Harbhajan Singh vs DAYA NAND MEDICAL COLLEGE AND HOSPITAL

VIDE this order two complaints are being disposed of as the pleadings of the parties are common. The cases were received on remand vide order dated 23.4.1996. After remand, parties produced evidence in OC No. 59/1993. Orally, it was suggested that these cases were earlier consolidated. At the time of preparing Judgment however, it is noticed that on the proceedings of the cases, there was no such order. Since parties produced evidence in OC No. 59/1993 after remand and before that evidence produced in both the cases was the same, except that the affidavits of the two complainants separately were filed in each of the case.

IN this complaint, Harbhajan Singh is the complainant. His wife Surjit Kaur is the complainant in the connected case. Their son Dr. Dilpreet Singh, suffered injuries in an accident, which occurred on April 10,1993. He was working as Registrar-cum-Post Graduate Student in the Department of Surgery, Daya Nand Medical College and Hospital, Ludhiana (opposite party No. 1). The accident took place at the main bus stand, Ludhiana. He was brought to Daya Nand Medical College and Hosptial (in short known as DMC). At the time of accident, he was accompanied by his uncle Ranjit Singh, who alongwith driver and Adda INcharge Kesar Singh and Anrez Singh respectively involved in the accident brought Dr. Dilpreet Singh to the DMC, who had suffered blunt trauma abdomen injury. He was medically examined by Dr. K.P. Singh, Professor and Head of Department of Surgery of DMC at about 4.30 p.m. for ultra sound, he was taken to Sigma Diagnostic Centre, Ludhiana where Dr. Amardeep Singh, MD did so and he is alleged to have informed Dr. K.P. Singh on the phone at 5.45 p.m. about the gravity of the injury and continued retro peritoneal, requiring urgent operation. Dr. K.P. Singh performed the operation at 9.30 p.m. inspite of the fact that repeated requests were made to him by relatives of the injured by visiting his residence. Thus, one of the grouses of the complainant is about undue delay caused by Dr. K.P. Singh opposite party No. 2 in performing the operation. Further allegation is that Dr. K.P. Singh was negligent in conducting examination of the injured as he did not notice retro peritoneal cavity injury. He did not observe pulses on the right leg of the injured, whereas the injured was complaining of pain in the right leg. The third grouse of the complainants is that while performing operation on the injured, he did three resections on the intestine whereas, he was required to do only one. Further grouse of the complainants is that on the following day, Dr. K.P. Singh did not attend to the patient inspite of being informed of pain in the leg. The other doctors of DMC examined the patient and advised for his shifting to the PGI, Chandigarh and ultimately, the injured was shifted to PGI, where he was operated upon on the following day i.e. April 12,1993. A sum of more than Rs. 2 lacs was alleged to have been spent in the PGI on different operations and on costly medicines during the period April 11,1993 to May 20,1993. Apart from the above, the complainants had to manage the blood for Dr. Dilpreet Singh on several occasions when operations were performed by meeting taxi expenditure for bringing the blood donors. It was further alleged that had the deceased lived, he would have fetched Rs. 6,000/- to Rs. 7,000/- monthly as pay packet and could also earn from private practice to Rs. 30,000/- per month. A sum of Rs. 7 lacs were claimed on that account. The complainants also suffered great mental distress and agony on the untimely death of their only son and thus claimed a sum of Rs. 95,000/- as compensation. A sum of Rs. 4,000/- towards litigation expenses was also claimed. The afore said claim was made separately in two complaints. Dr. K.P. Singh was liable on account of his negligent act and DMC on account of vicarious liability.

Dr. K.P. Singh contested the claim in the written reply filed. A preliminary objection was raised about the competency of the complainant to file complaints as no fees were charged from the deceased and the complainants could not be treated as consumers as defined under the Consumer Protection Act. The death of Dr. Dilpreet Singh occurred on account of negligent act of Dr. Gurpreet Singh brother-in-law of the deceased. It was Dr. Gurpreet Singh who took away the injured to Sigma Centre for ultra sound on twowheeler without the permission of Dr. K.P. Singh. This caused delay from 6.00 p.m. to 7.15 p.m. the other negligent act was attributed to shifting of the injured from Ludhiana to PGI, Chandigarh without consulting the opposite party No. 2. At PGI, graft surgery was performed in the presence of infection and another uncalled for operation within 8 hours of anesthesia in the presence of gross contamination, resulted in grave complications one after another ultimately resulting in the death of Dr. Dilpreet Singh. It was after 48 days that Dr. Dilpreet Singh died for which no negligence could be attributed to the operation performed by the opposite party No. 2-Dr. K.P. Singh. Allegations in the complaints in detail were denied. According to him, he promptly examined the injured coming to the hospital at 4.30 p .m. whereas, the injured was brought to the hospital at 4.15 p.m. The examination continued for half an hour. Dr. Gurpreet Singh and his wife Dr. Manpreet Kaur (sister of the (injured) reached the hospital premises at about 5.30 p.m. after the examination, the answering respondent gave directions for tests, X-ray, ultra sound etc. X-ray was conducted in the hospital itself. Whereas, Dr. Dilpreet Singh was taken away by Dr. Gurpreet Singh to Sigma Centre for ultra sound on a two-wheeler without the permission of the answering respondent. Dr. Amardeep Singh deputed them to bring X-ray report so that ultra sound scanning could be co-related. Since, Dr. Gurpreet Singh, did not return, Dr. Amardeep Singh brought the injured to DMC in his own car, reaching there at 7.15 p.m. and discussed the result with the answering respondent. As per ultra sound report, no injury to the retro peritoneal cavity region could detected. Whereas theanswering respondent remained in the hospital and the injured after due preparation for the operation was brought to the operation theatre at 9.00 p.m. and the operation commenced at 9.30 p.m., which continued upto 1.30 a.m. The answering respondent maintained that this operation in the abdomen was rightly conducted, by performing three resections to the best of his professional judgment. He further gave the deails of the damage to the intestine, their distance etc. He denied the allegations of the complainants about not debriding. According to him adequate detriment was performed. This also involved evacuation of haemotoma (B/L Rectus Muscle Haemotoma). There was haemotoma anterior abdominal wall in rectus muscle with tearing of rectus sheath. There was haemoperitoneum blood. He categorically stated that thorough examination was conducted at about 4.30 p.m. including that of peripheral pulsation and no abnormality was discovered. There was no evidence of injury to the lower limb nor any swelling or bleeding points anywhere except a bruise around umbilicus with gap in the abdominal wall. It was on April 11,1993 at 2.00 p.m. that the injured complained of pain and numbness in the right lower limb and this fact was recorded in his own hand writing. Reference was made to Dr. Shadangi''s report after examining the injured as "Earlier used to have pain in the right leg". In view of significant pulsation observed by him and Dr. Krishan Kumar at the time of admission of the patient, there was no need for opening retroperitoneal space. The Xray of the region did not show any bony injury and did not indicate iliac vessels damage. With respect to collection found in the region at the PGI it was pleaded that the same could be on account of rocking and shocking journey of 110 km. from Ludhiana to Chandigarh. Doppler done at PGI also indicated 30% blood flow and did not mention any evidence of active bleeding as a significant collection in retro peritoneal space. It was also asserted that delay caused in performing the operation in the PGI of 14 hours resulted in creating complications and ultimately death. With respect to the observations of Dr. Shadanghi and Dr. Mathur, it was observed that the same were contrary to the finding recorded at the PGI with 30% blood flow in the limbs. Their reports were thus, incorrect and the injured was removed from DMC without taking him in confidence. On the other hand, he did make arrangements for Doppler test at Ludhiana and in the meantime contacted Dr. Satish Khanna of PGI, who could be available on bed side examination on reaching the injured to the PGI. Further reference was made to the letter written by him to Dr. Shadanghi on the following day of removal of the injured to the PGI, showing his displeasure. Reference was also made to the graft operation performed at the PGI, which created complications as graft was rejected by the body. Other allegations regarding quantum of compensation were denied. DMC also filed separate written statement, contesting the claim, however, further denying their liability.

THE complainant produced P-1 History Sheet and Operation Notes of DMC relating to Dr. Gurpreet Singh alongwith the complaint. Subsequently, he produced his affidavit and that of Dr. Gurpreet Singh. THE report of Sigma Diagnostic Centre Annexure 1 produced alongwith affidavit of Dr. Gurpreet Singh. Another affidavit of Harbhajan Singh dated July 20 1996 Annexure-A, of Ranjit Singh Annexure B Tripatjit Singh Annexure-C, Dr. Sanjev Sabherwal Annexure-D, Dr. Varinderjit Singh Annexure-E, Dr. Gurpreet Singh Annexure-F, Vijay Sharma Annexure-G and Paramjit Singh Annexure-H were produced by the complainant. Alongwith affidavit of Harbhajan Singh copy of the order passed by DMC removing Dr. K.P. Singh from service of DMC was produced (dated September 15,1994). Copy of charge sheet served upon Dr. K.P. Singh was also produced alongwith the affidavit of Dr. Gurpreet Singh, list of Annexures attached, were also produced containing quotations from different books, which are 18 in number. Out of them at Item No. 12 A,B and C Contains case summary of PGI and Item No. 13 A to E contains copy of post mortem report of the deceased Annexure 14-A onwards are the documents of DMC containing operation note etc. On behalf of the opposite party, affidavit of Dr. K.P. Singh himself dated August 18,1996 and different counter affidavits of Dr. K.P. Singh of the same date were filed as counter to different affidavits of the witnesses produced by the complainant separately. He also produced affidavit of Dr. Pravesh Dhall, Dr. Krishan Kumar, copy of FIR Annexure R-2/12 and some extracts from the books. Additional affidavit of Dr. K.P. Singh dated July 26, 1996 was filed accompanied by Annexure R-2/5. Copy of the Motor Accident Claims Tribunal, Ludhiana in Surjit Kumar and Another v. Paul Singh and Others whereby compensation to the tune of Rs. 6,60,000/- stood granted in their favour, copy of the claim petition Annexure R-2/6 and copy of Annexure R-2/7 a letter of Dr. Satish Kumar Khanna and extract from book Annexure R-2/8 were produced. Affidavit of Dr. S.M. Boss, Professor and Head of Surgery unit, PGI was also produced. THE complainant further produced his affidavit alongwith application on August 28,1996, which was also taken on the record. A preliminary objection has been raised by Shri Sumeet Mahajan, Advocate for opposite party No. 2-Dr. K.P. Singh, which only deserves to be mentioned to be rejected. The objection is reiterated that no fees were charged by DMC from the injured, Dr. Dilpreet Singh. Neither he could be treated as a consumer nor his legal heirs, the present complainants. This objection initially prevailed before the State Commission and the complaints were dismissed. Such orders passed in the complaints have now been set aside by the National Commission and the cases have been received back for decision on merits after affording opportunity of producing evidence to the parties. If the opposite party was feeling dissatisfied with the order of the National Commission, it was open to him to challenge the same before the Supreme Court. The question cannot be reagitated before the State Commission, in view of the order of the National Commission referred to above holding that the complainants are to be treated as consumers and the complaints are to be decided on merits.

THE Supreme Court in Indian Medical Association v. V.P. Shantha and Others, III (1995) CPJ 1 (SC)=1995 (2) CPC 602, has given complete guidance in the matter of deciding cases relating to medical negligence. In para 27 of the judgment, after making reference to the provisions of Section 13 of the Consumer Protection Act, it was observed as under : "THE same provisions apply to proceedings before the State Commission and the National Commission. It has been urged that proceedings involving negligence in the matter of rendering service by a medical practitioner would raise complicated questions requiring evidence of experts to be recorded and that the procedure which is followed for determination of consumer dispute under the Act is summary in nature involving trial on the basis of affidavits and is not suitable for determination of complicated questions. 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 practioner, but this would not be so in all complaints about deficiency in 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 as in Chinkeow v. Government of Malaysia, (1967) 1 WLR 813 (PC) or use of wrong gas during the course of an anesthetic or leaving inside the patient swabs or other items of operating equipment after surgery. One often reads about such incidents in the newspapers. THE issues arising in the complaints in such cases can be speedily disposed of by the procedure that is being followed by the Consumer Disputes Redressal Agencies and there is no reason why complaints regarding deficiency in service in such cases should not be adjudicated by the Agencies under the Act. In complaints involving complicated issues requiring recording of evidence of experts, the complainant can be asked to approach the Civil Court for appropriate relief. Section 3 of the Act which prescribes that the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force, preserves the right of the consumer to approach the Civil Court for necessary relief. We are, therefore, unable to hold that on the ground of composition of the Consumer Disputes Redressal Agencies or on the ground of the procedure which is followed by the said Agencies for determining the issues arising before them, the services rendered by the medical practioners are not intended to be included in the expression "service" as defined in Section 2(1)(o) of the Act".

The complainants in the present case after referring to the aforesaid decision have tried to bring the present case within the four corners of the principle laid by the Supreme Court. Whereas Counsel for the opposite parties have argued that in the present cases, prima facie negligence of the opposite party No. 2 cannot be established without reference to voluminous evidence produced by the parties with reference to the history sheet of DMC and PGI and this, the complainant should be relegated to Civil Court. It is in this context that on behalf of the opposite party reference has been made to the decision of the Motor Accident Claims Tribunal award dated 6.3.1995 Annexure R-2/5, awarding a sum of Rs. 6,60,000/- in favour of the present complainants, who are now debarred from claiming further compensation in the present complaints on the same cause i.e. death of Dr. Dilpreet Singh and in consequence compensation payable to the complainants. The fact that the claimants have obtained award from Motor Accident Claims Tribunal, copy of the order already produced is not being disputed. Thus at this stage, the question of continuing with the present complaints deserves to be considered. Civil remedy in all cases is always available in view of Section 9 of Code of Civil Procedure unless the same is barred by any statutory provisions. Special provisions have been made in different statutes for claiming different remedies, one of them being under the Motor Vehicle Act. Section 110 D of Motor Vehicle Act provides for filing a claim petition before the Tribunal constituted under the aforesaid Act for claiming compensation on account of injuries or death, caused or occurring on account of use of motor vehicles. The orders passed by Motor Accident Claims Tribunal are subject to appeal before the High Court. Likewise a parallel jurisdiction in addition to other remedies being available vests in the authorities constituted under the Consumer Protection Act for grant of compensation on account of deficiency in rendering service. The orders passed by the District Forum are subject to appeal before the State Commission and the order passed by the State Commission are subject to appeal before the National Commission. The cause for entertaining claims under the Motor Vehicle Act is in relation to the use of motor vehicles whereas under Consumer Protection Act, it is in relation to the deficiency in rendering service by the opposite parties. The State Commission in the present complaints is not required to adjudicate as to driver of which motor vehicle involved in the accident, was negligent and to what extent. Whereas the Claim Tribunal while deciding a claim petition could have, if a plea had been raised that the death did not occur on account of 100% negligence of the driver of the vehicle and that the acts of doctors while giving treatment to the injured were negligent and had contributed in causing the death. On such a finding, the Tribunal after assessing compensation payable on account of death might have fixed proportionate liability on the driver of the vehicle but such is not the case in hand as the judgment of the Motor Accident Claims Tribunal does not indicate so. On the question of cause of death as determined by the MACT., the finding recorded by the Tribunal cannot be considered binding on the State Commission as the present parties were not parties before the MACT. The present case thus, has to be independently decided on the evidence produced as to whether doctor or the doctors treating Dr. Dilpreet Singh were negligent and their such act or acts ultimately resulted in causing death or contributed in causing death. The liability of the opposite parties thus, to be determined after adjudicating on the question referred to above. Learned Counsel for the opposite party, Dr. K.P. Singh, referred to the decision of this Commission in Smt. Chandrika v. The Oriental Insurance Company Limited and Another, 1995 (1) CPC 260, to urge that complicated question of fact relating to negligence of the doctors is involved which requires voluminous evidence to be taken into consideration. Thus, the complainant should be relegated to remedy if any in the Civil Court. The ratio of the decision in Smt. Chandrika''s case cannot be applied to the facts of the present case. In that case, the question related to forgery committed in the insurance policy on the basis of which the claim was made and such a serious disputed question was to be decided by the Civil Court as held. The other case relied upon in this context of the National Commission is M/s. Oswal Fine Arts v. M/s. HMT Madras, I (1991) CPJ 330 (NC)=1991 CPC 43. In that case a civil suit for damages was pending in the Madras High Court and thus, the complainant was relegated to his remedy in the Civil Court on the identical subject matter. As briefly discussed above, findings recorded by the Claims Tribunal on the question of negligence in causing accident means beaming on the question of negligence of the doctors is not binding on the Commission. The question raised has to be decided on the evidence produced in this case.

BEFORE adverting to the facts of the present case, another question regarding manner in which quantum of compensation is to be determined on account of the death also deserves to be considered. In the complaints, allegation has been levelled that on bringing up of the deceased and giving education etc. upto the level of MBBS, huge amount was spent and learned Counsel for the complainants has argued that the complainants should be compensated on that account as that is the loss suffered by the present complainants. This contention is devoid of merit. New principles are not to be applied in the matter of determining compensation on account of death caused by negligence of doctors. The principle remains the same whether such a question is to be determined under the civil law or under the Motor Vehicles Act or under the Consumer Protection Act. Briefly such principles being the earning capacity of the de-ceased his life expectancy otherwise to be considered, which had been shortened by death, the longevity of life span in the family, age of the deceased at the relevant time and his prospects in future, ages of the claimants, their expected loss and applying the suitable multiplier. Strictly speaking the decision of the Motor Accident claims Tribunal on the question of determination of compensation on the death of Dr. Dilpreet Singh as such may not be binding on the State Commission, more so when the same can be challenged in appeal before the High Court. However, after applying the said principles as noticed above, the State Commission can also come to the same conclusion adopting the reasoning followed by the Tribunal. It is only to that extent that the decision of the Motor Accident Claims Tribunal can be of some assistance though not binding when parties are different.

SHRI A.S. Bakshi, learned Advocate for the complainants has argued that it is a clear cut case of negligence on the part of Dr. K.P. Singh opposite party No. 2 in three aspects, for which voluminous evidence is not required to be considered as they are apparent. Those three points are as under : 1. Causing inordinate delay on the part of Dr. K.P. Singh in conducting operation on Dr. Dilpreet Singh on April 10,1993. 2. Negligent act on the part of Dr. K.P. Singh in not observing pulsation on the right leg of Dr. Dilpreet Singh when he was complaining of pain and having failed to diagnose the injury in the retro peritoneal region. 3. While conducting operation of intestine negligently causing three resections in place of one. Point No. 1. Before reference is made to the actual evidence produced in this case, learned Counsel for the complainants referred to the departmental enquiry report conducted on the mis-conduct of Dr. K.P. Singh by the DMC wherein the allegation levelled against Dr. K.P. Singh in causing delay in performing operation on Dr. Dilpreet Singh was held to be there. This report as argued by the learned Counsel for the opposite party No. 2 Dr. K.P. Singh cannot be read into evidence and we are also of the view that this report cannot be read into evidence. One of the reasons being that copies of the affidavits of some of the witnesses produced in the present case were also produced before the Enquiring Authority and the same were completely ruled out. As already observed above, the State Commission has to decide independently the question of negligence on the evidence produced before it, the finding of the departmental enquiry cannot be considered as binding on the judicial authority. Thus, it is not considered necessary to refer to such finding recorded by he Enquiring Authority in the enquiry report.

The burden of proving negligence of the opposite party is on the complainants. They have to stand on their own feet and not to take benefit of any lacuna in the evidence of the opposite party. The first and foremost question in this context in the present case is the time of the accident, which would determine the probable time of arrival of the injured in the hospital. In the complaint, the time of accident is pleaded to be 3/3.30 p.m. on April 10,1993 as stated in para 2 of the complaint. Para 3 of the complaint, mentions the time of admission of Dr. Dilpreet Singh injured in the DMC at about 4.00 p.m. Dr. Gurpreet Singh, brother-in-law of Dr. Dilpreet Singh injured is alleged to have reached the hospital (DMC) at 5.30 p.m. as mentioned in para 4 of the complaint. By that time, X-rays and ultra sound of abdomen had been completed with the help of casuality and ward residents (on call). The complainant is alleged to have reached DMC by 6.30 p.m. In the affidavit filed by Harbhajan Singh dated July 20, 1996, it was on April 10, 1993 at about 5.00 p.m. that his neighbourer informed him at Khanna about telephonic message received from Ludhiana that Dr. Dilpreet Singh had met with an accident and was lying admitted in DMC. He alongwith Paramjit Singh reached DMC at 6.45 p.m. (at 6.45 p.m. added in the affidavit without any signatures of the deponent). In para 3 however, he again reiterated that he reached the hospital at about 6.45 p.m. Since Harbhajan Singh was not present at the time of accident at the bus-stand or at the DMC when the injured was brought there, his evidence is not helpful in deciding time element. Ranjit Singh is alleged to be with Dr. Dilpreet Singh present at the General Bus-stand. He gave the time as 3.00 p.m. when the accident occurred. He does not give the time of arrival in the DMC. But at about 4.15 p.m. according to him Kartar Singh and Tripatjit Singh came to the Emergency Ward and it was at about 4.30 p.m. that Dr. K.P. Singh came out of the Emergency Ward and left special instructions to the junior doctors including instructions for ultrasound examination. This would show that by 4.30 p.m. the injured had been examined. The affidavit of Tripatjit Singh to the effect that he reached DMC at about 4.15 p.m. and at about 4.30 p.m. Dr. K.P. Singh came and examined the injured for about 10 minutes and left after leaving instructions for getting ultra sound etc. Sanjev Sabherwal''s affidavit indicates that at about 4.30 p.m. Dr. K.P. Singh examined Dr. Dilpreet Singh. Dr. Varinderjit Singh in his affidavit stated that at 3.15 p.m., he came to know that Dr. Dilpreet Singh was in the Emergency Ward of DMC and Dr. K.P. Singh came and checked him at about 4.30 p.m. The affidavit of Dr. Gurpreet Singh on these two points being discussed is not relevant as he reached the hospital at about 5.15 p.m. on scooter. Vijay Sharma in his affidavit stated that the accident is alleged to have taken place at about 2.45 p.m. when he was present at the Bus Stand. Paramjit Singh''s affidavit is not material on these two points. Before the affidavit of Dr. K.P. Singh is referred to, it may be observed that much importance cannot be attached to the statements of witnesses given on estimation of time. They vary and they are not in line with the pleas taken by the complainants in the complaint. After the incident, parties became vice. On the part of the complainants, all efforts would be to project that the injured was promptly brought to the hospital and Dr. K.P. Singh intentionally delayed reaching the hospital and examining the injured. Although, the plea taken was that the accident had taken place at about 3.00 p.m. and the medical examination was held at 4.00 p.m. the evidence referred to above indicates that medical examination was conducted at about 4.30 p.m. Dr. K.P. Singh in the reply filed referred to the time of admission of Dr. Dilpreet Singh in DMC at 4.15 p.m. and he himself arrived in the hospital at 4.30 p.m. and examined him. His examination was over by 5.00 p.m. Reference be also made to copy of the FIR Ex. R-2/12 recorded at the instance of Ranjit Singh, wherein the time of occurrence is given as 3.45 p.m. Taking into consideration the evidence referred to above, much importance cannot be attached to the estimation of time given by different witnesses with respect to the actual occurrence or with respect to the time when the injured was brought to the hospital. Exactitude of time in such circumstances is not accepted. However, overall picture from the evidence produced as referred to above, leaves no manner of doubt that at about 4.30 p.m., the injured was in fact examined by Dr. K.P. Singh.

THERE is no dispute regarding the time of operating upon Dr. Dilpreet Singh is concerned. The operation was performed at 9.30 p.m. and the patient was received in the operation theatre at about 9.00 p.m. it is rightly pointed out on behalf of the opposite parties that sometime is taken for preparation of the patient before he is taken to the operation theatre such as change of cloth, shaving of the area of operation and management lines. Arrangements are also required to be made for availability of doctor, who is to administer anaesthesia. In the present case, services of specialists were required, although some doctor capable of administering anaesthesia were also available in the hospital. Before that it is disputed that the patient was taken to Sigma Centre for ultra sound. A great controversy is being raised as to on whose instance the patient was removed to Sigma Centre when the ultra sound facility was available in the hospital itself. The contention of learned Counsel for the complainant is that since doctors referring patient to private clinics for such like tests were getting commission, Dr. Dilpreet Singh was sent to Sigma Centre by Dr. K.P. Singh. Otherwise, there was no need for sending him there. Whereas on behalf of Dr. K.P. Singh, it has been argued that without his knowledge, the patient was removed to Sigma Centre and about two hours wasted in this process. The patient was brought to the hospital by Dr. Amandeep Singh at 7.15 p.m. in his own car and during this period, a person was deputed to bring X-ray report from the hospital so that Dr. Amandeep Singh could have comparative study with the ultra sound report. It was after waiting for sometime that he had to rush the patient to the hospital himself. At this stage another argument addressed on behalf of the complainant may also be noticed that the evidence of Dr. Amandeep Singh given on affidavit should be ignored as he has interest in Dr. K.P. Singh who was referring the patients to the Sigma Centre. In my view it is necessary to discuss in detail the general practice being followed by the doctors in the hospital in referring the patients to Centres outside for ultra sound etc. on the ground that they were to get some commission. Such a practice, if followed has to be condemned on morale as well as ethical grounds. There cannot be any legal sanction for the same. But such cannot be the position in the present case where Dr. Dilpreet Singh who himself was working in DMC and that to under the guidance of Dr. K.P. Singh, who was not to pay for ultra sound etc. Neither Dr. Amandeep Singh has stated that he charged anything for ultra sound done nor he was to be charged by DMC. Thus, the element of vested interest in Dr. K.P. Singh to refer Dr. Dilpreet Singh to Sigma Centre for ultra sound is devoid of merit. Whatsoever reasons may be for taking Dr. Dilpreet Singh to Sigma Centre, the fact remains that he was taken there and ultra sound was done. The report of ultra sound would be taken into consideration at the relevant stage but at this stage it may be observed that the evidence of Dr. Amandeep Singh that he brought the patient to DMC at 7.15 p.m. is probable and acceptable. Summarizing the conclusion as arrived at, we find no callousness on the part of Dr. K.P. Singh to examine the patient or causing delay in performance of the operation.

SHRI A.S. Bakshi, learned Counsel for the complainant referred to the affidavit of Dr. Gurpreet Singh, brother-in-law of the deceased. This doctor is M.S. (General Surgery) and in his affidavit dated 1.8.1996, he has referred to different passages from different books on the basis of which learned Counsel, has argued that in the case of the deceased Dr. K.P. Singh acted in a very callous manner in examining him and conducting the operation. After referring to different passages from the books which are annexures to the affidavit as I to IIB. Books on surgery to avoid repetition, it is considered necessary to reproduce passage from Annexure 8, Principles of Surgery by Seymour I. Schwarz, M.D. wherein three categories of patients have been described under the heading ''Priority of Injury'' at chapter 6, page 220 relating to Trauma as under : "Priority by Injury There are three categories of patients, according to immediacy of injury. The first group includes injuries which interfere with vital physiologic function and therefore immediately threaten life, such as obstruction of an airway or bleeding from a gunshot wound. The primary treatment is to establish an airway and control the bleeding. This type of patient may require surgical treatment for massive internal bleeding within 5 to 10 minutes following arrival in the emergency room. The operating room should be alerted when the patient is admitted to the emergency room, and no time is wasted in getting the patient into "operative'' condition. Often the control of haemorrhage is dependent on a rapid thoracotomy or laparotomy to occlude injured major vessels.

A second group of patients are those with injuries which offer immediate threat to life. These include patients who have received gunshot wounds, stab wounds, or blunt trauma to the chest and abdomen but whose vital signs are stable. The majority of injured patients are in this category. Although they will require surgical procedures within 1 to 2 hours, there is time for additional information to be obtained. Blood for typing and cross matching is drawn, and blood is made available if there is any possibility that the patient will require surgical intervention. If vital signs are stable, x-rays may be obtained to determine the course of the missile and the extent of possible associated injuries, such as fractures. Cryptography and photography may be done to assess hematuria. Since patients with penetrating and blunt abdominal injuries may develop shock at any moment, a physician must be in constant attendance during all evaluations. Patients who suddenly go into shock are imme diately taken to the operating room without additional diagnostic procedures. The third group of patients are those whose injuries produce occult damage. This group is composed primarily of patients who have sustained blunt trauma to the abdomen, which may or may not require surgical intervention and in whom the exact nature of the injury is not apparent. These patients usually have time for extensive laboratory studies, x-rays, and more complete physical examination. Surgical intervention in this group may be delayed hours or days, as with delayed rupture of the spleen."

THE effort of learned Counsel for the complainant is that the present case was covered in the second group of patients. This contention cannot be accepted as we know as a fact that inspite of Dr. K.P. Singh having operated upon Dr. Dilpreet Singh at 9.30 p.m. on the day of admission. No complications whatsoever with respect to his field of surgery was either noticed or commented adversely by the PGI doctors. Prima facie the case would be covered by third group of patients with the data collected by Dr. K.P. Singh.

POINT No. 2 : On this point, the complainant primarily relies upon the evidence of the complainant himself namely Harbhajan Singh and Dr. Gurpreet Singh. According to Harbhajan Singh, the patient was complaining of pain in his leg and according to Dr. Gurpreet Singh, who is alleged to have examined the patient himself, there was lack of pulsation in the right leg. Whereas, according to Dr. K.P. Singh when he examined the patient at 4.30 p.m., he found that pulsation was there in the leg. He supported the evidence of Dr. Krishan Kumar, who prepared the history sheet of the patient. The preparation of history sheet of the patient has been criticized on behalf of the complainants that some papers were left blank and the same were filled up after the file was returned by the PGI authorities. On the basis of whatever entries exists in the history sheet, it was argued that specifically, it was not mentioned that there was pulsation in the right leg. The question for consideration is as to whether in the case of blunt abdomen trauma caused on account of motor vehicle accident, chances of finding pulsation in the extremities without any outer injury at the right leg was possible. In Diagnostic Evaluation of Extrimity Vascular Injuries in the book of Robert B. Rutherford at page 695, there is reference which is required to be noticed as under : "The accurate palpation of peripheral pulses requires skill that is acquired only by frequent practice and is rarely achieved. It is even more difficult in the trauma setting where a degree of academic vas constriction is common. Furthermore pulses may be palpable early in the course of non occlusive lessons that later become occlusion or in short segmental occlusions where collateral circulation is rich palpable pulses may be present when the pulse is transmitted to nearby fingers just beyond the clot. In the extensive experience with vascular trauma at Parkland Hospital in Dallas. 25% of patients presenting with serious extremity vascular injuries were recorded as having palpable pulses on initial examination. This frequent presence of pulses on administration in spite of signifycant arterial injury has been reconfirmed by those authors in subsequent studies and by other medical centres."

Under the heading Diagnosis, it is observed as under : "The early diagnosis of blunt intimal injuries to the renal artery or, on rare occasion, superior mesenteric artery secondary to deceleration is much more difficult. If an intimal flap alone is present and distal arterial flow is preserved, only a visceral arteriogram will document the diagnosis however in the symptomatic patient who has suffered blunt abdominal trauma, there may not be any indication for abdominal autography or visceral autobiography."

The significant fact to be noticed here is that the doppler test conducted in the PGI, 30% flow of blood was found in the right leg. Such a test was also advised to be held at Ludhiana by Dr. K.P. Singh. However, before it could be done, the patient was removed to PGI. In this respect, the affidavit of Dr. K.P. Singh as well as Dr. Amandeep Singh, who arranged for the tests, be referred to the argument that at 4.30 p.m. or 5.00 p.m. there was complete lack of pulsation in the right leg and it was numb, cannot be accepted.

SIMPLY non-observance of pulsation in the right leg of Dr. Dilpreet Singh at 4.30 p .m. per se cannot be treated as a negligent act. Even if it is assumed that there was lack of pulsation, the question is as to what was expected to be done by the doctor treating the patient at that time. On Xray as well as on ultra sound, the damage caused to the intestine had been noticed. Fluid was found in the peritoneal cavity with bevels clearly indicating that the fecal matter had come out the large intestine and had accumulated in the cavity. Such condition having been found, the decision taken to operate upon the abdomen was appropriate. In the circumstances, the other alternative could have been as there was no arrangement for operating in the retro peritoneal cavity as no specialist at Ludhiana was available, the patient was to be referred to the PGI as such where such arrangements are available. That would also carry an element of risk to the life of the patient, who had blunt trauma in the abdomen. Thus operating the abdomen in DMC and mending the intestine cannot be held a negligence act on the part of Dr. K.P. Singh. Since it was possible with the abdominal trauma injury to notice pulsation in the leg, the evidence of Dr. K.P. Singh that he did notice pulsation, cannot be ruled out. Otherwise, there appeared to be no reason that Dr. K.P. Singh would not have promptly examined the patient who was his own student and was working in the same hospital. Rather in the early hours of the day Dr. Dilpreet Singh had helped Dr. K.P. Singh in performance of an operation. The complainants have thus, failed to prove that Dr. K.P. Singh was negligent in not observing pulsation in the right leg. The allegation of the complainant is that while performing the operation, Dr. K.P. Singh was required to have only one resection in place of three. During arguments, it was suggested that instead of three resections, there should have been two. With respect to one resection near the Collan, no dispute was being raised. In order to understand, the actual damage caused to the intestine on which the operation was performed, reference to the affidavit of Dr. K.P. Singh dated 11.9.1993 is necessary wherein diagram has been prepared to elucidate the point (page 60 of the record). Points A & B have been shown where damage to the intestine was caused. The distance of point A from point X (DJ Fracture) was given as one feet and A to B distance was again one feet, the damaged part. Thereafter again was a gap of about one feet when further the damaged part was to the extent of one feet. At the time of operation, three resections were done removing the damaged part A to A and B to B and saving one feet of intestines, which was in good condition. The third resection was however, combined with (Colon) with respect to which, now no dispute is being raised. When abdomen is opened to find the damage to the intestines, it is wisdom of the surgeon to have one resection or more according to the damage found. This is called professional judgment. In the present case, it may be observed that when the patient was removed to the PGI, no opinion was expressed by the PGI doctors that the operation performed by Dr. K.P. Singh was in any manner unsuccessful. The PGI doctors performed operation in retro peritoneal cavity for putting graft and second operation was performed for removing the graft which has been rejected by the body.

FROM the PGI operation notes, nothing has been pointed out during arguments that there was leakage from the points of operation performed by Dr. K.P. Singh. It may be observed that death occurred after 48 days and the cause of death cannot remotely be connected or related with the operation performed by Dr. K.P. Singh. It has been argued by learned Counsel for the complainant that at the PGI 800 ml. fluid was taken out by the doctors from the retro peritoneal cavity and this fluid could be noticed by Dr. K.P. Singh at the time of examination. This contention cannot be accepted in the facts of the present case: Since 30% flow of blood was found on doppler test held in the PGI, it is taken that suddenly 800 ml. did not collect. It must have taken sufficient time for that much quantity of blood etc. to accumulate. The fact cannot be lost sight of that the patient had covered the journey from Ludhiana to Chandigarh with the nature of the injury found. It cannot be held that 800 ml. Of blood was already existing at 4.30 p.m. in the retro peritoneal cavity on the day of the accident that it could be noticed by doctor examining; no such thing was noticed on x-ray or ultra sound examination at Ludhiana. It has been argued on behalf of the complainants that Dr. K.P. Singh did not remove dead portions of the tissues (debridement) as it was done in the PGI as per inspection notes of the PGI. In the case of abdominal trauma, on the injuries found, debridement was required to be done at different stages. If not done, it would have caused infection, resulting into causing gangerene etc. and other complications. When Dr. K.P. Singh operated upon the patient as per his evidence, he did debridement i.e. removal of the dead tisues. Subsequently also, debridement was required to be done as and when the wound was to be inspected, which was done in the PGI. No fault can be found with the act of Dr. K.P. Singh. Learned Counsel for the complainant referred to the affidavit of Dr. Dilpreet Singh already referred to above who stated that from the records of the PGI, he noticed that debridement was done by the PGI doctors and the same was not done by Dr. K.P. Singh when he operated upon the patient. On the importance of effecting debridement, reference has again been made to the annexures attached with the affidavit of Dr. Dilpreet Singh containing extracts from different books on the practice of surgery. In order to avoid repitition, references made to the book ''is a Lange medical book'' ''current Surgical Diagnosis & Treatment'' by Lawrence W. Way, MD at (flag ''B''). At page 231, under the heading Treatment (Abdominal Wall Injuries), it is observed as under: "B. Blunt Trauma: Motor vehicle accidents continue to increase in frequency and severity and are a major cause of blunt vascular trauma. Commonly, multiple injuries occur that include fractures and dislocations; and while direct vascular injury may occur, in most instances the damage is indirect due to fractures. This is especially likely to occur, with fractures near joints, where vessels are relatively fixed and vulnerable to shear forces. For example, the political artery and vein are frequently injured in association with posterior dislocation of the knee. Fractures of large heavy bones such as the femur or tibia transmit forces that have cavitations effects similar to those caused by high-velocity bullets. There is extensive damage of soft tissues and neurovascular structures, and edema formation interferes with evaluation of pulses. Delay in diagnosis and the presence of associated injuries decrease the chances of limb salvage."

The mere fact that in the operation notes, prepared by Dr. Khanna of Dayanand Medical College, the factum of effecting debridement is not mentioned is not enough to discard the affidavit of Dr. K.P. Singh. He has specially mentioned in his affidavit that after removal of fluid from the peritoneal cavity, he excised the dead tissues, which is debridement. In all operations of injuries caused in accident, chances of finding dead tissues is always there and it is necessary to effect debridement. Subsequently also, as and when the wound is examined, other tissues becoming dead are also to be removed. No evidence of PGI doctor who operated upon the patient has been produced to state that initially debridement was not done at Ludhiana Hospital. Thus, no negligence act on the part of Dr. K.P. Singh has been established in this respect.

IT has been argued on behalf of the complainant that since in post-mortem, gangerous patch was found on the intestine, a finding should be recorded that it was on account of negligently performing operation of abdomen by Dr. K.P. Singh. There is fallacy in this argument as well. Gangerene formation takes place rapidly.

THE following passage from Apley''s System of Orthopaetics and Fractures at page 540 be noticed in respect of appearance of gangerene and its rapid development: "This terrifying condition is produced by clostridial infection (especially C. welchii). THEse are anaerobic organisms that can survive and multiply only in tissues with low oxygen tension; the prime site for infection, therefore, is a dirty wound with dead muscle that has been closed without adequate debridement. Toxins produced by the organisms destroy the cell wall and rapidly lead to tissue necrosis, thus promoting the spread of the disease. Clinical features appear within 24 hours of the injury: the patient complains of intense pain and swelling around the wound and a brownish discharge may be seen; gas formation is usually not very marked. THEre is little or no pyrexia but the pulse rate is increased and a characteristic smell becomes evident (once experienced this is never forgotten). Rapidly the patient becomes toxaemic and may lapse into coma and death."

It is not necessary for this Commission to comment upon the operations conducted at the PGI on the patient or as to how gangerouse patch was found in the intestines as infection could travel from retro peritoneal cavity to the peritoneal cavity after operation of putting graft or taking it out were done. Suffice it to say that cause of death cannot be attributed to any act of Dr. K.P. Singh.

It is not necessary in view of the discussion referred to above to determine further the question of quantum of compensation, if any, which could be adjusted from the amount awarded by the MACT which is fixed on the basis of earning principles well recognised for determining compensation on account of death.

FOR the reasons recorded above, this complaint is dismissed with no order as to costs. Complaint dismissed.