State Consumer Disputes Redressal Commission
Swadesh Kumar Dwivedi vs Dr. B. B. Tripathi on 25 August, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 First Appeal No. A/533/2018 ( Date of Filing : 21 Mar 2018 ) (Arisen out of Order Dated 16/02/2018 in Case No. C/286/2014 of District Gorakhpur) 1. Swadesh Kumar Dwivedi R/O Swadesh Sadan Civil Lines -2 Dashrath Prasad Marg Gorakhpur ...........Appellant(s) Versus 1. Dr. B. B. Tripathi M.S. Ortho SAvitri Ortho Care Pvt Ltd Opposite Tarang Picture Hall Arya Nagar Gorakhpur ...........Respondent(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 25 Aug 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission U.P. Lucknow. Appeal no.533 of 2018 Swadesh Kumar Dewedi a/a 60 years, R/o Swadesh Sadan, Civil Lines-2, Dashrath Prasad Marg, Gorakhpur. ....Appellant. Versus Dr. B.B. Tripathi, M.S. Ortho, Savitri Ortho Care Pvt. Ltd. Opposite Tarang Picture Hall, Arya Nagar, Gorakhpur. National Insurance Company Ltd. through Senior Regional Manager, Regional Office, Bank Road, Gorakhpur..... Respondents. Present:- 1- Hon'ble Mr. Rajendra Singh,Presiding Member. 2- Hon'ble Mr.Vikas Saxena, Member. Sri Amit Arora, Advocate for the appellant. Sri Ambrish Kaushal, Advocate for the respondent no.1. Sri Raghvendra Pratap Singh, Advocate for the respondent no.2. Date : 28.09.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: This Appeal has been filed by the Appellant under section 15 of the Consumer Protection Act, 1986, against the judgment and order dated 16.2.2018 passed by Ld. District Consumer Forum, Gorakhpur, in Complaint case no.286 of 2014, Swadesh Kumar Dewedi vs. Dr. B.B. Tripathi & Anr.
The brief facts of the appeal are that, that the appellant named above craves indulgence of this Hon'ble Commission to set aside the judgment and order fated 16.2.2018 passed by the Ld. District Forum, Gorakhpur in complaint case no.286 of 2014 which is based on sheer blatant, non-application of mind and perversities giving rise to the filing of the present appeal on the following among other grounds.
The ld. District Forum, Gorakhpur had committed incurable patent illegality by not appreciating the material placed by the appellant before the Forum and ignoring the same passed the perverse judgment dated 16.2.2018 in favour of the respondent. The ld. District Forum had miserably failed to appreciate that the respondent no.1 on 16.9.2013 has given a wrong advice to the appellant after seeing the X-ray plate that the bone of the appellant is set now and there is no (2) need of the operation and the appellant need to go for traction and bed rest whereas the bone was not set actually and the said advice is a sheer piece of medical negligence on the part of the respondent tno.1 as at that time operation was actually required and plating was to be done on the broken area in order to set the bone.
The ld. District Forum, Gorakhpur was erred in law while deciding the matter in hand that on 7.10.2013 the respondent no.1 again gave the wrong advice that the bone has joined from the place, it was broken and now the appellant should lie down straight on the bed and visit after 25 days which was again a wrong advice given to the appellant due to the sheer negligence or the inappropriate knowledge of the treatment. The ld. Forum, Gorakhpur committed a manifest error of law while dismissing the complaint in sheer disregard to the mandate set-forth in the verdict of Jacob Mathews case wherein it is propounded that ever doctor is duty bound to exercise due diligence and reasonable care while treating the patients whereas in the present matter sheer negligence was shown and prolonged the case of the complainant to the extent that he had to undergo transplantation of the valve.
The ld. Forum, Gorakhpur has miserably failed in deciphering that from the day one i.e. 10.9.2013 the bone of the appellant/complainant was broken and till the last day of the treatment i.e. November, 2013 the bone of complainant was broken rather the bone was rotten at the place till November, 2013.
The ld. Forum, Gorakhpur has committed a patent error by not considering the fact that the respondent no.1 had admitted the allegations regarding the piece of advice and treatment given by respondent no.1 as alleged by the appellant in the complaint i.e. that the bone of the appellant has joined and the appellant should go for physiotherapy whereas the bone of the appellant was till date broken. The respondent no.1 nowhere has denied the allegations in the written statement filed by the respondent which in itself is the admission that the respondent was since the inception was giving the wrong advice to the appellant.
(3)The ld. Forum has ignored a crucial/glaring fact that every doctor treating the patient is supposed to show a degree of caution and due diligence while making a diagnosing about the disease and treatment of the same rather than treating the patient on his whims and fancy and that degree of caution and due diligence was missing since the very inception of the treatment making the appellant almost crippled. The ld. Forum had committed a perceptible illegality by ignoring the germane fact that the first and the only treatment which should have been given to the appellant was to make efforts of joining the broken femur neck which is quite evident from the bare perusal of the X-ray of the appellant but on the other hand the advise him of traction which had delayed the (incomplete) The ld. Forum, Gorakhpur has exceeded the jurisdiction vested in it by law while (....) because the ld. Forum has failed to appreciate that the respondent (incomplete) The ld. Forum, Gorakhpur has failed to ponder over the issue that the respondent had wasted well 3 months in giving the proper treatment to the appellant which has resulted in the mutilation/complete damage of the Hip Valve of the appellant. The ld. Forum had committed a patent illegality by not calling opinion of experts in the matter for the independent medical practitioners.
The ld. Forum, Gorakhpur had decided the complaint of the complainants on its whims and fancies and passed the impugned judgment dated 16.2.2018. The impugned judgment and orders passed by the ld. District Forum suffers from patent illegalities. The impugned judgment and orders passed by the ld. District Forum is perverse and unsustainable in the eyes of law and against the principles of natural justice and good conscience.
The ld. District Forum has decided the complaint of the complainant on its conjectures and surmises and passed the impugned judgment dated 16.2.2018. Therefore, it is most respectfully prayed that this Hon'ble Commission may kindly be pleased to set aside the judgment and order dated 16.2.2018 passed in the complaint no.286 of 2014 passed by the ld. District Forum Gorakhpur.
(4)We have heard the learned counsel for the appellant Mr. Amit Arora, ld. Counsel for the respondent no.1 Mr. Ambrish Kaushal and ld. Counsel for the respondent no.2 Mr. Raghvendra Pratap Singh. We have perused the pleadings evidence and documents available on record.
We have seen the judgment of the ld. District Consumer Forum. The complainant fell in the house due to which a fracture has been caused to his leg. He went to the hospital of the opposite party on 10.9.2013 and got him examined and X-ray was done. According to X-ray report his right femur neck was broken. The complainant was advised for one week rest. On 16.9.2013 when the complainant contacted the opposite party, the opposite party told him that the fractured bone has been settled and there is no need of any operation. He was advised to be on traction and for bed rest. The complainant again got himself examined by the opposite party on 7.10.2013. The opposite party told him that the bone has been fused and he was advised to lay on the bed straight and asked to come after 25 days. On 1.11.2013, the complainant went to the opposite party who removed the traction and advised physiotherapy. The complainant took the services of Physiotherapy but his pain increased. After that his family members took him the Dr. C.N. Diwedi who told that the broken bone has not been successfully fused and without operation this bone cannot be fused. Due to wrong treatment the wall of the hip dissolved and now it needs plate or artificial femur wall. Thereafter, he was admitted in Aryan Hospital on 20.11.2013 his hip bone was transplanted.
Before discussing further we have to see that what is femur fracture or hip bone fracture. Some articles present on different websites are important in this regard. It is also to be noted that whether traction is the ultimate cure of femur neck fracture.
FEMER NECK FRACTURE OR HIP BONE FRACTURE Neck of femur fractures (NOF), a.k.a. femoral neck fractures, are common injuries sustained by older patients who are both more likely to have unsteadiness of gait and reduced bone mineral density, (5) predisposing to fracture. Elderly osteoporotic women are at greatest risk.
Epidemiology The incidence of femoral neck fractures is increasing as the proportion of the elderly population in many countries increases 4. In patients aged between 65 and 99 years, femoral neck and intertrochanteric fractures occur with approximately the same frequency 7. Hip fractures can be divided into intracapsular and extracapsular fractures with 60% being intracapsular and of that 80% are displaced 20.
Pathology Classification Femoral neck fractures are a subset of proximal femoral fractures. The femoral neck is the weakest part of the femur.
Since disruption of blood supply to the femoral head is dependent on the type of fracture and causes significant morbidity, the diagnosis and classification of these fractures is important. There are three types:
subcapital: femoral head/neck junction transcervical: midportion of femoral neck basicervical: base of femoral neck Subcapital and transcervical fractures are considered intracapsular fractures. While there is disagreement in the literature as to whether basicervical fractures are truly intracapsular or extracapsular, they should usually be treated like extracapsular fractures 14.
Further, severity of a subcapital fracture is graded by the Garden classification of hip fractures.
Mechanism Most commonly 9:(6)
falls in the elderly significant trauma (e.g. motor vehicle collisions) in younger patients In elderly patients, the mechanism of injury varies from falls directly onto the hip to a twisting mechanism in which the patient's foot is planted and the body rotates. There is generally deficient elastic resistance in the fractured bone 8.
The mechanism in young patients is predominantly axial loading during high force trauma 9, with an abducted hip during injury causing a neck of femur fracture and an adducted hip causing a hip fracture-dislocation.
Radiographic features Plain radiograph (sensitivity 93-98%) is the first-line investigation for suspected NOF fractures. In patients with a suspected occult NOF fracture, MRI (sensitivity 99-100%) is recommended by many institutions as the second-line test if available within 24 hours, with CT or nuclear medicine bone scan third-line 17,18. However, a recent study reports that thin-slice MDCT is as sensitive as MRI 19.
Plain radiograph Shenton's line disruption: loss of contour between normally continuous line from medial edge of femoral neck and inferior edge of the superior pubic ramus lesser trochanter is more prominent due to external rotation of femur femur often positioned in flexion and external rotation (due to unopposed iliopsoas) asymmetry of lateral femoral neck/head sclerosis in fracture plane smudgy sclerosis from impaction (7) bone trabeculae angulated non-displaced fractures may be subtle on x-ray Report checklist AP pelvis and lateral hip should be viewed because pelvic fractures can mimic clinical features of hip fracture trace Shenton's line assess for symmetry, particularly note lesser trochanter (may indicate external rotation) bone trabeculae sclerosis smudge Treatment and prognosis Treatment of neck of femur fractures is important. Significant complications such as avascular necrosis and non-union are very common without surgical intervention. The treatment options include non-operative management, internal fixation or prosthetic replacement.
Internal fixation can be performed with multiple pins (cannulated screws), intramedullary hip screw (IHMS), crossed screw-nails or compression with a dynamic screw and plate 9. Replacing the femoral head is achieved with either hemiarthroplasty or total hip arthroplasty.
In patients receiving hemiarthroplasty, evidence shows that cemented hemiarthroplasty has fewer prosthesis-related complications than uncemented prostheses, despite similar rates of mortality 20.
The high morbidity and mortality associated with hip and pelvic fractures after trauma has been well documented. Prognosis is varied but is complicated by advanced age, as hip fractures increase the risk of death and major morbidity in the elderly 5,6,8.(8)
The risk of avascular necrosis (AVN) depends on the type of fracture. The Delbet classification correlates with the risk of AVN 12,13:
type 1 (transphyseal): ~90% risk of AVN type 2 (subcapital): ~50% risk of AVN type 3 (basicervical/transcervical): ~25% risk of AVN type 4 (intertrochanteric): ~10% risk of AVN As a general rule, internal fixation is recommended for young, otherwise, fit patients with small risk for AVN. While prosthetic replacement is reserved for fractures with a high risk of AVN and the elderly 10.(9) (10)
Femoral Neck Fractures Continuing Education Activity Hip fractures are common injuries. Femoral neck fractures are a specific type of intracapsular hip fracture. The femoral neck connects the femoral shaft with the femoral head. The hip joint is the articulation of the femoral head with the acetabulum. The junctional location makes the femoral neck prone to fracture. The blood supply of the femoral head runs along the femoral neck and is an essential consideration in displaced fractures and patients in the younger population. This activity reviews the etiology, presentation, evaluation, and management of femoral neck fractures and reviews the role of the interprofessional team in evaluating, diagnosing, and managing the condition.(11)
Objectives:
Review the mechanisms of injury leading to femoral neck fractures, and identify the at-risk patient populations.
Summarize the diagnostic approach for evaluation and assessment of a patient presenting with a potential femoral neck fracture, including any indicated imaging studies and potential differentials.
Outline the treatment options for the reduction of femoral neck fractures, depending on patient population and fracture severity and location.
Describe some interprofessional team strategies for improving communication to advance medical care and improve outcomes for femoral neck fractures.
Access free multiple choice questions on this topic.
Introduction Hip fractures are common injuries, especially seen in the elderly in the emergency setting. It is also seen in young patients who perform in athletics or high-energy trauma. Immediate diagnosis and management are required to prevent threatening joint complications.[1] In the United States, the economic burden of hip fractures is amongst the top 20 expensive diagnoses, with approximately 20 billion dollars spent on the management of this injury.[2][3][4] It is estimated there will be approximately 300,000 cases of hip fractures annually in the United States by the year 2030.[5] Femoral neck fractures are a specific type of intracapsular hip fracture. The femoral neck connects the femoral shaft with the femoral head. The hip joint is the articulation of the femoral head with the acetabulum. The junctional location makes the femoral neck prone to fracture. The blood supply of the femoral (12) head is an essential consideration in displaced fractures as it runs along the femoral neck.
Etiology Femoral neck fractures are associated with low energy falls in the elderly. In younger patients sustaining a femoral neck fracture, the cause is usually secondary to high-energy trauma such as a substantial height or motor vehicle accidents.[6][7] Risk factors for femoral neck fractures include female gender, decreased mobility, and low bone density.[8][9][8] Epidemiology There are approximately 1.6 million hip fractures annually. Seventy percent of all hip fractures occur in women. Hip fracture risk increases exponentially with age and is more common in white females.[7][10] Pathophysiology The chief source of vascular supply to the femoral head is the medial femoral circumflex artery, which runs under the quadratus femoris. Displaced fractures of the femoral neck put the blood supply at risk, usually tearing the ascending cervical branches that stem off the arterial ring supply formed by the circumflex arteries. This may compromise the healing ability of the fracture, inevitably causing non-union or osteonecrosis.[11] This is most important when considering the younger population that sustains this fracture, for which arthroplasty would be inappropriate.[12] In patients treated via open reduction internal fixation, avascular necrosis is the most common complication.[13] History and Physical In the majority of cases, the patient will have had recent trauma. In cases of dementia or cognitive impairment, the history may be scant without the report of any trauma. This is where (13) obtaining an account from the nursing home, or health aids is crucial. Question the nurse aids of any recent falls and change in cognition the past few days. The patient will complain of pain with a decreased range of motion of the hip. In non-displaced fractures, there may be no deformity. However, displaced fractures may present with a shortened and externally rotated lower limb.
The patient history varies depending on the mechanism of injury. The following should be obtained during the history and physical examination:
Low energy trauma - the mechanism is essential, and the events around the fall should be questioned to rule out any possible syncopal cause for fall.
High energy trauma - Follow the ATLS (Adult Trauma Life Support) protocol when indicated. Assess for any non-orthopedic emergent injuries first and then ipsilateral injuries, including femur fracture or knee injury. For high vertical falls, inspect the ankle for any abnormalities.
Important pertinent medical history: Baseline function and activity level, use of ambulatory aids before the injury, blood thinners, history of cancer, pulmonary embolism, and deep venous thrombosis.
Evaluation The provider should perform a complete neurovascular examination of the affected extremity. The following imagining should be ordered when indicated:
Plain films: radiographs-anterior-posterior (AP) pelvis, AP and lateral hip, AP and lateral femur, AP and lateral knee.
Computed tomography (CT) scan - helps better classify the fracture pattern or delineate a subtle fracture line. It is (14) part of the trauma assessment and can be extended to include the femoral neck.
Magnetic resonance imaging (MRI) - not generally used in the acute setting but may be used to evaluate for femoral neck stress fractures.
Medical assessment should include basic labs (complete blood count, basal metabolic panel, and prothrombin/international normalized ratio, if applicable) as well as a chest radiograph and electrocardiogram (EKG). Elderly patients with known or suspected cardiac disease may benefit from preoperatively cardiology evaluation. Preoperative medical optimization is vital in the geriatric population.
There are many classifications for femoral neck fracture, including the most common clinical classifications by Garden and Pauwel, which includes the following[12][14] The Garden Classification Type I: Incomplete fracture - valgus impacted-non displaced Type II: Complete fracture - nondisplaced Type III: Complete fracture - partial displaced Type IV: Complete fracture - fully displaced The Garden classification is the most used system used to communicate the type of fracture. For treatment, it is often simplified into nondisplaced (Type 1 and Type 2) versus displaced (Type 3 and Type 4).[14] Pauwel Classification The Pauwel classification also includes the inclination angle of the fracture line relative to the horizontal. Higher angles and more vertical fractures exhibit greater instability due to higher (15) shear force. These fractures also have a higher risk of osteonecrosis postoperatively.
Type I less than 30 degrees Type II 30 to 50 degrees Type III greater than 50 degrees Treatment / Management Non-operative
Non-operative management for these fractures is rarely the treatment course. It is only potentially useful for non-ambulatory, comfort care, or extremely high-risk patients.
Operative Young patients with femoral neck fractures will require treatment with emergent open reduction internal fixation.[6][15] Vertically oriented fractures such a Pauwel III type fractures are more common in younger and high-energy trauma patients. A sliding hip screw is biomechanically more stable for these fracture patterns. With displaced fractures in younger patients, the goal is to achieve anatomic reduction through emergent open-reduction internal fixation.[15] Non-displaced fractures are treated typically with percutaneous cannulated screws or a sliding hip screw. However, there a higher rate of avascular necrosis (AVN) with the use of a sliding hip screw (9%) compared to cannulated screws (4%).[16] With displaced fractures of the femoral neck in elderly patients, the treatment depends on the patient's baseline activity level and age. Less active individuals may receive a hemiarthroplasty.[17] More active individuals are treated with total hip arthroplasty. Total hip arthroplasty is a more resilient procedure, but it also carries an increased risk of dislocation when compared to a hemiarthroplasty.[18][19][15] (16) Summary of Operative Methods Young Patients (less than 60) Open-reduction internal fixation Elderly Patients Non-displaced Percutaneous cannulated screws or sliding hip screw Displaced Hemiarthroplasty-less active patients Total hip arthroplasty-active patients Differential Diagnosis Hip dislocation - displacement of the femoral head from the acetabulum Intertrochanteric fracture - the fracture line is more distal and lies between the greater and lesser trochanter Subtrochanteric fracture - the fracture line is within 5 cm distal to the lesser trochanter Femur fracture - the fracture line is within the femoral diaphysis Osteoarthritis - pain that is more chronic. Usually, patients complain of groin pain. Pain that worsens with activity or stairs Prognosis After femoral neck fracture, there is a 6% in-house mortality rate. There is a 1-year mortality rate between 20-30%, with the highest risk within the first six months.[2][20] Overall with hip fractures, 51% will resume independent ambulation while 22% will remain non-ambulatory.[21] (17) Complications Avascular necrosis increased risk factor with increased initial displacement and failure to obtain an anatomical reduction[13] Nonunion Dislocation increased with total hip arthroplasty surgery Postoperative and Rehabilitation Care Patients treated with a total hip arthroplasty or hemiarthroplasty should be weight-bearing as tolerated postoperatively.[22] They should observe hip precautions depending on the surgical approach used for the procedures. Deep venous thrombosis prophylaxis should be started during the perioperative period and continued for 4 to 6 weeks postoperatively. Physical therapy should begin immediately after surgery.
Deterrence and Patient Education Preoperatively, patients should be educated on the limitations on hip movements they may have due to the prosthesis. In addition, emphasis should be placed on proper activities of daily living such as sitting on the toilet, climbing stairs, and sitting and standing from a seated position after surgery.
Pearls and Other Issues Young patients with femoral neck fractures should be treated emergently for stabilization via open reduction internal fixation after completion of imaging and ATLS protocol as needed. With more vertically oriented fractures such a Pauwel III, a sliding hip screw is biomechanically stable.
Elderly patients should be seen and evaluated by medical services and optimized as needed.(18)
Displacement and baseline activity dictate the treatment plan.
A non-displaced fracture may have surgical treatment with screws in situ.
A displaced fracture may undergo a total hip arthroplasty in active individuals or a hemiarthroplasty in less active individuals.
Enhancing Healthcare Team Outcomes Most patients with a femoral neck fracture will present to the emergency department. Obtain the proper injury radiograph films and history from the patient. With the identification of a femoral neck injury, the patient should immediately become non-weight bearing. From a triage standpoint, the younger patients that benefit from joint sparing fixation should promptly obtain a referral to orthopedics.
For elderly patients, it is vital to identify medical comorbidities. These patients should be medically optimized before operative treatment. Especially in females, it is often painful to urinate, so the placement of a Foley catheter for comfort within the emergency department may be necessary and discontinued postoperatively with ambulation. In the orthopedic unit, it is essential to note the operative approach used because it dictates the post-operative precautions the patient should maintain. For example, for a posterior approach, the patient typically has an abduction pillow to sleep with at night. Posterior precautions also include not crossing the legs, leaning forward while seated, and letting the toes point inward. These precautions help prevent dislocation. Physical therapy and mobilization postoperatively are essential to help patients return to function.
Patients that suffer a femoral neck fracture can benefit from preoperative evaluation and postoperative management of their (19) comorbidities. This interprofessional care team may include orthopedics, geriatrics, internal medicine, trauma surgery, anesthesia, cardiology, operating room and orthopedic nurses, physical therapists, and any other subspecialty that may help manage the patient's comorbidities.
Abstract Background: Pre-operative traction following an acute hip fracture remains standard practice in some hospitals.
Objectives: To evaluate the effects of traction applied to the injured limb prior to surgery for a fractured hip. Different methods of applying traction (skin or skeletal) were considered.
Search strategy: We searched the Cochrane Musculoskeletal Injuries Group trials register up to September 1999, MEDLINE (1966 to October 2000), CINAHL (1982 to August 2000), EMBASE (1980 to August 2000), CENTRAL (Issue 4, 2000 of The Cochrane Library), the National Research Register (Issue 3, 2000) and bibliographies of trial reports. Date of the most recent search: October 2000.
Selection criteria: All randomised or quasi-randomised trials comparing either skin or skeletal traction with no traction, or skin with skeletal traction for patients with an acute hip fracture prior to surgery.
Data collection and analysis: Both reviewers independently assessed trial quality, using a nine item scale, and extracted data. Additional information was sought from all trialists. Wherever appropriate and possible, the data are presented graphically.
Main results: Six randomised trials, mainly of moderate quality, involving a total of 938 predominantly elderly patients, were identified and included in the review. This review update includes a newly identified trial. The inclusion of this trial (20) resulted in no important change in the results or conclusions. Five trials compared traction with no traction. The new study found a statistically significant reduction in rest pain in the traction group but did not indicate if this was clinically significant; there was no difference in analgesic use. The other four trials found no evidence of benefit from traction, either in the relief of pain, ease of fracture reduction or quality of fracture reduction at time of surgery. One of these trials included both skin and skeletal traction groups. This trial and one other which compared skeletal traction with skin traction found no important differences between these two methods, although the initial application of skeletal traction was noted as being more painful and most costly.
Reviewer's conclusions: From the evidence available, the routine use of traction (either skin or skeletal) prior to surgery for a hip fracture does not appear to have any benefit. Where a policy of general or selective application of traction exists, the choice of method must remain a decision based on evaluation of the individual patient. Further, high quality trials would be required to confirm or refute the absence of benefits of traction.
Traction is a technique for realigning a broken bone or dislocated part of the body using weights, pulleys, and ropes to gently apply pressure and pull the bone or injured body part back into position. After a fracture, traction can restore the position of a bone during the early stage of healing or temporarily ease the pain while you are waiting for further corrective surgery. There are two main types of traction: skeletal traction and skin traction. A third kind, cervical traction, is used to help stabilize fractures in the neck.(21)
Purpose of Traction The purpose of traction is to stabilize a fracture or injury and restore tension to the surrounding tissues, muscles, and tendons. Traction can:
Stabilize and realign a broken bone or dislocated part of the body (such as the shoulder) Help regain the normal position of the bone that's been fractured Stretch the neck to reduce pressure on the spine by realigning the vertebrae Temporarily reduce pain prior to surgery Lessen or eliminate muscle spasms and constricted joint, muscles, and tendons Relieve pressure on nerves, especially spinal nerves Treat bone deformities The kind of traction used will depend on the location and severity of the broken bone or injury and the amount of force needed.(22)
Skeletal Traction Skeletal traction is used for fractures of the femur (thighbone), pelvis, hip, and certain upper arm fractures. It involves inserting a pin or wire directly into the bone, then attaching weights through pulleys or ropes to it that control the amount of pressure applied. Skeletal traction is used for fractures that require a high amount of force applied directly to the bone, as it allows more weight to be added with less risk of damaging the surrounding soft tissues. If you need skeletal traction, it will be done while an anesthetic so you don't experience too much pain.
Skin Traction Skin traction is less invasive than skeletal traction and uses splints, bandages, and adhesive tapes positioned on the limb near the fracture and is applied directly to the skin. Weights and pulleys are attached, and pressure is applied. When a bone breaks, the muscles and tendons can pull the extremity into a shortened or bent position. The traction can hold the fractured bone or dislocated joint in place. This can cause painful movement at the fracture site and muscle cramping. Buck's traction is a type of skin traction that is widely used for femoral, hip, and acetabular fractures, which are fractures in the socket portion of the "ball-and-socket" hip joint.
Cervical Traction Cervical traction is used when neck vertebrae are fractured. In this kind of traction, a device circles the head and attaches to a harness that's worn like a vest around the torso. The resulting stretch to the neck reduces pressure on the spine by pulling and aligning the vertebrae.
Limitations of Traction (23) Although traction was widely used for more than a century, in recent years it has been eclipsed by more state-of-the-art surgical techniques for correcting broken bones. Today, traction is used primarily as a temporary measure until surgery is performed.
Risks and Contraindications There are no long-term risks associated with traction. But some people may experience muscle spasms or pain in the treated area.
Risks Cervical traction is used when neck vertebrae are fractured. In this kind of traction, a device circles the head and attaches to a harness that's worn like a vest around the torso. The resulting stretch to the neck reduces pressure on the spine by pulling and aligning the vertebrae. The potential risks associated with traction include:
A negative reaction to the anesthesia Excessive bleeding from the site of a pin or screw in skeletal traction An infection at the point where the pin or screw has been inserted Nerve or vascular injury, in some instances due to extreme swelling Damage to surrounding tissue or skin in cases of skin fracture Contraindications Elderly people are usually not good candidates for skin traction because their skin is fragile and may be injured from the traction. Traction may also be contraindicated if you have:(24)
Osteoporosis Rheumatoid arthritis Infection Pregnancy Respiratory or circulatory problems Claustrophobia Cardiovascular disease Joint problems These should all be discussed with your healthcare provider if you are considering traction.
Before Traction Both skin and skeletal traction require X rays prior to application. These may be repeated over the course of treatment to ensure that the bone alignment remains correct.
If you need traction, your healthcare provider will determine:
Type of traction Amount of weight to be applied Timing of neurovascular checks if more frequent than every four hours Care regimen for inserted pins, wires, or screws used in skeletal traction The site and care of straps, harnesses and halters used in skin traction The inclusion of any other physical restraints, straps or appliances (such as a mouth guard) Length of traction Timing The length of time you will be in traction depends on the location, type, and severity of your broken bone or injury. Traction time can vary from 24 hours to six weeks, or more. If (25) you are waiting for corrective surgery, skin traction may be short-term to immobilize the fracture until your healthcare provider can operate.
Location Traction is usually done in a hospital.
During Traction The prolonged immobility that you will experience in traction carries with it a number of potential issues including:
Bedsores Possible respiratory problems Urinary issues Circulatory problems To maintain movement of your muscles and joints, your healthcare provider will most likely prescribe a physical therapy program. The equipment will be checked regularly to ensure it's positioned properly and that the force is correctly calibrated.
If you have skeletal traction, your healthcare provider will periodically check which may be a sign that foreign material has penetrated the skin near the screw or pin.
Though you will be largely immobile during traction, some of the activities and movements you can generally participate in are:
Sitting up in bed Quiet activities such as crafts, board games, and television watching Moving enough to be bathed and have your hygiene needs addressed Follow-Up (26) The first few days after being in traction may be physically and emotionally challenging. Your muscles are probably weak from spending a lot of time in bed. Moving around may be painful.
To address these issues, your healthcare provider may recommend physical therapy as a follow-up to traction. This will help you regain your strength and movement after having spent so much time without movement of parts of your body. A physical therapist can also show you how to manage any discomfort, weakness, or paralysis you may have experienced because of your fracture or injury. You may also have occupational therapy to help regain your strength and to relearn skills that may have been affected or impaired by your injury.
It's important to stick with any therapies your healthcare provider recommends in order to maximize your chance for a full recovery.
A Word From Verywell Traction can be a very challenging treatment--physically, emotionally, and psychologically because you are severely limited in movement and so undoubtedly feeling quite vulnerable. This may be compounded by the pain that you have to deal with associated with a bone fracture or dislocation of some part of your body. Your healthcare provider can play a big role in easing your anxiety by fully explaining the procedure, including what you can expect and how long the traction will be necessary. Communication with the health professionals who care for you during this difficult time can go a long way to assuage your anxiety and help you get through the experience of having traction.
In this case it is not clear that what type of fracture was listed, how much weight has been prescribed and duration of the traction. Whether traction fuses any bone is not clear. Traction (27) is a pre-process of operation. It is not the ultimate cure of femur neck fracture.
In the present case the patient was put on traction and traction is a primary stage before surgery. What type of traction was given to patient is not clear? We have seen the objection of respondent no 1 Dr BB Tripathi . Respondent has stated that he is MBBS and MS in orthopaedic surgery and he was in the government service since it 2006 and after resigning from government service he started private practice. The complainant first contacted him on 10.09.2013 with complaint of falling in the house. The appellant was subjected to x-ray which showed that the appellant had suffered 'non-Displaced Femur Fracture' and it has been treated with conservative management by means of putting the patient on traction along with complete bed rest. The appellant was also advised to get himself admitted in the care of the respondent but the appellant refused admission and preferred stay. The respondent further states that the important point is due to this management of the appellant bone were joining also which is clearly established by the prescription of Dr C N Dwivedi . He further stated that at home traction as well as bed rest was how much correct is not known. It means that the respondent had no knowledge about the type of traction and the procedure adopted by the appellant. Now the question arises whether this traditional method of traction was terrible for the patient or not. The respondent did not file any x-ray report before traction, and after traction. One x-ray report dated 15.11.13 states that "fracture of the femur on right side with collection/haematoma in surrounding soft tissues". The report also says that fracture of the of femur is seen on right side . How the he fractures are fixed? The following article will throw some light on this procedure which is related to Johns Hopkins medicine.(28)
Fixing Hip Fractures by Simon Mears, M.D. Introduction Methods of Hip Fracture Confirmation Classification of Hip Fractures Femoral Neck Fractures Intertrochanteric Fractures Subtrochanteric Fractures Summary References Introduction Hip fractures are a common injury in the United States; approximately 280,000 occurred in 1998. The number of annual hip fractures has been projected to surpass 500,000 annually by the year 2040. The fracture of a hip can lead to morbidity, a change in living arrangements, or death. One-year mortality rates of 12% to 36% have been reported. Approximately 22% of patients require an increased level of care 1 year after hip fracture. Consequently, hip fractures are feared by the elderly.
Osteoporosis is characterized by a brittle skeleton resulting from decreased bone mass.(29)
The predominant mechanism of hip fracture in the elderly population is a fall from a standing position People with osteoporosis often have other comorbidities that lead to an increased rate of falling. The elderly are also more likely than the general population to experience the type of fall that results in a hip fracture. People with a slower gait have less forward momentum. Thus, when these people fall, they tend to buckle and fall to the side, making a fracture is more likely. The decrease in bone mass in the elderly is caused by a number of factors, including: reduced biosynthetic and replicative potential of osteoblasts, increased osteoclast activity, reduced physical activity (a stimulus for bone remodeling), genetic predisposition, decreased calcium intake, and hormonal influences. The net result is that bone resorption outpaces bone building. Postmenopausal women are especially at risk because of estrogen deficiency. Women can lose as much as 35% of their cortical bone and 50% of their trabecular bone in the 30 to 40 years after menopause.
To maintain strength, cortical bone increases in diameter, but (30) the thickness of the cortex itself decreases.
A larger diameter increases the strength of a bone but makes the bone vulnerable to rotational and bending forces. Loss of trabecular bone, which arises normally along lines of stress, also decreases the strength of the bone. Certain people are susceptible to particular patterns of injury. Of people who sustain a second, contralateral hip fracture, 90% experience the same pattern of injury. This finding indicates that the microtrabecular architecture must be important.
Methods of Hip Fracture Confirmation In the elderly, hip pain is usually indicative of a fracture. Pain resulting from a fracture usually presents as onset of groin or upper thigh pain. Depending on the severity of the injury, the patient may or may not be able to walk. Regardless, one must rule out a hip fracture, a pelvis fracture, a spine injury, spinal stenosis, trochanteric bursitis, muscle tears, and knee injuries. The anteroposterior (AP) pelvis view allows the affected and contralateral hips to be compared. The view of the unaffected hip can be used for preoperative planning. A cross-table lateral radiograph should also be obtained by flexing the unaffected hip and knee and pointing the x-ray beam at the groin of the affected side. This view places the beam at a right angle to the femoral neck without manipulation of the affected side and (31) reveals any posterior comminution of the femur.
An AP radiograph should be obtained of the affected hip with the leg in internal rotation (see below). In this view, the lesser trochanter should be only partially visible. The internal rotation view will position the entire neck to best visualize fracture lines.
Because plain radiographs may appear normal or inconclusive, other imaging studies must be considered. Magnetic resonance imaging (MRI) scans are the most sensitive for the evaluation of fractures, particularly occult or nondisplaced fractures. MRI scans can be used immediately after injury and can reveal soft-tissue pathology, such as muscle strains, greater trochanteric bursitis, and pelvic fractures.(32)
Fracture lines immediately after injury.
Edema in the soft tissues Radionuclide bone scans that may be used 48 to 72 hours after the injury, are sensitive for metastatic disease. Bones scans are valuable for patients who cannot get an MRI scan.(33)
CT scans reveal fractures only when they are displaced. CT scans are useful for detecting fracture nonunion in the presence of hardware.
Classification of Hip Fractures There are three broad categories of hip fractures based on the location of the fracture: femoral neck fractures, intertrochanteric fractures, and subtrochanteric fractures.
Femoral Neck Fractures The femoral neck is the most common location for a hip fracture, accounting for 45% to 53% of hip fractures. Per 100,000 person years, approximately 27.7 femoral neck (34) fractures occur in men and 63.3 occur in women. The femoral neck is the region of the femur bounded by the femoral head proximally and the greater and lesser trochanters distally (shown below). A femoral neck fracture is intracapsular, that is within the hip joint and beneath the fibrous joint capsule.
Although other, more detailed classification systems exist, in general fractures are classified as stable and unstable. Each category has different operative management options.
Treatment of Stable Fractures Stable fractures are nondisplaced, exhibiting no deformity, or impacted in a valgus positions. Stable fractures may not be detectable on plain radiographs, and MRI scanning may be required.(35)
Because nonoperative management results in a secondary displacement rate of 40%, stable femoral neck fractures are generally best treated with surgical stabilization and immediate mobilization. Treatment is by operative pinning with three parallel cannulated screws placed adjacent to the femoral neck cortex.(36)
Treatment of Unstable Fractures Unstable femoral neck fractures are displaced and can be seen on plain radiographs.
On physical examination, the leg of the affected side is externally rotated and shortened; the degree of rotation and shortening varies with the degree of displacement. Displaced fractures in young patients are usually treated with pinning. Pining is chosen because the risks of arthroplasty, including prosthetic wear and loosening, are high for young patients, and (37) their rate of healing is high due to the absence of osteoporosis. As age and osteoporosis increase, the rate of failure (nonunion, secondary displacement, avascular necrosis) increases.
Hemi- or total joint arthroplasty is associated with a lower rate of repeat surgery than internal fixation and is often the better option for older patients. Younger patients may opt for screw fixation and hip salvage. In hemiarthroplasty, the acetabular cartilage is left intact and the implant articulates with the acetabulum.
Hemiarthroplasty requires less surgery than a total joint replacement because the acetabulum is not resurfaced. There is a smaller risk of dislocation with hemiarthoplasty because it uses a much bigger head size than total hip arthroplasty. In more active patients, hemiarthroplasty also has a risk of acetabular cartilage wear and revision to total hip arthroplasty.
Femoral implants can be cemented or cementless, and there are many designs of each type. Implant fixation can be achieved by the injection of bone cement around the prosthesis or by bony ingrowth into the prosthesis. A bipolar implant has two heads so that motion can occur between one head and the acetabular cartilage and between the two heads.(38)
In theory, this arrangement helps to reduce acetabular wear and provide increased motion. A unipolar implant has only one large head that articulates with the acetabular cartilage.
There appears to be no clinical difference between the outcomes of patients with bipolar or unipolar implants in terms of acetabular wear and hip motion. Compared with unipolar implants, bipolar implants are more expensive and have an additional interface for prosthetic wear. Thus, there appears to be no compelling reason to recommend the more expensive bipolar implant over the unipolar for the elderly patient with a hip fracture. If the stem is not well fixed in the proximal femur, either type will fail quickly.
Total joint replacement typically is performed on an active patient or one with preexisting arthritis. During a total joint replacement, the acetabulum is resurfaced and a metal cup with a polyethylene liner is fixed inside. Articulation at the hip takes place between the implant's head and the polyethylene liner.
The decision to treat femoral neck fractures with pinning or with (39) arthroplasty is controversial. The advantages of pinning include less invasive surgery, less blood loss, and less postoperative morbidity. However, treatment by pinning carries a higher risk of more surgery in the future. As implied, arthroplasty results in more acute postoperative morbidity, but it offers fewer reoperations for nonunion, hardware failure, and osteonecrosis.
My protocol divides patients into three categories: patients with nondisplaced fractures, "low" activity patients with displaced fractures, and "high" activity patients with displaced fractures. Nondisplaced fractures are treated with pinning. Displaced fractures in inactive patients are treated with unipolar hemiarthroplasty. Displaced fractures in highly active patients are treated with total hip replacement.
Treatment Failures The failures of screw treatment are nonunion and late avascular necrosis. Nonunion results primarily from a failure to achieve adequate mechanical stabilization of the fracture. If the bone does not heal, the screws will slide and backout as the fracture collapses.
Nonunion typically presents with worsening groin or buttock pain. Late avascular necrosis results from insult to the blood vessels that supply the femoral neck and head. Radiographic monitoring up to 3 years should detect most cases of avascular (40) necrosis. The treatment for avascular necrosis or nonunion is hip replacement.
Failure of a hemiarthroplasty results in pain and acetabular erosion. Other complications include dislocation, fracture, and infection. The treatment for a failed hemiarthroplasty is conversion to a total hip replacement.
The failures of a total hip replacement are similar to those of a hemiarthroplasty: loosening, implant wear, infection, fracture, and dislocation. Treatment for a failed total hip replacement is a revision arthroplasty.
Intertrochanteric Fractures Intertrochanteric fractures are breaks of the femur between the greater and the lesser trochanters. They are extracapsular fractures that is, outside the hip joint's fibrous capsule.(41)
The epidemiology of intertrochanteric fractures is similar to that of femoral neck fractures. Per 100,000 person years, intertrochanteric breaks occur in 34 men and 63 women. Intertrochanteric fractures account for approximately 38% to 50% of all hip fractures.
Many systems of classification, such as the Evans system, have been used to describe intertrochanteric hip fractures. However, most systems lack reliability and, in general, intertrochanteric fractures can be divided into two categories: stable and unstable. Stable fractures are those in which the femur is broken into two or three parts. Unstable fractures are those in which the femur is broken into four parts or the fracture is of the reverse oblique pattern. Reverse oblique fractures are unstable because of the femur's tendency to displace medially. This classification method aids in determining what method will be used for fixation.
Two-part fractures have one fracture line through the intertrochanteric area.(42)
While assessing the stability of a fracture, the most important points to consider are the bone of the lateral buttress and greater trochanter and the bone on the medial side of the proximal femur called the calcar.
Treatment of Stable Fractures If the fracture is stable, treatment is with a sliding hip screw coupled to a side plate that is screwed onto the femoral shaft. (shown below) The screw provides proximal fragment fixation. It is set inside a telescoping barrel that allows impaction of the bone, which promotes fracture union. The lateral buttress must be intact so that the screw will not stop sliding.(43)
A four-part fracture has several fracture lines. The fractured bone pieces include: 1) the femoral head, 2) the lesser trochanter, 3) the greater trochanter, and 4) the remaining femur. Fractures with multiple pieces and fracture lines are termed "comminuted". The more pieces, the less stable is the fracture pattern. Comminution may make fixation with a sliding hip screw and side plate more likely to fail.
Treatment of Unstable Fractures Approximately 5% of fractures are extremely unstable, and the direction of the fracture is parallel to the femoral neck. This fracture type is called the reverse oblique pattern. A high rate of failure occurs if the fracture is treated with a sliding hip screw and a side plate. Because of the angle of the fracture, there is no bone laterally to stop the screw from sliding.(44)
For unstable intertrochanteric fractures, including those of the reverse oblique pattern and those with subtrochanteric extension, an intramedullary hip screw is indicated. This device combines a sliding hip screw with an intramedullary nail. There are many proprietary varieties, including the Gamma Nail (Stryker, Mahwah, NJ), the Trigen Trochanteric Entry Nail, (TAN nail, Smith and Nephew, Memphis TN) , and the Proximal Femoral Nail (Synthes, West Chester, PA). Intramedullary hip screws can be placed through small incisions, and blood loss may be less than with a hip screw and side plate. The nail acts as a metal buttress to prevent sliding and provides better fixation in unstable fracture patterns. No differences have been found between the two devices in stable fractures.
With a short intramedullary hip screw, the nail does not extend down the full shaft of the femur. Cross-locking of the nail is through a jig, which prevents rotation of the nail within the femur. Short intramedullary hip screws can create a stress riser in the bone at the distal screw.(45)
With a long intramedullary hip screw, cross locking cannot be done with a jig and must be done freehand under fluoroscopy. Therefore, cross-locking is more difficult. The nail extends throughout the shaft, protecting the rest of the bone from future fracture.(46)
The hip screw should be placed centrally within the femoral head in the strong subcortical bone. Evaluation of hip screw placement is made by determining the tip-apex distance under fluoroscopy. The tip-apex distance is the sum of the distances from the tip of the hip screw to the apex of the femoral head as measured on AP and lateral radiographs Baumgaertner et al. showed that no fracture had loss of fixation secondary to screw cut-out when the tip-apex distance was less than 24 mm. When the tip-apex distance was greater than 45 mm, the screw cut-out rate increased to 60%.
Failure mechanisms of a hip screw include nonunion, screw cut-out, nail breakage, malunion, and limp. Although sliding of the hip screw allows for bone compression and hopeful healing, it makes the limb shorten and causes abduction weakness. Most complications are treated with total hip arthroplasty.
Subtrochanteric Fractures Subtrochanteric fractures are located between the lesser trochanter and the femoral isthmus that is, in the proximal part of the femoral shaft.(47)
They are less common than femoral neck and intertrochanteric fractures, accounting for approximately 5% to 15 % of hip fractures. Subtrochanteric fractures are less stable than the other two types of hip fractures and, consequently, more difficult to fix.
Treatment A subtrochanteric fracture is treated with an intramedullary hip screw.
No lateral buttress exists in a subtrochanteric fracture and, therefore, sliding hip screws with side plates provide poor fixation. After surgery for a hip fracture, weightbearing should be allowed as tolerated. It has been shown that patients with less stable fracture patterns protect themselves by self-restricting (48) weightbearing and movement.
Summary In summary, the type of fracture determines the type of surgery. Patients with femoral neck fractures are treated with pinning or hip arthoplasty, depending on the age of the patient and the presence and degree of displacement. Patients with intertrochanteric fractures are treated with a sliding hip screw or an intramedullary hip screw, depending on the stability and location of the fracture.
References • Apple DF Jr, Hayes WC, editors. Prevention of Falls and Hip Fractures in the Elderly. Rosemont (IL): American Academy of Orthopedic Surgeons; 1993.
• Baumgaertner MR, Curtin SL, Lindskog DM, and Keggi JM. The value of the tip-apex distance in predicting failure of fixation of peritrochanteric fractures of the hip. J Bone Joint Surg 1995;77A(7):1058-1064.
• Cummings SR, Rubin SM, Black D. The future of hip fractures in the United States. Numbers, costs, and potential effects of postmenopausal estrogen. Clin OrthopRelat Res 1990;252:163-166.
• Endo Y, Aharonoff GB, Zuckerman JD, Egol KA, Koval KJ. Gender differences in patients with hip fracture: a greater risk of morbidity and mortality in men. J Orthop Trauma 2005 Jan;19(1):29-35.
• Koval KJ, Sala DA, Kummer FJ, Zuckerman JD. Postoperative weight-bearing after a fracture of the femoral neck or an intertrochanteric fracture. J Bone Joint Surg 1998; 80A(3):352-356.
• Koval KJ, Zuckerman JD. Hip fractures. I: Overview and evaluation and treatment of femoral-neck fractures. J Am AcadOrthop Surg 1994;2(3):141-149.
• Lofman O, Berglund K, Larsson L, Toss G. Changes in hip fracture epidemiology: redistribution between ages, genders (49) and fracture types. Osteoporos Int 2002;13(1):18-25.
• Richmond J, Aharonoff GB, Zuckerman JD, Koval KJ. Mortality risk after hip fracture. J Orthop Trauma 2003;17(1):53-56.
• Schroder HM, Petersen KK, Erlandsen M. Occurrence and incidence of the second hip fracture. Clin OrthopRelat Res 1993;289:166-169.
Dr BB Tripathi has given a certificate in Sept 2013 that "certified that Sri SK Dwivedi, 57 years, R/O Civil Lines and working as CLA in NE Railway is under my treatment from 10.09.13 . His right femur bone is fractured and is advised for bedrest on traction till recovery. Further advice" in this certificate nowhere it has been said that how long the traction will go on because it is written that traction will continue to recovery but no date of next checkup has been given to the appellant. There is no report as to how many weeks the patient was on traction and what was the result of traction because there is no x-ray plate or x-ray report or any prescription by Dr BB Tripathi. The x-ray of November 3, 2013 shows fracture of the femur on the right side. It shows that traction did not fuse the femur neck bone fracture. When you have assured someone and he showed his faith in you and you being a doctor should do accordingly. The doctor may or may not be negligence but it depends on the course of action adopted by him.
First we start with the oath taken be a doctor before entering the nobel profession of the Medical World. As per guidelines of MCI, Every member should get it framed in his or her office it should never be violated in its letter and spirit.
"I solemnly pledge myself to consecrate my life to service of humanity.
Even under threat, I will not use my medical knowledge contrary to the laws of Humanity.
I will maintain the utmost respect for human life from the time of conception.(50)
I will not permit considerations of religion, nationality, race, party politics or social standing to intervene between my duty and my patient.
I will practice my profession with conscience and dignity.
The health of my patient will be my first consideration.
I will respect the secrets which are confined in me.
I will give to my teachers the respect and gratitude which is their due.
I will maintain by all means in my power, the honour and noble traditions of medical profession.
I will treat my colleagues with all respect and dignity.
I shall abide by the code of medical ethics as enunciated in the Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002.
I make these promises solemnly, freely and upon my honour."
The complexity of the human body and the uncertainty involved in the medical procedure are of such great magnitude that it is impossible for a Doctor to guarantee a successful result; and the only assurance that he can give, or can be understood to have given by implication is that he is possessed of requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him, he would be exercising his skills with reasonable competence. An ordinary physician or surgeon is not expected to be either a clodhopper or feckless practitioner of profession, as much as, he is not expected to be a paragon, combining qualities of polymath or prophet as in the realm of diagnosis and treatment, there is ample scope for genuine difference of opinion; and a Doctor cannot be treated as negligent merely because his conclusion differs from that of other persons in the profession, (51) or because he has displayed less skill or knowledge than others would have shown. The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. Furthermore, a golden principle of law has been laid down by the Hon'ble Apex Court in Jacob Mathew Vs. State of Punjab, (AIR 2005 SC 3180) that no sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitor is not an universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors, else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per-se by applying the doctrine of res ipsa loquitor. Yet, another golden principle of law has been laid down by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. Santha's III (1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the (52) patient swabs or other items of operating equipment after surgery. Furthermore, it has been observed in Malay Kumar Ganguli's case (AIR 2010 SC 1162) that" charge of professional negligence on a medical person is a serious one as it affects his professional statusand reputation and as such, the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischance or misadventure or for an error in judgment in making a choice when two options are available. The mistake in diagnosis is not necessarily a negligent diagnosis." In the instant matter, thus a simple test, in the light of aforesaid observations, needs to be conducted in order to ascertain whether the Doctor is guilty of any tortious act of negligence/battery amounting to deficiency in conducting a surgery in the delivery of child and not properly attending the patient, the complainant and consequently, liable to pay damages for leaving cotton mass in the abdomen / stomach due to failure in surgery and deteriorating condition of the patient.
Now, it is required to be seen whether an expert report is necessary in each and every case relating to medical negligence or not ? It has been observed by the Hon'ble Apex Court in Indian Medical Association Vs. V.P. SanthaIII(1995) CPJ 1 (SC) at para 37 that "it is no doubt true that sometimes complicated questions requiring recording of evidence of experts may arise in a complaint about deficiency in service based on the ground of negligence in rendering medical services by a medical practitioner; but this would not be so in all complaints about deficiency rendering services by a medical practitioner. There may be cases which do not raise such complicated questions and the deficiency in service may be due to obvious faults which can be easily established such as removal of the wrong limb or the performance of an operation on the wrong patient or giving injection of a drug to (53) which the patient is allergic without looking into the out patient card containing the warning or use of wrong gas during the course of an anaesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. Furthermore, in B. Krishna Rao Vs. Nikhil Super Speciality Hospital 2010 (V) SCC 513 at para 40 the Hon'ble Apex Court was pleased to hold that it is not necessary to have opinion of the expert in each and every case of medical negligence. The Hon'ble Apex Court was pleased to further hold in Nizam Institute of Medical Sciences Vs. Prashant S. Dhananka and others 2009 (VI) SCC 1 that "in a case of medical negligence, once initial burden has been discharged by the complainant by making of a case of negligence on the part of the hospital or the doctor concerned, the owner then shifts on the hospital or to the attending doctors and it is for the hospital to satisfy the court that there was no lack of care or diligence".
A doctrine or rule of evidence in tort law that permits an inference or presumption that a defendant was negligent in an accident injuring the plaintiff on the basis of circumstantial evidence if the accident was of a kind that does not ordinarily occur in the absence of negligencea plaintiff who establishes the elements of res ipsa loquitur can withstand a motion for summary judgment and reach the jury without direct proof of negligence-- Cox v. May Dept. Store Co., 903 P.2d 1119 (1995).
In Byrne vs Boadle, this maxim was used for the first time where the complainant was injured by a barrel that dropped from the window of the defendant. In the abovementioned case, Pollock, C. B., said "here are many incidents from which no presumption of negligence can arise, but this is not true in every case. It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out and I think that (54) such a case will, beyond all doubt, afford prima facie proof of negligence."
This doctrine intends to help direct the court proceedings to a conclusion, especially if it is established through the implication of this doctrine's rule that the injury caused to the claimant would not have occurred or taken place if the defendant wasn't negligent. This also gives enough cause and evidence to hold the defendant liable for his negligent actions.
The thing speaks for itselfis the gist of the maxim Res Ipsa Loquitur Maxim. What are the essentials of this maxim .
The injury caused to the plaintiff shall be a result of an act of negligence.
There is a lack of evidence, or the evidence presented before the court is insufficient to establish the possibilities of the fault of the plaintiff or third party.
The defendant owes a duty of care towards the plaintiff, which he has breached.
There is a significant degree of injury caused to the plaintiff.
Applicability of Doctrine of Res Ipsa Loquitur The maxim of res ipsa loquitur came into force to benefit the plaintiff as he can use circumstantial evidence to establish negligence.
Consequently, it shifts the burden of proof on the defendant, logic being, where there is an event of unexplained cause, usually, the one that does not occur without the defendant's negligence in controlling the action which has caused the injury to the claimant or destroyed his goods.(55)
In this scenario, the court shall presume negligence on the part of the defendant in such a case unless it includes an appropriate explanation compatible with his taking reasonable care.
In AchutraoHaribhauKhodwa and Others vs State of Maharashtra and Others, it was considered that the maxim should not be applied in the case of general incidences of neglect and shall only be reflected when there is a significant degree of injury caused.
Section 106 of the Indian Evidence Act Section 106 of the Act provides that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
Res ipsa loquitur is a Latin phrase that means "the thing speaks for itself." In personal injury law, the concept of res ipsa loquitur (or just "res ipsa" for short) operates as an evidentiary rule that allows plaintiffs to establish a rebuttable presumption of negligence on the part of the defendant through the use of circumstantial evidence.
This means that while plaintiffs typically have to prove that the defendant acted with a negligent state of mind, through res ipsa loquitur, if the plaintiff puts forth certain circumstantial facts, it becomes the defendant's burden to prove he or she was not negligent.
Res Ipsa Loquitur and Evidence Law Accidents happen all the time, and the mere fact that an accident has occurred doesn't necessarily mean that someone's negligence caused it. In order to prove negligence in a personal injury lawsuit, a plaintiff must present evidence to demonstrate that the defendant's negligence resulted in the plaintiff's injury. Sometimes, direct evidence of the defendant's negligence doesn't exist, but plaintiffs can still use circumstantial evidence in order to establish negligence.(56)
Circumstantial evidence consists of facts that point to negligence as a logical conclusion rather than demonstrating it outright. This allows judges and juries to infer negligence based on the totality of the circumstances and the shared knowledge that arises out of human experience. Res ipsa is one type of circumstantial evidence that allows a reasonable fact finder to determine that the defendant's negligence caused an unusual event that subsequently caused injury to the plaintiff.
This doctrine arose out of a case where the plaintiff suffered injuries from a falling barrel of flour while walking by a warehouse. At the trial, the plaintiff's attorney argued that the facts spoke for themselves and demonstrated the warehouse's negligence since no other explanation could account for the cause of the plaintiff's injuries.
As it has developed since then, res ipsa allows judges and juries to apply common sense to a situation in order to determine whether or not the defendant acted negligently.
Since the laws of personal injury and evidence are determined at the state level, the law regarding res ipsa loquitur varies slightly between states. That said, a general consensus has emerged, and most states follow one basic formulation of res ipsa.
Under this model for res ipsa, there are three requirements that the plaintiff must meet before a jury can infer that the defendant's negligence caused the harm in question:
The event doesn't normally occur unless someone has acted negligently;
The evidence rules out the possibility that the actions of the plaintiff or a third party caused the injury; and The type of negligence in question falls with the scope of the defendant's duty to the plaintiff.(57)
As mentioned above, not all accidents occur because of someone else's negligence. Some accidents, on the other hand, almost never occur unless someone has acted negligently.
Going back to the old case of the falling flour-barrel, it's a piece of shared human knowledge that things don't generally fall out of warehouse windows unless someone hasn't taken care to block the window or hasn't ensured that items on the warehouse floor are properly stored. When something does fall out of a warehouse window, the law will assume that it happened because someone was negligent. Top of Form Bottom of Form The second component of a res ipsa case hinges on whether the defendant carries sole responsibility for the injury. If the plaintiff can't prove by a preponderance of the evidence that the defendant's negligence cause the injury, then they will not be able to recover under res ipsa.
States sometimes examine whether the defendant had exclusive control over the specific instrumentality that caused the accident in order to determine if the defendant's negligence caused the injury. For example, if a surgeon leaves a sponge inside the body of a patient, a jury can infer that the surgeon's negligence caused the injury since he had exclusive control over the sponges during the operation.
In addition to the first two elements, the defendant must also owe a duty of care to protect the plaintiff from the type of injury at issue in the suit. If the defendant does not have such a duty, or if the type of injury doesn't fall within the scope of that duty, then there is no liability.
For example, in many states, landowners don't owe trespassers any duty to protect them against certain types of dangers on their property. Thus, even if a trespasser suffers an injury that was caused by the defendant's action or inaction and that (58) wouldn't normally occur in the absence of negligence, res ipsa loquitur won't establish negligence since the landowner never had any responsibility to prevent injury to the trespasser in the first place.
Res ipsa only allows plaintiffs to establish the inference of the defendant's negligence, not to prove the negligence completely. Defendants can still rebut the presumption of negligence that res ipsa creates by refuting one of the elements listed above.
For example, the defendant could prove by a preponderance of the evidence that the injury could occur even if reasonable care took place to prevent it. An earthquake could shake an item loose and it could fall out of the warehouse window, for instance.
A defendant could also demonstrate that the plaintiff's own negligence contributed to the injury. To go back to the flour-barrel example, if the defendant shows that the plaintiff was standing in an area marked as dangerous it could rebut the presumption of negligence created by res ipsa.
Finally, the defendant could establish that he did not owe the plaintiff a duty of care under the law, or that the injury did not fall within the scope of the duty owed. For example, if the law only imposes a limited duty on the defendant not to behave recklessly, then res ipsa will not help the plaintiff by creating an inference of negligence since a negligent action would not violate the duty owed to the plaintiff. According to the Blacks Law Dictionary the maxim is defined as the doctrine providing that, in some circumstances, the mere fact of accidents occurrence raises an inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol for that rule that the fact of the occurrence of an injury taken with the surrounding circumstances may permit an inference or recipes omission of negligence, or make out a plaintiff's prima facie (59) case and present a question of fact for defendant to meet with and explanation. It is merely a short way of saying that the circumstances attendant on the accident are of such a nature to justify a jury in light of common sense and past experience in inferring that the accident was probably the result of the defendant's negligence, in the absence of explanation or other evidence which the jury believes.
Its use in clinical negligence gained some traction before Bolam and Bolitho. Mahon v Osborne [1939] 1 All ER 535, is an early example of the application of res ipsa loquitur in a case where a surgical swab had been left inside a patient's body.
In Clarke v Worboys (1952) Times, 18 March, CA, a patient noticed burns on her buttock shortly after surgical excision of a breast tumour. The surgery involved cauterisation. The Court of Appeal held that this was a case where res ipsa loquitur applied. The outcome was not one that would ordinarily occur in the absence of negligence, and the surgical team were unable to explain how the injury was caused.
In Cassidy v Ministry of Health [1951] 2 KB 343, Denning LJ succinctly summarised the maxim's application to clinical negligence cases: "I went into hospital to be cured of two stiff fingers. I have come out with four stiff fingers and my hand is useless. That should not happen if due care had been used. Explain it if you can."
Ng Chun Pui Vs Lee Chuen Tat, the first defendant was driving a coach owned by the second defendant westwards in the outer lane of dual carriageway in Hong Kong. Suddenly the course across the central reservation and collided with a public bus travelling in the inner lane of the other carriageway, killing one passenger in the bus and injuring the driver and three others on the bus. The plaintiff could not prove that the defendants were (60) negligent and had caused the accident. They however proceeded on the basis of Res Ipsa Loquitur and shifted the onus on the defendants to prove that they were not negligent. However, they failed to do so. And the judicial committee of the Privy Council held the defendants liable for the plaintiffs injuries. { MarkLuney and Ken Opliphant , Tort Law Text And Materials (Oxford University Press, New York, 2000) pp 173-175 } In A.S. Mittal &Anr Vs State Of UP &Ors , AIR 1979 SC 1570 , the defendants had organised an eye camp at Khurja along with the Lions Club. 88 low risk cataract operations were undertaken during the period of the camp. It was however, disastrous as many of those who had been operated upon lost their eyesight due to post medical treatment. Proceedings against the government initiated for negligence of the doctors. Damages worth Rs.12,500/- were paid as interim belief to each of the aggrieved. The decision was on the basis of Res Ipsa Loquitur as the injury would not have occurred had the doctors not been negligent in not having followed up with post-operation treatment. Res Ipsa Loquitur can be applied in matters where are the procedures have not been followed and is not just limited to the commission of an act.
We can define 'Medical negligence' as the improper or unskilled treatment of a patient by a medical practitioner. This includes negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to 'Medical malpractices' where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional.
Medical negligence can occur in different ways. Generally, it occurs when a medical professional deviates from the standard of care that is required.(61)
So, we can say that any kind of deviation from the accepted standards of medication and care is considered to be medical negligence and if it causes injury to a patient then the doctor who operated on him, other staff and/or hospital may be held liable for this.
Some of the common categories of medical negligence are as follows:
Wrong diagnosis - When someone goes to a hospital, clinic or medical room, etc. the first step after admittance is the diagnosis. Diagnosing symptoms correctly is critical and important to provide medical care to any patient. However, if a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
Delay in diagnosis - A delayed diagnosis is treated as medical negligence if another doctor would have reasonably diagnosed the same condition in a timely fashion. A delay in diagnosis can cause undue injury to the patient if the illness or injury is left to worsen with time rather than being treated. Obviously, any delay in the identification and treatment of an injury can reduce the chance of recovery for the patient.
Error in surgery - Surgical operations require an enormous level of skill and it should be done with due care and caution because even the slightest mistakes can have profound effects on the patient. The wrong-site surgery, lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all this comes under Surgical error.
Unnecessary surgery - Unnecessary surgery is usually associated with the misdiagnosis of patient symptoms or a medical decision without proper (62) consideration of other options or risks. Alternatively, sometimes surgery is chosen over conventional treatments for their expediency and ease compared to other alternatives.
Errors in the administration of anesthesia - Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. Prior to any medical procedure requiring anesthesia, the anesthesiologist has to review the patient's condition, history, medications, etc. to determine the most suitable of all the medicine to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
Childbirth and labor malpractice - Childbirth is a difficult event for a woman and it becomes worse if not handled properly by the doctors and nurses. There are many instances of medical negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc. Long-Term negligent treatment - Medical negligence can also occur in subtle ways over the course of a long treatment period. Usually, the negligence can take the shape of a failure to follow up with treatment, or a doctor's failure to monitor the effects of the treatment properly.
A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.Here, the degree means the level of care an ordinary (63) health care professional, with the same training and experience, would render in similar circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is "no," and you suffered injury as a result of the poor treatment, you may file a suit for medical malpractice.
In the case of Dr. Laxman Balkrishna Joshi Vs. Dr. TrimbakBapu Godbole and Anr.[ 1969 AIR 128], the Supreme Court held that a doctor has certain aforesaid duties and a breach of any of those duties can make him liable for medical negligence. A doctor is required to exercise a reasonable degree of care that is set for this profession.
Dr. Kunal Saha vs Dr. Sukumar Mukherjee on 21 October, 2011 ( NC) original petition number 240 OF 1999 is one of the most important case regarding medical negligence. The brief facts of the case are-
Toxic Epidermal Necrolysis ( TEN ) is a rare and deadly disease. It is an extoliative dermatological disorder of unknown cause. A patient with TEN loses epidermis in sheet-like fashion leaving extensive areas or denuded dermis that must be treated like a larze, superficial, partial-thickness burn wound. The incidence of TEN has been reported at 1 to 1.3 per million per year. The female-male ratio is 3:2. TEN accounts for nearly 1% of drug reactions that require hospitalization. TEN has a mortality rate of 25 to 70%.
Smt. Anuradha Saha (in short Anuradha), aged about 36 years wife of Dr. Kunal Saha (complainant) became the unfortunate victim of TEN when she alongwith the complainant was in India for a holiday during April-May 1998. She and the complainant although of Indian original were settled in the United States of America. The complainant is a doctor by profession and was engaged in research on HIV / AIDS for the past fifteen years. Anuradha after acquiring her Graduation and Masters Degree was pursuing a Ph.D. programme in a university of U.S.A. She was a Child Psychologist by profession. Anuradha showed (64) certain symptoms of rashes over her body and received treatment at the hands of Opposite Parties and some other doctors as outdoor patient uptil 10.05.1998 and she was admitted in Advanced Medicare and Research Institute Limited, Calcutta (for short, AMRI), on 11.05.1998, where she was treated by the above-named Opposite Parties and other doctors uptil 16.05.1998. As there was no improvement in her condition, she was shifted to Breach Candy Hospital, Mumbai, on 17.05.1998 by an air ambulance. She was treated in Breach Candy Hospital from 17.05.1998 evening till she breathed her last on 28.05.1998.
Our Complainant as husband of Anuradha felt that the doctors who treated Anuradha and the hospitals where she was treated were grossly negligent in her treatment and her death was occasioned due to gross negligence of the treating doctors and hospitals. Complainant, accordingly, got issued a legal notice to as many as 26 persons i.e. various doctors who treated Anuradha between end of April to the date of her death alleging negligence and deficiency in service on their part and claiming a total compensation exceeding Rs.55 crores from them. Complainant, thereafter filed the present complaint on 09.03.1999 before this Commission claiming a total compensation of Rs. Rs.77,07,45,000/- ( Seventy Seven Crores Seven Lakhs Fourty Five Thousand only). Later he also filed another complaint no. 179 of 2000 in this Commission against Breach Candy Hospital, its doctors and functionaries claiming a further compensation of Rs.25.30 crore ( though the said complaint was later on withdrawn), thereby making claim of compensation exceeding Rs.102 crores, perhaps the highest ever claimed by any complainant for medical negligence before any consumer fora established under the provisions of Consumer Protection Act, 1986 ( in short, the Act). These are some of the facts which make the present case extra ordinary.(65)
The present complaint was filed by the complainant against the above-named opposite parties, namely, Dr. Sukumar Mukherjee, Dr. B. Haldar (Baidyanath Halder), Advanced Medicare and Research Institute Limited ( in short the AMRI Hospital ) and Dr. Balram Prasad and Dr.Abani Roy Chowdhury (physician) and Dr.KaushikNandy (plastic surgeon), the Directors of the AMRI Hospital and others claiming a total compensation of Rs. Rs.77,07,45,000/- under different heads alleging various acts of commission and omission on the part of the doctors and hospital amounting to negligence and deficiency in service. Complainant through his brother-in-law Malay Kumar Ganguly also filed criminal complaint against some of the doctors and the hospital under section 304A IPC.
The complaint was resisted by the doctors and the hospital on a variety of grounds thereby denying any medical negligence or deficiency in service on their part. Parties led voluminous documentary and oral evidence and testimonies of some of the witness were even recorded through video conferencing through a Local Commissioner. After a protracted trial and hearing and on consideration of the evidence and material so produced on record and taking note of the legal position governing the question of medical negligence, this Commission ( by a three Member Bench presided over by the then President) dismissed the complaint by an order dated 01.06.2006 holding as under:
In the result, we reiterate that Doctors or Surgeons do not undertake that they will positively cure a patient. There may be occasions beyond the control of the medical practitioner to cure the patients. From the record, it would be difficult to arrive at the conclusion that the injection Depo-Medrol prescribed by Dr. Mukherjee was of such excessive dose that it would amount to deficiency in service by him which was his clinical assessment.(66)
Thereafter, with regard to the alleged deficiency in the treatment given to Mrs. Anuradha by Opposite Party Doctors 2, 3, 5 and 6, there is no substance. The contention against the hospital that it was not having Burns-Ward, and therefore, the deceased suffered is also without substance. Hence, this complaint is dismissed. There shall be no order as to costs.
Aggrieved by the dismissal of his complaint, the complainant filed Civil Appeal (No. 1727 of 2007) in the Honble Supreme Court. It would appear that even before the said appeal was filed before the Honble Supreme Court, the Supreme Court was seized of the matter in Criminal Appeal Nos. 1191-94 of 2005 filed by Malay Kumar Ganguly, the complainant in the criminal complaint, against the Orders passed by the Calcutta High Court. Since the Criminal Appeals and the Civil Appeal filed by the complainant in the present complaint raised the same questions of fact and law, the Honble Supreme Court heard all the appeals together and decided the same by means of a detailed judgment dated 07.8.2009. By the said order, the Apex Court dismissed the Criminal Appeals filed by Shri Malay Kumar Ganguly but allowed the Civil Appeal No. 1727 of 2007 filed by the complainant and set aside the order dated 01.6.2006 passed by this Commission dismissing the complaint and remanded the matter to this Commission for the limited purpose of determining the adequate compensation, which the complainant is entitled to receive from the subsisting opposite parties by observing as under:
So far as the judgment of the Commission is concerned, it was clearly wrong in opining that there was no negligence on the part of the Hospital or the doctors. We, are, however, of the opinion, keeping in view the fact that Dr.KaushikNandy has done whatever was possible to be done and his line of treatment meets with the treatment protocol of one of the experts viz.. Prof. Jean Claude Roujeau although there may be otherwise difference of opinion, that he cannot be held to be guilty of negligence.(67)
We remit the case back to the Commission only for the purpose of determination of the quantum of compensation.We, keeping in view the stand taken and conduct of AMRI and Dr. Mukherjee, direct that costs of Rs.5,00,000 and Rs.1,00,000 would be payable by AMRI and Dr. Mukherjee respectively.
We further direct that if any foreign experts are to be examined it shall be done only through video conferencing and at the cost of the respondents.
Summary In view of the foregoing discussion, we conclude as under:
The facts of this case viz., residence of the complainant and Anuradha (deceased) in USA and they working for gain in that country; Anuradha having been a victim of a rare and deadly disease Toxic Epidermal Necrolysis (TEN) when she was in India during April-May 1998 and could not be cured of the said disease despite her treatment at two superspeciality medical centres of Kolkata and Mumbai and the huge claim of compensation exceeding Rs.77 crores made by the complainant for the medical negligence in the treatment of Anuradha makes the present case somewhat extraordinary.
The findings given and observations made by the Supreme Court in its judgment dated 07.08.2009 are absolutely binding on this Commission not only as ratio decidendi but also as as obiter dicta also, the judgment having been rendered by the Supreme Court in appeal against the earlier order passed by a three Member Bench of this Commission and, therefore, no attempt can be allowed to read down / dilute the findings and observations made by the Supreme Court because the Supreme Court has remitted the complaint to this Commission only for the purpose of determination of the quantum of compensation after recording the finding of medical negligence against the opposite parties and others.(68)
The task entrusted to the Commission may appear to be simple but the facts of the present case and the voluminous evidence led on behalf of the complainant has made it somewhat arduous. Still difficult was the task of apprortionment of the liability to pay the awarded amount by the different opposite parties and perhaps it was for this reason that the Supreme Court has remitted the matter to this Commission.
Multiplier method provided under the Motor Vehicles Act for calculating the compensation is the only proper and scientific method for determination of compensation even in the cases where death of the patient has been occasioned due to medical negligence / deficiency in service in the treatment of the patient, as there is no difference in legal theory between a patient dying through medical negligence and the victim dying in industrial or motor accident. The award of lumpsum compensation in cases of medical negligence has a great element of arbitrariness and subjectivity.
The foreign residence of the complainant or the patient and the income of the deceased patient in a foreign country are relevant factors but the compensation awarded by Indian Fora cannot be at par which are ordinarily granted by foreign courts in such cases. Socio economic conditions prevalent in this country and that of the opposite parties / defendants are relevant and must be taken into consideration so as to modulate the relief. A complainant cannot be allowed to get undue enrichment by making a fortune out of a misfortune. The theoretical opinion / assessment made by a Foreign Expert as to the future income of a person and situation prevalent in that country cannot form a sound basis for determination of future income of such person and the Commission has to work out the income of the deceased having regard to her last income and future prospects in terms of the criteria laid down by the Supreme Court.(69)
There exists no straight jacket formula for apportionment of the awarded compensation amongst various doctors and hospitals when there are so many actors who are responsible for negligence and the apportionment has to be made by evolving a criteria / formula which is just going by the nature and extent of medical negligence and deficiency in service established on the part of different doctors and hospitals.
On a consideration of the entirety of the facts and circumstances, evidence and material brought on record, we hold that overall compensation on account of pecuniary and non pecuniary damages works out to Rs.1,72,87,500/- in the present case, out of which we must deduct 10% amount on account of the contributory negligence / interference of the complainant in the treatment of Anuradha. That will make the net payable amount of compensation to Rs.1,55,58,750/- ( roundedofto Rs.1,55,60,000/-). From this amount, we must further deduct a sum of Rs.25,93,000/- which was payable by Dr.Abani Roy Chowdhury (deceased) or his Legal Representative as the complainant has forgone the claim against them.
In view of the peculiar facts and circumstances of the case and as a special case, we have awarded a sum of Rs. 5,00,000/- as cost of litigation in the present proceedings. The above amount shall be paid by opposite parties no. 1 to 4 to the complainant in the following manner:
(i). Dr. Sukumar Mukherjee-opposite party no.1 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation] .
(ii) Dr. B. Haldar (Baidyanth Halder)-opposite party no.2 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] (70)
(iii) AMRI hospital-opposite party no.3 shall pay a sum of Rs.40,40,000/- (Rupees Forty Lakh Forty Thousand only ) i.e. [Rs.38,90,000/- towards compensation and Rs.1,50,000/- as cost of litigation .
(iv) Dr. Balram Prasad-opposite party no.4 shall pay a sum of Rs.26,93,000/- (Rupees Twenty Six Lakh Ninety Three Thousand only) i.e. [Rs.25,93,000/- towards compensation and Rs.1,00,000/- as cost of litigation] The opposite parties are directed to pay the aforesaid amounts to the complainant within a period of eight weeks from the date of this order, failing which the amount shall carry interest @ 12% p.a. w.e.f. the date of default. "
We have seen the judgment of learned Forum. When the complainant contacted opposite party no 1 on 10.09.13 , the x-ray report revealed right femur neck bone fracture. The complainant was told that operation will take place after a week. After one week when the complainant contacted opposite party, he told that the bone has been set on right track therefore there is no need of any operation and complaint was advised for bedrest with traction. When the complainant on 07.10.13 visited the opposite party, his traction was removed after doing x-ray and advised for physiotherapy. But the physiotherapy exaggerated the problem. Thereafter he went to Dr CN Dwivedi who told that the fractured bone cannot be fused without operation and due to wrong diagnosis and treatment the valve of the hip dissolved. Thereafter the complainant was compelled for hip bone replacement on which a large amount of money has been expended. Now the opposite party says that the complainant did not use the traction and medicines in the right way therefore complication developed. This lame excuses is not liable to be accepted because the opposite party is a doctor having degree of MS in orthopedic surgery. Regarding traction and the bone fracture, the discussion have already been taken place above which revealed that traction is not ultimate cure in fusion of fractured bone. It is a preoperation (71) method which may or may not be used. So in this case the principle of res ipsa loquitur applies and the respondent has shown medical negligence and deficiency of service. He was so careless in his profession that he only advice traction and did not take any follow-up action. The learned Forum did not take pain to discuss all the relevant provisions and methods and literature regarding traction and setting of femur bone fracture. The impugned judgment is not according to facts and law hence it is liable to be set aside. The complainant is liable to get the relief claimed by him. The complainant has also prayed that any other relief we also granted for which he is entitled. The complainant has demanded Rs.6 lakhs as damages. We are of the opinion that the complainant is liable to get Rs. 6 lakhs as damages, Rs. 50,000 towards cost of the case and Rs.2 lakhs for mental torture, agony and depression. The appeal is decided accordingly.
ORDER The appeal is allowed with costs. The impugned judgement and order dated 16.02.18 passed by the learned District Forum, Gorakhpur in complaint case no.286/2014 in set aside.
The opposite party no.1 is directed to pay Rs.6 lakhs as compensation, Rs.50,000 towards the cost of the case and Rs.2 lakhs towards mental torture, agony and depression to the appellant/complainant within eight weeks from the date of judgment of this appeal with interest at a rate of 10% from 10.09.2013 till the date of actual payment and if the payment is not made within eight weeks from the date of judgment of this appeal, the respondent/opposite party no 1 shall pay interest at a rate of 15% after eight weeks till the date of actual payment.
After the payment of the amount the respondent/opposite party no1 may proceed to indemnify himself by the respondent number 2/ opposite party no 2 according to law.
If the compliance of this order has not been done within eight weeks from the date of judgment of this appeal, the appellant/ complainant may file execution case against the respondent/opposite party no 1 at the cost of the opposite party no.1.
(72)The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to record. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated September 28, 2022 JafRi, PA II Court 2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER