SMT. RAVI SUSHA: PRESIDENT

Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, for getting compensation on account of Medical negligence on the part of opposite parties.

            Briefly stated thereafter the 1^st OP conducted a surgery on the injured leg of the complainant and his right leg was put under plaster caste after fixing steel rod up to thigh region in a most negligent and careless manner without leaving any space for air passage or without taking necessary precaution for blood circulation in the injured area and without caring the injury in the affected leg of the complainant.  Complainant alleged that from the 2^nd day onwards immediately after the surgery the complainant felt total numbness and a cold feeling over his right leg.  The complainant informed the matter to 1^st OP through his wife and thereafter the 1^st OP examined the affected area of complainant’s leg and represented that there is nothing to wrong and complainant would be alright after few days.   On 20/04/2014 the wife of the complainant noticed that the normal body warmness was totally lacking in the foot area of the injured leg (where there was no plaster caste) and she immediately informed the said fact to 1^st OP and expressed that she doubt some in the injured area 1^st OP again examined the complainant and represented that there is no complication as doubted by the complainant and his wife and the complainant would be alright within a couple of days.  On 21/04/202014 the complainant fell unconscious and again the matter was brought to the notice to 1^st OP and no steps at all is taken by him and 1^st OP again took a stance that the complainant would be alright within a couple of days.  From 22/04/2014 onwards the complainant was suffering from severe fever and no effective steps are taken by 1^st OP to give necessary care and attention to the complainant.  From 27/04/2014 onwards unbearable foul smell started from emanating from injured area.  On 27/04/2014 the 1^st OP, after examination of complaint advised for another surgical procedure in the injured leg.  On 28/04/2014 the physical condition of complainant became so serious and dangerous the wife of the complainant requested to 1^st OP to discharge the complainant for taking him to another hospital for better treatment.  OP by furnishing false and fabricated information in the discharge summery to the effect that   the complainant was suffering from psychological illness in connection with alcoholic withdrawal syndrome and high blood sugar with oblique motive to escape from his legal and professional liabilities.  The complainant was not at all diabetic at the time of admission in 2^nd OP’s hospital and complainant never exhibited any complication during hospitalization under 1^st OP due to the alcoholic addiction.  The complainant was thereafter taken to Tejasvini hospital, Mangalore and underwent treatment as and important from 29/04/2014 to 17/06/2014.  The complainant was constrained   to spent more than 4.5 lakhs to save his life and also to avoid amputation of injured leg.  The doctors who treated the complainant from Tejaswini Hospital were of unanimous opinion that the entire complication arose due to negligence and carelessness on part of 1^st OP.  The entire muscle tissues in the injured leg of the complainant were destroyed and the complainant sustained permanent disability.  There is grave deficiency of service on part of 1^st OP.  The 1^st OP miserably failed to exhibit the normal skills and standard of care expected from an orthopedic surgeon. The 1^st OP also miserably failed to show reasonable care and attentions to the complainant till 28/04/2014.  The 1^st OP also guilty for furnishing data in the false case sheet of complainant regarding alcoholic addiction  of complainant at the time of admission or after discharge from 2^nd OP’s hospital, the complainant has not been suffering from high blood sugar.  The complainant suffered permanent disability and injured leg is looking ugly and has became so thin an feeble to perform any manual work on account of negligence on part of 1^st OP.  Hence this complaint.

            OPs 1 and 2 filed separate written versions.  OPs denied the allegation of negligence on the part of the OP No.1 Dr. P Vinodkumar in conducting the surgery or giving of the post operative treatment. 

            OP1 submitted that the complainant was brought to the 2^nd OP hospital on 17/04/2014 at around 5 PM with history of sustaining injury due to alleged fall from height.  On examination the patient was conscious and oriented and smell of alcohol present.     Based on X-ray examination he was diagnosed to have bicondylar intercondylar comminuted fracture right upper tibia with minimal contusion of soft tissue around.   The patient was put on temporary slab.  On clinical examination the patient gave a history suggestive of alcohol addiction. After fully conversant with pros and cons of surgical fixation of fracture and risk and complications peculiar to the nature of fracture, the complainant voluntarily agreed for surgery.  Under all aseptic care and precautions the 1^st OP conducted  open reduction and internal fixation under spinal anaesthesia, fracture reduced and fixed with LC plate and screws.  Reduction was confirmed under c-arm image intensifier.  Fasciotomy was done for 15 cm and wound closed after attaining complete homeostasis. Long leg slab with dynar was applied loosely.  Radial pulsation checked and found to be good and sp 02 on the right big toe was 96%.  Post operatively  the patient was shifted post operative ICU and he had started showing signs of alcohol withdrawal syndrome and the same was managed with tranquilizers as per advice of the psychiatrist.  Due to the said problem the patient was restless and not obeying the instruction for keeping the limb elevated.  On 18/042014 the patient was found keeping the limb down the cot against proper medical instruction.  He was given due medicines and a check x-ray was taken to assess the condition of the fixation and the same showed in good position and the patient was stable and shifted to the room.  The patient remained restless and physician had attended him and the patient was not following the instruction for limb elevation.  The patient did not complaint any pain or numbness on 1^st post operative day.  On19/04/2014 it was noted that the patient was keeping the fractured leg in hanging position is utter disregard to proper medical advice.  He was strictly instructed to keep the limb elevated.  It is pertinent to not that on the 2^nd post operative day also the patient was restless and not obeying the instruction to keep the limb elevated.  On 20/04/2014 the patient complained severe pain and numbness.  Based on clinical symptoms the fist OP had made a provisional diagnosis of compartment syndrome and immediately called for a consultation with plastic surgeon.  On examination by the plastic surgeon distal arterial pulsation wound could be heard well and the same was made audiable by the wife and son of the patient as well.  Based on clinical symptoms and on the basis of diagnosis the patient was advises fasciotomy and with written informed consent extensive fasciotomy was done on 20/04/2014 itself.  Immediately after fasciotomy SP  02 restored back to 96%  and pulse returned back in full volume.  After the procedure the patient was shifted to ICU and kept under close observation and monitoring.  In the evening on 20/04/2014 the patient became very violent and started walking with full weight bearing against medical instruction.  The patient has shown signs and symptoms of delirium tremens and referred to psychiatry consultation and as per advice of psychiatrist the patient was given medicines for sedation.

The patient was managed with proper antibiotics and daily dressings by the 1^st OP and the plastic surgeon.  On 21/04/2014 the patient was found to become diabetic with PPBS recorded 209 mg% and physician’s consultation was taken and the patient was managed by diabetic control as per protocol.  On 22/04/2014 RBS was 290 mg% and FBS level was 253 mg% and he was started on insulin as per advice of the physician.  On 23/04/2014 the patient was found to be restless and standing on operating limb and psychiatric consultation was done.  The patient was properly attended with wound cleaning and dressings and continued antibiotics.  On 24/04/2014 wound swab was sent for culture and sensitivity and antibiotics were changed to higher antibiotic.  The psychiatrist had also attended the patient as having signs of delirium tremens.  On 25/04/2014 the patient was noted to have developed pus discharge from surgical wound site and the patient was managed with wound cleaning and dressings and antibiotics were changed to higher antibiotics as per culture and sensitivity.  The patient was given daily wound cleaning and dressings and kept under proper antibiotic cover as per sensitivity report. On 28/04/2014 the 1^st OP had examined the patient and cleaning and dressing was done and discussed the condition of the patient with relatives.  On 29/04/2014  the patient and relatives demanded discharge of the patient .  The complainant was informed that he required debridement, skin grafting and fasciotomy and it was planed fixed to be done on 30/04/2014.  But the complainant’s wife and son had decided to take the patient to Tejeswini Hospital, Mangalore for further management and as per request the patient was discharged against medical advice.  The 1^st OP had exercised reasonable skill and care in the management of the bicondylar intercondylar fracture right upper tibia  with soft tissue contusion caused to the complainant.  Post operative x-ray, Distal pulsation and oxygen saturation were checked and assessed periodically.  The complainant was totally indifferent to follow proper medical advice rather he had applied weight on the operated limb and became restless due to delirium tremens and in the mean while diabetes mellitus condition also developed and badly affected wound healing.  The patient was treated with proper antibiotics as per culture.  It is contended that there is no medical negligence on the part of OP No.1 and prayed for the dismissal of complaint.

            At the evidence stage both parties led their evidence.  Two witnesses were examined on the side of complainant.  The complainant himself and his wife.  Ext.A1 to A14 and medical board report as Ext.C1 were marked.  The medical record from Tejasvini hospital, pertaining to the treatment of the complainant was marked as Ext.X1.  On the side of OPs, OP No.1 was examined and the case sheet of OP hospital was marked as Ext.B1.

After that both learned counsel of the complainant and OPs argued the matter.  The learned counsel of OP 1 filed written argument note also along with judgment of Apex court and medical literature for reference.

            We have heard the learned counsel for the parties, perused the medical records available before us and medical literature submitted.  The 1^st allegation of the complainant, that complainant’s injured right leg was put under plaster caste after fixing steel rod up to thigh region in a most negligent and careless manner without leaving any space for air passage or without taking necessary precaution for blood circulation in the injured area prior to performance of the operation ie there was no proper care taken by OP No.1 while doing surgery and prior to the operation.  Another, OP No.1 was negligent and careless in giving post operative complications to the complainant.

            The main question involved in this case is whether the complainant discharged burden of proof to establish that the OP No.1 Dr. Vinod Kumar P, committed breach of the professional duties and that which caused compartment syndrome.  OP submitted a decision of Hon’ble apex court, about the legal position in the context of the medical negligence case Harish Kumar Khurana 202110 Sec 291) Chandra Rani V Methusethupathi 2022 O SCC 335.  The Hon’ble Supreme court held that to indicate negligence there should be material available on record or else appropriate Medical evidence should be tendered.  The doctors are expected to take reasonable care. But no professional can assure that the patient will come back home after overcoming the crisis.

            We have to examine the material on record in the light of afore stated principles.  From the side of OPs, OP No.1 filed chief affidavit.  He was duly cross-examined.  Nothing of notable evidence could be gathered to the complainant from his cross examination Dw1 gave detailed of treatment given to the complainant.  His version and the medical record Ext.B1 shows that without medical advice, the complainant got discharged from the OP hospital on 28/04/2014.  There is no material to show that 1^st  OP miserably failed to show reasonable care and attention to the complainant till 28/04/2014 as alleged by the complainant.

            The medical treatment papers relied up on by the OPs(Ext.B1) go on to support version of OP NO.1.  OP No.1 contended that based on X-ray on the admission day of the patient he was diagnosed to  have bicondylar inter condylar comminuted fracture right upper tibia with minimal contusion of soft tissue around.  The patient was put on temporary slab.  On clinical examination the patient gave a history suggestive of alcohol addiction. Further after obtaining consent, under all aseptic care and precautions, the first OP conducted open reduction and internal fixation under spinal anesthesia, reduction was confined under c-arm image.  Fasiotonomy was done for 15 cm and wound closed.  Long leg slab with dynar was applied loosely.  OP further submitted that due to alcohol withdrawal syndrome the patient was restless at post operative time and not obeying the instruction for keeping the limb elevated.  As per Ext.B1 (P.17) it is stated that he patient was found walking on bed and was very restleas, his sp 02 was 97%. On 22/04/2014, he was given 9 medicines and showing alcohol withdrawal syndrome, psychiatric consultation was done spo 2 on the right big toe was 96%.

            Though Pws 1 and 2 denied the contention of OPs about history of alcohol addiction of the complainant and showed alcohol withdrawal syndrome at post operative period, the medical records available before us Ext.B1 as well as Ext.X1 the case record of Tejasvini Hospital clearly shows that H/o Alcoholic took psychiatric treatment.  Ext.B1 also revealed that the patient was consulted by psychiatrist Dr Arun and given medicines for sedation.

            Further OPs contended that the patient was developed diabetes mellitus condition during the post operative period.  The said contention of OP is also denied by Pws1 and 2.  But in Ext.B1 it is noted that on 21/04/2014, blood sugar was 233mg%, on 22/04/2014 blood sugar was 209 mg% and on 22/04/2014, his FB was 253mg%.

            Complainant raised an allegation that the entries in Ext.B1 case record is fabricated statement.  But complainant has not produced any evidence to show that Ext.B1 case record was fabricated.  Ext.B1 further shows on 20/04/2014, the patient C/o sever pain ® leg and numbers and OP No.1 immediately had attended and had made a provisional diagnosis of compartment syndrome and immediately called for a consultation with plastic surgeon.  Based on clinical symptoms, the patient was advised fasciotomy.  After getting written informed consent, the fasciotomy was done on 20/04/2014 itself.  Further recorded in Ext.B1 at 7Pm the patient started walking on bed, very restless.  So from Ext.B1, it is revealed that the patient had acted against medical advice instead of taking complete bed rest with no movement after the operation.  So if after the operation the patient does not take due care to keep his movements restricted,  there is possibility of movements at the site e of the fracture that would cause complications.  The fact that the complainant got himself discharged on his own, is indicative of his own negligence.

            On perusal of Ext. X1  case record, we can see that on the admission day it is stated that OP1 had done ORIF with plating on 17/04/2014 on the patient at OP hospital.

            After 2 days he developed swelling over leg and limb was cold for which they did fasciotomy on 20/04/2014 and kept in ICU.  Now came for further management.  H/o fever yesterday (ie 19/04/2014).

            In Ext.X1 case record we cannot find out any entry regarding that the steel rod fixed in a negligent manner without leaving any space for air passage or without taking necessary precaution for blood circulation in the injured area and that was the reason for developing post operative complication at the fracture site as alleged by the complainant.  Complainant has not even tried to examine the treating doctor at higher centre for establishing his main allegation.  So from the available medical record, it is difficult to find out, whether negligence on the part of OP No.1 contributed to the causation of the post operative complication.  Further there is no evidence to point out that the complications developed on the patient due to absence of care on the part of OP No.1 Dr. P Vinod Kumar.

            There is no dispute about the fact that the OP No.1 Dr.Vinod Kumar is an experienced orthopedic surgeon.  There is no substantial reason to disbelieve the version of OP No.1  and entries in Ext.B1 regarding the medical care taken by him while conducting the operation and giving of the treatment to the complainant.  On the other hand Pws 1 and 2 have no knowledge of medical science and have not adduced any expert opinion about their allegations.

            In the instant case, though complainant alleged that his injured leg was put under plaster caste after fixing steel rod up to thigh region in a most negligent and careless manner without leaving any space for air passage or without taking necessary precaution for blood circulation in the injured area, yet the medical papers available here and version of OP NO.1 would give revers fact to such allegation.  OP NO.1 contended that the complainant had sustained comminuted inter condylar fracture right upper tibia with minimal contusion of surrounding soft tissue and after surgical fixation of fracture long leg slab immobilization was loosely applied and given strict post operative instructions for non weight bearing and limb elevation but the patient did not follow to the instructions.  Further stated at when the patient reported pain and numbness on 20/04/2014,  he was timely attended and on the basis of the diagnosis of compartment syndrome immediate intervention with fasciotomy was done with the help of the plastic surgeon and distal arterial pulsation could be reinstated with good oxygen saturation

            Learned counsel of OP submitted a number of citations of Hon’ble apex court In Bombay hospital (AIR 2022 SC 204)  case the supreme court held that in spite of treatment if the patient has not survived the doctor cannot be blamed as even the doctor with the best of their abilities cannot prevent the inevitable.  As already observed in Jacob Mathew case [(2005)6 SCC1: 2005 SCC(Cri)1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence.  A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved.  It is obligation of the complainant to provide the facta probanda as well as the facta probantia.  C P Sreekumar (Dr.) MS (Ortho) V S Ramanujam, (2009) 7 SCC 130.  The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.  Krisha Muraari Sinha VS Md.Basheer Alam, 2006 2 CPR(NC)120.  Medical negligence –BURDER is on the claimant to prove breach of duty.  2009(0) Supreme (SC) 1153, 2009(4) Supreme (SC) 573.  In a case reported in 2010(1) CPR (NC) 49 the Hon’ble National Commission held that Doctors cannot be held responsible for the negligent acts of patients who are adamant and decide on their own as to what to do and when to take the treatment and do not follow the instructions given to them by the treating doctors.  Even on merit, the “NON UNION OF FRACTURE” is an accepted complication following fracture surgery.  Saternder Kumar VS Indraprashta Apollo Hospital 2016 4 CPR(NC) 716.  The Supreme Court held “It is too much to expect from a doctor to remain on the bed side of the patient throughout his stay in the hospital. (Para26)” (AIR 2022 SC 204)

            The learned counsel also produce medical literature about compartment syndrome (Dieses and condition American Academy of Orthopaedic surgeons) in which the conditions that may bring on acute compartment syndrome include - a fracture (/en/diseases—conditions/fractures-broken-bones/), a badly bruised muscle(/en/diseases-conditions/muscle-contusion-bruise/).  This type of injury can occur when a motorcycle falls on the leg of the rider, or a football player is hit in the leg by another player’s helmet.  It can also happen after overly vigorous exercise that causes muscle tissue to break down (rhabdomyolysis), Reestablished blood flow after blocked circulation.  This may occur after a surgeon repairs a damaged blood vessel that has been blocked for several hours.  A blood vessel can also be blocked during sleep.  Lying for too long in a position that blocks a blood vessel, then moving or waking up can cause this condition.  Most healthy people will naturally move when blood flow to a limb is blocked during sleep.  The development of compartment syndrome in this manner usually occurs in people whose brain function is impaired.  This can happen after severe intoxication with alcohol or other drugs, Crush injuries, anabolic steroid use – taking steroids is a possible factor in compartment syndrome,  Constricting bandages.  Casts and tight bandages may lead to compartment syndrome.  If symptoms of compartment syndrome develop, remove or loosen any constricting bandages.  If you have a cast, contact your doctor immediately.

            Further in National Library of Medicine, National Institute of Health, it is reported that acute compartment Syndrome can occur with any condition that restricts the intra compartmental space or increases the fluid volume in the intra compartment space.  Acute compartment syndrome can occur without any precipitating trauma but typically occurs after long bone fracture, with tibia fractures being the most common cause of the condition, followed b y distal radius fractures.  75% cases of acute compartment syndrome are associated with fractures.  After fractures, the most common cause of acute compartment syndrome is soft tissue injures.  Other causes of acute compartment syndrome include burns, vascular injuries, crush injuries, drug overdoses, reperfusion injuries, thrombosis, bleeding disorders, infections, improperly placed casts or splints, tight circumferential bandages, penetrating trauma, intense athletic activity, and poor positioning durian surgery.  Tibial shaft fracture is the most common cause of acute compartment syndrome is associated with a 1 to 10% incidence of acute compartment syndrome.

From the above observations of Apex court and from reports in Medical books, we are of the opinion that professional negligence is not established against the OP No.1       Dr. Vinod Kumar.  Though Ext.C1 shows percentage of disability is 29% there is no evidence to show the disability was caused due to the negligence of OP No.1.

            Hence taking overall view of the matter we are of the opinion that complainant failed to establish his allegations in this case, the same is dismissed.  No order as to cost.

Exts.

A1- Discharge summary of OP hospital

A2-Copy of lawyer notice dated 25/11/2014

A3-Reply notice of OP1

A4-Reply notice of OP1

A5-Lab report

A6-Lab report from Tejesvini hospital

A7- Discharge bill Father Muller hospital

A8- Lab report from Father Muller hospital

A9- Discharge bill dated 03/08/2014

A10- Discharge Summary 03/08/2015 to 11/08/2015

A11- Lab report dated 24/08/2015

A12- Lab report dated 24/08/2015

A13- Discharge Summary 05/11/2015 to 10/11/2015

A14- Discharge Summary 03/06/2007 to 08/06/2017

B1-Case sheet of OP 2 hospital

C1-Medical board report

X1- Case sheet of  Tejesvini hospital

Pw1-Complainant

Pw2-Complainant’s wife

Dw1-OP1

Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar