SMT. RAVI SUSHA : PRESIDENT
This complaint has been filed by the complainant U/S 12 of the Consumer Protection Act 1986 seeking to get an order directing the OPs to pay an amount of Rs.20,00,000/- towards compensation to the complainant alleging negligent treatment and mismanagement by 2nd opposite party doctor in providing treatment to the complainant at 1st OP hospital.
Facts in brief of complaint:-
Complainant is a Circle Inspector working in Kerala police department. On 12/7/2010 at about 8.30.p.m while the complainant was driving Omni van from Kannur to Taliparamba met with an accident. Due to the accident the complainant sustained serious injuries to his head,both legs, abdomen etc, immediately complainant was taken to Taluk HQ Hospital,Taliparamba and from there he was referred to higher medical centre 1st Op hospital , Periyaram Medical college and was admitted there as inpatient. The 2nd OP was on duty in the 1st OP hospital attended the complainant and send for X-ray and ultra sound scan. Further Doppler test was also conducted. Thereafter the 2nd OP with the aid of some nurses and junior doctors attempted to band aid the complainant’s right leg. Complainant asked the 2nd OP as to the reason for loss of sensation to the right leg as well as the coldness appeared on the right leg. The 2nd OP doctor opined that the senselessness is due to the shock of the accident and coldness is due to the working of air conditioning system in the causality room. The complainant intimated the doctor about the acute pain on the right leg and also in the abdomen. The 2nd OP stating that everything will become quite, given band aid to the right leg and kept in the ICU till the next day morning without doing any further management and any treatment. As the 2nd OP or any doctors in the 1st OP didn’t care to give proper treatment attention and effective management and as the pain developed more acute the complainant instructed the bye standers including his wife to get him discharged from the hospital and seek treatment in any other hospital where proper treatment will be given. But the hospital authorities delayed the discharge but further taken the complainant for CT scan and other test. The 1st Op hospital delayed discharge indefinitely the DYSP Taliparamba who came there to see the complainant enquired at the office about the delay. Though the discharge was sought at 8.30.a.m on the next day, he was discharged only at 11.25.a.m. Immediately complainant was taken to Thejswini Hospital Mangalore and from there the doctors examined and informed the bye standers of complainant that his right leg is liable to be amputated as it was completely dead by escheamic gangrene cannot save the right leg of the complainant in any case as 12 hours from the time of accident have been elapsed. The doctor further opined that if the leg is not amputated the life of the complainant will be in risk and the only option to save the life of complainant is to amputate the leg. Accordingly the right leg of the complainant was amputed and several surgeries at stomach were conducted on his body to save his life from the life threatening situation created by the Ops by their latches and negligence shown in giving treatment to the complainant. The complainant alleged that the amputation done on the right leg was only on account of the delay caused by the Ops in diagnosing and treating of him. 2nd Op being an orthopaedic surgeon MS degree ought to have given necessary care to find out the damage of veins or arteries when both bones were fractured and also when the sensation to the limb was lost. The 2nd OP should given more care and caution and should have applied his mind as an expert doctor before giving band aid to the right leg of the complainant that too when the test result showed the supply of blood to the lower limb as little. When it was found that both bones of the complainant were fractured and that sensation is less and that supply of blood to the affect part is less as an expert skilled doctor, 2nd OP should have subjected the complainant to immediate surgery in order to avoid any type of gangrene as the one which the complainant has now faced. The conduct of 2nd OP was too below the standard than the standard which other reasonably competent practitioner in his field might have shown. Hence filed this complaint.
After receiving notice Ops 1&2 filed separate written versions. The contentions in both versions are more or less same. It is stated that both Ops admitted the treatment given to complainant by 2nd OP at 1st OP hospital. But denied negligent treatment and mismanagement on the part of 2nd OP doctor. It is contended that when the complainant was brought, the surgical medical officer on duty in the causality attended the patient and noted lacerated wound over right forehead, multiple abrasions and tenderness over right leg, checked all parameters and advised Ortho, general surgery and neuro surgery consultations. The surgeon had examined the patient and advised admission to surgical ICU and ordered blood investigations, CT brain, USG abdomen and chest X-ray and made ortho and neurosurgery references and given instruction for arranging blood. The 2nd OP examined the complainant along with surgeon and there was tenderness over the proximal aspect of right leg with abnormal mobility, crepitus and abrasion with present over the proximal right leg. There was haemerthrosis over the knee. On examination peripheral pulses were well felt and oxygen saturation was 100% and there was no neurovascular deficit. X-ray examination of right leg with knee and ankle A.P and lateral views showed displaced proximal tibia,fibula fracture with doubtful undisplaced lateral condyle tibia fracture and applied above knee POP slab and advised broad spectrum antibiotics. Thereafter the patient had been kept under close observation and monitoring in the ICU and continued medical management by ortho and surgical department. The patient had been resuscitated by the general surgeon and he advised repeat USG abdomen and serum amylase as the patient complained persistent abdominal pain and he had been under close observation, continuous monitoring of vital parameters by ortho and general surgery departments. Oxygen saturation of the right lower limb had also been checked and assessed periodically. At 2.30 a.m oxygen saturation was maintained 100%. At 3.45 a.m the patient complained severe pain on right leg and the 2nd OP immediately opened the POP slab and compartment of the leg was found tensed, peripheral pulse felt and SPO2 was 93%,immediately the affected limb was elevated to the heart level and inj.Lasix was added to medication and the patient complained increasing pain over right leg and pulse becoming feeble, the 2nd OP advised emergency Doppler study to rule out vascular injury and for fasciotomy in case of need . Doppler study of right lower limb revealed very low volume flow in the anterior and posterior tibial arteries suspicious of significant proximal obstruction distal to the popliteal artery. The HOD of Orthopaeducs reviewed the patient and on the basis of falling in oxygen saturation and Doppler study findings advised emergency cardiothothoracic reference in discussion with the 2nd OP. The complainant as well as his relatives were well informed about the condition of the patient and advised for an emergency laparotomy and cardiothoracic consultation for further management based on Doppler study. But the patient’s relatives who initially consented for laparotomy had later changed their mind and insisted for discharge for taking the patient to some other hospital at Mangalore. Though they were well informed about the emergent situation and need for laparotomy as well as treatment for revascularization in consultation with cardiothoracic surgeon and the risk factors involved in taking the patient in such a bad condition, the patient and his relatives insisted for discharge against medical advice and hence he was discharged accordingly. It is submitted that the orthopaedic management done by the 2nd OP was well in tune with accepted ,medical practice and there was no shortcoming, imperfection or deficiency in the nature and quality of service given by the 2nd OP and hence he is not liable to compensate the complainant. Ops denied all the allegations against 2nd OP. The allegation that the Ops delayed the discharge of the patient and further taken him to CT scan and other tests and he was discharged by the intervention of DYSP Thaliparamba is false. There was no delay in providing treatment or any deficiency in the management of the patient from the part of the 2nd OP as he advised emergency Doppler study to rule out vascular injury and its treatment in consultation with cardiothoracic surgeon immediately when the patient complained increasing pain over right leg and pulse becoming feeble. The amputation of right leg of the complainant was not caused due to any negligence in treatment or in the management of the fracture and it resulted solely because of factors beyond the control of the orthopaedic surgeon such as risks inherent in the nature of fracture , failure to follow proper medical advice for early intervention by a cardiothoracic surgeon etc. When the patient complained severe pain on right leg following POP slab immobilization, the 2nd OP immediately opened the POP slab and as SPO2 was 93% the affected limb was immediately elevated to the heart level and advised emergency Doppler study to rule out vascular injury and for fasciotomy in case of need immobilization, the 2nd OP had exercised due diligence and care in advising Doppler study when the complainant had shown clinical symptoms to suspect vascular problem which was done without causing any delay. At the time of applying POP slab immobilization there was no clinical manifestation/symptoms for a reasonable orthopaedic surgeon to suspect vascular injury which is well evident from feeling of peripheral pulses as well as maintaining oxygen saturation as 100%. As the patient complained increasing pain over right leg and pulse becoming feeble with fall in oxygen saturation , the 2nd OP had advised the patient to its emergency management in consultation with cardiothoracic surgeon in order to avoid further complications, but the complainant did not need to proper medical advice. And further delayed the treatment for 7-8 hours which led him to undergo amputation instead of simple limb saving procedure. The Ops pleaded that there was no negligence or deficiency in service in the treatment of the complainant and he is not liable or responsible to pay any amount either by way of compensation or otherwise and prayed for dismissal of complaint.
Complainant filed chief-affidavit and documents. He was examined as PW1 and documents were got marked as Exts.A1 &A2 and case sheets from 1st OP as Ext.X1 and Thejaswini Hospital Mangalore as Ext.X2. Dr.M.Shantharam Shetty Senior Consultant Orthopedic Surgeon at Thejaswini Hospital Mangalore was examined as a witness on the side of complainant. 2nd Op filed his affidavit and was examined as DW1. Further Dr.Sunil V, the Head of Orthopedic Department at 1st OP hospital was examined as DW2 on the side of OP.
After that both learned counsels for complainant and Ops filed written argument notes and placed oral arguments before us. We have gone through the medical records brought before us and considered the submissions of both learned counsels.
The facts regarding the patient’s clinical condition and he being admitted to the 1st OP hospital are not in dispute. It is also a fact that the patient remained in the OP hospital from 12/7/2010 at about 8.30 pm to 13/7/2010 at 11.25 A.M ie for 15 hours and thereafter he was taken away to another hospital to Mangalore. It is also a fact that during this period despite complainant complaint about severe pain on his right leg many times, 2nd OP doctor did not done any surgery to the leg even after taking X-ray and Doppler test and SPO2 was 93%. Ops contentions that as the patient complained increasing pain over right leg and pulse becoming feeble with fall in oxygen saturation, he had advised the patient to its emergency management for fasciotomy but the complainant was not willing to continue treatment at the OP hospital and got discharge against medical advise. It is apparent from Ext.X1 case sheet of OP hospital that though on 13/7/2010 at 8.30 a.m the relatives of the patient requested to take him to Mangalore in the interest of his life at 9.25.a.m also the patient was shifted for USG abdomen and repeat Doppler of Rt.leg(SPO2 could not recordable) and X-ray and was discharged only at 11.25 a.m from OP hospital.
In this case complainant alleged that complication such as formation of gangrene arose after the development of compartment syndrome which resulted amputation of the right leg of the complainant above knee was result of negligence committed by the treating doctor(2nd OP) of 1st OP hospital. Complainant alleged that he ought to have been undergone surgery and necessary treatment immediately by 2nd OP doctor instead of applied band aid on his leg and kept in ICU till the next day morning even though he complaint about severe pain on his right leg. Thus 2nd OP committed unduly delayed commencement of the treatment.
The material questions involved in this case are
- Whether it is duly proved that complainant’s right leg was amputed as a result of medical negligence committed by 2nd Op doctor in attending him or necessary tests were not conducted in due time?
The question will have to be determined on the basis of the material evidence placed before us. One of the allegations made by the complainant is that though at the admission time of complainant at OP hospital itself loss of the sensation to the right leg and coldness appeared on his right leg, 2nd OP with the aid of some nurses and junior doctors applied band aid on the complainant’s right leg and kept in ICU till the next day morning without doing any management and giving any treatment. Further though complainant and his bystanders complaint about severe pain on the leg, 2nd Op doctor did not care to give necessary treatment. The relevant material on record Ext.X1 shows that on X-ray examination at the admission time, complainant was found with displaced proximal tibia, fibula fracture with lateral caudyle tibia fracture admitted at ICU after applied popslab and at 3.45 a.m on 13/7/2010(next day morning) patient complaint severe pain on right leg, 2nd OP examined POP slab removed and compartment of the leg was found tensed, peripheral pulse felt and SPO2(Oxygen saturation) was 93%. Then limb was elevated provided Tab Lasix. 2nd OP doctor contended that he planned for an emergency laprotomy in discussion with head of the department of surgery and advised emergency Doppler study to rule out vascular injury and for fasciotomy in case of need . But Ext.X1 reveals that though patient complaint about severe pain at 3.45 a.m the HOD of surgery examined the patient only at 7.a.m and planned for laprotomy procedure. It is also evident that patient continued to complaint severe pain, and limb seems to be cold, then only at 8.15 a.m advised Doppler studies and at 10.a.m Doppler study® lower limb done. Further at 10.30 a.m suggested to take the patient for emergency laperotomy and fasciotomy .
On behalf of the complainant, PW2 Dr.Shantharam Shetty, Senior consultant Orthopedic surgeon at Thejaswini Hospital Mangalore, where corrective treatment of complainant was taken was examined through Advocate commissioner. PW2 appears to be expert in the treatment of ortho section. Both parties gave due weightage of the opinion of PW2. PW2 stated that on examination of right lower limp of complainant at his hospital at 2.30 p.m on 13/7/2010 was generalize swelling, there was tenderness, skin was tense with blisters and discoloration of skin below the knee. PW2 stated that the limp is not salvageable and suggested amputation of his right leg above knee to save life of the patient. Further stated that one complication of the fracture of the tibia can be compartment syndrome which is a condition where there increased pressure in a closed compartment of particular limp. The expert doctor stated that the most important is clinical features and the investigations available like Doppler study, pulse oxymeter and pressure metometers if it is available. However most important method is the clinical method pulse oxygenator. PW2 gave expert opinion that if there are blisters it signifies that some pressure in the compartment. If it is complete establishment of compartment syndrome it became irrecoverable as the muscles die. Further if the limb is complete cold and discoloured it infers that the limp is almost dead. Further confirmed compartment syndrome a faciotomy has to be done within 6 to 9 hours.
On perusing Ext.X2 case records the complainant have above said significant at the admission time in Tejaswini Hospital. Doppler study shows no flow in leg.
Opposite parties strong contention is that Doppler test taken before leaving to Mangalore would show that his leg was having blood circulation. The complainant was taken to Mangalore Hospital after three hours journey. From the Doppler test report taken there found that ‘no flow in leg vessels’. According to OP in the light of expert evidence of PW2, from 8.30 plus the transport time which is added on irreversible vascular changes in the limb and the amputation of complainant’s leg was due to the transportation of the patient from OP hospital to Mangalore hospital without availing the treatment of faciotomy as suggested by 2nd OP doctor.
It is pertinent to be noted that in the referral letter given from OP hospital it is stated that the Doppler study on 12/7/2010( R) leg showed very low volume flow in the anterior tibial and posterior tibia artery s/o significant distinction distal to the popliteal artery.
According to PW2, classical symptoms of compartment of a particular limp are pain, pallor ,paralyze and pulselessness which are call as four ‘p’s. As per medical records of 1st Op hospital Ext.X1 the complainant was suffering from severe pain, paralysis and pallor . So there was compartment syndrome developed on the patient at the 1st OP hospital itself. PW2 further deposed that the most important investigations available like Doppler study, pulse oxymeter and pressure metometer.
On perusal of Ext.X1 case records we can see that the responsible treating orthopedic surgeon 2nd Op after the admission of the patient on 12/7/2010 at 9.p.m , he examined the patient only at 3.45.a.m on 13/7/2010 when the patient complaint severe pain over R lower limb. Then also he had done pop stab removed and limb elevated and gave pain killer tablets though SPO2 shows 93%. 2nd OP had noted at that time compartment pressure. After that only at 7.a.m after 3.25 hours HOD/surgery examined the patient and planned to conduct laperotomy and directed to inform Ortho doctor(2nd OP). 2nd OP during examination before commission deposed that on elevating the limb he could not achieve any improvement on the patient. We can see from Ext.X1 case record that after examining the patient by 2nd OP at 3.45 a.m on 13/7/2010, he neither reviewed the patient nor given any medical advise till the discharge of the complainant. Further on perusal of Ext.X1 we cannot find that 1st Op has given advise for Doppler study and fasciotomy. From Ext.X1 page 490 it is evidenced that on 13/7/2010 at 8.15.am ( R) leg dressing is there. But patient complaint severe pain ( R) leg.’Limb seems to be cold’. Advised ortho review. PW2 expert doctor gave expert opinion that if the limb is complete cold and discoloured , it infere that the limb is almost dead. Hence from the facts stated in Ext.X1 page 490, the limb of the patient was almost dead at 8.15 a.m on 13/7/2010. Then the contention of the OP that Vascular changes in the limb of the patient was happened was due to transportation of patient from 1st Op hospital to Mangalore hospital cannot be accepted. Further PW2 stated that in this case the compartment syndrome when the patient cause in as per the record the vascular flow was present but slowly come down within ‘6’ hours Doppler showing low velocity flow. Here from the referral letter issued for Dr.A.Purushothaman from 1st Op hospital , it is specifically stated that in the Doppler study taken at the admission time of the patient itself ( R) leg showed very low volume flow in the anterior tibial and posterior tibial arteries . According to PW2 compartment syndrome developed within ‘6’ hours from Doppler showing low velocity flow. Further Ext.X1 page 488 , 2nd OP recorded that at 3.45 a.m, compartment pressure. Which means compartment syndrome already developed at the ( R) limb from 1st Op hospital itself at 3.45.a.m. Further complainant, complaint about severe pain on his ( R) leg. Even then 2nd OP did not cared to give any necessary treatment to the patient. OP contended that this patient after RTA had severe abdominal injury with closed comminuted fracture of proximal third tibia and fibula with intra articular extension right leg without neurovascular deficit. In such a patient, abdominal injury is life threatening . According to OP the expert witness PW2 admitted this facts in his cross examination, so giving importance for treatment of injured stomach cannot be blamed.
On testimony of PW2, it is stated that Page (II) : abdominal injury takes the first priority action. However in this patient under the same anesthesia and fasciotomy could have been done. It is pertinent to be noted that according to OP, they took the first priority action to abdominal injury but no surgery like laparotomy was done at the proper time though USG at the admission time found blunt injury abdomen and at discharge day at 9.30 a.m Hemoperritoneum 1000ml. It is seen that emergent laparotomy done at Mangalore hospital. So OP’s contention that they gave important to abdominal injury which is life threatening cannot be believed. Further during cross examination of PW2, the learned counsel for OP put a question that ‘if the patient was subjected to re-vascularisation surgery that is faciotomy at this time ie 8.50 done agree that the limb done have been saved? Answer is that faciotomy at that stage perhaps could have saved the limb. From the said opinion it is evident that from OP hospital , complainant did not get proper treatment at proper time. The oxygen saturation was not evaluated either by 2nd OP or by any nursing staff. Further on perusal of Ext.X1, there is no endorsement regarding that the patient was posted for fasciotomy. Here DW2 is the HOD of Orthopedic department of 1st OP hospital. On the testimony of DW2 the Head of Orthopedic department in 1st OP hospital he deposed that though complainant was admitted in his department as inpatient on 12/7/2010 at 10.p.m, he examined the patient only at 8.15.a.m on the next day when the patient complaint about severe pain at his fracture site on right leg. DW2 stated at the time of his examination the complainant have two complaints, one is severe abdominal injury and low flow blood circulation at right leg below the knee and no distal pulse on ( R) leg. From the deposition of DW2, we can realize that though he informed to the treating doctor about the condition and improvement of the patient, at the admission time of patient 2nd OP ,the Assistant professor of same department who treated the patient informed about severe pain at the fracture site of leg only at 3.45 a.m on the next day . Further we can reveal that though there was severe abdomen injury on the patient and low flow blood on the ( R) leg , the patient remained in ICU till next day morning by giving pain killers injection and tablets without doing proper treatment or surgery like laparotomy , faciotomy etc. Hence from DW2’s evidence also, it is revealed that there was latches and negligence on the part of 2nd OP treating doctor.
Learned counsel of complainant submitted that Hon’ble Supreme Court through its ruling reported in 2010 KHC 4094 has given several direction to the courts dealing with the medical negligence cases as to what constitutes medical negligence. Medical negligence is precisely defined as 1. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affair, would do, or doing something which a prudent and reasonable man would not do.
2. Negligence is the essential ingredients of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
3. The medical professional is expected to bring a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what law require. And there are 7 points apart from the above. Here in the above case the failure on the part of the 1st OP in not caring and treating the complainant against compartment syndrome is not based on error of judgment and it was due on the part of the doctor as a skilled professional to monitor the complainant against developing risk. Hence 1st Op has to be found negligent and careless in doing his duties and he should be made liable to pay compensation to the complainant.
Learned counsel for OP also submitted citations of Hon’ble Supreme Court and Hon’ble National Commission. That petitioner should have produced some cogent, convening and plausible evidence to show that the doctors were negligent at any time. Further there is no evidence to show that the Ops were at fault and the hardship caused to the complainant was not because of any negligence of 2nd opposite party etc.
Here on considering the facts and circumstances of this case and from the medical records brought before us, it is evident that 2nd OP gave least importance to the injury happened to the complainant on his leg in monitoring and in treating at proper time by doing investigations like Doppler study, pulse oxymeter test etc intermittent . Here though complainant and his bystanders complaint and informed about severe pain on the right leg 2nd OP has administered only pain relief medicines like dynapar tab, dynapar injection, Tramazac injection ,fortwin tab, chymoral fort, ketanov injection etc. If proper investigations were done on the patient happening of compartment syndrome could have been avoided. Here we cannot blame complainant to suggest to go other hospital for getting better treatment because he was conscious and oriented suffering acute pain . it is also evident that even complainant demanded discharge at 8.30 a.m, 2nd OP and department of orthopedic , done many investigations on the patient without any use which resulted only delay in discharging the patient and obtaining better treatment. Hence we are of the opinion that there is negligence and latches on the part of 2nd Op doctor and 1st Op hospital in providing due care and necessary tests necessary treatment on the patient in due time and further delay in discharging the patient to higher centre and thus could have avoided complications arised on the complainant like amputing his right leg above the knee.
For calculating the quantum of compensation , it is a fact that at the accident date he was working as Circle Inspector in Kerala Police department and at the time of adducing evidence as DYSP. It is not necessary to compare. The compensation received from MACT in respect of claim with the negligent treatment and latches happened on the part of opposite parties .
Considering the physical disability, working status and mental agony of the complainant, we are inclined to allow Rupees five lakhs( Rs.5,00,000/-) as compensation.
In the result complaint is allowed in part. Opposite parties 1&2 are directed to pay Rupees five lakhs( Rs.5,00,000/-) as compensation to the complainant. From the awarded amount Rs.4,00,000/- shall be paid by 2nd opposite party doctor and Rs.1,00,000/- by 1st opposite party hospital Director Board Members at the time of incident of this case to the complainant. Opposite parties 1&2 are further directed to pay Rs.25,000/- as cost to the proceedings of this case. The awarded amount shall be paid by the opposite parties within one month from the date of receipt of this order. Complainant is at liberty to file execution application against opposite parties for realizing said amount as per the provisions envisaged in Consumer Protection Act 2019.
Exts:
A1-photocoy of accident cum wound certificate
A2- Photocopy of leter issued from Medical officer Thejaswini Hospital,Mangalore to 1st Op
X1- case sheet of OP
X2- X2-case sheet of Thejaswini Hospital,Mangalore
PW1-Muraleedharan-complainant
PW2-Dr.M.Shantharam Shetty- witness of PW1
DW1- Dr.N.N.Riyas- OP.NO.2
DW2-Dr.Sunil.V- witness of Ops
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
