Mohinder Singh vs J S DANG

THIS appeal has been directed by the complainant against order dated 4. 7. 2000 passed by Consumer Disputes Redressal Forum, Jalandhar (hereinafter to be referred as District Consumer Forum), vide which his complaint was dismissed leaving the parties to bear their own costs.

BRIEFLY stated the facts are that Mohidner Singh-appellant (complainant) is resident of 106-F, New Baradari, Jalandhar. On 11. 5. 1997 he met with a road accident and got fracture on his right leg (fracture shaft of right femur ). He was admitted in the nursing home of respondent No. 1 (Dr. J. S. Dang ) in an unconscious state. Several x-ray films were taken. He was operated upon by respondent No. 1 on 15. 5. 1997 and a closed nail rod was fixed and was discharged from the hospital on 24. 5. 1997 with the assurance that there would be proper healing, since the fracture was minor and same had been set forth during the operation. However, he felt severe pain, swelling in his right leg and was again operated upon by respondent No. 1 on 28. 5. 1997 as wound of the leg was highly infected and by incision operation, the wound was cleaned and a pipe was fixed for removal of pus. He was again admitted there from 5. 6. 1997 to 13. 6. 1997 but he was not satisfied with the treatment given by respondent No. 1, so, he consulted respondent No. 2 (Dr. Mukesh Joshi) and remained admitted in his hospital from 26. 6. 1997 to 17. 7. 1997 where infected nail was removed and he assured that there would be onward proper healing. He had also extracted pus. The fixator, LLD was applied by respondent No. 2 and bone grafting was done. He further remained admitted in his hospital from 23. 8. 1997 to 5. 9. 1997, 4. 1. 1998 to 6. 1. 1998 and 16. 5. 1998 to 25. 5. 1998 but he was not fully cured. It was next averred that thereafter he approached Civil Hospital, Jalandhar and on 29. 3. 1999 he came to know that both the respondent Nos. 1 and 2 had left loose pieces of bone in the leg due to which his wound was severely infected and he contacted a disease "pus for AFB positive" due to infection which was due to negligent acts performed by respondent Nos. 1 and 2. He was admitted in the Civil Hospital, Jalandhar on 17. 4. 99 with chronic osteomyelitis and dead bone pieces left by respondent Nos. 1 and 2 were removed and it was also told that he would never become normal again. He was a Government servant and his carrier was threatened.

Alleging deficiency in service, he filed a complaint against respondent Nos. 1 and 2 and claimed compensation of Rs. 5 lacs along with interest @ 25% p. a. besides costs of the complaint.

RESPONDENT Nos. 1 and 2 contested the complaint and filed separate written replies. Respondent No. 1 in its reply stated that the complaint was time barred as he had performed operation on 15. 5. 1997 and lastly appellant had consulted him on 24. 6. 1997 but the complaint had been filed after expiry of more than two years. On merits, he stated that the appellant was admitted in his nursing home on 11. 5. 1997 at 10. 00 a. m. in a conscious state after suffering fracture of shaft of right femur bone and he was applied traction which was the standard emergency treatment and then on 15. 5. 1997 he did closed nailing of his fractured bone which was internationally accepted and practised procedure and was ideal treatment in case of comminuted fracture (fractured bone having more than two pieces ). In this method of treatment, an interlocking nail is inserted in the fractured bone by closed method (the fractured part of thigh is cut open ) with the help of C-arm which showed the x-ray image on a monitoring screen. The operation was correctly performed. He denied that the appellant was operated upon twice for his fracture by him. The appellant got himself discharged from his nursing home on 24. 5. 1997 at his request. He denied that on 28. 5. 1997, the wound was highly infected or it was cleaned by incision or a pipe for drainage of pus was affixed. The appellant approached him with fever on 5. 6. 1997 and was admitted in the Nursing Home and he also called Dr. Pawan Gupta, a renowned medical specialist of Jalandhar who diagnosed that the appellant was suffering from Typhoid causing enteric septicemia. Accordingly he was prescribed medicines and was discharged on 13. 6. 1997. At that time the condition of operated leg and wound was satisfactory. He denied that he had left any loose pieces of bone inside. He further stated that loose piece of bone become dead when its attachment is disturbed and dead piece may get separated from bone due to persistent infection. He further stated that Pus AFB positive after a period of 21 months of first operation was always secondary due to infected dressings and exposure of wound to polluted atmosphere. He denied other allegations. Respondent No. 2 in his written reply stated that appellant was admitted on 25. 6. 1997 at his clinic with the following symptoms : (a) history of pain + swelling in right thigh - about 15 days (b) history of high grade fever - about 10 days (c) history of discharging sinus, hip and knee - about 7 days

X-rays revealed old operated case of interlocking femur nail. It was diagnosed as infected nailing with abscess formation. On 25. 6. 1997 under general anaesthesia, operation of incision and drainage of abscess was performed. Antiseptic dressing was made and antibiotics according to pus culture sensitivity report were given. Blood transfusion was also given but pus infection was not under control. On 6. 7. 1997 infected nail and third piece which was infected were removed and the debriment i. e. all dead Necrotic infected tissues were removed and skeletal traction was applied as the fracture was still not united. The patient was labelled as a case of chronic ostemyelitis i. e. bone infection. On 15. 7. 1997 dressing of open wound was done, secondary suturing was done on clean wound. Hip knee wound was kept open for dressing and he was discharged on 17. 7. 1997. He was again admitted from 23. 8. 1997 to 5. 9. 1997 for further treatment and on 23. 8. 1997 fixator was applied and bone grafting was done. The standard active modern technique was done for infected non-union with infection, gap and wide separation of fragments i. e. open reduction, freshening of the margin, rigid external fixation with A. O. Fixator and fresh autogenous cancellous bone grafting and fibular grafting was done. He denied that infected fixator was applied and the wound was infected. He next stated that the treatment given during the period 4. 1. 1998 to 6. 1. 1998 was incision of drainage of pus as he was suffering from chronic osteomyelitis. He was suffering from low grade infection which had flared up from time-to-time. He next stated that in healing stage of infected fracture, he developed dead bone formation (sequestrum) from time-to-time. He next stated that sequestrum is found in chronic osteomyelitis. He denied other allegations.

RESPONDENT Nos. 3 and 4 were added as parties afterwards as respondent No. 1 was insured with United India Insurance and respondent No. 2 was insured with Oriental Insurance Company. They also filed written replies and denied allegations and stated that they were not liable to pay any claim. Parties adduced their evidence by way of affidavits. After hearing Counsel for the parties, District Consumer Forum vide order dated 4. 7. 2000 dismissed the complaint as there was no merit in the same.

AGGRIEVED by the said order, the complainant has filed the present appeal.

WE have heard Counsel for appellant Mr. Karminder Singh, Mr. Puneet Jindal, Advocate for respondent Nos. 1 and 2, Mr. Jaswinder Randhawa, Advocate proxy for Mr. Amit Rawal, Advocate for respondent No. 3, Mr. Rajneesh Malhotra, Advocate for respondent No. 4 and carefully gone through the file. Respondent No. 1 Dr. J. S. Dang has filed his affidavit Ex. O. 1/1. In his affidavit, he stated that the appellant was operated upon on 15. 5. 1997 and closed nailing of his fractured bone was done which is internationally accepted and practised procedure and is an ideal treatment of choice in case of comminuted fracture (fractured bone having more than two pieces) such was the case of appellant. In this method of treatment, an interlocking nail is inserted in the fractured one by closed method (fractured part of thigh is not cut open) with the help of C-arm which shows the x-ray images on a monitoring screen and this operation was correctly performed by him. The advantage of this method was that there was less surgical trauma, no plaster was required and further no transfusion was required. He denied that the wound was highly infected or that on 28. 5. 97 the wound was cleaned by incision or pipe for drainage of pus was affixed but he had come for routine check up. His wound was healthy and only his dressing was changed. He further stated that he was again admitted on 5. 6. 1997 with high fever and Dr. Pawan Gupta, a renowned medical specialist was called who diagnosed his fever as Typhoid causing enteric septicemia and accordingly the appellant was prescribed certain medicines and was discharged on 13. 6. 1997. He denied that he left any dead piece of bone inside. He further stated that a loose piece of bone becomes dead when its attachment is disturbed and a dead piece may get separated from bone due to persistent infection called "sequestrum".

There is affidavit of Dr. Pawan Gupta, Ex. 1/2 on file which shows that on the call of Dr. J. S. Dang he visited his nursing home on 5. 6. 97 and examined Sh. Mohinder Singh S/o Sh. Ajit Singh who was suffering from fever and diagnosed him having septicemia and enteric caused by typhoid and accordingly treatment was prescribed.

ADMITTEDLY the appellant was admitted in the Civil Hospital, Jallandhar on 9. 4. 99 with bone infection (Osteomyelitis) and was operated upon by Dr. H. S. Ghuman on 9. 4. 1999. At that time, the fracture was united and there was no fixator and bone infection and pus formation were there and dead loose pieces of bone formed sequestrum because of Osteomyelitis and he removed all the dead pieces of bone. He further stated in such type of bone infection the loose dead bone pieces may form again and again and the time of reoccurrence may vary from months to years and the dead pieces which he removed after operation were not left by any doctor but were formed during the natural course of the disease. His affidavit is dated 20. 6. 2000. There is another affidavit of Dr. H. S. Sohal, Asstt. Professor Orthopaedic, Medical College, Amritsar- OP2/5, which reads as under: AFFIDAVIT i, H. S. Sohal, Asstt. Professor Orthopaedic, Medical College, Amritsar, Incharge Orthopedic Unit-II do hereby solemnly affirm and declare as under:-1. That after going through the case History of patient Mohinder Singh, S/o Sardar Adjit Singh, r/o of 106-F New Baradari, Jalandhar. According to the record of Joshi Hospital, Opp. Sports College, Kapurthala Road, Jalandhar patient Mohinder Singh was admitted on 25. 6. 97 as infected case with following symptoms: (a) History of pain+ swelling in right thigh - about 15 days. (b) History of High grade fever-about ten days. (c) History of discharging Sinus Hip and knee -about seven days. On Investigation x-rays-old operated case of interlocking femur Nail. Investigations ESR raised, TLC raised, DIC raised animia and many puss cells in urine-UTI. Diagnosis: Infected nailing with abscess formation (pus formation) on 25. 6. 1997 incision and drainage of abscess was permored. On 6. 7. 1997 as the infection was not under control the infected nail and third piece of bone was removed and skeletal traction was applied and fracture was not still united. Patient was labeled as a case of chronic ostemyelitis i. e. , bone infection with infected non-union. On 23. 8. 1997 patient was again admitted for further treatment then fixator was applied and bone grafting was done. The standard active modern technique was adopted for infected non union with gap and wide separation of fragments at fracture site i. e. , open reduction, freshening of the margin, rigid external fixation with external fixation and fresh autogenous cancellous bone grafting and fibular grafting was done. On 6. 1. 1998 incision for drainage of puss was done. On 16. 5. 1998 as the fracture healing was slow in presence of infection second decortication was done to enhance union of the fracture.

That after studying the whole history of patient Mohinder Singh in my opinion the patient with theses kind of symptoms had got bone infection (osteomyelitis) He was already having bone infection and pus formation before he was admitted to Joshi Hospital. 2. That this is a case of infected fracture and infection does not allow the fracture go heal. We need external fixators to restrict movement at fracture site and keeping the fracture ends of the bone in good alignment. He needs bone grafts, cancellous or fibular, to promote bone union in presence of infection. 3. That infected non union (fracture in presence of infection ). There is sequestrum (loose dead piece of bond) formation again and again at varying times from months to years. Therefore the occurrence of dead bone pieces repeatedly even after its removal is a natural medical phenomenon bone infection. 4. That the treatment adopted by Dr. Mukesh Joshi is active modern line of treatment in infected fractures with which he achieved union of the fracture femur in presence of infection. This is the standard line of treatment according to latest text books of orthopaedic surgery. Deponent verification: verified that para No. 1 is correct according to the record of Joshi Hospital and remaining paras are corrected to the best of my knowledge and belief and nothing has been concealed therein. Deponent

ACCORDING to Dr. H. S. Sohal, he was already having bone infection and pus formation before he was admitted to Joshi Hospital and it was a case of infected fracture and the infection had not allowed the fracture to heel. There was sequestrum (loose dead pieces of bone) formation. The occurrence of dead bone pieces repeatedly even after its removal is a natural medical phenomenon in bone infection. He further stated that treatment adopted by Dr. Mukesh Joshi was active modern line of treatment in infected fractures with which he achieved union of the fracture femur in presence of infection and this was the standard line of treatment according to latest text books of Orthopaedic surgery. Therefore, according to Dr. H. S. Sohal, Dr. Mukesh Joshi was not at fault but he had adopted active modern line of treatment which is adopted in case of infected fractures and achieved union of the fracture femur in the presence of infection and this was standard line of treatment. So, he completely absolved of Dr. Joshi of any negligence. He had further stated that there was no negligence on the part of respondent No. 1 Dr. J. S. Dang. There is affidavit of Dr. H. S. Kahlon dated 20. 6. 2000. He has stated in his affidavit that in the case of Mohinder Singh dead pieces of bones (sequestrum) were formed at regular intervals and these were not dead pieces of bone left by any doctor but were formed during the natural course of the disease. He further stated that when the original acute bone infection had subsided, it might persist as a low grade infection subject to repeated reoccurrence of the acute process over many months or years. He further stated that Mohinder Singh was suffering from chronic Osteomyelitis i. e. bone infection. He had fracture which got infected. He further stated that by active modern technique his bone was united but bone infection was persisting.

THUS, there is no fault either on the part of respondent No. 1 or respondent No. 2 but they had performed their act with due care and caution and if the dead pieces of bone had been left then it was not their fault because in infected non-union (fracture in presence of infection) there was sequestrum (loose dead pieces of bone) formation and occurrence of dead bone pieces repeatedly even after its removal is natural medical phenomenon in bone infection. Therefore, it cannot be said that respondent Nos. 1 and 2 had left dead pieces of bone inside the wound and the close reduction was not properly done by respondent No. 1. Both respondents had applied standard treatment and they cannot be faulted on this score. Therefore, there is no medical negligence on the part of respondent Nos. 1 and 2. He had received treatment from the renowned orthopaedics surgeons as observed by the District Consumer Forum and if something happened wrong, it is not their fault.

WE concur with the reasoning given by the District Consumer Forum and hold that there is no force in the appeal. Consequently, it is dismissed. Copies of this order be communicated to the parties, free of charge. Appeal dismissed.