Jai Shankar Prasad vs Bhupinder Singh

THIS complaint was initially instituted in the Punjab State Consumer Disputes Redressal Commission, Chandigarh and subsequently it was transferred to this Commission by the Hon''ble National Commission.

BRIEFLY stated the facts are that Rajni Kant complainant No. 2 aged about 12 years is the son of complainant No. 1 Jai Shankar Prasad. Complainant No. 1 is in Government job in Bihar. His brother was employed as Seargent at Air Force Station, Halwara, Ludhiana. Complainant No. 2 was residing with his uncle, Uma Shankar Prasad and was studying in a school. It was next averred that on 12.8.2000, complainant No. 2 was going on his bicycle towards the market when he met with an accident due to negligence of a scooterist. As a result of accident, complainant fell down on the road and suffered femur (left thigh bone) fracture. He was immediately taken to the hospital of OP by his uncle Uma Shankar Prasad who operated him and a nail was inserted in his leg from hip joint upto knee joint and he remained admitted there for about two weeks.

It was further averred that during his stay for about two weeks, complainant No. 2 was always suffering from fever after the operation and he was given continuously treatment for fever but fever did not subside. However, his treatment continued till November, 2000 and they spent Rs. 15,000 on the treatment in the hospital of respondent.

IT was next averred that after discharge, complainant No. 1 took his son complainant No. 2 along with him to Begu Sarai for his further check up and there he got him checked from various doctors including Dr. Mukti Nath Choudhary . Dr. Mukti Nath Choudhary after getting X-ray examination on 26.11.2000, diagnosed complainant No. 2 suffering from post traumatic chronic osteomyelitis and further gave opinion that K. nail would have to be extracted after consolidation of the fracture and he started treatment for osteomylitis and ultimately the nail was extracted by Dr. Choudhary on 2.6.2001 and treatment continued for another six months. It was further averred that during continuation of treatment with Dr. Mukti Nath Choudhary, the complainant No.1 got examined complainant No. 2 from various other doctors including Dr. B. Mukhopadhaya. His three phase bone scan of left femur was conducted on reference of Dr. B. Mukhopadhya and gave an impression that the scintigraphic features of the present study are presumably due to an active infective/inflammatory process involving the shaft of the left femure .He, on 16.11.2001 referred the complainant No. 2 for x-rays for both hips and according to x-ray report, both hip joint spaces were reduced and tilting of pelvic was also seen in the x-ray. Lastly complainant No. 1 got complainant No. 2 checked at A.I.I.M.S. Hospital at Delhi on 27.6.2002 where doctor gave opinion that the left hip joint was ankylosed (jammed).

IT was next averred that complainant No. 2 suffered due to negligence of OP as OP just to make money had inserted a nail which spoiled his career and due to the operation conducted by OP, complainant No. 2 suffered from chronic osteomylitis and sinus also started discharging thereafter which continued for a period of 10 months and it stopped only after removal of nail on 2.6.2001 and that too after treatment for one and half months but due to negligence of OP, movement of the hip joint and knee joint had become difficult and in March, 2002, it was not possible for complainant No. 2 to move his left leg as left leg had shortened by 6 cms. due to stoppage of growth. Alleging deficiency in service, the present complaint was filed and they claimed Rs. 20.00 lakh as compensation from OP along with interest @ 24% p.a. The complaint was filed on 8.8.2002. Opposite party contested the complaint and filed written reply. He admitted that complainant No. 2 was brought to his nursing home but on 13.8.2000 late in the evening and was attended by him and thus, there was negligent delay of one day in bringing him for medical treatment after the accident. He denied that complainant was operated upon on 13.8.2000 itself but asserted that complainant No. 2 was given immediate treatment as was necessary to stabilize his condition and thereafter on assessing the medical condition after conducting necessary medical tests, surgery was advised and the same was done on 14.8.2000. A kuntscher nail was inserted in the upper end of the femur till above the knee joint and was discharged on 23.8.2000 and he further visited the hospital as an outdoor patient on 28.8.2000 and 9.9.2000. He next denied that complainant No. 2 had developed fever immediately after operation but asserted that he had minor fever i.e. 99.9 degree Fahrenheit on 16.8.2000 in the evening and except that he had no fever from 14.8.2000 till date of discharge on 23.8.2000. He further stated that as per medical test conducted on 9.9.2000, complainant No. 2 was not suffering from fever and thus, contention of complainant No. 2 that he was always suffering from fever after operation was a concocted story with a view to build up a case. He next stated that complainant No. 2 visited his hospital only upto 9.9.2000 and did not visit thereafter and the averment that the treatment continued till November, 2000 was false. He further stated that complainant No. 2 got himself discharged on 23.8.2000 by making payment of Rs. 2,900/- vide bill No.1632 dated 23.8.2000 and the copy of the extract of the register regarding discharge of complainant No. 2 is attached as Annexure R/2. He further stated that Dr. Chaudhary had stated in his report that the nail was to be extracted 1-2 years after date of surgery which was performed on 14.8.2000 and if there had been a medical necessity for immediate extraction of the nail, Dr. Choudhary would have so advised. He also stated that there was no mention in the report of Dr. Chaudhary that on medical examination, complainant No. 2 was ever found to be suffering from fever and the finding of chronic osteomyelitis (infection of bone) recorded by Dr. Mukti Nath Chaudhary on 26.11.2000 stood negated from the x-ray report of Premier X-Ray Imaging and Research Centre, Patna, dated 21.12.2000. He denied other allegations and stated that mishandling of complainant No. 2 by the doctors in Bihar/UP could not be attributed in any manner to him. He also stated that the age of complainant No. 2 was 12 to 14 years and he developed stiffness of hip joint due to improper medical care and follow up/medical treatment. Therefore, he prayed that he was not negligent in his treatment and as such complaint should be dismissed.

PARTIES adduced their evidence by way of affidavits.

WE have heard Counsel for complainants Mr. Arvind Mittal, Counsel for OP Mr. B.S. Walia and carefully gone through the file. There is no dispute about it that complainant No. 2 Rajni Kant is son of complainant No. 1 Jai Shankar Prasad and was aged about 12 to 14 years at the time of accident on 12.8.2000. In the road accident, he suffered fracture of femur of left thigh bone. He was not immediately taken to the hospital of OP on 12.8.2000 but as per averment and record of OP, he was brought to the hospital of OP on 13.8.2000 late in the evening and was attended to by OP. He was given immediate treatment in order to stabilize his condition and thereafter assessing his medical condition, his operation was done on 14.8.2000. A kuntscher nail was inserted in the upper end of the femur till above the knee joint and ultimately was discharged on 23.8.2000. However, case of complainants is that treatment continued till November, 2000. This is not factually correct because it is not proved on record. It has to be presumed that he was discharged on 23.8.2000 and visited the clinic of respondent on 28.8.2000 and 9.9.2000 as is clear from treatment chits placed on file. Counsel for complainants contended that immediately after operation, complainant No. 2 had been suffering from fever which continued throughout his stay in the hospital of OP and medicines were prescribed for fever right from 15.8.2000 till 23.8.2000 and the treatment for fever continued till September, 2000, even after complainant No. 2 was relieved from OP''s hospital. A perusal of the prescription slip of OP hospital shows that complainant No. 2 had temperature of 99.9 degree Fahrenheit on 16.8.2000. Thereafter, it has not been recorded that he was having temperature. However, medicines i.e. Larigo for malaria fever and Paraxin for typhoid fever were prescribed. The widal test was also got conducted but there was no report that he was suffering from Malaria or typhoid fever. Dr. Nalini Ranjan Singh, Orthopaedecian at Begu Sarai in his report dated 20.10.2000 has mentioned about irregular fever but Dr. N.L. Pandit in his report has mentioned about fever for 15 days and the temperature was 100 degree Fahrenheit . In his report left knee pain, swelling and fluctuation were mentioned to be positive and MP test, widal test, MT test and ESR of blood were advised by the doctor N.L. Pandit. However, no fever is recorded before 20.10.2000 except on one day on 16.8.2000. Hence, it cannot be said that immediately after operation, he had developed fever which did not subside till his discharge or till he stopped attending OPD of OP. Annexure C-3 shows that complainant No. 2 was examined by Dr. Mukti Nath Choudhary, MS (Ortho) on 26.11.2000 and stated that nail was to be extracted after consolidation of fracture atleast 1-2 years after date of operation. If he had found on that date that there was pain due to insertion of K. nail, then he would have advised immediate extraction but he stated that it has to be extracted after 1-2 years of the operation. He did not give opinion that it was wrongly fixed or it was not advisable to fix K.nail. He further stated that complainant No. 2 had fever for last two days. He did not state that he had fever for many days i.e. since, from the date of operation. Ultimately he extracted the K. nail on 2.6.2001. Dr. Prof. B. Mukhopadhaya, FRCS had referred complainant No. 2 for x-ray examination . Ex.C-5 X-ray report of Premier X-ray, Imaging & Research Centre, Patna dated 21.12.2000 of the complainant No. 2 reads as under: Left Femure : A P and Lateral Healing fracture shaft left femur. Intramedullary nail seen in situation. Periosteal reaction seen in the lower shaft of the left femur. Pelvis AP: Both hip joint spaces are essentially normal.

Therefore, on 21.12.2000 both the hip joint spaces were normal i.e. hip joint spaces had not been reduced. There is also report that femur shaft was healing and K. nail was in position. Ex. C.7 is report of Hospito India Medical Foundation Ltd. Buddha Colony, Patna dated 24.12.2000. It talks about clinical history as under: "The young boy is complaining of painin the left thigh. There is an history of accident about 4 months back leading to fracture of the shaft of the left femur. Impression The Scintigraphic features of the present study are presumably due to an active infective/inflammatory process involving the shaft of the left femur. -Suggested clinical correlation and a follow up bone scan after a period of 5-6 months to assess the progress of recovery."

Again this report shows that the femur fracture was healing.

THEREFORE, X-ray report dated 21.12.2000 and report dated 24.12.2000 of three phase bone scan of left femur of complainant No. 2 show active infective/inflammatory process which is normal for healing fracture of femur and both hip joint spaces were normal. The treatment of complainant No. 2 continued till November, 2001 under Dr. B. Mukhopadhaya and thereafter complainant No. 2 was referred to Dr. J. Mukhopadhaya. Even the report of Dr. Mukti Nath Choudhary dated 2.6.2001 mentions that the nail was extracted under general anaethasia from the femur of complainant No. 2 on 2.6.2001 and hip spica (plaster of paris cast outside the hip and femur) was done after extraction of the nail. However, no details have been mentioned as to when the hip spica was removed, although it was applied on 2.6.2001. Sometimes, due to undue delay in removal of hip spica results in stiffness of hip joint. THEREFORE, complainant No. 2 may have developed complications during entire period, he remained under treatment of various doctors at Bihar and U.P., after 9.9.2000. It is just possible that due to lack of medical care and follow up/medical treatment, he may have developed stiffness of his hip joint. Of course, report of AIIMS Hopsital Ex. C-16 dated 20.6.2002 suggests that hip joint was ankylosed with complaint of sclerosis ant cortical thickening of left femoral shaft, sign of sequelac of septic arthiritis and right hip joint space showed asymmetric reduction. But it is not proved that it was due to the negligence of OP. Counsel for complainants contended that insertion of K. nail in the left femur of complainant No. 2 who was aged about 12 years was not suitable and was against the established principles of medical science as complainant No. 2 had suffered comminuted (multiple fracture). He further contended that complainant No. 2 had suffered multiple fracture by uncareful hammering of the K. nail by OP at the time of insertion. However, no such fact has been mentioned in the complaint and it is just an after thought. He further contended that K. nail is thick and hard kind of nail and it comes out from the upper end. On the upper femur is shaft and there is epiphyseal plate (growing end) on the end which helps in the growth of the bone and since, K. nail was inserted and it came out of the epiphyseal plate of the upper end of the femur which resulted into stoppage of growth of the bone and resultantly caused shortening of the femur by 5 cm. He further stated that K. nail was appropriate after the age of 15 years for male child and OP had inserted K. nail in a hush-hush manner without taking consent of the brother of complainant No. 1 just to extract money and further OP should have waited at least for two weeks to stabilize the position of complainant No. 2 and if the surgery had been delayed as there was multiple fracture in the bone and there must have been swelling, then position must have been stabilized and swelling had gone, then operation could have been conducted more conveniently and successfully.

IT has been stated in volume three, tenth edition, Campbell''s Operative Orthopaedics at page 1683, that the development of infection after medullary nailing may be extremely serious. Union, if it occurs, may be delayed for years. Drainage usually continues until the nail and sequestra are removed. Amputation is the ultimate complication following infection. If some large series of femoral shaft fractures are treated by open medually fixation, the reported incidence of infection may be as high as 10%. But if proper training and skill is achieved and proper instruments and image intensification equipments are available, then infection rate could be reduced to almost 1% or less. Therefore, infection could occur in cases of fixation of K. nail even if best care is taken. It has been observed in ''Fractures in Children'' fifth edition, edited by Charles A. Rockwood and James H.Beaty, MD at page 1476 Annexure C-5, under the heading ''intramedullary fixation'' that intramedullary rod fixation has long been considered the treatment of choice for adult femoral fractures over the past 15 years the age at which antegraded reamed intramedullary rodding is accepted as the procedure of choice has steadily decreased to about the age of 12 years. Comparative studies by Reeves and Kirby, as well as retrospective reviews of traction and casting suggest that femoral fractures in adolescents are better treated with intramedullary fixation than traditional traction and casting. Therefore, the method adopted by OP in case of boy aged about 12 to 14 years of fixation of K. nail in the left femur to treat the comminuted fracture is not at all prohibited and on the other hand, it was the best choice that such a procedure should be followed. Therefore, one of the best methods has been followed.

COUNSEL for complainants further contended that according to study conducted, K. nail should be fixed in a girl child of the age of 12 years but not in the case of boy aged 12 years. At the end of page 1476 the table has been given regarding treatment of femoral shaft in adolescents and it is mentioned that 12 patients were treated at the age of 12 by way of intramedullary nailing and there was no overgrowth and no significant residual angulation had taken place. It has been further stated in it that the cases of non-union were controlled with debredement and antibiotics during fracture healing. After healing of the fracture, nail was removed.

THEREFORE, proper method to treat the comminuted fracture was applied by the OP because rigid intramedullary fixation of femur shaft in adolescents had been reported to result in high rate of union with shorter hospital stays and brief period of immobilization. Counsel for complainants has placed on file a number of pamphlets containing references to state that adolescent girls of the age of 12 years are generally treated with rigid intramedullary rod fixation and not boys of 12 years and complainant No. 2 should have been treated with flexible intramedullary nailing i.e. rush rod. However, we cannot agree with the contention of learned Counsel for complainants. Even in boys of the age of 12 to 13 years, the treatment with rigid intramedullary rod fixation is the most convenient method which gives good results. If the complainant No. 2 had suffered due to negligence of doctors who had subsequently treated him in Bihar and U.P., then OP is not liable to be blamed. There is no expert evidence on file to prove that the present condition of complainant No. 2 is due to negligence on the part of OP. The onus to prove negligence of OP was on the complainants which they have miserably failed to prove.

The Hon''ble Apex Court in Achutraon Haribhau Khodiva v. State of Maharashtra, I (1996) CLT 532 (SC), has observed that the skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Courts find that he has attended on a patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

HENCE, in view of the discussion above, we hold that there is no merit in the complaint and as such the same is dismissed. However, in peculiar circumstances of the case, the parties are left to bear their own costs. Copies of this order be communicated to the parties, free of charge. Complaint dismissed.