Kapil Kulshrestha vs Om Prakash And Ors.

THE matter in this Revision Petition is before us in the second round of litigation. In the first round, the Complaint had been returned by the District Forum to the Complainant. In its order of 31.7.2007, the Complainant was given the liberty to approach a Civil Court. The Appeal of the Complainant against this order was allowed by the State Commission on 01.10.2007 and compensation of Rs. 1.60 Lakhs was awarded to be paid by Dr. Kapil Kulshreshtha/OP No. 1. In the Revision Petition, challenging this award, the National Commission considered the matter at length and remanded it back to the State Commission with the following observation: "22. Several questions remain un -answered in the order of the State Commission e.g. whether the Surgeon, Dr. Kulshrestha should have performed open surgery or closed surgery? Whether open surgery method was popular at the time he conducted surgery? Whether the condition of the patient/complainant deteriorated after the complainant discontinued treatment under Dr. Kulshrestha and started treatment under Dr. Sarin? What was the nature of the treatment -surgical or otherwise given by Dr. Sarin as he was allegedly under his care for a long period?

Hence it is necessary that the records of the treatment given by Dr. Sarin are also examined and full opportunity is given to the complainant as well as to Dr. Kulshrestha and Dr. Sarin the treating doctors to produce any expert evidence to come to the right conclusion. Therefore, the order of the State Commission is set aside and the case is remanded to the State Commission for fresh disposal according to law keeping in view our aforesaid observations. There shall be no order as to costs."

ACCORDINGLY , the Appeal of the Complainant has been heard and decided by the State Commission in a detailed order of 09.09.2011. The State Commission has allowed the Complaint of the Appellant/Complainant with substantial enhancement of the award, as compared to its order of 01.10.2007. The following award has been made which is now the subject matter of challenge in the present Revision Petition: "Hence, in the light of above analysis and law position, the Bench reaches on this conclusion that medical negligence, indifference and carelessness has been used by Dr. Kapil Kulshrestha in the treatment of Complainant, for which he is wholly responsible. For this, Respondent/Opposite Party No. 1, Dr. Kapil Kulshrestha may make payment to Appellant/Complainant, Om Prakash Rs. 5,00,000.00 (Rupees five Lakhs) as compensation, Rs. 1,00,000.00 (Rupees One Lakh) for treatment and casual expenses etc., Rs. 50,000.00 (Rupees Fifty thousand for suit expenses) and Rs. 2,00,000.00 (Rupees two Lakhs) for mental tension, suffering and for feeling of lameness totalling to Rs. 8,50,000.00 (Rupees Eight Lakhs fifty thousand only) including 6 percent simple annual interest from dated 14.12.98 till the date of last payment. The payment of above all amounts may be insured to be made within one months from the receipt of this judgment. If the compliance of this Order is not made by them in the prescribed period then 12 percent annual interest on the above amount will be payable."

THE above order has been challenged by Dr. Kapil Kulshrestha in the present Revision Petition. The Complainant, is listed as Respondent No. 1, Ojha Nursing Home has been listed as Respondent No. 2, (by its new name) and the Oriental Insurance Company as Respondent No. 3. During the course of pendency of the Revision Petition, this Commission has directed release to the Complainant of a total sum of Rs. 2.60 Lakhs, deposited by the Revision Petitioner, subject to furnishing of security to the satisfaction of the Registrar. Voluminous records submitted have been carefully perused. Dr. M.C. Gupta, Advocate has been heard on behalf of the Petitioner, Mr. Ramneek Mishra, Advocate for Respondent No. 2 and Ms. Manjusha Wadhwa, Advocate for Respondent No. 3. Complainant/Respondent No. 1 has argued his case in person.

BRIEF facts, as seen from the record, are that the matter arose from the road accident of 10.03.1996 in which right leg of the Complainant was fractured. Within a few hours he was moved to Swaroop Rani Nehru Chikitsalaya, Allahabad, where he remained under treatment until 15.03.1996. Allegedly on the advice of OP -1/Dr. Kulshrestha, the Complainant was got admitted to OP -2/Ojha Nursing Home. Further treatment took place at OP -2 from 15.03.1996 to 03.04.1996. The case of the Complainant is that his problem remained uncured due to improper treatment and eventually his foot has become three inches shorter. He has become disabled and now finds it difficult to earn his livelihood.

AS seen from the record, three successive surgeries were performed by Petitioner/OP -1 on the fractured leg of the Complainant on 19.03.1996, 18.07.1996 and 11.09.1996 respectively. In the 1st surgery of 19.3.1996, an iron nail, called Kuntscher Nail was implanted in the right femoral bone and he was discharged on 3.4.1996. With persistent oozing of blood from the leg, he was readmitted on 9.5.1996. After two X -Rays of 15.5.1996 and 17.6.1996, the 2nd surgery was performed by OP -1 on 18.7.1996. In this surgery, the Iron Nail was removed as it had become lose due to infection of the wound. He remained in OP -2 Hospital till his discharge on 28.5.1996. As the problem of pus discharge from the wound had continued and the wound had not healed, he was readmitted into OP -2 hospital. The 3rd surgery was performed by OP -1 on 11.9.1996 for bone grafting and Spica plastering.

THE case of the Complainant is that despite three surgeries by OP -1, his problem remained unsolved. The wound did not heal and pus kept coming. Thereafter, the Complainant remained under treatment of Dr. Deepak Sarin from 17.2.1997 to 2.9.1998. With his treatment the wound healed and his bone was fixed, without any further surgery.

CLOSE consideration of the impugned order shows that the State Commission has examined the evidence led before it and arrived at the following findings of fact - - a. In the 1st surgery performed for fixing of the fracture, OP -1 followed the "Open Method". In this method chances of wound infection are much higher than in the other surgical option of "Closed method."

b. At that time "Open Method'' was in vogue in India for fixing such a fracture. But, there was negligence in the manner it was done by OP -1. Infection that set in was the result of the same.

c. When the infection set in and was not healing, OP -1 should have consulted another specialist. But, he did not.

d. Even when the 2 surgery was performed and the Intramedullary Iron Nail was removed, the wound was left partly open by OP -1. There was no let up in infection and pus discharge continued. But, even at this stage OP -1 did not consult a bone specialist.

e. After removal of the Iron Nail an X -Ray would have been needed to assess the condition of the leg bone and progress of resetting. This too was not done. The Nail was removed on 18.7.1996.

f. Responsibility for three surgeries and consequent shortening of the leg of the Complainant rest completely on Dr. Kapil Kulshrestha. No surgery was performed by Dr. Deepak Sarin and therefore, he cannot be held responsible in the matter.

g. Evidence of Dr. Karunakar Dwivedi was filed voluntarily by OP -1. It talks about risk involved in Open Method but does not show whether any precautions were taken by OP -1 in the 1st Surgery which had led to the infection of the wound. Therefore, evidence of Dr. Dwivedi has not been found acceptable by the State Commission.

The State Commission has noted that no evidence has been led to show that the problem of leg infection and oozing of pus from the leg was not resolved in the treatment received from Dr. Sarin from 17.2.1997 to 2.9.1998. It has noted that in fact the infection had been set right and oozing of pus from the bone had stopped due to the treatment by Dr. Deepak Sarin. Therefore, the State Commission has held OP -1 directly responsible for the suffering of the complainant resulting from failure of three successive surgeries to fix the fracture, inability to treat the infection and eventual shortening of the Complainant''s leg by three inches. The State Commission has held it to be a case of medical negligence and indifference and carelessness on the part of Dr. Kapil Kulshrestha in the treatment of the Complainant.

DURING the course of hearing of the Revision Petition, it was brought to our notice that the discharge summary only shows that Shri Om Prakash aged 35 was diagnosed with fracture of right femoral shaft and with indication of head injury. He was discharged on 3.4.1996. This cryptic document does not even mention the surgery, performed on him at OP -2 on 19.3.1996. Nor does it mention anything about the condition of leg at the time of discharge. However, it was orally submitted on behalf of the Petitioner/OP -1 that the patient was to do ''Betadine'' dressing of the wound at home every day and report after a week.

LEARNED counsel for the Revision Petitioner, as also the Petition itself, have claimed that conservative treatment adopted by Dr. Deepak Sarin, subsequent to the three surgeries by OP -1, was the cause for eventual shortening of the leg. According to OP -1, external fixation by Ilizarov ring method was the standard treatment for such cases. Interestingly, similar opinion has been expressed by Dr. Karunakar Dwivedi, who was examined as expert on behalf of OP -1 and Dr. A.N. Varma expert for the Complainant. Both have opined that Ilizarov ring fixator, which at the relevant point of time was the standard method, would have prevented shortening of the fractured leg. The question is why did OP -1 not opt for this method himself. We do not accept the suggestion that the proposal of OP -1 in this behalf was vetoed by the Complainant.

WE have noted earlier that the discharge summary of 3.4.1996 does not show the condition of the wound at the time of discharge. On the other hand, it is categorically averred by the Complainant that pus discharge was going on at the time of his relief from OP -1/hospital on 3.4.1996. In this background, we attach no value to the bald assertion on behalf of OP -1 that infection had set in due to unhygienic condition at the residence of the Complainant. More so, as the wife of the Complainant was herself a trained Health Worker.

FROM the detailed consideration above, it is clear that the impugned order is based on correct appreciation of the pleadings and evidence on record. It suffers from no infirmity which would call for intervention of this Commission in exercise of powers under Section 21(b) of the Consumer Protection Act, 1986. The Revision Petition is consequently, dismissed for want of merit.