YOGESH , BIRENDER SINGH vs PAWAN KUMAR GUPTA , YOGESH

THIS order shall decide above mentioned three revision petitions which pertain to the same incident and arise out from the same common judgment rendered by the State Commission. Sh. Yogesh, the complainant in this case, fell down from the Cantilever/Chhajja and received multiple injuries and fracture in his leg on 2.4.1999, at about 4.00 p.m. He was taken to ''Aman Hospital'', run by Dr. Pawan Kumar Gupta, O.P. 1. His right leg was plastered. The complainant was advised to come after 5 days. The complainant suffered a lot of pain, on 4.4.1999 and approached O.P. 1. However, O.P. 1 was not available in the hospital. The parties invited my invitation towards medical record, from Aman Hospital, which runs as follows: Date : 2.4.1999

Mr. Yogesh

20 years, Male

Fracture Calcaneus (Right)

Sedation, Close Reduction Dose

Plaster of paris back slab applied

Possibility of open Reduction/Internal

Fixation/Late Subtalar

Arthrodesis

Adv.

X -ray after 2 days - -Raise the part - -Toe Movements

10 days - -Tablet Orthodes (15)

POP illegible (0 -0 -0 thrice daily) x 5 days.

THEREAFTER , the complainant was taken to Dr. Birendra Singh of ''Amrit Clinic'', O.P. 2. O.P. 2 x -rayed the right leg of the complainant and then inserted a pin for hanging weight and also operated the leg of the complainant. O.P. 2 advised the complainant for blood transfusion on the next day, i.e., 5.4.1999. The second certificate is of Amrit Clinic. The relevant portion, rims as hereunder: Amrit Clinic

Mohna Road, Ballabgarh -121004

Name: Mr. Yogesh

Age: 20 years, Sex: Male

Date: Address:

Apart from x -ray, treatment of all diseases of bones, joints, muscles, nerves by medicines, plaster & operation is done here.

The complainant''s blood was transfused by Dr. Naresh Jindal of Uncha Gaon, OP, at the residence of the complainant, with the help of Dr. Birendra Singh, O.P. 2. Subsequently, O.P. 2 advised him for getting treatment from any Government Hospital. The foot started foul smell on 6.4.1999 and pus cells were also present in bulk. The complainant called up Dr. Naresh Jindal and Dr. Birendra Singh. Dr. Birendra Singh took forcibly the papers belonging to his treatment, along with X -ray report. The envelop of X -ray was left with the complainant. Trilok Chand and Ratan Kumar, brothers of the complainant were also present there and they informed the father of the complainant that Dr. Birendra Singh had taken away the medical papers.

FATHER of the complainant took the complainant to Holy Family Hospital, New Delhi, as the complainant was in a precarious condition. Holy Family Hospital referred him to AHMS, New Delhi and from AIIMS, New Delhi, he was shifted to Safdarjung Hospital, New Delhi. There is record of Holy Family Hospital, the relevant para runs as follows: Holy Family Hospita, New Delhi -25 Cellulitis - -Advised under General Anaesthesia

Fasciotomy

G -Cal - -Blow knee amputation also - -Wound Debridement

Illegible - -Magnamycin

(Diagnosis)

Fracture right calcanium with ascending cellulites with gas gangrene.

Adv:

Admission in Orthopaedic ICU

Regret No Beds Available

Referred to

All India Institute of Medical Sciences/Safdarjung Hospital.

SAFDARJUNG Hospital diagnosed that due to ill -treatment, gas -gangrene was reported with the foul smell, along with pus cells. There is a Discharge Slip from the Safdarjung Hospital, New Delhi, placed on record, as Annexure P -9. The following extract is germane to the present controversy. Discharge

Yogesh Unit II, Tue, Fri21/M DOA (date of admission)6.4.1999

HRD163171 -DOD (date of discharge) - -17.4.1999

WD -27/42

X -Ray

Gas shadow c (with) # (Fracture) Calcaneus

Plan

B/K (Below knee) amputation right

Operation

A/K (Above knee) right amputation done (as muscles not viable upto knee) on 6.4.1999

in EOT (Emergency Operation Theatre)

Guillotine Amputation (amputation done

with open wound).

Post O.P. (Post Operative)

Uneventful

Daily ASD (antiseptic dressing) done

Wound healthy at the time of discharge

AGGS (anti gas gangrene serum) given

ATS (anti tetanus serum) given.

Unfortunately, the leg of the complainant, below the knee, had to be amputated to save the life of the complainant. The complainant had to spend Rs. 50,000 on his treatment. The complainant''s father lodged a complaint with the police. A complaint was filed before the District Forum with the following prayers: (i) To pass an order directing the respondent to pay the entire expenditure of the treatment of the complainant to the complainant along with interest @ 18% per annum from the date of treatment till the date of realization of the amount in question.

(ii) To pass an order directing the respondents to pay Rs. 4,00,000 to the complainant on account of mental and physical tension, harassment, pain and sufferings;

(iii) Any other relief which this Hon''ble Court deems fit and proper may kindly be granted in favour of the complainant and against the respondents, jointly and severally.

THE case was contested by all the three OPs. All of them denied any kind of deficiency in service or medical negligence on their part. The District Forum fastened the liability on OPs 1 and 2. They were directed to: to pay Rs. 2,50,000 total in all counts, with interest @ 10% p.a. from the date of institution of the complaint till its realization. It is, however, made clear that liability of the respondent Nos. 1 and 2 is in the ratio of 30:70. The respondent No. 1 is liable to pay 30% of the total amount along with interest, whereas respondent No. 2 is liable to pay 70% of the total amount, along with interest.

Compliance of this order be made within 30 days after the receipt of the copy of the present order.

FIRST Appeal was filed by the complainant for enhancement of the amount. Dr. Pawan Kumar Gupta also filed an appeal which was decided by a common judgment of the State Commission, dated 14.5.2012. Both the appeals were dismissed by the State Commission. Three separate revision petitions were filed, one by the complainant for enhancement of the compensation, second, by Dr. Pawan Kumar Gupta and third by Dr. Birendra Singh, before this Commission.

I have heard the Counsel for the parties at length. Counsel for both the Doctors vehemently argued that in the absence of the expert evidence, the case of the complainant hardly stands proved. Counsel for the OPs 1 and 2 have invited my attention towards the following literature: Bailey and Love''s

Short Practice of Surgery

25th Edition

Edited by JM Wilson, Ch. M., FRCS.

Its following extract is important:

For even today, many wounds are contaminated with Clostridia of the gas -gangrene group which, however, do not grow and multiply except in anaerobic conditions. This does not mean that the wound must necessarily be exposed to external air, or that oxygen must be supplied by hydrogen peroxide irrigation or by a hyperbaric chamber; even freer oxygenation is available through the normal blood supply. But it does mean that all dead tissue must be excised and above all the wound must not be tightly closed - for clostridial myositis which develops in a primarily closed wound there is no excuse at all. If the walls and contents of a wound consist only of living pulsating tissue, the conditions are aerobic and gas -gangrene bacilli cannot survive. The fate of such bacteria is the clearest possible illustration of the important principle that soil is no less important than seed, and that early wound excision is no less important than chemotherapy.

AGAIN , in Watson -Jones: Fractures and Joint Injuries, Edited by Mr. J.N. Wilson, Ch. M., FRCS, 6th Edition, wherein it was specifically stated: Both ischaemic contracture and gangrene are preventable. Since irreversible changes may occur in an ischaemic limb within six hours, restoration of the circulation is a matter of extreme urgency. When arterial ischaemia has been diagnosed, it must be relieved at once and, if reduction of a fracture does not produce improvement within two hours, the vessels must be explored forthwith. If ischaemic contracture is suspected, all circumferential pressure must be eliminated and the deep fascia enclosing the muscles widely incised.

Gas Gangrene

Gas Gangrene is caused by a group of organisms of the genus Clostridium. These organisms infect traumatised tissues contaminated by soil and produce spreading type of oedema, necrosis, with formation of gas in the tissues. There is an associated condition of toxaemia due to the production of exotoxin.

The Text Book of Pathology, Structure and Function in Disease, by William Boyd, 8th Edition, mentions as under: These bacteria are putrefactive. They are unable to gain a footing in living tissue until it has been devitalized. They are ordinarily saprophytes. Thus Cl. Welchii was found in 80 per cent of wounds in the First World War, yet less than 10 per cent of these developed gas gangrene. Trauma and other organisms fail to activate it, but soil and dead muscle act as a spark which lights the fire. As the organisms feed on muscle sugar, it follows that early excision of dead muscle is the best prophylactic. Gas gangrene is a disease of muscle, which is at first a dull red and then becomes green or black. Bubbles of foul -smelling as and blood -stained fluid can be pressed up and down the length of the muscle. The bacilli spread up and down the muscle in the interstitial tissue, and the muscle fibers are separated from their sheaths by toxic fluid, as a result of which they are killed and are then invaded by the putrefactive bacteria.

IN the Manipal Manual of Surgery, Chief Editor, K. Rajgopal Shenay, MBBS, MS, Third Edition, it was mentioned: Prophylaxis

Being highly fatal, gas gangrene is better prevented by observing following principles while managing the wound:

Debridement: All dead, necrotic tissue, bone pieces and foreign material are removed. Pus is evacuated. Wound is thoroughly irrigated with antiseptic agents.

Prophylactic antibiotics Penicillin is the drug of choice. Injection crystalline penicillin 10 -20 lakh units, 4 -6th hourly is given for a period of seven days.

Judicious and minimal use of tourniquet: If possible, avoid tourniquet while managing such a wound in the leg.

Gentle but effective application of plaster cast with or without treatment of associated fractures to avoid compression on the blood vessel.

BOTH the Counsel have categorically denied that Dr. Birendra Singh had taken away the papers from the custody of the patient or his family. Both the Counsel vehemently argued that the complainant has failed to bolster his evidence with an expert''s opinion. Consequently his case falls flat on this count only. The Counsel have invited my attention towards the following authorities: (1) Dr. S.N. Singh, S/o. Lakshmi Narayan Singh, Bokaro General Hospital & Anr. v. V. Devendra Singh, S/o. Bala Singh & Ors., : III (2011) CPJ 390 (SC): First Appeal Nos. 237 and 301 of 2005, decided on 11.8.2011 by this Commission.

(2) Mohd. Abrar, S/o. Mohd. Hadrees v. Dr. Ashok Desai, Greater Kailash Nursing Home & Ors., : II (2011) CPJ 115(NC) : First Appeal No. 125 of 2006, decided on 8.4.2011 by this Commission.

(3) Martin F. D''Souza v. Mohd. Ishfaq, : I (2009) CPJ 32 (SC) -II (2009) SLT 20 : 157 (2009) DLT 391 (SC) : AIR 2009 SC 2049.

(4) Vithal Eknath Adlinge v. State of Maharashtra, : II (2009) CCR 183 (SC) : AIR 2009 SC 2067.

(5) Jacob Mathew v. State of Punjab & Anr., : III (2005) CCR 9 (SC) : VI (2005) SLT 1 (SC) : 122 (2005) DLT 83 (SC) : III (2005) CPJ 9 (SC) : (2005) 6 SCC 1.

6) Nizam Institute of Medical Sciences v. Prasanth S. Dhananka & Ors., : II (2009) CPJ 61 (SC) : III (2010) SLT 734.

Instead of touching the heart of the problem, the learned Counsel for the doctors, just skirted it. The bizarre conduct of the OPs 1 and 2 is unfathomable. Dr. Pawan Kumar Gupta did not produce the medical history of the patient. His mere prescription does not solve the problem. He has to show to the Court that in order to prevent the ''gas gangrene'', he had taken the step during his treatment as mentioned in the above said literature. It appears that he discharged the patient in a jiffy. He did not see what happened after 4 -5 hours. It was the bounden duty to retain the patient for quite some time. He did not prescribe for any antitoxic and antibiotics, as mentioned in the literature. There is no such prescription. Same is the position of Dr. Birendra Singh. He also did not maintain the record. In case he has not taken away the record from the possession of the patient or his father, where is the other record? Where are the X -ray reports? It stands established that Dr. Balbir Singh had taken away the record. This is a finding of fact arrived at by both the Fora below. This bizarre conduct dampens the ardour of his case. An integument of suspicion/doubt envelops his case. It is surprising to note that they state that the expert opinion was necessary. It must be mentioned here that OPs 1 and 2 run separate hospitals. They are required to maintain the record and case diaries in each case. They did not point out whether they had prepared other documents as well. How and when was the operation conducted? What medicine was prescribed, whether the medicine was given as per the literature mentioned above, or not? The record also reveals that the relevant papers were taken away by Dr. Birendra Singh. Their request that expert opinion should be taken, has no legs to stand. No record was produced before this Commission. OPs 1 and 2 want to make bricks without straw.

SECONDLY , the prescription of Dr. Pawan Kumar Gupta, clearly goes to show that he had asked the patient to show the wound on 4.4.1999. However, Dr. Pawan Kumar Gupta was not available on that day. He was attending some Havan/Bhajan. This fact stands established by the affidavit of Anil Kumar Goel. The Doctor should have made arrangements that in case of emergency, he should be called immediately by his staff. This depicts negligence, inaction and passivity on the part of the doctor. The affidavits of doctor and his nurse pale into significance in view of affidavit of Anil Kumar Goel.

THE prescription of Dr. Birendra Singh does not suggest that he had given medicine for preventing ''gas -gangrene'' to the patient, as already detailed above. In the literature, the ''gas -gangrene'' could have been prevented but due to carelessness of both these Doctors, the needful could not be done. Both these Doctors were careless in not taking steps for preventing the ''gas -gangrene''. However, there is nothing on record, regarding Dr. Naresh Jindal. He transfused blood at the instance of Dr. Birendra Singh. The affidavit of Trilok Chand supports this fact. There is no nexus between the amputation of the leg of the complainant and the transfusion of blood by Dr. Naresh Jindal. The for a below rightly did not take any action against Dr. Naresh Jindal. It is difficult to fathom as to why did Dr. Pawan Kumar Gupta give Katcha plaster only, when the case was serious. Why did he ask him to come on 4.4.1999. In his affidavit, Dr. Pawan Kumar Gupta, contended that he had applied the plaster slab/Katcha plaster and gave him two days'' time after giving ''first -aid'', to report for X -ray and further treatment and explained the complainant about the possibility of surgery/operation. According to him, the complainant approached the O.P. 2 where he took the treatment/surgery from O.P. 2, who inserted the pin in his limb (surgery). Discharge slip of Safdarjung Hospital mentions "Patient was treated by application of POP Cast (Pakka Plaster) outside c (with) Calcaneal pin", which means that when he approached the Safdarjung Hospital, the pin was already inserted in the limb of the complainant. It stands established that the Calcaneal pin was inserted by Dr. Birender Singh.

HALSBURY ''s laws of England (IVth Edn. Vol. 26 page 17 -18) defines doctors'' negligence as under: Negligence - -Duties owed to patient - -A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.

IN a celebrated and oft -cited judgment in Bolam v. Friern Hospital Management Committee, M.C. Nair, L.J. observed that: I must explain what in law we mean by ''negligence''. In the ordinary case which does not involve any special skill, negligence in law means this: some failure to do some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the doing of that act results in injury, then there is a cause of action.

Res ipsa loquitur, the things speak for themselves is applicable in this case. In the instant case, the medical practitioner committed egregious mistake by not cleaning the wound properly. They were aware of the fact that gas gangrene can crop up under such circumstances. They did not take steps to prevent the same. Had they been given the medicine as per the literature cited by them, it would have gone a long way to save the leg of the patient. This is the negligence, inaction and passivity on their part which caused the above said amputation of the leg. It is well said that a stick in time would have save the nine. The prompt action on the day one would not have brought the patient to this condition. In view of this, the revision petition filed by the complainant, Shri Yogesh is hereby dismissed with no costs but the revisions filed by the respondents are dismissed with costs of Rs. 10,000 each under Section 26 of the Consumer Protection Act, 1986, which be paid to the complainant within 90 days from the date of receipt of this order otherwise it will carry interest @ 9% per annum till realisation. Revision Petition filed by complainant dismissed with no costs and Revisions filed by respondents are dismissed with costs.