MA-NU V.S vs DR. AKHILESH KUMAR & ANR

The Facts: 1. On the night of 15.12.1999, the complainant, Mt. Manu V. S. (hereinafter referred to as a "patient") met with a motor cycle accident, and was taken to Savitri Hospital, Bhangel, NOIDA (OP-2). Dr. Akhilesh Kumar, (OP-1) examined the patient, took X-rays and advised surgery of compound fracture of right femur. Accordingly, the OP-1 operated the patient, inserted a nail and fixed the external fixator. The patient was discharged on 03.01.2000, with the advise to use crutches for walking and asked him to visit fortnightly, which the patient followed, till 28.4.2000. During every visit, the patient complained of severe pain, throughout the right leg up to hip, but the OP-1 assured that the fracture was properly united. There was shortening of the leg also, which the OP-1 assured that, it was due to external fixator and it will take time to cure completely. The complainant incurred total expenditure of Rs.41,304/-. Even after 4 months'' of treatment, there was no proper healing of fracture, severe pain persisted and the patient was unable to stand without the support of crutches. Therefore, he went to Kerala and took treatment from Dr. V.I. Simon, an Orthopaedic Surgeon at Westfort Hospital, Trichur. After examination, X- ray of Right hip and other investigations, Dr. Simon diagnosed that there is still presence of fracture near the hip, which was missed, initially by OP 1. Therefore, the right hip joint was completely corroded, which became irreparable. Dr. Simon performed two operations, inserted steel rod, patient was kept in the Westfort Hospital from 07.06.2000 to 05.08.2000. Dr. Simon advised the patient for artificial total hip replacement (THR).

Thereafter, on 10.9.2000, the patient came back to NOIDA and consulted a local orthopaedic Surgeon at Bharadwaj Hospital, Noida. He also advised for right THR. Thereafter, on 23.02.2001 the patient was admitted in AIIMS, New Delhi, wherein THR was advised and informed that the total cost would be about two lakhs. Due to poor financial condition, the patient did not opt for THR. The patient has lost his job also. Hence, the complainant alleged that, the OP 1 was not competent and lacks the reasonable skills. He was negligent, initially, in the diagnosis and failed to give correct treatment of his fractured right leg, which put him under untold miseries and in incapacitated disable form. Hence, he filed a complaint before this Commission on 04.05.2002 and prayed for total compensation of Rs. 25 lacs (Rupees Twenty Five Lacs Only).

The complainant filed the entire medical record from the Hospital (Annexure P-1 to P-7), the medical certificate, 26 X-rays, pharmacy bills and AIIMS disability certificate.

Defense: 1. The OP-1 resisted the complaint and denied the allegations. Ms. Jhuma Bose, learned counsel for OP-1, submitted that OP-1 is a renowned Orthopaedic surgeon (M.S. Ortho), having 20 years of experience. Raised objection on the point that, the complaint involves examination of voluminous documents, and in view of the V.P. Shantha''s case, when the questions are technical in nature, which would require opinion of expert, cannot be adjudicated under the Consumer Protection Act.

The OP never deviated from the standards of practice and tried to save patient''s life and the limb. He further submitted that the patient was admitted for 19 days i.e. from 16.12.1999 to 03.02.2010 and thereafter he was discharged and he attended the OPD at OP-2/Hospital till 28.4.2000 only. The patient was negligent, did not attend for regular follow-up, there was a gap of about one month in between two visits. Patient was shifted to Trichur for five weeks i.e. from 28.04.2000 to 07.06.2000, therefore, there is a possibility that, the patient must have hurt himself, after 28.04.2000 and suffered fracture of right hip. It is further submitted that, it is not possible for the radiologist to opine x-ray that, the fracture was six months old. There was no such fracture when he was under treatment with the OP.

The patient is taking advantage of the x-ray report and the certificate issued by Westfort Hospital. The certificate was not signed by Dr. V.I. Simon and the same cannot be relied upon. Hence, there is discrepancy. Regarding treatment aspect, the OP submitted that, the patient suffered from poly trauma, who was brought in the night, on an ''emergency''. Patient had head-injury, cervical injury, chest injury with bleeding wound, on the scalp. The x-ray of skull and right thigh were taken, which showed the compound fracture of right femur (thigh bone) with marked displacement. OP gave proper emergency treatment and fracture was reduced, external fixator was applied. After operation, during hospital stay, the fracture was in stable position and the patient''s movements at the hip and knee joint were normal, hence there was no evidence of any fracture of neck femur. Further, slow mobilization of the patient was done. The patient was asked to sit in bed, turn to side on second-third day to prevent bed sores. Thus, if there was a fracture of neck femur, the patient would not have performed those movements of hip and knee. The patient was discharged, on 03.01.2000.

Arguments and Findings: 1. We have heard the learned counsel for the parties. Learned counsel, Mr K.N. Bhargava, for the complainant/patient, vehemently argued that the doctor/OP-1 missed to diagnose for the fracture of neck femur along with fracture of shaft at the initial instance. Therefore, OP-1 has treated only the fracture of shaft of femur, and the unnoticed fracture of head of femur went on ''untreated''. During regular follow up, the patient complained of pain, which was also ignored by the OP for 6 months, post-operation. Thereafter, patient went to Kerala and took treatment from Dr. Simon, who diagnosed the old fracture at head of femur. Dr. Simon operated the fracture of neck/head of femur by intra medullary nailing.

We have perused the medical records and the total number of 22 X-rays on the file. The initial five X-rays from Savitri Hospital (OP-2), clearly reveal the fracture of shaft of femur (Rt) and also there was fracture of neck of femur. Thus, OP-1 had missed to see/diagnose it, but had treated only the fracture of the shaft of femur. It is pertinent to note that, patient went to the West Fort Hospital, Trichur, where Dr. Simon treated the patient, took multiple X-rays, which also revealed the same fracture, at the head of femur, with signs of Osteoporosis. Dr. Simon opined that, it was an old open fracture right femur on external, with a non-union fracture neck of right femur . Therefore, patient was advised for THR. Subsequently, the patient consulted one orthopaedic surgeon in Noida and also visited AIIMS, everybody advised him for THR, but the patient did not opt for THR. We have noted that, AIIMS ahd certified, patient''s disability to 58%.

Medical Literature: 1. Now, it is very important to decide, that whether, the OP missed the diagnosis of fracture neck, which led to further deterioration in the condition of patient. In this context, for better understanding about the biology, severity of fracture femur / neck injury, and the technical aspects of diagnosis and surgical management, we took references from

i) Watson Jones " Fractures and Joint Injuries" 7 th edition( Ch 29 and 30)

ii) Concomitant Ipsilateral Femoral Neck and Femoral Shaft Fracture Nonunions" from Iowa Orthop J. 2006; 26: 112-118;

iii) Skeletal Trauma: Basic Science, Management, and Reconstruction, Volume 1 by Bruce D. Browner

iv) Ipsilateral femoral neck fracture

We have noted that, Ipsilateral femoral neck and shaft fractures are uncommon injuries that present a surgical challenge. Patients who are relatively young, are usually victims of high-energy trauma, and frequently sustain, multisystem injuries. A comminuted mid shaft femoral fracture secondary to axial loading should alert the treating physician to the possibility of an associated femoral neck fracture. This is important in light of the frequency of unrecognized ipsilateral femoral neck fractures. Several treatment options are described in the literature, but no clear consensus exists regarding the optimal treatment of these complex fractures. The authors contend that, given the potentially devastating

complications of the femoral neck fracture in young patients (e.g., avascular necrosis, nonunion, and malunion), the neck fracture should be treated first and the shaft fracture, second. The authors present an algorithm for this injury, based on a review of the literature. The injury pattern of ipsilateral femoral neck and shaft fracture is a rare combination of fractures with serious potential implications. The rate of associated femoral neck fracture, with an established femoral shaft fracture, ranges from 2.5% to 6%. Of these, up to 33% will be missed, on initial injury radiographs. To exclude the such diagnosis, all patients with a femoral shaft fracture should have high-quality hip radiographs, both preoperatively and in the operating room, once the femoral shaft is stabilized. If the diagnosis is made preoperatively, we believe that a displaced femoral neck should be addressed primarily. If one is unable to obtain a closed reduction, an open reduction should be performed. With the femoral neck reduced and stabilized, fixation of the femoral shaft is performed using either a retrograde-inserted interlocked nail or a plate. If the femoral neck fracture is non-displaced, K-wires can be used to provisionally fix the neck, while a cephalomedullary nail is used to address both fractures. However, no one implant is universally accepted. The rate of osteonecrosis appears to range between 0% to 22%. It appears that development of such a complication may be more a result of an inadequate reduction than a delay in diagnosis and treatment. In addition, mal-union and non-union of both the femoral neck and shaft can be problematic.

As per the literature, ipsilateral femoral shaft fractures with ipsilateral femoral neck injury mechanism and characteristics of ipsilateral femoral shaft with ipsilateral femoral neck fracture occurs, usually after suffering high energy injury, including car accidents, after a fall and gets crushed with other heavy objects. Femoral shaft fractures with large part in the femoral shaft in 1 / 3, due to the high energy absorption, often comminuted fracture, and severe displacement; a small number of residual conduction will cause violence to continue upward femoral neck fractures. As most of the energy in the femoral shaft when at release, is usually located at the base of femoral neck fracture and multiple linear non- displaced fractures. Since the disease is more hidden, often a missed diagnosis occurs.

The ipsilateral femoral shaft fractures with combined incidence of femoral neck some time leads to misdiagnosis, because of the following reasons:

a) the physician inadequate understanding of the disease. diagnosed physicians did not understand the femoral shaft with ipsilateral femoral neck fracture injury mechanisms, more attention to the femoral shaft fracture, without detailed examination, incomplete,

b) X-ray camera is not comprehensive and does not include the whole hip or femur long. or femoral neck fracture displacement is not obvious, X-ray films of poor quality and missed,

c) disease complex. -most of the time of admission the patient missed a serious condition, often associated with trauma, shock, organ rupture, initial physician save lives, ignoring the comprehensive orthopedic examination.

d) Compared with the symptoms of femoral shaft fractures weight, the pain of femoral shaft fractures divert the attention of joint pain, and unconscious patients can not complain of hip pain, with doctors ignored the hip examination, it is easily missed.

To improve the prevention and treatment of missed femoral neck fractures, meticulous physical examination, particularly, in patients with femoral shaft fractures should be systematically checked. Conventional radiography should include the femur length, hip and knee, on the first radiograph and clinically negative neck, when still in doubt, should be 2 to 3 weeks after the film review again, if necessary, check CT or MRI, to prevent missed diagnosis of occult femoral neck fracture. Missed the event of wrong treatment and timely remedy can be closed reduction and internal fixation with cannulated screw and multi-pin fixation method.

Discussion: 1. In the most of the literatures, the authors agree on need for a high index of suspicion, (especially mid shaft fractures). Adequate anteroposterior views of pelvis, with femoral fractures. Repeat films, if suspicious and early, accurate reduction of the femoral neck fracture. Still 1% of occult fractures were missed by all methods.

The surgeon always should be wary of an occult femoral neck fracture and obtain postoperative films, if the patient complains of hip pain. The fracture shaft should be treated, along with fracture neck femur, on priority, for proper recovery and to avoid any deformity.

After thoughtful consideration, it is quite clear that the OP-1 failed to diagnose the associated injury i.e. fracture neck femur, at the initial stage. He treated only fracture shaft of femur. It is the bounden duty of every Orthopaedic Surgeon to look for any evidence by, X-ray if there is fracture in the proximal or distal joints. Therefore, the OP failed to take the reasonable care of his patient. Dr. Simon''s opinion also confirmed that ,there was old fracture in the neck of femur. The patient was regularly complaining of pain from the date of operation, which lasted for more than 4 to 6 months.

We do not agree with the submissions made by learned counsel for OP, that how a patient can withstand the fracture of neck femur for six months, without any symptoms? It should be borne in mind that the patient was having continuous pain, and also, he was unable to walk during this period. Hence, it clearly goes to show that there was no bad intention of the patient to drag the doctor to the court, unnecessarily.

The certificate issued by AIIMS, on 29.08.2003, reveals that Mr. Manu, the complainant, had Permanent physical impairment (58%) in relation to his right lower limb. The medical record of Westport Hospital and the treatment given by Dr. Simon also reveal that open reduction of right hip and reconstruction nailing of right femur was done, on 26.02.2000. Dr. Simon issued one certificate (Annexure P-4) which is, as follows:

"Certified that Mr. Manu aged 39 years, Hosp. No. 211248 was admitted in this Hospital, with an old open facture ? Femur on external Fixator in non union and a non union facture neck of femur ? on 7/6/2000. He was treated with removal of fixator, heavy skeletal traction followed by closed reconstruction nailing after open reduction of ? Hip on 22/6/2000. He has to continue to be non ambulant for a few months. He is advised rest for period of six months. Seal of West Fort Hospital Sd/ For Dr. V.I. Simon Consultant Orthopaedic Surgeon"

Conclusion: 1. We are of the considered view that, the OP failed to do proper workup of the severely traumatized patient, not adhered to strict protocol. The deformity associated with femoral shaft fracture is usually obvious, it was important to rule out an associated ipsilateral femoral neck fracture, the majority of which are non-displaced. According to literature, femoral neck fractures may be missed on the initial radiograph. If the pelvic film does not demonstrate a femoral neck fracture, an AP of the hip, in internal rotation is recommended to exclude the diagnosis. Femoral shaft stabilization may be required before this view is possible. The OP failed to read the x-rays properly, the initial x-rays clearly showed the signs of fracture neck of femur, which OP failed to diagnose, but treated only fracture of shaft of femur. Thus patient developed further complications and physical disability.

It was not a bonafide mistake on the part of OP also; we don''t consider it as an error of judgment. It was just a deficiency and failure to take a reasonable care. Thus it is a negligence, committed by OP.

The Hon''ble Apex Court in Spring Meadows Hospital Vs Harjol Ahluwalia ; (1998) 4 SCC 39, held that gross medical mistake would always result in a finding of negligence. The position of law has been explained very clearly in Para 9 of the aforesaid case, the relevant portion of which is reproduced here under:-

"9.......Very often, in a claim for compensation arising out of medical negligence, a plea is taken that it is a case of bona fide mistake, which, under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case, a court can accept that ordinary human fallibility which precludes the liability, while in the latter, the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonably (sic) skill of a competent doctor. In the case of Whitehouse v. Jordan, an obstetrician had pulled too hard, in a trial of forceps delivery and had thereby caused the plaintiff''s head to become wedged with consequent asphyxia and brain damage. The trial Judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasizing that an error of judgment would not tantamount to negligence. When the said matter came before the House of Lords, the view of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence, if it is an error which would not have been made by a reasonably competent professional man, acting with ordinary care."

Another point that does not escape our attention is the general direction given in Para 106 in Martin D'' Souza''s case, wherein it has been held to be a non-binding precedent and those directions must be confined to the particular facts of that case only. This has also been so held in V. Kishan Rao Vs Nikhil Super Specialist Hospital [2010 (5) SCC 513]. In the said case, it has been held that the principle of Res Ipsa Loquitur applies, where negligence is evident and in such a case, Complainant is not required to prove anything, as Res proves, itself. In such a case, it is for the respondent to prove that he has taken care and done his duty. In view of the above law, we hold that, principle of Res Ipsa Loquiter is applicable in this case . The Complainant in instant case is not required to prove the allegation of medical negligence by specifically adducing evidence inasmuch as the OPs have shown their negligence and misconduct in diagnosis and treatment of the femur neck fracture.

What follows from the facts and circumstances of the case and the discussions made on the basis of cases relied upon by the parties, is that the OPs are clearly fastened with medical negligence, requiring them to pay adequate compensation to the patient. The question is, whether, demand for payment of Rs. 25 lakhs could be said to be inflated or reasonable? Determination of compensation is, otherwise, a difficult task and it is more a difficult task, where no standard or formula is laid down in the statute or in judicial decisions by higher fora or courts. We have, however, noticed in the Nizam''s Institute of Medical Science''s case, wherein it has been mandated that the court must strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the OPs saying that nothing is payable. In the said case, it has been held that "Sympathy for the victim, does not and should not come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding of adequate compensation. The adequate compensation that we speak of, must, to some extent, is a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned". From the pleadings, we have noted that the patient suffered due to failure of diagnosis of fracture neck at initial stage and was also unable to get THR done. Thus, he has to remain disabled, throughout his life. Therefore, upon deep consideration and bearing in mind various decisions of the Hon''ble Supreme Court and that of this Commission, with regard to the quantum of compensation in cases of medical negligence, we deem it fit and proper to award a lump sum of Rs. 10 lakhs.

Accordingly, we direct the OPs to pay total Rs.10, 00,000/- jointly and severally to the complainant within 90 days, from today. Failing which, after the expiry of 90 days'', the total amount will carry further interest @ 9% p.a., till its realization. However, there shall be no order as to costs.