Kapil Kulshrestha (Dr.) vs OM PRAKASH

FACTUAL matrix of this case in brief is that on the night of 10.3.1996 at around 11 p.m., the leg of the complainant, Om Prakash was fractured in an accident as he was hit by a truck. On 11.3.1996, he was admitted under unconscious state by a police constable at Swaroop Rani Nehru Hospital, where he remained till 15.3.1996. It is the case of the complainant that Dr. Kapil Kulshrestha used to visit in that hospital for medical examinations and he persuaded him to get admitted in Ojha Nursing Home, Tagore Town, Allahabad as he would get best treatment there. Accordingly, he got admitted in Ojha Nursing Home on 15.3.1996. Dr. Kulshrestha performed the first surgery (nailing) on 19.3.1996. It is alleged by the complainant that due to medical negligence and deficiency in service pus began to ooze out from his leg. On aggravation of problem, again on 18.7.1996, second surgery was performed but even then the problem did not recede. Dr. Kulshrestha discharged the complainant on 6.8.1996 but the pain continued. Hence third surgery (nailing) was performed on 11.9.1996 during which he was told that a piece of bone had broken and could not be united properly at its place in a proper manner. It is alleged by the complainant that Dr. Kulshrestha did not have adequate knowledge hence he was seeking advice of another doctor in the course of his treatment. Even after three successive surgeries, the complainant''s leg could not be cured fully and he became handicapped as it was shortened by three inches. Accordingly, he prayed compensation of Rs. 5 lakh by filing a complaint before the District Forum.

DR . Kulshrestha filed his written statement wherein he stated that the complainant''s wife was apprised of the complexities of the treatment. To heal the wound cancellous bone grafting along with hip spica plaster was performed on 11.9.1996. Further at the request of the complainant, senior orthopaedic surgeon was also consulted. However, the complainant did not follow properly the dressing instructions resulting in the formation of pus. It was contended by Dr. Kulshrestha that neither he examined the complainant in Swaroop Rani Nehru Hospital nor he advised him to get admitted in Ojha Nursing Home. Surgery was performed in a proper manner and the infection developed due to the contact of stool and urine with the dressing. During infection period also the complainant was admitted to the Nursing Home and his nail was removed and the wound was left open to get early healing. After healing of the wound cancellous bone grafting was done along with plaster. A proper written consent was procured at the time of treatment. Ojha Nursing Home has filed a similar written statement.

THE District Forum after hearing the parties and perusing the documents and affidavits produced held that to prove the allegation of medical negligence expert opinion and evidence is necessary which has not been adduced by the complainant. Further this complaint requires comprehensive oral as well as written evidences. It will be in the interest of justice and the parties concerned that it should be decided before a civil Court. Accordingly, complaint was returned with the liberty to approach the civil Court. Aggrieved by the order of the District Forum, an appeal was filed by the complainant before the State Commission. .

THE State Commission held that if Dr. Kulshrestha used to visit Swaroop Rani Nehru Hospital for medical consultations then surely there would have been some motivation behind the admission of complainant in Ojha Nursing Home. There is proof to show that Dr. Kulshrestha performed surgery for nailing thrice and the medical treatment rendered by Dr. Kulshrestha on several occasions remained unsuccessful, due to which complainant had to visit different doctors i.e. Dr. S.C. Gaur at Medical College, Allahabad and AIIMS despite that his ailment could not be cured. Therefore, his leg was shortened by three inches and is depending upon the crutches. State Commission directed Dr. Kulshrestha to pay Rs. 1,60,000 as compensation to the complainant.

DISSATISFI ED by the order of the State Commission, this Revision Petition is filed before us. Submissions of learned Counsel for the petitioner

LEARNED Counsel for the petitioner submitted that the complainant, Shri Om Prakash suffered head injury and also sustained a fracture of his right thigh bone and hand in road accident on 10.3.1996 and was admitted in SRN Hospital, Allahabad in the neurosurgical ward till 15.3.1996. Till that time, no active treatment for his fracture was given there because his head injury needed prior treatment and he was not able to cooperate as it had affected his behaviour. Therefore, the complainant was shifted to Ojha Nursing Home where he remained admitted till 3.4.1996. On 15.3.1996, Dr. Kulshrestha started the treatment of the complainant. He diagnosed the complainant as having five -day -old comminuted fracture shaft of right femur at the middle third level along with post -medical displacement. As the condition of the patient was found to be critical and this was explained to his wife, who had given her informed consent in her own hand in Hindi.

ON 19.3.1996, the petitioner carried out the surgery known as "implantation of Kuntscher nail in right femoral bone by open medullary fixation", which was the commonly performed standard procedure at that time in such cases. The patient was discharged in a healthy/stable condition. It was submitted that the closed methods started gaining popularity in India from 2002 onwards. The chances of infection with this method are much less than in the open method.

AFTER a month, the complainant requested Dr. Kulshrestha to visit his house wherein it was found that the condition of the wound/patient was very unhygienic. He was lying on a very dirty bed with soiled dirty clothes wrapped around the wound area and obvious signs of infection in the wound. Accordingly, Dr. Kulshrestha suggested for examination of the pus for culture and sensitivity, an intensive dose of antibiotics; proper cleaning and dressing of the wound. As the infection could not be controlled and he was re admitted to Ojha Nursing Home and second surgery was performed on 18.7.1996 for removing the dead/infected tissue and removal of the nail. These procedures were carried out as per standard guidelines. After removal of the nail implant, the limb was immobilized by skeletal traction to prevent shortening. The outcome of the surgery was that the infection was controlled and the wound became healthy and healed completely.

AFTER two months, it was found that the union of the bones was not progressing satisfactorily. Therefore, Doctor advised the complainant that cancellous bone grafting should be carried out. Accordingly, the patient was admitted to Ojha Nursing Home on 9.9.1996 and remained there till 28.9.1996. On 11.9.1996, Dr. Kulshrestha carried out the bone grafting surgery by using the most modern technique. After three months, Dr. Kulshrestha noted that bone union was not progressing well and hence he advised the patient to undergo an operation called external fixation by llizarov method, which is the standard approach for enhancing bone union without occurrence of shortening in such cases. As the complainant wanted to have a second opinion from another specialist, Dr. Kulshrestha suggested that he might consult Dr. S.C. Gaur or might go to AIIMS, Delhi.

ON 11.2.1997, the complainant consulted Dr. Gaur, who reviewed the treatment given by Dr. Kulshrestha and found no fault in it and advised the same operation, namely, external fixation by llizarov method. Thereafter, the complainant did not approach Dr. Kulshrestha for treatment. He was under the treatment of Dr. Deepak Sarin from 17.2.1997 to 2.9.1998. During this period, he was admitted to Sarin Nursing Home for a long time. It is averred that Dr. Sarin did not have the degree of MS in Orthopaedics and Dr. Kulshrestha has post graduation degree. The complainant has concealed the fact of 19 month long treatment by Dr. Sarin and has not produced any record of such treatment.

IT is submitted that compensation of Rs. 9 lakh was demanded from Dr. Sarin but no complaint was filed against him. Further no expert evidence has been adduced by the complainant to prove that there was medical negligence in the treatment rendered by Dr. Kulshrestha. Submissions of the Amicus/Counsel for Respondent No. 1/complainant

IN the submissions, the points raised in the complaint as well as in the appeal memo have been reiterated stating that in the 11 months of treatment, which the complainant received from Dr. Kulshrestha, three surgeries were conducted by him, resulting in flowing of pus, leading to infection, which, instead of subsiding, grew further, which consequently resulted in the shortening of the right leg of the complainant by three inches and that the complainant did not take care of the wound and that he was found lying in a dirty bed is incorrect because wife of the complainant is a trained nurse and it cannot be expected that the wound would be kept in unhygienic condition. Further regular dressing of the wound was done by another professional duly recommended by the doctor.

HE further submitted that the complainant has received some monies from the Insurance Company is completely different, irrelevant and immaterial for the present proceedings as the insurance policy was taken by the complainant out of his own pocket (sic). Further the fact that Dr. Sarin operated upon the respondent No. 1 and a notice was also sent seeking compensation is a different cause of action altogether and, therefore, has no relevance or bearing to the present case. Findings

WE have gone through the records of the case and heard the arguments of the learned Counsel for the parties.

IT is clear from the records that the complainant/patient did not approach Dr. Kulshrestha immediately after he suffered fracture in the accident and Dr. Kulshrestha claims that he had followed the standard procedure while treating the patient. According to Campbell''s Operative Orthopaedics, seventh edition, page 1683, extract of which is reproduced below: "The development of medullary infection after medullary nailing may be extremely serious. Union, if it occurs, may be delayed for many years. Drainage usually continues until the nail and sequestra are removed. Amputation is the ultimate complication following infection. In some large series of femural shaft fractures treated by open medullary fixation, the reported incidence of infection may be as high as 10%. Using the closed methods in which the fracture site itself is not exposed, provided proper training and skills have been achieved and proper instruments and image intensification equipment are available, the infection rate has been reduced in most reported series to 1% or less."

THE chance of infection in closed method is 1% whereas in the open method, it is 10%. Dr. Kulshrestha claimed that he had followed the open method, which was the standard procedure during the year, 1996, and only from 2002 onwards, the closed method started gaining popularity in India. It is necessary to find out by cogent evidence whether adoption of open method by Dr. Kulshrestha, during the year 1996 was appropriate and whether in fact closed method had become popular only after 2002 onwards. This requires expert evidence.

SECONDLY , it is stated that the complainant was under the treatment of Dr. Deepak Sarin from 17.2.1997 to 2.9.1998. We do not have the benefit of studying the medical records during this period. To come to a just conclusion, it is necessary to go through these records. It is not disputed that Dr. Sarin had also operated respondent No. 1 and a notice was also sent to him by the complainant seeking compensation. The treatment rendered by Dr. Sarin is relevant to assess whether shortening of the leg had taken place due to medical negligence by Dr. Kulshrestha or by Dr. Sarin or because of the negligence by the complainant himself.

IN Jacob Mathew (Dr.) v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC)=2005 (6) SCC 1, the Hon''ble Supreme Court has held as under: "A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings : either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which he practises. Three things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time (that is the time of the incident) on which it is suggested as should have been used. Thirdly, when it come to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.

A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to be given or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires. The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency."

THE above view of the Hon''ble Apex Court in Jacob Mathew case has been reiterated by the Hon''ble Supreme Court in Martin F. D''Souza v. Mohd. Ishfaq, I (2009) CPJ 32 (SC)=II (2009) SLT 20=157 (2009) DLT 391 (SC)=JT 2009 (2) SC 486.

THE ratio of these cases is squarely applicable to the case under consideration.

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. Appeal disposed of.