohar Lohiya Hospital, New Delhi.
8.Dr. V.L. Kochar,
Ram Manohar Lohiya Hospital,
New Delhi. ... Defendants.
- : JUDGMENT : -
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1.The plaintiff has instituted the present suit for damages/compensation of Rs. 20 lakh in the form of an application u/o 33 r 2 r/w/s 151 CPC inter alia alleging that the plaintiff is a minor having no means of income and aged about 12 years, living under the care and custody of his father Sh. Suraj Bhan, the natural guardian and next friend who has signed and verified the application on behalf of the plaintiff. It is stated that on 11.5.2000, the plaintiff unfortunately slipped/fell down when he was playing and got a compound fracture in his left hand below the elbow.
The incident occurred at about 10.00 AM. The father of the plaintiff immediately rushed him to Ram Manohar Lohiya Hospital (hereinafter referred as the RML Hospital) for his treatment and reached the RML Hospital at 11.00 AM where the plaintiff was attended by the Doctors negligently because the Doctors in
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Casualty has referred the plaintiff to the OPD no. 7. In the OPD no. 7, the Doctors were deputed under the supervision and control of the defendant no. 1 and 2.
The said Doctors after cleaning the injury and conducting the x-ray, covered the left hand of the plaintiff with the 'pakka' plaster on the injury. The plaintiff felt severe pain and has told the same to the Doctors but the Doctors called the plaintiff on the next date in the OPD. In the night in between on 11.5.2000 and 12.5.2000, the plaintiff felt acute pain in the hand and could not sleep for the whole night and in the morning of 12.5.2000, he was taken to the RML Hospital by his father where the Doctors were apprised about the serious condition of the plaintiff. At about 9.00 AM, the plaintiff was checked up by the Doctors on duty who told that the plaintiff was alright and if more pain was felt by the plaintiff, he should be brought again to the RML Hospital. Thus, on the
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advise and assurance of the Doctors deputed by the defendant no. 2, the plaintiff was taken back to home by his father but the plaintiff felt very much acute pain which was unbearable and was again brought to RML Hospital at about 3.00 PM on the same date. The whole situation was narrated to the Doctors upon which the concerned Doctors got cut the plaster and found puss and blood at the injury. It is alleged that the concerned Doctor in casualty diagnosed 'suspected gas gangrene', but despite that the plaintiff was again covered with pakka plaster and no proper care, treatment and precautions were taken by the Doctors.
The defendants being careless and negligent gave the opinion that proper treatment was given. However, as per the opinion given by the other Doctors, the plaintiff was not treated properly for 'suspected gas gangrene' as mentioned on the OPD card. The plaintiff was neither admitted in the Hospital nor treated carefully
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by the Doctors i.e. the defendant no. 2 to 8 and was sent back to home after plastering the hand again. In the night of 12.5.2000, the plaintiff felt very much unbearable pain and he started crying hard and felt acute pain and also a smell started coming from the plastered hand. In the morning of 13.5.2000, the father of the plaintiff again rushed the plaintiff to RML Hospital at about 9.00 AM and in the OPD no. 7 the another unit of Doctors was present and told that the case of the plaintiff has been spoiled by the Doctors due to carelessness and dereliction of duty by the Doctors who were on duty on 11.5.2000 and 12.5.2000. The plaintiff was admitted in the RML Hospital on 13.5.2000 and the plaster was cut and the father of the plaintiff was told that an immediate emergency operation was to be done upon the plaintiff.
On 14.5.2000, the defendant no. 2 to 8 consulted to each other being the attended unit Doctors and
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responsible for the gross negligence and carelessness in the treatment and in proper care of the plaintiff and operated the hand of the plaintiff and amputated his left hand/arm above the elbow after getting written high risk consent from the father of the plaintiff. The plaintiff has suffered mental and physically pain, torture and agony and, as such, the present suit has been instituted for damages/compensation of Rs. 20 lakh. A legal notice was sent to the defendant on 20.10.2000 through counsel wherein they were called upon to pay the damages. The present application was instituted on 22.2.2001 before the Hon'ble High Court of Delhi. An inquiry was conducted with regard to insolvency of the plaintiff. The Ld. Joint Registrar submitted his report stating that the plaintiff seems to be an indigent person. Before decision on the said inquiry on 17.9.2003, the present suit was transferred to the District Courts. The Ld. Predecessor considered
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the report of the Ld. Joint Registrar and allowed the plaintiff to continue with the present suit being pauper and indigent person.
2.A joint written statement was filed by the defendant no.
1 to 7. On 12.2.2002, the defendant no. 8 also adopted the written statement filed by the defendant no. 1 to 7.
In the written statement, the defendants stated that the allegations of the plaintiff with regard to the negligence of the emergency Doctors and Doctors in OPD no. 7 were not correct and, hence, denied. The factum of injury and admission of the plaintiff in the Hospital has been admitted and the factum of negligence on behalf of the Doctors have been controverted and denied. It is stated that when the plaintiff reported in the emergency on 12.5.2000, as a precaution the plaster was cut and in case it might be causing pressure and cleaned the wound and a new plaster was applied. It
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was stated that this is a proper treatment and cannot be stated to be a careless and negligent treatment because the plaintiff was taken to the Hospital as and when he was advised and felt pain. It is alleged that there was no symptoms of gas gangrene on the wound of the plaintiff at that time. It is further alleged that on 13.5.2000 when the Doctors seeing the conditions of the plaintiff's limb, which by then showed the signs of the disease gas gangrene, admitted the plaintiff and he was advised an operation to control the disease by way of immediate fasciotomy. It is further alleged that gas gangrene disease can happen to any one at any given time with smallest of injuries even by a pin prick or by abrasion just like tetanus and sometimes it does not occur in patients with massive wounds. This condition cannot be foretold. Routine prophylazis using anti gas gangrene serum like tetanus toxoid cannot be and is not used on every patient as it has its inherent
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complications and serious reactions. The usual incubation period is 2-3 days before the disease presents with a rapid progression of the disease once the bacteria establishes itself actively. Soon after recognizing the symptoms of these conditions, the patient was given all possible treatment like antibiotics, fasciotomy, hyperbaric oxygen which is available in a very few Hospitals, AGGS etc. The plaintiff's wound swab was taken for gram staining and bacterial identification. Only after confirmation of the disease by the laboratory test, that this is indeed a case of gas gangrene, to save the life of the patient, the limb was sacrificed after obtaining a mandatory written consent from the immediate relation i.e. father. It is, therefore, stated that there has been no negligence on the part of the defendants and, as such, the defendants are not liable to pay damages/compensation or interest thereon as claimed by the plaintiff.
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3.In the replication, the material averments in the written statement have been controverted and denied and the averments made in the application/plaint have been reiterated and reaffirmed.
4.On 7.4.2002, from the pleadings of the parties following issues were framed: -
1.Whether the defendant no. 1 to 7 were negligent/careless in giving the proper treatment to the plaintiff, as alleged in the plaint? OPP.
2.Whether it was a case of "GAS GANGRENE" and imputation of left forearm was necessary as alleged in the written statement? OPD.
3.Whether the plaintiff has suffered loses on
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account of negligence/careless/dereliction on duty of the defendant no. 1 to 7, if so, the computation of the amount in terms of money?
OPP.
4.Whether the plaintiff is entitled to relief of the principal amount? OPP.
5.Whether the plaintiff is entitled to interest, if so, the rate, period and amount thereof? OPP.
6.Relief.
5.The plaintiff in support of its case has examined Sh.
Suraj Bhan father of the plaintiff as PW1. The PW1 has proved all the documents of treatment as PW1/1 to Ex PW1/28. The learned counsel for defendant has not objected to the mode of proof of these documents i.e.
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Ex PW1/1 to Ex PW1/28 and their exhibition was, therefore, allowed. The PW2 Sh. Surinder Singh, Record Clerk, RML Hospital has proved OPD card dated 13.5.2000 Ex PW1/1, photocopy of discharge summary dated 31.5.2000 Ex PW1/2 and photocopy of emergency OPD card dated 12.6.2000 Ex PW1/3. Dr. Shambhuji has also been examined by the plaintiff and inadvertently has given serial number as PW2.
6.The defendant has examined Dr. Ajay Shukla, Ortho Surgeon, RML Hospital, New Delhi as DW1.
7.I have heard the learned counsels for parties at length and gone through the evidence and documents on record. My finding on the issues is as under: -
8.Issue No. 1 : Whether the defendant no. 1 to 7 were negligent/careless in giving the proper treatment to
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the plaintiff, as alleged in the plaint? OPP.
The onus of this issue was upon the plaintiff. On behalf of the plaintiff his father PW1 as his next friend has been examined who has proved the whole storey narrated in the plaint. PW1 has also proved the legal notice served upon the Medical Superintendent, RML Hospital u/o 12 r 8 CPC to produce the original documents of treatment of plaintiff. The carbon copy of the notice u/o 12 r 8 CPC is proved as Ex PW1/1, postal receipt as Ex PW1/2, AD card as Ex PW1/3 and UPC slip as Ex PW1/3A. The PW1 has also proved the photocopy of the OPD card no. 47717 dated 11.5.2000 as Ex PW1/4, photocopy of OPD card no. 48220 dated 12.5.2000 as Ex PW1/5, photocopy of OPD card no.
48409 dated 13.5.2000 as Ex PW1/6, copy of discharge certificate as Ex PW1/7, handicapped certificate as Ex PW1/8, copy of birth certificate of the plaintiff as Ex
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PW1/9, photocopy of ration card as Ex PW1/10 (OSR), copy of notice dated 20.10.2000 duly served upon the defendants as Ex PW1/11, postal receipts (8) as Ex PW1/12 to Ex PW1/19, UPC slip as Ex PW1/20 and AD cards as Ex PW1/21 to Ex PW1/28. In para no. 14 of his affidavit, PW1 has deposed that the documents of treatment mentioned above and produced by the defendants shows that his son was not given proper treatment by the Doctors despite detection of gas gangrene and, as such, the defendants have committed gross negligence and carelessness in the treatment of his son. The service of the notice u/o 12 r 8 CPC for producing all the original documents is not disputed by the defendants. Moreover, vide order dated 15.5.2002 on the interim application no. 1674/01, the Hon'ble High Court of Delhi where the suit was originally instituted has directed the defendants to file original medical record/documents pertaining to the treatment
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of the plaintiff within two weeks. The original documents were never produced and for that reasons the defendants have not taken any objection to the proving of the documents of treatment in the form of photocopies. It is, therefore, to be concluded that the photocopies of Ex PW1/1 to Ex PW1/28 except Ex PW1/8 and Ex PW1/9 whose original was produced, is deemed to have been admitted by the defendants.
9.In his cross examination, PW1 deposed that on 11.5.2000 he has taken his son to emergency ward of RML Hospital where Doctors attended and referred him to OPD no. 7. In OPD no. 7 the Doctors attended his son and has done x-ray. He further deposed that he has told to the Doctors in OPD who was attending his son that blood was coming out but despite that the Doctors plastered the plaintiff. He further deposed that on next date for follow up check up, he went to the
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RML Hospital and told the Doctors regarding the acute pain felt by his son i.e. the plaintiff. It is deposed that the Doctors told him that the pain was natural and referred his son for x-ray. It is further deposed that on 13.5.2000, the Doctors told him that the part of the affected area of my son showed the signs of disease gas gangrene.
10.PW2 Sh. Surinder Singh, Record Clerk, RML Hospital has proved OPD card dated 13.5.2000 as EX PW1/1 (OSR), the photocopy of discharge summary dated 31.5.2000 as Ex PW1/2 (OSR) and photocopy of emergency OPD card dated 12.6.2000 as Ex PW1/3 (OSR).
11.Another witness examined on behalf of the plaintiff is Dr. Shambhuji who is inadvertently given serial number as PW2. The said witness has been examined
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to prove the case of the plaintiff to show the negligence of the Doctors in treating the plaintiff. The whole deposition of PW2 is relevant and reproduced herein as under: -
"1. That I am in receipt of summons from this Hon'ble Court for evidence in this case.
2. That I am employed as a Senior Chief Medical Officer (Selection Grade) in the Safdarjang Hospital, New Delhi and have been in the Central Health Scheme Cadre for the last 25 years.
3. That I have worked in the casualty department of the Safdarjang Hospital for about 7 years and in the department of Forensic Medicine for about 3 years. In the casualty of Safdarjang Hospital, I have handled trauma cases among other emergencies.
4. That I have perused through the photocopies of the casualty treatment card no. C/47717 dated 11.5.2000 and 12.5.2000
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(F/C 6962/2000) of Master Karan 12 years old, Male, made in Ram Manohar Lohia Hospital, New Delhi and the plaint and written statement in the suit of Master Karan.
5. That from the above records it is disclosed that Mater Karan sustained injury in his left forearm on 11.5.2000 as a result of fall from wall. Master Karan attended the casualty of the Ram Manohar Lohia Hospital, New Delhi where the casualty card no. C/47717 dated 11.5.2000 was prepared. In the casualty on 11.5.2000 Master Karan was diagnosed as a case of compound fracture both bones of left forearm with suspected gas gangrene by the doctor in the casualty. He was given Injection Tetanus Toxoid and Injection Voveran (pain relieving drug) in the intramuscular route in the casualty. Thereafter, Master Karan was referred to Orthopedics Emergency-7 by the doctor of the casualty.
6. That in the Orthopedics Emergency-7 Master Karan was advised X-Ray of the left forearm in both Antero-posterior and Lateral views on 11.5.2000. Thereafter, Master Karan was prescribed Tablet Voveran 50 mg (pain relieving drug) to be taken twice a day, Tablet Rantac 150 mg (medicine to control acidity and drug induced gastritis) to be taken twice a day and tablet B-complex to be taken
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once a day. Master Karan was advised to take the above treatment for 5 days and he was asked to come for review next day in 29- A in Ram Manohar Lohia Hospital, New Delhi.
7. That the next day i.e. on 12.5.2000 a check X-Ray was advised. After the check X- Ray Master Karan was advised Suspension Nise (pain relieving medicine) 1 teaspoonful to be taken twice a day, Tablet Chymoral forte (an enzyme drug which opens up fibrin blocked microcirculation, speeds in resolving inflammation and promotes healing at an early stage) one tablet to be taken three times a day and one Capsule of Benzyzine (Trifluoperazine which is a sedative medicine). Master Karan was then advised to come on Monday at 9.00 AM for review in room no. 36 in Ram Manohar Lohia Hospital, New Delhi.
8. That from the pleadings of the parties it is an agreed position that Master Karan again visited the Ram Manohar Lohia Hospital on 12.5.2000 at about 3.00 PM due to complaint of unbearable increasing pain. The plaster was cut, the wound was cleansed and the new Plaster of Paris cast was applied on the fractured limb. No check X-Ray of the injured forearm of Master Karan after cutting off the plaster was performed although it was an excellent opportunity in view of
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complaint of unbearable increasing pain.
9. That again it is an agreed position of both the parties that Master Karan again visited the Ram Manohar Lohia Hospital in the morning on 13.5.2000 again on account of excessive unbearable pain. Then it was diagnosed a case of a 'Gas Gangrene' and the patient Master Karan was admitted. Master Karan was advised operation. Other conservative and prophylactic measures were taken in the meanwhile. For the first time, since 11.5.2000 a wound swab was taken for gram staining, the bacteria identified and the diagnosis of the 'Gas Gangrene' was confirmed. To save the life of the patient an above elbow amputation of the left forearm was performed.
10. That it is obvious that Master Karan throughout complained of excessive pain in the injured limb and on account of excessive pain he visited the said Hospital again and again and on 12.5.2000 twice in the same day. He was given only symptomatic treatment for suppression of pain but the pain did not subside.
11. That it is distinctly discerned from the casualty treatment card no.
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C/47717 dated 11.5.2000 that some diligent doctor suspected 'Gas Gangrene' right on the first day i.e. on 11.5.2000 and has clearly put suspected 'Gas Gangrene' in his diagnosis written in the column for the diagnosis on the said casualty treatment card. Once a doubt has been raised regarding the development of the 'Gas Gangrene' it is to be taken as acute emergency. Alarm bells should have ringed. The patient should not have been allowed to go home but should have at once been admitted under proper surgical care and preferably in an Intensive Care Unit or an equivalent high observation area in the said Hospital.
12. That at the slightest doubt of impending 'Gas Gangrene' the patient should have been put on prophylactic antibiotics, preferably intravenous, after taking would swab. Other measures such as Anti Gas Gangrene Serum, thorough wound debridement, fasciotomy, hyperbaric oxygen should have been started right on 11.5.2000.
13. That in such a case no Plaster of Paris cast should have been applied on the limb as it creates low oxygen conditions in which the Gas Gangrene
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bacteria thrive rapidly being anaerobic bacteria.
14. That Master Karan has repeatedly visited the Ram Manohar Lohia Hospital with the complaint of excessive pain in spite of repeatedly prescribed pain relieving drugs. This is one of the diagnostic symptom of impending 'Gas Gangrene' where the pain is commonly out of proportion to the physical findings. The doctors should have tried to search the reason for the out of proportion pain complained by the said patient.
15. That on no occasion in the casualty or the Fracture Clinic or in the OPD, on 11.5.2000, 12.5.2000 or 13.5.2000, the essential four 'Vital Sings' - the pulse, temperature, respiratory or blood pressure of the patient Master Karan was recorded although they are to be recorded in each and every case of trauma and other emergencies.
"The diagnosis of true gas gangrene, i.e. gas in the tissues combined with gangrene, is essentially clinical. Pain, swelling, oedema, and toxemia, usually
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develop within 48 hours. There is rapid increase in the pulse-rate, a slight rise, or in severe cases, a fall of temperature and vomiting. The mental condition remains clear and death occurs suddenly." (BAILEY & LOVE'S SHORT PRACTICE OF SURGERY, PAGES 24 AND 25) Ex PW2/A collectively. (OSR).
16. That the fracture suffered by Master Karan was compound fracture both bones of left forearm with suspected gas gangrene.
"It must be assumed that any fracture in which the overlying skin is broken is contaminated with bacteria, either from the skin itself or from the surrounding environment. Such bacteria may remain dormant in the fracture haematoma for a few hours following injury but soon, thereafter, start to divide so that their number rises rapidly as time goes by. An inflammatory response develops locally and the fracture, from being contaminated, becomes infected. The chances of sterilizing the fracture haematoma become increasingly remote as the number of bacteria at the fracture site rises. Therefore, treatment of compound fracture is a matter of emergency."
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The treatment of compound fractures is a surgical emergency: it must be treated urgently and with skill. Treatment aims at sterilizing the fracture site, and consists of (1) wound toilet, (2) the reconstitution of skin cover, and (3) the use of antibiotics. (BAILEY & LOVE'S SHORT PRACTICE OF SURGERY, PAGES 303, 310 & 311) Ex PW2/A collectively.
17. That in case of Master Karan the wound toilet does not appear to have been performed on 11.5.2000 as there is no 'Informed Consent Form' available for that day on the records shown to me, for the required operation. The wound toilet/wound debridement operation is normally performed in the Operation Theater after obtaining the informed consent. Similarly the wound closure notes dated 11.5.2000 are not available. The injured limb could not be covered with the POP cast if the patient is not available for continuous and closed observation. Therefore, it is safer to pack the wound with the sterile dressing and leave it to granulate for 10 to 14 days following the operation. At the end of this period the wound can be inspected and either closed by application of split skin graft or by secondary suture. Once the skin wound has healed satisfactorily without infection of the fracture site, the fracture itself may be treated as if it
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were simple. While the skin is healing the fracture should be reduced and splinted. So far as possible, the external splintage should allow for inspection of the wound. (BAILEY & LOVE'S SHORT PRACTICE OF SURGERY, PAGES 303, 310 & 311) EX PW2/A collectively. (OSR).
18. That all cases of compound fracture should be treated as presumably infected and antibiotics prophylaxis and treatment should be employed. Master Karan, although suffered from compound fracture on 11.5.2000 but he was not prescribed antibiotics at any stage. The wound swab was also taken very late when the Gas Gangrene had already set in the injured limb.
19. That Tetanus and Gas Gangrene should always be kept in mind in all trauma cases attending in the casualty of any Hospital, because once they set in they cause damage to life or limb. An electronic copy on the chapter of Gas Gangrene describing the minimum standard of clinical care required in the case of suspected Gas Gangrene downloaded from the web site 'eMedicine' is Ex PW2/B collectively."
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12.In his cross examination, Dr. Shambhuji deposed as under: -
"I do not remember the exact time of injury, however, it was in the morning hours. I do not remember at the moment as to whether the doctor in the hospital examined the injured around 11.00 AM. It is correct that the difference between injured received the injury and the examination in the hospital by the doctor first time was only one hour. It is correct that the name of the bacteria of gas gangrene is "CLOSTRIDIUM WELCHII". It is correct that the said bacteria can grow within one hour of the injury. It is wrong to suggest that I am deposing falsely. Vol. The infection with the bacteria is sustained right at the time of injury, the moment the bacteria enters in to the biological tissues of the bodies it starts multiplying immediately, the rate of multiplication is dependent on an number of factors including the quantity of bacteria enters into the body at the time of injury, nature of the wound and specially the punctured wounds which was the condition in this case and the absence of anti-biotic treatment which should be given in all cases of compound fractures. The symptoms of gas gangrene within one hour could be pain which is out of proportion very rapid pulse rate
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which was not recorded in this case and local edema. It is wrong that in any fracture case, the rise in pulse rate and pain will be as much as, as in the case of gas gangrene. As I have already replied the bacteria starts multiplying as soon as it enters the body. It is wrong to suggest that the multiplying the bacteria starts between 6-8 hours.
Question: Is it correct that normally the multiplying of bacteria takes 48 hours to take exact in classical picture for the symptoms? Answer: There is no mathematical thing in the field of medical and surgery and there are significant variations from case to case. Since, the outcome of the disease is mostly fatal globally, therefore, in trauma cases it is duty of each doctor to search for these symptoms at the earlier stage and not passively wait for the classical symptoms to appear.
Question: Is it correct that in the incubation period is 2-3 days usually?
Answer: The incubation period varies from few hours to 3 days depending on the type of the case.
Question: Is it correct that within one hour of
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sustaining injury it cannot be diagnosed as the case of even query gas gangrene? Answer: As I have already replied that the diagnosis dependents case to case and in this case the causality slip itself mentioned the diagnosis of suspected gas gangrene.
Question: Does punctured wound need wound closure?
Answer: Any punctured wound with fracture should not be covered with POP cast and the patient should be examined frequently to find out any infection in the fracture haematoma in the cases of compound fracture and only when it is certain that there is no infection left the treatment of fracture itself may be started.
It is wrong to suggest that I have not replied direct answers in view to give help the injured in this case. It is wrong to suggest that I am deposing falsely."
13.Thus, examination in chief and cross examination of Dr. Shambhuji shows that despite symptoms of the gas
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gangrene at the very outset, as was pointed out by the Doctor in casualty, the Doctors who attended the plaintiff in the OPD as well as in fracture clinic on subsequent dates has not taken right course and sufficient precautions to treat the plaintiff for suspected gas gangrene. It is proved from the evidence of PW1 as well as PW2 Dr. Shambhuji that the plaintiff since 11.5.2000 and on subsequent dates complained of severe pain in his forearm which was place of compound fracture but the Doctors attending him did not care for it stating that it was a natural pain. As pointed out by Dr. Shambhuji PW2, to detect the symptoms of gas gangrene within an hour, because of severe pain the pulse rate, blood pressure etc. was never checked. Dr. Shambhuji further deposed that in a case of compound fracture and trauma cases, it is the duty of each Doctor to search for these symptoms at the earlier stage and not to passively wait for the
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classical symptoms to appear. Dr. Shambhuji further deposed in a question by the learned counsel for defendant that any punctured wound with fracture should not be covered with POP cast and the patient should be examined frequently to find out any infection in the fracture haematoma in the cases of compound fracture and only when it is certain that there is no infection left, the treatment of fracture itself may be started.
14.In order to rebut the evidence led by the plaintiff with regard to this issue, the defendants has examined Dr. Ajay Shukla, Ortho Surgeon, RML Hospital as DW1.
The DW1 in his affidavit in evidence Ex DW1/A deposed as under: -
"4. ... ... ... That Master Karan was, therefore, found to have sustained a compound fracture of both bones of his left forearm, with a punctured wound. He was
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taken to the attached Operation Theater in the emergency, where his wound was meticulously cleaned and properly dressed under stick aseptic conditions. As analgesic injunction was given. The fractured bones were reduced and a plaster was applied over cotton padding. The usual precautions against tetanus with tetanus toxoid injection was taken. The patient was asked to report to the hospital next day in the fracture follow- up clinic.
Every patient of trauma with or without a fracture arrives with pain as his main complaint. The amount of pain is subjective and varies from patient to patient. Plaster is applied in the presence of pain because application of the plaster heps in relieving the pain.
As claimed by the patient and the patient's attendance he visited the hospital and the follow-up clinic of the concerned unit on 12.5.2000 and was attended by the doctor on duty. A check X-Ray was advised and found to be satisfactory. He was then advised to attend the Orthopedic OPD on Monday or in case he felt more pain or had any other problem he should be brought earlier.
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5. The deponent states that the patient revisited the casualty again on the same day at 12.5.2000 at 3.00 PM. He was again referred to Orthopedic emergency, Room No. 7.
The doctor present on duty took abundant precautions and advised for removal of the plaster completely. The wound was examined and cleaned. The limbs was examined outside the plaster. As everything was found in order and to be satisfactory and only after that a new plaster was reapplied.
6. The deponent states that this is a proper treatment and cannot be labeled as carelessness and negligence as evidence by patients own claim that he was seen and treated promptly on the none of the symptoms and signs whenever he visited the hospital.
The patient had thus by the afternoon of 12.5.2000 been examined by several doctors in detail outside plaster including doctors from another unit as well. There were no signs or symptoms present till then which would have warranted a different/including more aggressive line of action.
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7. The deponent states that the patient's claim of being not admitted has no validity as fractures with punctured wounds do not warrant admission by way of it is inherent condition. Neither were there any signs even in the follow-up clinic or upon reviewed examination in the Orthopedic emergency Room No. 7 which would indicate the possibility of a developing gangrene and thus warrant admission.
The patient revisited the hospital on the morning of 13.5.2000 when the doctors who saw the condition of the patient's limbs and which then was showing the signs of the gas gangrene and suspected it is a case gas gangrene and immediately admitted the patient. He was advised immediate surgery to control the disease and thereby prevent need of amputation by immediate fasciotomy. All other necessary measures were instantly initiated.
8. The deponent states that the Gas Gangrene is a disease which can happen to any one at any given time with smallest of injuries even by a pin prick or by abrasion just like tetanus and sometimes it does not occur in patients with massive wounds. This condition cannot be foretold. Routine prophylazis using Anti Gas Gangrene
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Serum like Tetanus Toxoid cannot be and is not used on every patient as it has its inherent complications and serious reactions. The usual incubations period as 2-3 days before the disease presents with a rapid progression of the disease once the bacteria establishes itself actively. Soon after recognizing the symptoms of this conditions, the patient was given all possible treatment like antibiotics, fasciotomy, hyperbaric oxygen, which is available in a very few hospitals, AGGS, etc. His wound swab was taken for gram staining and bacterial identification. Only after confirmation of the disease by the laboratory test, that this is indeed a case of gas gangrene, to save the life of the patient, the limb was sacrificed after obtaining a mandatory written consent from the immediate relation, i.e. father. It must be added that no doctor feels happy performing an amputation, which is a mutilating operation on any patient. However, this operation has to be resorted to in the event where the life of the patient is in danger."
15.In his cross examination Dr. Ajay Shukla states that he was not involved in the treatment of the plaintiff.
The whole deposition of the DW1 in cross examination
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is relevant and reproduced herein as under: -
"I had joined RML Hospital, Department of Orthopedics in May 1993 and was there ever since except for two and half year in between i.e. 1996 to January 1999 when I was posted at Central Institute of Orthopedics, Safdurjung Hospital. It is correct that I was not involved in the treatment of master Karan. It is correct that authorisation letter Ex DW1/A does not bear my signatures. It is further correct that the same is not a power of attorney.
Question: Is it correct that a diligent doctor suspects a gas gangrene then it is to be taken as acute emergency. Alarm should be rung. The person should not have been allowed to go home but should have at once been admitted under proper surgical care and preferably in an intensive care unit or an equivalent high observation area in the said hospital?
Answer: From what I have understood while going through their application, there are basically two things: (1) whether the management of the patient of compound fracture (punctured wound) both bones of the fore arm was appropriate or delayed and two where was there an act of negligence. As far as the treatment of the fracture was concerned it was prompt and most scientific
- :: 37 :: -
and appropriate. As to where negligence occurred, I feel that the arguments is based on just one observation i.e. by a post graduate student made on the OPD record of 11.5.2000 i.e. after a mere 1-2 hours of the said injury. I would like to tell you that I began my Orthopedic carrier in the year 1998 and in this long period I have just come across three cases of gas gangrene including this one. Our standard text book of Orthopedics, Surgery, General Surgery and Pathology write about the inquabation period of gas gangrene which is 1-2 days. The period could be shorter than this but that is usually seen in massive open wounds of the abdomen, perineum and face. Gas gangrene which is otherwise rare now is even more rarely seen in the fore arm. So, I dispute this observation made on the OPD slip of 11.5.2000 because of three reasons: (1) it was made by a post graduate student, (2) it was made between 1-2 hour of the injury, and (3) that if gas gangrene had indeed been present at that time, it would have been very obvious and probably full blown by the time that the patient has came on the next date i.e. 12.5.2000 when the entire limb was examined again.
It is correct that on 12.5.2000, the patient visited the hospital twice
- :: 38 :: -
complaining acute pain in his hand. Vol. The patients are always asked to return on the next morning as and when they are plastered.
Question: I suggest that you have not mentioned in your records that when the first time wounds swab was taken from gram staining?
Answer: It is wrong to suggest that I have not mentioned the above fact as it is already mentioned in case sheet of the hospital at page 25 it is mentioned that the wounds swab was taken from gram staining on 13.5.2000.
Question: When the bacteria was identified and gas gangrene was diagnosed? Answer: Confirmed diagnosis of gas gangrene was made on 14.5.2000.
Question: I suggest you that on 12.5.2000 the patient visited twice in the hospital with the complaint of excessive pain but he was only symptomatic treatment for suppression of pain but pain did not subside and no efforts were made to detect gas gangrene by the doctors on that date?
Answer: In the morning of 12.5.2000, when
- :: 39 :: -
the patient came to the hospital, he was x- rayed and his limb was examined. In the afternoon of 12.5.2000, when the patient came again the entire plaster was removed and the limb was examined once again out of plaster. His dressing was re-done. Obviously if anything suggesting or suggestive of impending gangrene, was present it would have been observed. I would like to mention that even though there is no meter by which you can measure pain - being purely subjective yet the patient was not frisked away. The doctor on duty did the right thing to get the plaster removed and observed the entire limb to see whether there was something wrong beneath the plaster. So, it is wrong to suggest that mere symptomatic treatment was given to the patient on this occasion. This also supports my earlier observation that the query of diagnosing gas gangrene on the first day was incorrect.
Question: Is it correct that at the slightest doubt of impending gas gangrene the patient should have been put on prophylactics antibiotics, preferably intravenous after taking wounds swab. Other major such as anti gas gangrene serum through wounds debridement fasciotomy, hyperbaric oxygen should have been started right on 11.5.2000?
Answer: As is obvious from the records, the
- :: 40 :: -
patient was examined not only by one doctor but many on 11.5.2000 and again on 12.5.2000. Even on 12.5.2000 there was no observation which would have suggested it to be a case of impending gas gangrene or for that matter even impending gangrene of any other variety which would have dictated the need of change in strategy including a more aggressive line of management.
Question: Is it correct that plaster of paris cast was applied on the limb of the patient master Karan on the very first day i.e. 11.5.2000?
Answer: Yes.
Question: I suggest you that in such a case no plaster of paris cast should have been applied on the limb as it creates low oxygen condition in which the gas gangrene bacteria thrived rapidly being anaerobic bacteria?
Answer: If I was an Astrologer or had been blessed with microscopic vision capable of detecting gas gangrene bacteria just by having look at the wounds, I might probably have followed your suggestion. On the contrary, however, almost all cases of punctured wounds in a compound fracture are plastered.
- :: 41 :: -
Question: I suggest you that on 11.5.2000 or
12.5.2000, no clinical examination or laboratory test for gas gangrene was conducted?
Answer: On the contrary I feel that on 11.5.2000 the clinical examination was performed over enthusiastically otherwise some one writing query gas gangrene would not have occurred. Even on 12.5.2000, the entire limb was examined after complete removal of the plaster with suggest that proper clinical examination was done considering the patient's complaint. As for your question of not performing a lab test, I would like to inform you that this is never done on a routine basis in such cases and lab test alone also can never be relied upon. They also involve high cost and are time consuming.
Question: Is it correct that punctured wounds with fracture should not be covered with POP cast and the patient should be examined frequently to find out any infection in the fracture haematoma in the cases of compound fracture and only when it is certain that there is no infection left, only then the treatment of fracture itself may be started? Answer: I have already answered the question. I would like to add that compound fracture occur in various degrees of severity.
- :: 42 :: -
Even punctured wounds which are of the least degrees of severity can be of two types. One is inside out injury and the other is outside in injury. In fractures of both bones of the fore arm with a punctured wounds, the injury is usually an inside out injury. These wounds have very little or negligible contamination. The patients own defence mechanism is usually capable of fighting against this contamination. Thus, these wounds can be plastered. Yes, we do make a window and observe the wound beneath the plaster 1-2 days after the plaster application.
Question: I suggest that gas gangrene could have been discovered by proper observation and keeping a protective approach that is by giving anti gas gangrene serum like tetanus toxoid but no such protective care and approach has been taken by the doctors in the present case?
Answer: Daily several hundred patients come to the hospital in the department of Orthopedics. Close to a hundred report to the Orthopedics emergency with various forms of injuries. It is not possible neither advisable to administer anti gas gangrene serum to all of the cases of compound fracture which come daily.
The injection is very costly, administration requires hospitalisation, the injection has its own side effects which can be serious and there is also a
- :: 43 :: -
debate on the efficacy of the injection in preventing gas gangrene. As gas gangrene is a very-very rare condition and in the light of the above, it will be imprudent to administer this injection in every case of compound fracture and is not done anywhere in the World.
Question: I suggest that on 11.5.2000, the attending doctors suspected gas gangrene in the plaintiff but no anti gas gangrene serum was advised nor administered, though, it was an emergency/necessary measure/treatment? Answer: From the records it is clear that the patient was examined on the first occasion on 11.5.2000 by a post graduate Orthopedics doctor. He was later on the same day examined by several other doctors before his treatment was carried out. The doctors on duty in the Orthopedics emergency comprised of interns, junior residents, post graduate students in Orthopedics of varying seniority and senior residents who have completed there M.S. in Orthopedics. Consultants in Orthopedics are available on call. Obviously after having first suspected gas gangrene the conclusion made was that there was no merit in this suspicion and thus, the treatment was carried out accordingly.
- :: 44 :: -
Question: I suggest that the attending doctors had acted in gross negligence in treatment of the plaintiff as there is no test or any treatment was given on 11.5.2000 and
12.5.2000 or gas gangrene and it is serious pulpable professional negligence and misconduct in treatment of the plaintiff? Answer: The test that was conducted an x- ray examination of the affected limb. This is all that is done in case of compound fracture both bones fore arm with a punctured wound. The fracture was reduced and plaster applied most scientifically. The injury had occurred at 10.00 AM on the same date as claimed by the plaintiff. The treatment had taken place around or close to 11.00 AM on the same date. For reasons stated above and which I do not want to repeat here, I would like to state that no body can make a diagnosis of gas gangrene in a case of punctured wound of both bones of the fore arm within 1-2 hours of the injury, and there was nothing in this case to suggest that one should be suspicious of gas gangrene in this particular case. This would imply being suspicious of gas gangrene in any and every case of injury whether it is to the bone or other parts of the body or even when it is merely caused by pin prick or mere administration of an injection. Thus, it would be wrong to suggest that negligence had occurred.
- :: 45 :: -
Question: Apart of x-ray what other test and examinations are conducted to diagnose gas gangrene?
Answer: X-ray was never done to diagnose it as a case of gas gangrene. The X-ray was done because that was required. Other tests that are conducted to diagnose gas gangrene are culture and sensitivity of the wounds swab and other blood test. These were done on 13.5.2000 when gas gangrene was finally suspected.
It is correct that no lab test done on 11.5.2000 and 12.5.2000 because it was not needed. It is correct that as per the record, the concerned doctor has mentioned it a case of suspected gas gangrene. It is wrong to suggest that the consent form was signed by the father under pressure as there was no alternative but to give consent. It is wrong to suggest that the fore arm had been amputated because of negligence on the part of the treating doctors. It is wrong to suggest that I have deposed in favour of the department to protect the doctors."
16.Thus, the deposition of DW1 shows that he has tried to contradict the observation of the Doctor in casualty who had the occasion to inspect the injury of the
- :: 46 :: -
plaintiff first time and has opined 'suspected gas gangrene', by saying simply that the said opinion has been given by a postgraduate student. DW1 has disputed the observation made by the Doctor in casualty on 11.5.2000 for the three reasons, (1) it was made by a postgraduate student, (2) it was made between 1-2 hours of injury, and (3) if gas gangrene had indeed been present at that time, it would have been very obvious and probably full blown by the time that the patient has come on the next date i.e. 12.5.2000 when the entire limb was examined again.
The DW1 has given no reasoning as to why the observation made by the postgraduate student was not correct. The DW1 has not explained as to what was done by Doctors in OPD to rebut and deny the observation of Doctor in casualty who has given his opinion as 'suspected gas gangrene'. The explanation which came forward in the cross examination of DW1
- :: 47 :: -
for not giving the treatment of suspected gas gangrene is that a large number of patients are attended for compound fracture in the OPD and for that reasons it was not possible to administer anti gas gangrene serum to all the compound fracture patients. It is further explained in cross examination of DW1 at page no. 10 that the injection was very costly, administration requires hospitalisation, the injection has its own side effects which can be serious and there is also a debate on the efficiency of the injection in preventing gas gangrene. From the deposition of DW1 in cross examination it becomes clear that as per DW1, the line of treatment for gas gangrene would start only when the gas has fully blown up and is diagnosed beyond doubt. These observations of DW1 are, however, contradicted by PW2 who is also equivalent competent Doctor and has supported his opinion by medical journals and literature on treatment of gas gangrene.
- :: 48 :: -
In the end of his cross examination the DW1 has finally concluded that no laboratory test was done on
11.5.2000 and 12.5.2000 to detect the gas gangrene upon the wound of the plaintiff because it was not needed. The DW1 further admitted that as per the records, the concerned Doctor has mentioned, it is a case of suspected gas gangrene.
17.Now, in these circumstances, this Court has to find out whether the material and evidence on record and after careful consideration of the evidence of the PW2 and the DW1 both Doctors, whether it was a case of carelessness and negligence on the part of the Doctors who attended the plaintiff in the OPD and fracture clinic between 11.5.2000 till the forearm of the plaintiff was amputated because of gas gangrene. The learned counsel for plaintiff in support of his arguments has referred and relied upon the case decided by Hon'ble
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National Consumer Disputes Redressal Commission, New Delhi titled as Nand Kishore Verma & others Vs. Batra Hospital & Medical Centre & Others cited as II (2007) CPJ 336 (NC). In the said case, the case titled as Jacob Mathew Vs. State of Punjab & Another cited as (2005) 6 SCC 1 was referred and relied. I have gone through the relevant case law which is discussed as under. In para no. 10 and 11 of Jacob Mathew's case, the Hon'ble Apex Court has discussed the definition of negligence as under: -
"10. The jurisprudential concept of negligence defies any precise definition. Eminent jurists and leading judgments have assigned various meanings to negligence. The concept as has been acceptable to Indian jurisprudential thought is well stated in the Law of Torts, Ratanlal & Dhirajlal (24th Edn., 2002, edited by Justice G.P. Singh). It is stated (at pp. 441-42): -
"Negligence is the breach of a duty caused by the omission
- :: 50 :: -
to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.
Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owes the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property. ... ... ... the definition involves three constituents of negligence: (1) A legal duty to exercise due care on the part of the party complained of towards the party complaining the former's conduct within the scope of the duty; (2) breach of the said duty: and (3) consequential damages. Cause of action for negligence arises only when damage occurs; for, damage is a necessary ingredient of this tort."
11. According to Charlesworth & Percy on Negligence (10th Edn., 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take
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care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. (para 1.01) The essential components of negligence, as recognised, are three: "duty", "breach" and "resulting damage", that is to say: -
(1) The existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant. (para 1.23) If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (para 1.24)"
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18.Lord Atkin in his speech in Andrews Vs. Director of Public Prosecutions cited as 1937 AC 576 : (1937) 2 All ER 552 (HL) stated as under: -
"Simple lack of care such as will constitute civil liability is not enough. For purposes of the criminal law there are degrees of negligence, and a very high degree of negligence is required to be proved before the felony is established."
Thus, a clear distinction exists between "simple lack of care" incurring civil liability and "very high degree of negligence"
which is required in criminal cases."
19.In Balchandra Waman Pathe Vs. State of Maharashtra cited as 1968 Mah LJ 423 (SC) : 1968 ACJ 38 : 1968 MPLJ 371 (SC) it has been held as under: -
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"While negligence is an omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do."
20.In the opinion of Lord Denning, as expressed in Hucks Vs. Cole cited as (1968) 118 New LJ 469 it has been been held as under: -
"A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
21.In Laxman Balkrishna Joshi Vs. Trimbak Bapu Godbole cited as (1969) 1 SCR 206 : AIR 1969 SC 128 it has been held as under: -
"A breach of any of those duties gives a right of action for negligence to the patient.
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The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires. The doctor no doubt has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency. In this case, the death of the patient was caused due to shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anesthesia to the patient. The doctor was held guilty of negligence and liability for damages in civil law. We hasten to add that criminal negligence or liability under criminal law was not an issue before the Court, as it did not arise and hence was not considered."
22.In case of Spring Meadows Hospital Vs. Harjol Ahluwalia cited as (1998) 4 SCC 39 it was a case of liability for negligence by a medical professional in civil law. The Hon'ble Apex Court referred the decision in Whitehouse Vs. Jordan cited as (1981) 1 AII ER 267 :
(1981) 1 WLR 246 (HL) wherein the following para has been cited with approval: -
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"The true position is that an error of judgment may, or may not, be negligent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that a man, acting with ordinary care, might have made, then it is not negligence."
23.The Hon'ble Apex Court in Jacob Mathew's case (supra) in para no. 48 was pleased to hold as under: -
"The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. ... ... ... Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution."
24.In para no. 53 in the above judgment, the Hon'ble Apex Court has held as under: -
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"It is a case of non-availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then, probably the hospital may be liable in civil law (or may not be - we express no opinion thereon) but the accused, appellant cannot be proceeded against under Section 304-A IPC on the parameters on the Bolam test."
25.The Hon'ble DB of High Court of Delhi in a case titled as Smt. Madhubala Vs. Government of NCT of Delhi & Others cited as 118 (2005) DLT 515 (DB) has held as under: -
"6. Negligence may be a question of fact or a mixed question of fact and law depending entirely upon the nature of the duty which the person charged with negligence has failed to comply with or perform in the particular situation of each case. (See Wharton's Law Lexicon 14th Edition). As we know, in the civil law, there are three degrees of negligence, (i) lata Culpa, gross neglect; (ii) levis Culpa, ordinary neglect; and (iii) Levissima Culpa, slight neglect. (Halifax CL 61). The onus of
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proving negligence rests on the plaintiff. Of course, there may be some cases of res ipsa loquitur, i.e. where the thing resulting from it speaks for itself."
26.Thus, in order to fasten the liability on the defendants in this case, the plaintiff is required to prove that the defendants have omitted to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. In other words A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
27.In the present case, the PW2 has deposed that the Doctors who attended the plaintiff after the suspicion raised by Doctors in casualty about the suspected gas gangrene has not acted with a reasonable care which
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an ordinary Doctor in the ordinary circumstances would have taken. It is further deposed that the required treatment in such cases of suspected gas gangrene was not given by the Doctors because they have plastered the wound of compound fracture against the medical practice in such cases. It is further deposed that they further has not considered it a case of serious nature as it required continuous monitoring by admission of the patient. Further, these Doctors did not pay heed to the continuous complaint of severe pain by the patient who visited the Hospital again and again complaining the same. Further it is proved that the Doctors who attended the patient i.e. the plaintiff in OPD as well as in fracture clinic has not monitored the pulse rate, blood pressure etc. and did not prescribe antibiotics, which in normal routine should have been done. Further it is proved that the Doctors who attended the plaintiff after the report of Doctor in
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casualty has ignored the suspicion raised by the Doctor in casualty with regard to the suspected gas gangrene without giving any reason. The deposition of DW1 and reasons disputing the report of Doctor in casualty is not believable. The PW2 who is a competent Doctor serving in the Government Hospital has successfully deposed that after the report of the Doctor in casualty, the preventing treatment should have been started as per the normal medical jurisprudential practice. It is, therefore, stands proved that the Doctors who attended the plaintiff in OIPD as well as in fracture clinic between 11.5.2000 to 13.5.2000 has not taken all due precautions and has not acted with due diligence which an ordinary Doctor in the given circumstances is supposed to do. In other words, all these Doctors i.e. the defendant no. 3 to 8 were found negligent and careless in not giving proper treatment to the plaintiff despite the detection of suspected gas gangrene on
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11.5.2000 till it reached to the stage of treatment by amputation on 13.5.2000. The plaintiff has, thus, succeeded in discharging the onus of issue no. 1 and the same is, accordingly, decided in favour of the plaintiff and against the defendants.
28.Issue No. 2 : Whether it was a case of "GAS GANGRENE" and imputation of left forearm was necessary as alleged in the written statement?
OPD.
The onus of this issue was upon the defendant. In para no. 5 of the written statement filed by the defendants it is stated that "Patient again visited the hospital on the morning of 13.5.2000 when the doctors seeing the condition of patient's limb which by then showed the signs of the disease "Gas Gangrene" admitted the patient and he was advised
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an operation to control the disease by way of immediate fasciotomy." In para no. 6, it is further deposed that "Soon after recognizing the symptoms of this conditions, the patient was given all possible treatment like antibiotics, fasciotomy, hyperbaric oxygen, which is available in a very few hospitals, AGGS, etc. His wound swab was taken for gram staining and bacterial identification. Only after confirmation of the disease by the laboratory test, that this is indeed a case of gas gangrene, to save the life of the patient, the limb was sacrificed after obtaining a mandatory written consent from the immediate relations, i.e. father." The averments in the written statement as well as in the deposition of DW1 suggest that as per defence version in a case of compound fracture, the Doctors can wait 2-3 days for incubation of bacteria of gas gangrene and the laboratory test can conducted after 2-3 days of the
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occurrence and when it is identified and confirmed that it is a case of gas gangrene, the necessary treatment is to be started. I fail to understand if this procedure is to be admitted as is suggested by the defendants and the DW1, what other alternative treatment is left except to sacrifice the limb by amputation? By no stretch of imagination any medical jurisprudence would concur to such conclusion and line of treatment despite the fact that at the very outset within one hour of injury, the Doctor in casualty has observed it a case of suspected gas gangrene. It is admitted case of both the parties that the amputation of the left forearm became necessary for saving the life of the plaintiff as it was a case of the gas gangrene. After deciding the issue no. 1 and the finding therein, the finding on issue no. 2 is left with limited relevance for deciding the controversy.
As per the case of the plaintiff, from the very beginning it was a case of suspected gas gangrene and the
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defendants have failed to take necessary preventive and curative treatment which has resulted in the loss and sacrifice of forearm of the plaintiff. The issue no. 2 is, accordingly, disposed of in above terms.
29.Issue No. 3 : Whether the plaintiff has suffered loses on account of negligence/careless/dereliction on duty of the defendant no. 1 to 7, if so, the computation of the amount in terms of money?
OPP.
The onus of this issue was upon the plaintiff. While deciding the issue no. 1, it has been held that the plaintiff has succeeded in proving that the defendants have acted negligently and carelessly in not giving proper treatment to the plaintiff. It has been further held that the defendants were liable for the tort of negligence because they have failed to observe the duty
- :: 64 :: -
which they owed towards the plaintiff due to relation of Doctor and Patient and because of non-observance of said duty by the defendants, the plaintiff has suffered loss of his limb. The plaintiff has, therefore, succeeded in proving that he has suffered loss of his limb on account of carelessness and negligence/dereliction in duty by defendants. The issue no. 3 is decided in above terms in favour of the plaintiff and against the defendants.30.Issue No. 4 & 5
Issue No. 4 : Whether the plaintiff is entitled to relief of the principal amount? OPP.
Issue No. 5 : Whether the plaintiff is entitled to interest, if so, the rate, period and amount thereof?
OPP.
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The plaintiff has claimed damages to the tune of Rs. 20 lakh for the loss of his forearm. As per disability certificate issued by Medical Superintendent, RML Hospital Ex PW1/8, the disability of the plaintiff is 70% and permanent and he is a orthopedic handicapped person. There is no doubt that because of this 70% permanent disability of the plaintiff, he is not able to live his ordinary life which he had lived, if he would not have suffered loss of his limb because of the negligent act of the defendants. Since, the said loss occurred at the very young age and the plaintiff has to live with said loss for whole life, no monitory damages would commensurate with loss suffered by the plaintiff. The ends of justice requires that the beleaguered feelings needs to be assuaged. In the given circumstances, to compensate the loss of the plaintiff, the defendants are held liable to pay damages to the tune of Rs. 10 lakh.
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The computation of the amount of compensation/ damages in terms of money has been done as per following criteria: -
1.The damages for the - Rs. 5 lakh.
physical loss.
2.The damages for the mental - Rs. 5 lakh. agony and torture.
31.The ends of justice further requires that the plaintiff be paid pendentelite and future interest @ 12% per annum from the date of institution of the suit till the realisation of the decretal amount. The issue no. 4 and 5 are decided, accordingly, in above terms.
32.Issue No. 6 : Relief.
In the light of my finding on the above issues, the suit
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of the plaintiff is decreed against the defendants for a sum of Rs. 10 lakh with pendentelite and future interest @ 12% per annum from the date of institution of the suit till its realisation. All the defendants are jointly and severally liable to make the payment of the decretal amount. The cost of the suit is also awarded in favour of the plaintiff and against the defendants.
The amount of the court fees after calculation shall be the first charge on the decretal amount as and when the same is paid by the defendants. The court fees shall be recoverable as per the provisions of Order 33 r 14 CPC. Decree sheet be drawn, accordingly. File be consigned to the record room after due compliance.
Announced in the open Court on 31.1.2008.
(RAJ KUMAR CHAUHAN) ADDITIONAL DISTRICT JUDGE, DELHI