Order

      ( Passed on 4^th April 2016)

As per Hom’ble  President,  Shri S.  P.  Muley     

1.             By this complaint u/s 12 of the Consumer Protection Act the complainants have claimed compensation of Rs.10,00,000/- and medical expenses on account of medical negligence which resulted into amputation of a joint of the complainant no.1.
2.             The complaint in short is that the complainants no. 1 and 2 are wife and husband respectively. The Opposite Party (O.P.) No.1 is an Orthopedic surgeon and O.P. no.2 is a hospital. On 23.1.2012 the complainant no.1 had an accident and had sustained injury to her left leg. The complainants immediately went to one Sengupta Hospital at Ravi Nagar, Nagpur. On investigation it was diagnosed that there was left knee dislocation. There doctors performed closed reduction procedure and applied long knee brace. Next day she was discharged. She was however advised to get MRI of her left knee. Accordingly MRI was done at Galaxy PET-CT & MRI Scan and following observations were noted

                        “ACL tear near its femoral attachment”

                        “PCL injury near its femoral insertion”

                        “Marrow edema/ bone contusion”

                        “Mucoid degeneration”

                        “Disruption / tear of the medial patellar retinaculae “

                        “Effusion in the knee joint space with increased fluid

                         in the suprapatellar bursa and lipohemarthrosis”

3.             After examining the MRI report Dr. Sengupta told the complainants that a small surgical operation would be required to be done after some period. Till then she was advised to do physiotherapy. Accordingly she did physiotherapy from 19.4.2012 to 21.1.2013 and got 90% relief. However she was having difficulty in bending her injured left leg and was unable to squat. Then another MRI was done on 21.11.2012. It showed 'Chronic ACL tear' and 'Mucord degeneration' . They approached the O.P.1 on 22.1.2012 with all medical papers and reports. The O.P. 1advised her to get admitted as she was having some small problem for which she would have to undergo a simple surgical operation. It was also said that after operation she would be discharged next day without problem. The O.P. 1 gave an estimate of Rs.45,000/- and assured them that the complainant 1 would be completely alright after the operation.
4.             Accordingly the complainant 1 was admitted in the hospital on 22.1.2013. an amount of Rs. 20,000/- was deposited but no receipt was given. However the operation had to be cancelled on two dates. On 25.1.2013 she was taken into operation theater in the morning. After some time the O.P.1 came out from operation theater and said that the operation would take long time. The complainants were reluctant but the O.P. 1 performed the operation. At about 4 p.m. The O.P. 1came out of operation theater and told the complainant 2 that his wife had to be shifted for CT scan. An ambulance was made ready. The O.P. 1 gave a handwritten note addressed to Dr. Chapekar of Suretech Hospital to do urgent CT Angiography. At about 7.30 p.m. the complainant 1 was taken to Suretech Hospital in the ambulance in anesthetic condition. There her CT scan was done. Thereafter the driver of the ambulance told them that as per advise of the O.P. 1 she was to be shifted to Care Hospital (O.P.2) On 25.1.2013 in the morning she was taken to O.P.2 hospital. There Dr. Nakade informed them that after the operation performed on the complainant 1 by the O.P. 1, blood supply to her left knee was blocked and that could result in to gangrene, which might prove fatal. Therefore they were advised to get her left leg  amputate. Since the complainant 1 was in critical condition and there was no other option the complainant 2 was forced to arrange an amount of Rs. 30,000/- for operation.
5.              On 25.1.2013 doctor of the O.P. 2 performed operation. However the mistake committed by the O.P. 1 could not be rectified and gangrene was spread. Then on 31.1.2013 the process of amputation was done from below the knee. Doctors watched the process for 3 days but gangrene continued. So another operation was done on 3.2.2013 and further portion above the knee was amputate. On 15.2.2013 she was discharged. But she again developed infection and was taken to Sengupta hospital where she was hospitalised for 12 days. She now requires an artificial leg.
6.             Thus the complainants suffered mental, physical and financial loss due to sheer negligence of the O.P. 1. they repeatedly demanded medical papers from the O.P.1 but they were not supplied. A notice was issued to O.P.1 for compensation by the refused to pay and denied his liability. Hence by this complaint they have claimed compensation of Rs. 10,00,000/- and treatment expenses Rs.6,57,104/-.
7.             Notice was served on both the O. Ps. But O.P. 1 did not appear and therefore case was heard against him ex parte. The O.P. 2 appeared through counsel but did not file written statement. As no claim or allegation is made against the O.P.2, a pursis is filed on 18.9.2014 that under the circumstances it did not want to file written statement. Hence the case proceed without his written statement against the O.P.
8. In support of the complaint the complainants have filed several documents and affidavit evidence of the complainant 2. We have heard learned counsel for the complainants. After giving due consideration to the submission, documents and facts of the case following points arise for our consideration, and we have given our findings thereon for the reasons given below,

                                       POINTS                                                                      FINDING

1. Whether blood supply to left knee of the

                        complainant 1 was blocked after the surgery                              No

                        performed by the O.P. 1 ?

2. Whether amputation was necessary ?                                          Yes

3.  Whether there was medical negligence on                                 Yes

                        the part of O.P. 1 ?

4. Whether the O.P. 1 is liable to compensate                                   Yes

                         the complainants ?

REASONS

9. Points No.1 & 2:  The O.P.1 did not chose to contest the complaint. Therefore it will have to be presumed that he does not deny any of the allegations made against him. Nevertheless, since it is a case of medical negligence the complainants are required to establish their case of medical negligence independently.
10. Though the complainants have narrated the events in details it would be appropriate to refer to the documents filed by them. The document 1 is the discharge summery issued by Sengupta hospital where the complainant 1 was first taken for treatment. She had an accident on 23.1.2012 and after about one month she was taken to the hospital as she had some difficulty in her left leg. She was diagnosed with left knee dislocation. That means in that accident she had suffered that dislocation but she did not see the doctor immediately. In Sengupta hospital process of closed reduction was done and next day she was discharged in stable condition. According to this summery there was no complication. But she was advised to go for MRI of her left knee. It is not understood why the need of MRI was felt. Be that as it may, MRI was done and as mentioned above following observations were noted,

                        “ACL tear near its femoral attachment”

                        “PCL injury near its femoral insertion”

                        “Marrow edema/ bone contusion”

                        “Mucoid degeneration”

                        “Disruption / tear of the medial patellar retinaculae “

                        “Effusion in the knee joint space with increased fluid

                         in the suprapatellar bursa and lipohemarthrosis”

11. Considering the MRI report, Dr. Sengupta advised the complainant 1 to go for another surgery. Before that she was doing physiotherapy for about ten months. She got relief but she was finding difficulty in bending her left leg. In another MRI it was revealed that there was chronic ACL tear and Mucord degeneration. It was then the complainants approached the O.P.1. He also advised her to go for small surgical operation. The O.P.1 performed operation on her but was urgently referred for CT angiography. In the CT angiography it was observed that the mid popliteal artery was injured during ACL, PCL repair athroscopically. Exploration of popliteal artery and grafting of vein were done in the hospital of O.P.2. Because of damage to the artery the blood flow was affected. But the surgical procedure at the hospital of the O.P.2 could not cure the damage and ultimately the doctors took the decision of amputation of the left leg.
12. Popliteal artery is a branch of femoral artery. It runs through knee joint and runs deep through popliteal fossa. It can be injured by direct trauma to the knee joint. As per medical reports there is  7% incidence of injury to popliteal artery during surgical operations on knee. After total transaction of artery, mortality is 7% and amputation of the limb is 42%. At times limb can be salvaged by repair of the artery to maintain blood supply distally. Unfortunately in this case the damage to the artery could not be rectified. It is likely that the popliteal artery was damaged due to trauma even before operation, which is a common occurrence than damage during surgery. Because the complainants have stated that even after first surgery at Sengupta hospital the complainant 1 was having difficulty in bending her knee. Dr. Sengupta had advised her to get MRI of the knee done and in the MRI it was observed there was degeneration of mucoid. Most significantly the popliteal vessels showed normal flow void. It means at that time there was no blood flow through popliteal vessel. When there is lack of adequate blood supply, death of tissue in a part of body occurs, which is medically termed as gangrene. She was admitted with history of trauma. During physiotherapy she was having difficulty in bending her knee joint. Her problem had already started because of damage to popliteal artery as could be ascertained from her MRI report.
13. If  this factual of the case is considered it appears that the popliteal artery of the complainant 1 was damaged even before she was taken to O.P. 1 for treatment. But what was the extent of damage and whether it was curable are questions which need to be answered by the O.P.1. But he preferred to remain absent and let go the allegations against him without defense. He is a well qualified orthopedic surgeon. While adjudicating allegations of medical negligence on the part of a doctor on the touchstone of the Bolamś test, it is required to answer three questions;

1.   whether the doctor in question possessed the medical skill expected   

  from  an ordinary skilled practitioner in the field at that point of time;

2.   whether the doctor adopted the practice in the case that would be  

  adopted by such a doctor of ordinary skill in accord with one of the

  responsible bodies of opinion of professional practitioners in the field

  and

3.   whether the standards of skill/knowledge expected of the doctor,

  according to the said body of medical opinion, were of the time when the

  events  leading to the allegations of medical negligence occurred and  

  not of the  time when the dispute was being adjudicated

14.             There is no evidence to indicate that the surgical procedures were not properly conducted. No expert opinion is sought by the complainants. Hence, so far as the first point is concerned, it has to be answered in the negative.
15.             The complainant no 1 was further operated at the hospital of the O.P. 2. There the damage to the popliteal artery was tried to be rectified but without success. It is sole discretion of doctor as to what can be the best possible procedure to save a patient. There is no expert opinion on record to verify whether in given circumstances amputation was the only option left for the doctor. We cannot place our own opinion over the opinion of the doctor since it is purely  medical related opinion. It is well known that  in cases of such vascular injuries, the problem of thrombosis can occur. The decision to amputate the limb was taken by the doctor of O.P. No.2 hospital. This decision is not challenged as incorrect nor it can be said the opinion was wrong. To arrest further spread of gangrene it was necessary to amputate the limb in the interest of the life of the complainant No.1. Hence, the second point is answered in the affirmative.
16. Points No. 3 & 4:  The complainants have not alleged that there was negligence in surgical procedure by the O.P. No.1. There are no medical papers on record to verify what procedure was adopted by the O.P. No.1 while performing surgical operation. Therefore only on the principle of ŕes ipsa loquitor´ it is not possible to hold that the amputation was the result of medical negligence of the O.P. No.1.
17. However, as per the allegations in the complaint the O.P. No.1 did not take due care to keep the complainants informed about the surgical procedure and the possible occurrence of the gangrene. They were kept in the dark and later shifted to the hospital of the O.P. No.2 without giving them any information. In our opinion this amounts to negligence of the O.P. No.1. Because it was his duty to give fair idea to his patient of possible risk factor before undertaking surgery on the patient. This is also medical negligence of the doctor. Medical negligence also means deficiency in service. Negligence may occur at various levels of treatment and one of them is failure of advice and communication. If the doctor fails to inform or warn about inherent and special risks of treatment and surgery, or failure to give proper instructions to his/her patient amounts to negligence. In this case it is alleged that even though the complainants were not ready to undergo long duration of surgical procedure, still the O.P1 did not listen. He did not even inform them as to why she was immediately shifted to other hospital for CT scan. All these failures on the part of the O.P1 makes him liable for negligence. The O.P No.1 should have informed the complainants about MRI report and possible effect of damage to popliteal artery. We do not comprehend why he did not disclose the seriousness of the injury revealed from the MRI. This was also his negligence in not making proper and correct disclosure of the condition of the complainant No.1. He also failed to provide medical papers to the complainants on demand. This is also deficiency in service.
18. We also take into consideration that the O.P. No.1 did not bother to appear and defend the case. Therefore all these negligence as to not informing the complainants about the risk factor of surgery, reason for abruptly shifting the complainant No.1 to the hospital of the O.P. No.2 and not providing them all medical papers are nothing but his negligence in medical profession. We therefore hold theses points accordingly.
19.             In the result, the complaint deserves to be partly allowed as per following order.

ORDER    

1. The complaint is partly allowed.
2. The O.P. No.1 Dr. Jaideep Sahu is held liable for deficiency in service towards his patient, the complainant No.1 and is directed to pay compensation of Rs. 5,00,000/-(Rupees Five Lac Only ) to the complainants and cost Rs. 5000/-
3. The prayer for reimbursement of medical expenses is rejected.
4. The O.P.1 shall comply the order within 30 day from receipt of the order.
5. The complaint is dismissed against the O.P.2