SACHIN AGGARWAL ALIAS VICKY vs Ashok Arora

WHETHER dynamic compression plating done on the frastured femur of a child of 13 years is per se negligence in orthopaedic surgery? This has come to be the core question in this case.

ON the complainant''s own showing, the opposite party Dr. Ashok Arora is an Orthopaedic Surgeon of considerable standing. He is an M.B.B.S. holding a diploma in Orthopaedics and the degree of Master of Surgery in the same branch. He has earlier served as the Registrar of the Medical College at Rohtak and an Orthopaedics Surgeon of the Civil Hospital at Hisar. After acquiring considerable experience in Government service, he resigned and set-up his own Clinic at Hisar in the name and style of Arora Orthopaedic Centre. The complainant Sachin Aggarwal has preferred the complaint through his father and natural guardian Shri Jai Parkash Aggarwal. At the material time, the complainant was nearly 13 years of age and student of the 8th Class. On the 3rd of June, 1991, he met with an accident while driving a scooter at Hisar and was immediately removed to the clinic of the opposite party. It was found that his left femur had been fractured and after the preliminary procedures, he was operated upon and a steel plate was inserted in the leg and screwed to the bone as an aid to the healing of the fracture. It is however, the complainant''s case that after three months of the said operation, the bone had again broken where a hole had been inserted by the opposite party and it is suggested that this was due entirely to the negligent medical procedures by Dr. Arora.

On the 26th of September, 1991, when the complainant had the second fracture he was admitted at the Gautam Hospital, Pitampura, Delhi where he had to remain as a patient for 2''/: months, and had to undergo three painful major operations which are alleged to have been due to the negligent act of the opposite party for the earlier operation. It is the case that the complainant or his father were told there that in the earlier operation performed by the opposite party a proper hole was not made and the insertion of the steel plate was an act of sheer negligence. The burden and the refrain of the complaint subsequently is that the fracture on the 26th of September, 1991 and the prolonged medical treatment necessary thereafter was all occasioned by the original negligence of the opposite party in compression plating the fracture of the bone of a growing child of 13 years. It is the case that the complainant has been virtually invalidated for the rest of his life and had to incur heavy medical charges at Delhi and consequently, a compensation to the tune of Rs. 3 lacs with interest at 18% has been claimed.

IN the written statement of the opposite party, the hackneyed preliminary objection has been taken that the medical profession does not come within the purview of the consumer jurisdiction. It is then the plea that the complaint is false, frivolous and vexatious and has been mischieviously filed to extort money from the answering respondent and to bring him in professional ill-repute. It is stated that the complainant was brought to the clinic with a simple fracture on his left thigh on the 3rd of June, 1991. The opposite party operated upon him and dynamic compression plating of the left femur was done by applying a ten-hole steel plate of the "INOR" quality (which is the best available in the INdian market) on its lateral aspect. After removal of the stitches, the complainant was discharged from the hospital on the 18th of June, 1991 and the operation was wholly successful and thereafter, for three months and 18 days, there was no complaint whatsoever. However, the complainant later had another fall which is borne out from the Discharge File of Gautam Hospital, Delhi itself which resulted in the second fracture and the subsequent complications. It is pleaded that the entire storey of a defect in the hole and the plating is a concoction and based on no evidence. On merits, it is pointed out that a hole is made in the bone if nailing is done but in a case of compression plating, no hole is made when the plate is Fixed with the help of screws. All suggestions of any negligence are denied and the firm stand is that the subsequent fracture had arisen due to a fall on the floor later. The assumptions of the complainant and the medical procedure followed thereafter are denied for want of knowledge and it is re-asserted that the allegations are derogatory and defamatory for which the opposite party reserves his right to sue him for defamation and damages. All suggestions of deficiency in the service are denied and only the receipt of Rs. 2800/- for medical services rendered is admitted apart from the other cost of equipment and incidental expenses of the operation. The complainant in support of his case, attached the relevant papers of the Arora Orthopaedic Centre and the discharge file of Gautam Hospital As regards other evidence, the complainant rested himself content with the somewhat serving statement of his father and Guardian Shri Jai Parkash Aggarwal who alone put in his affidavit in support of the case. Therein, he took up the express plea that the doctors in the Gautam Hospital told the deponent that because Sachin Aggarwal was only "13 years of age at that time, as such the plate in his left thigh should not at all have been inserted because the bones of a child keep on growing till the age of 16 years. Compression plating in the case of the complainant is therefore labelled as an act of sheer negligence resulting in the permanent disability of the complainant.

SHRI Jai Parkash Aggarwal, the witness aforesaid was cross-examined at some length on behalf of the opposite party. Therein, he again attempted to take up the stand that on the 26th of September, 1991, the plate in the complainant''s thigh broke on its own. He was confronted with the discharge file of the Gautam Hospital relied upon by the complainant himself which expressly mentions that the patient had been admitted after he fell down on the floor. However, he stated that he had not so mentioned it to the Gautam Hospital authorities. He was further confronted with the final Discharge report on the 19th of December, 1991 which again indicated that the complainant''s fracture had been occasioned by a fall. He was then confronted with the complaint wherein he had not stated that the steel plate in his son''s leg had broken on its own or that medical opinion was categoric that a plate should not be inserted in the thigh of a child under 14 years. In rebuttal, the opposite party Dr. Ashok Arora put in his affidavit reiterating his stand in the written statement wherein it is pointed put that on the complainant''s own document it was manifest that on or around 26th of September, 1991, the complainant had a fall on the floor and thereby fractured his leg again and the bone had never broken on its own as alleged by his father. It is pointed out that the plate of "InOR" quality steel cannot break on its own in any eventuality and it is even difficult to break it with an Orthopaedic hammer; Medical authorities have been relied upon for the proposition that in case of children it has been strongly recommended that femur fracture should be internally fixed in cases of children between the age of 12 to 18 years and this is more so where a fracture is not near the growing points. It is highlighted that even the doctors at Gautam Hospital, Delhi had applied the same technology of compression plating. The opposite party was cross-examined at some length on behalf of the complainant but far from eliciting anything in his favour, the cross-examination seems to boomrang on his case. It was pointed out therein that in the case of the complainant, the growing points were away from the fracture site and they were not likely to be disturbed by the growth of the bone later. It was the firm stand that the "InOR" quality plating is the best available within the country. And further that modern practice considers compression plating as a much better procedure than the earlier and obsolute one of inserting a nail in I he bone. In further support of his case, the opposite party examined Dr. O.N, Nagi, a renowned Orthopaedic Surgeon of the region and the present Head of the said Department in the Post Graduate Medical Institute, Chandigarh. Despite opportunity given, the witness was not cross-examined and his authoritative testimony, consequently merits acceptance and wholly supports the opposite party''s case. From the aforesaid resume of the pleadings and the evidence it would be somewhat plain that the basic allegation in the complaint and equally so in the evidence in support thereof is that the opposite party by resorting to dynamic compression plating for the treatment of the complainant was guilty of inherent medical negligence. This case firmly projected is that the bones of a child of 13 years are in a growing stage and compression plating therefor would be patently a misconceived procedure because with the growth of bones, the same would necessarily cause farther complications. It was the positive stand in the evidence of the complainant that the steel plate or the bone had broken of its own because of this inherent error in the Orthopaedic surgery.

IT bears repetition as noticed at the outset that the thres-hold question first is whether in resorting to dynamic compression plating on. a growing child Dr. Sushil Arora was medically negligent in the professional services he had rendered.

HEREIN, what first meets the eye is the fact that in the basic pleadings of the complaint it was not specifically averred that compression plating on a child of 13 years should never be medically done. However, in the affidavit of Shri Jai Parkash Aggarwal, he took up the stand on the basis of some hearsay opinion received in the Gautam Hospital that because of the age of the complainant the plate in his left thigh should not have been inserted at all. According to him, the medical experts were unanimous that the plate must not be inserted below the age of 15 years to 16 years because of the likely growth of bones later. Apart from the fact that this stand appears to be beyond the original pleadings, it has to be highlighted that this opinion being purely of a layman, i.e. the father of the complainant, is not worth the papers which is written on. In a matter of such technical medical intricacy, his bald is of little meaning. Curiously it was suggested with utter vagueness that some doctors in the Gautam Hospital had so opined. Neither the name, designation or a hint of the identity of such a doctor was given either in the complaint or even later at the stage of the affidavit evidence of Shri Jai Parkash Aggarwal. What is more, not the least attempt was made to adduce the evidence of any doctor who had so opined. Equally no medical expert was examined to support that appears to be a wholly tenuous allegation. Lastly, the learned counsel for the complainant in his argument could cite no medical authority, opcite chapter and verse for the untenable proposition that the dynamic compression plating in children is wholly ill-advised in all cases. As against the above, the opposite party has put into the witness box Dr. O.N. Nagi, Head of the Orthopaedics Department in the P.G.I, at Chandigarh. It already stands noticed that his authoritative evidence has otherwise gone wholly un-challenged by way of cross-examination. A person of renowned medical stature had deposed in the terms following: "Compression plating can be done on a patient of 12 to 14 years of age in the case of a fracture of the shaft of the femur. Indeed it is a routine procedure. I have seen the plating X- rays of the complainant which are OP/I to OP/4. These pertain to the plates where compression plating has been done. I do not find any abnormality in the bones of the patient in these X-rays. I also do not find any abnormality in these bones and the plating has been competently done."

It would appear that the aforesaid testimony would virtually conclude the matter against the complainant. However, this does not stand by itself. The firm stand taken in the written statement by Dr. Ashok Arora has been reiterated in his affidavit. As already noticed, he is an Orthopaedic professional of some standing of his own. In para 7 of the affidavit it has been re-asserted that the high medical authority has strongly recommended that femur fracture should be internally fixed in the children between the age of 12 to 18 years. It was also pointed out that the complainant had the fracture right in the middle of the femur and not near the growing points. Consequently, plating in such a situation even in a growing child could be well advised. In his cross-examination, nothing could be elicited to weaken his firm stand. What next merits notice are the observations in the authoritative Manual of Internal Fixation by Dr. M.E. Muler M. Allgower. At page 639 it has been laid down as under:- "18.2 Indications for Internal Fixation: Operative treatment of fractures in children should strongly be considered in: 1.Polytrauma including psilateral fracture. 2.Severe open fractures. 3.Patients with head injuries (or children with spastic cerebral palsy). 4.Femur fractures in adolescents. 5.Certain types of forearm fractures. 6.Certain types of physical plate fracture (displaced intra-articular fractures)."

Lastly, what deserves notice in this context is the fact that subsequently resort to the same technology and procedure was down by the doctors of the Gautam Hospital. Therein, the relevant extract on the discharge file is in the following terms:- "Fell down and the plate at the front cracked. On the 29th of September, 1991, again plating done under General Anasthesia."

IT deserves highlighting that the basic allegation of the complainant was that the doctors at the Gautam Hospital had dis-approved of the compression plating procedure. This afterthought stands totally belied by the undisputed fact of the same methodology having been adopted and repeated at the Gautam Hospital. In view of the above, it is somewhat plain that the primal stand taken on behalf of the complainant is without merit. The answer to the question posed at the outset has to be rendered in the negative. It is held that dynamic compression plating applied on the fractured femur of a child of 13 years cannot be deprecated as an inherently negligent procedure in Orthopaedic surgery. 15A. Once the aforesaid conclusion has been arrived at, it is inevitable that the opposite party has an easy sailing to success in the present case. It is common ground that the complainant was discharged from Dr. Arora''s clinic on the 18th of June, 1991. For more than three months thereafter, there was not the least hint of any complication or infection due to the surgery. In the complaint, it was not specifically averred that the inserted plate had broken on its own. The subsequent plea and evidence to this effect is wholly belied both by expert testimony and the evidence brought on the record by the complainant himself. In this context, again Dr. O.N. Nagi opined as under:- "In my view, the plate cannot break of its own because it is made of strong stainless steel. It cannot break by the mere pressure of the growth of the bones in a growing child. At the best, it can only loosen."

However, the lie direct to the trumped up version of the plate having broken on its own is given by the medical record of the Gautam Hospital, brought on the file by the complainant himself. The discharge file expressly mentions that the complainant was admitted in the hospital after he fell down on the floor. Inevitably this led to the further complications necessitating a somewhat prolonged treatment at Delhi. It bears repetition that therein also compression plating was re-done. It is thus manifest that the consequences of the subsequent fall and fracture are now wrongly sought to be laid at the door of the opposite party. It is clear that not the least foundation of any deficiency in the service undertaken by the opposite party as a professional medical attendant have been made out far from there being any patent or inherent negligence being established. It would appear that without adequate cause, the opposite party has been dragged into the vortex of a consumer dispute which inevitably tends to prejudicially affect his professional competence. This complaint therefore, must necessarily fail and is hereby dismissed.

MR. Atul Lakhanpal, the learned Advocate for the opposite party had vehemently prayed for the imposition of exemplary costs on the complainant for having without any justification whatsoever launched the present case. It was pointed out that irrespective of its failure, the inevitable result has been that the opposite party has been put to grave harassment, as he had to continuously attend the proceedings herein personally with the inevitable loss of his professional earnings. Equally it was submitted that whatever the result of this case, it would leave a scar on the professional reputation and medical competence of the opposite party. The aforesaid submission is not without a modicum of merit. The controversy whether the medical profession comes within the ambit of "service" under the Act has now been authoritatively settled by the National Commission in I (1992) CPJ 302 (NC)=1992 Consumer Protection Cases 487, M/s. Cosmopolitan Hospitals & Anr v. Suit. Vasantha P. Nair and Ors. Therein, it has been concluded as under- "This is an additional remedy now made available by Parliament to persons who have hired for consideration services of any kind other than one ''under a contract of personal service''. Inasmuch as we have held that the availing of the service of a hospital or a medical doctor for getting medical treatment will not fall within the expression service rendered "under a contract of personal service", the exemption is not attracted. Hence the provisions of the Act relating to adjudication of consumer disputes and award of reliefs under Section 14 of the Act fully apply to disputes concerning deficiency in the service rendered by hospitals and the members of the medical profession also."

In view of the above, consumers now have obviously a right to seek redress in this beneficient jurisdiction and it is the duty of the redressal agencies to safeguard them against mal-practices by medical professionals. Whilst this is patently laudable, it seems equally necessary to lay down that the ease and the inexpensive nature of the consumer jurisdiction is not allowed to become a vicious weapon in the hands of either the careless or unscrupulous patients to harass the medical professionals without good and adequate cause. One must keep an even keel, and maintain the nice balance betwixt the consumer needs and the rights of the medical professionals. The present cases seems a typical example. Herein, it appears to us that (he complainant through his guardian without sufficient basis and apparently on the ground of mere hearsay without any expert advice has rushed forward to launch this complaint. Ordinarily, we would have taken a somewhat severe notice of the fact. However, because of the nascent jurisdiction being exercised now against the medical profession, we would not wish to overly deter the consumer- complainant. We are inclined to the view that costs to the tune of Rs. 2,000/- in the present case would amply meet the ends of justice. These must be tendered within one month from today, failing which compliance inevitably would be enforced under Section 27 of the Act. Complaint dismissed.