DULIPUDI SRINIVAS vs PARASA YOGALINGESWARA RAO

THE facts as emerge from a reading of the complaint are that the complainant who is a tractor mechanic, Machilipatnam sustained injury to his left leg in a road accident on 4.8.1995 approached the opposite party Orthopaedic Surgeon, hereinafter called ''the doctor''. On examination the doctor diagnosed the problem as fracture of Tibial Plethora with an open wound. He applied Plaster of Paris (POP) on open wound which is opposed to all medical practices, as a result of which the complainant suffered swelling over his left thigh, knee, leg along with tenderness with multiple blisters around the leg, loss of sensation from middle 1/3rd and finally the leg was amputated making him cripple for the rest of his life. THE complainant had to suffer this disability at the age of 28 years on account of the careless treatment given by the doctor and he had to incur an expenditure of Rs. 50,000/- for the treatment at NIMS, Hyderabad, consequently he had to give up his lucrative business of tractor mechanism earning Rs. 3,000/- to Rs. 4,000/- a month. Hence he claims a compensation of Rs. 6 lakhs towards loss of earnings, Rs. 1 lakh for mental agony, Rs. 50,000/- towards treatment, totalling to Rs. 7,50,000/-.

IN the written version filed by the doctor it is admitted that the complainant sustained a leg injury in a road accident on 4.8.1995. He approached the opposite party through a common friend Mr. Devi on 4.8.1995 at about 10.00 p.m. for first-aid. The opposite party was running only a clinic-cum-residence. Immediately he attended on the complainant by giving first-aid and advised them to go to Government Hospital for further treatment as the opposite party had no facilities for treatment and since it is a medico legal case as the complainant along with two persons driving Luna in a drunken state met with a road side accident. It is denied that he applied plaster of paris as alleged. But the complainant instead of going to Government Hospital approached him again on 6.9.1995. On examination he observed that the complainant took country side treatment and noticed swelling on the leg and suspected that gas gangrene has developed after 36 hours due to complainant''s negligence. As the complainant did not approach the Government Hospital as advised but obtained country side treatment, negligence on his part is writ large. He has discharged his duty as a doctor by giving first-aid and proper advice and, therefore, there is no negligence on his part. The complainant examined himself as P.W. 1 besides examining one S.V. Subba Rao as P.W. 2 and filed Exs. A-1 to A-64. The opposite party also examined himself as R.W. 1 and filed Exs. B-1 to B-3. Dr. V.B.N. Prasad Rao, Professor and Head of Orthopaedic Department, Nizam''s Institute of Medical Sciences was examined as C.W. 1 and marked Exs. C-1 to C-4.

The point that arises for consideration is whether there is any negligence on the part of the opposite party doctor ?

THE case of the complainant is very simple and straight forward. His case is that he met with a road accident on 4.8.1995 and sustained injury on his left leg and immediately approached the opposite party doctor who diagnosed it as a fracture of tibial plethora with an open wound. He applied bandage due to which he developed gangrene. THE doctor however advised him to contact a specialist at Vijayawada on 6.8.1995 and he was shifted in an ambulance from Machilipatnam. However, the doctor at Vijayawada advised him to go to NIMS and he was accordingly admitted in NIMS as inpatient and his leg was amputated due to the negligent course of treatment adopted by the opposite party resulting swelling of the leg and development of ganrene. THE opposite party denied this in his written version, more so in his proof affidavit that he had put any plaster of paris as it was an open wound. The complainant filed Ex. A-58 in the handwriting of the doctor which does not bear any date. The complainant states in his evidence that the doctor collected Rs. 450/- and applied plaster of paris. Ex. A-58 though does not bear the date amply establishes that the bill for aspiration and application of plaster of paris is Rs. 450/-. Though actual payment is not mentioned under Ex. A-58, but it amply establishes that a bill for Rs. 450/- was raised by the doctor. In all probability the amount must have been paid as otherwise the opposite party would have come out with a plea that the amount was not paid to him. This was not his case. Prima facie this document proves application of plaster of paris on the complainant''s leg. If the date is not mentioned in the said bill it is not the fault of the complainant since the bill was raised by the opposite party. The fact that the issuance of this document is not denied by the doctor also lends support to the case of the complainant.

THE complainant issued a legal notice Ex. A-3 on 9.11.1995 clearly stating what transpired between him and the opposite party. THE notice was issued in about two months from the date of discharge i.e., 28.8.1995 from the NIMS after having undergone amputation on 15.8.1995, for which a reply was issued on 28.11.1995 by the doctor wherein it is stated that it is a great loss to his close friend i.e., the complainant, who sent so many cases to him for the last five years. He feels extremely unhappy to know that his leg has to be amputated. But he wants to know the details of injury like motor cycle used, location where he sustained the injury, F.I.R., whether it is a crush injury or due to burns etc. After enquiring into the details of the injury through police and relatives he will reply, till then he seeks time to issue a reply. THE material allegations in the complaint are not denied in this notice. Though it is specifically stated that he put on a plaster of paris casing on open wound the very fact that he could not deny even this allegation in the first instance shows that the complainant has come forward with true allegations. Added to this the discharge certificate of NIMS marked Ex. A-5 shows under the sub-heading ''Clinical Summary'' as follows : "CLINICAL SUMMARY : Alleged to have sustained injury to the (lt) leg due to an R.T.A. on 4.8.1995. Since then, developed pain/swelling/deformity (lt) knee. He was not able to bear weight on left lower limb since then. Took treatment with local Orthopaedician where aspiration of knee A/k and POP casing done. Two days later developed severe pain in the leg and .... (not clear) for which he went to hospital. THEre POP was removed. Blisters were noticed in the leg. He was not able to move the leg or foot. No part H/o ..... (not clear)/Htn./Asthamatic/Drug allergy. O/E : GC Fair vitals stable. L/E Swelling over lower (left) thigh, (lt) knee, (Lt) leg. Tenderness over (lt) knee & multiple blisters all round of the leg. Tense swelling of (it) leg and sensations over the (lt) leg firm mid 1/3 - absent. No active toe and ankle movements. Bluish discolouration of the skin over the leg and PTA fell. DPA feeble. Fasciotomy done on 7.8.1995. Muscle looks unhealthy, debridement on 12.8.1995, 14.8.1995 done all 3 compartments .... (not clear) were dead and on 15/8 A/k amputation done." This discharge summary clearly shows that the patient took treatment with local Orthopaedic doctor where aspiration of knee and above the knee POP casing done and two days later as he developed severe pain in the leg, there POP was removed. From this, unhesitatingly we can reach the conclusion that the first opposite party doctor has applied POP casing to the complainant''s leg on 4.8.1995. By 6.8.1995 complications developed like severe pain in the leg, blisters were noticed. In fact even the opposite party also admits in his written version that he conducted aspiration of blood from the knee joint, but says that he advised the patient to go to Government Hospital. For this there is no proof except his ipsi-dixit. Of-course Mr. Devi''s affidavit filed in proof of this allegation, about which we shall refer a little later. Even in the referral letter Ex. A-2 addressed to Dr. Ankem Murali Krishna of Vijayawada the opposite party doctor merely stated that this is a suspected gas gangrene developed after 36 hours. Since pus is raising and gangrene is extending above the knee level, he gave Ansitritic (not clear). Since the anti gas gangrene serum is not available and hyper basic oxygen facility is also not available, he is forced to send the case out. Here he does not say that the patient had taken any country side treatment as alleged by him later and so also he did not indicate what treatment he had given and when. Therefore, this vague referral letter is only an attempt to avoid consequences of the treatment given by him as by then he noticed the repercussions of his treatment. The very fact that he could not issue a reply to the allegation that he applied plaster of paris on open wound in his reply but wanted time to enquire with police or his relatives as to the other details, clearly shows his helplessness to deny this stark truth that he applied POP casing. We are unable to understand why he wants to go to the location and other details like motor cycle used, whether the injury is a crush injury or burn injury, F.I.R. etc., when he himself has seen the injury within few hours of the accident. This vagueness in the reply exposes hollowness of his version. He is able to say in his reply that the complainant along with two other persons driving a luna in a drunken state and sustained injury. When he is able to get at this fact it is unimaginable how he could not know the location and the motor cycle used, etc. Even in the referral letter he did not indicate what treatment he has given. Admittedly he has conducted aspiration of blood from the knee joint. Even this he did not mention. Curiously he says that the patient developed gas gangrene after 36 hours. He admits that he has seen the patient after 36 hours and noticed or suspected gas gangrene. Therefore, to mention that gas gangrene developed after 36 hours is only an attempt to disown the responsibility. He admits that he administered tetanus toxoid and anti biotics but not mentioned in the referral letter. He issued a certificate Ex. A-63 on 6.8.1995 for requisitioning Ambulance to carry the complainant from Machilipatnam to Vijayawada. This certificate along with Ex. A-64 report dated 6.8.1995 for blood group issued by Swetha Diagnostic Centre, Vijayawada wherein the name of the opposite party is mentioned as referring the complainant for such a test, clearly shows that it is the opposite party doctor alone that was treating the complainant from 4.8.1995 to 6.8.1995 and during these two days he developed all these complications for which there is absolutely no explanation forthcoming from the opposite party doctor. The irresistible conclusion amply supporting the version of the complainant by the overwhelming evidence filed in this case points out that the opposite party doctor applied POP casing on the injured leg of the complainant with open wound as a result of which gangrene had set in with swelling over his left thigh, knee with tenderness over left knee, loss of sensation and multiple blisters, as a result of which his leg had to be amputated. We are, therefore, of the opinion that the complainant has established that it is due to the negligence of the opposite party doctor he suffered this malady. The opposite party doctor failed to inspect the POP casing for two days, and failed to advise the complainant to visit him the next day. It is not his case that he has done either of this, but states that he advised the complainant to go to Government Hospital for which there is absolutely no proof. The evidence and the circumstances in this case clearly point out that the opposite party alone was treating the patient. He did not even state in his reply that he advised him to go to Government Hospital. Having asked for time he did not issue any reply to the registered notice sent by the complainant though the complainant waited till 18.3.1996 to file the complaint. Curiously he says in his written version that though he requested time for reply the complainant''s Counsel has not chosen to give any reply to his request for time and so no reply was sent. This reasoning to say the least is curious. An attempt is made to enlist support to the version of the complainant by filing the affidavit of Mr. Devi as a person who accompanied the patient to the doctor. This fact was not mentioned in the reply notice. On the other hand it is clearly mentioned by him that the complainant is his close friend who sent him many cases. Filing of affidavit by Mr. Devi is only vain bid to impress upon the Commission that he advised the complainant in the first instance to go to a Government Hospital. Therefore, no credence can be given to this affidavit. Another such attempt to avoid liability is the unfounded allegation that the complainant did not follow his advice to go to Government Hospital but took country side treatment. Here again we must observe that this fact did not find a mention in the reply notice where he is supposed to come out with forth-right disclosure of all the facts. Of course he filed some material Exs. B-1 to B-3 in support of his plea that at the relevant point of time he was having a clinic only. In our view this does not alter the situation. Whether it is a clinic or a nursing home, it does not matter, it is the duty of the doctor to treat the patient with due care and diligence and having applied POP which should not be done on open wound as admitted by him but should also attend follow-up treatment which is lacking.

FOR all the above reasons, we are of the view that the opposite party failed to show that he had given proper treatment and it is due to the negligence of the complainant he lost his limb as contended. The complainant has established negligence on the part of the opposite party doctor by overwhelming evidence most of which is uncontroverted and untrammeled including the evidence of C.W. 1 and the case history maintained by NIMS i.e., Exs. C-1 to C-3. Hence we find that there is negligence on the part of the opposite party which resulted in permanent disability to the complainant.

THE next question is what is the compensation the complainant is entitled to ? It is the case of the complainant that he was working as a tractor mechanic and earning Rs. 3,000/- to Rs. 4,000/- per month. He was aged 28 years at the time of the accident. He claims Rs. 6 lakhs as compensation, Rs. 1 lakh towards mental agony, and Rs. 50,000/- towards expenditure. So far as the expenditure of Rs. 50,000/- is concerned, he underwent amputation on 15.8.1995 including debridgement, surgery on 7.8.1995, 12.8.1995 and 14.8.1995 at NIMS. He was there as inpatient till he was discharged on 28.8.1995. The complainant also produced Exs. A-6 to A-61 which are medical bills showing the amount incurred by him for purchase of medicines. Having regard to all the circumstances a sum of Rs. 50,000/- in our view is not unreasonable under this head.

Coming to the compensation for permanent disability is concerned, although the complainant says that he was earning a sum of Rs. 3,000/- to Rs. 4,000/- per month, there is no clinching evidence on this aspect. But the fact remains that he was working as a tractor mechanic which is not denied. Though the affidavit of Chimata Devi was filed in support of the version of the opposite party to show that the opposite party after giving first-aid directed the complainant to go to Government Hospital, as already seen no reference is made about him in the reply notice Ex. A-4. Even in his affidavit it is not denied that the complainant is a tractor mechanic. Having regard to these circumstances we are of the view that the complainant must be earning at least a sum of Rs. 1,500/- per month as he was quite young aged only 28 years and having regard to his age the learned Counsel requests to apply multiplier 16. If so applied, it comes to Rs. 2,88,000/-. But it is also not established that the complainant will not be able to attend to light mechanic work in the workshop. Having regard to the circumstances, we are of the view that a sum of Rs. 1 lakh towards permanent disability, and an amount of Rs. 25,000/- towards mental agony can be awarded. In the result the opposite party is directed to pay a sum of Rs. 1,75,000/- (Rs. 50,000/- + 1,00,000/- + 25,000/-) to the complainant with interest at 12% p.a. from the date of filing of the complaint till the date of payment. Time for payment six weeks. The complaint is accordingly allowed in part to the extent indicated above with costs of Rs. 5,000/-. Complaint partly allowed with costs.