Dr. G.K. Aggarwal vs Lalit Sayal & 4 Ors

V.K. Jain, Presiding Member

The complainant/respondent met with a road accident near Village Sampla of Rohtak in Haryana on 30.11.1993. After first aid given to him at Bahadurgarh Civil Hospital, he was admitted in respondent No.2 - Sunder Lal Jain Hospital on 30.11.1993 itself. He having suffered a fracture in his left Tibia, respondent No.3 - Dr. K.K. Ghai applied a plaster on his leg, on the same day. Since the complainant felt loss of sensation in his left leg, a slit on the plaster was made by Dr. K.K. Ghai and late Dr. S.B. Pandey of Sunder Lal Jain Hospital on 2.12.1993, in order to loosen the plaster. The Electro diagnosis done on 4.12.1993 having revealed sensory loss in the nerve distribution of the left Tibia and paralysis of the Peroneal and Tibial nerves, he contacted the appellant Dr. G.K Aggarwal who admitted him in Parmarth Mission Hospital and removed the excessive pus collection on the soft tissue by making an incision and draining the pus. Installation of a splint was advised to the complainant at the time of his discharge from Parmarth Mission Hospital. On 14.1.1994, the complainant was again hospitalized and Dr. G.K. Aggarwal performed another surgery/procedure on his left leg. The Tibia of the left leg of the complainant was left exposed after the said surgery. This is also the case of the complainant that at the time of performing surgery on him on 4.1.1994, the appellant Dr. G.K. Aggarwal had not removed the plate which had been inserted at the time of his first surgery at Sunder Lal Jain Hospital, though the said plate had got badly infected by that time. Yet another grievance of the complainant is that the PVC Splint had caused a big sore on his left leg and had withered away a part of his left heel.

On 28.2.1994, the complainant was admitted in RML Hospital where he was operated upon by Dr. A.K. Khare on 11.3.1994. According to the complainant at the time he was admitted in RML Hospital on 28.2.1994, he was having a big wound on the Anterolateral Aspect of the leg, which was full of pus discharge, his Tibia bone was fully exposed at that time and the plate was visible. There was also a pressure sore on the left heel caused by PVC Splint which he had put on the advice of Dr. G.K. Aggarwal and Parmarth Mission Hospital.

In RML Hospital, Debridement and Sequestrectomy was done under anesthesia and the infected surgical plate was removed besides drilling his Tibia. A window had to be made in the Tibia which got shortened. The complainant remained in RML Hospital for about two months and according to him, for five months he was bound in a Fixator, which came to be removed only on 31.8.94. His leg angiography was done in Pant Hospital in September, 1994. The complainant was diagnosed as a case of Compartment Syndrome and Chronic Osteomyelitis. It is alleged that though the fractured bone of the complainant got united, his left leg has become shorter by 1.5 inch, the discharge of the pus continues and he can now walk only at a slow pace. Alleging negligence in his treatment by the doctors, the complainant approached the concerned State Commission by way of a consumer complaint impleading Sunder Lal Jain Hospital, Dr. K.K. Ghai, Dr. S.B. Pandey, Dr. G.K. Aggarwal, Parmarth Mission Hospital, Dr. Chander Prakash of Sunder Lal Jain Hospital and Dr. N.K. Aggarwal of Sunder Lal Jain Hospital as the opposite parties in the consumer complaint.

Initially, the consumer complaint was dismissed by the State Commission on 11.8.2000, it was remanded back to the said Commission by this Commission on 9.8.2007, on an appeal instituted by the complainant.

The impugned order shows that though initially the written versions was filed by OP Nos.1 to 4, 6 & 7, the file of the State Commission later got weeded out and the parties were therefore directed to file the copies of their respective pleadings so as to complete the record. No reply to the consumer complaint having been filed by them, the defence of OP-1 Sunder Lal Jain Hospital and OP-2 Dr. K.K. Ghai was struck off by the State Commission. The defence of OP-6 Dr. Chander Prakash and OP-7 N.K. Aggarwal was also struck off on account of they having not answered the interrogatories despite directions of the State Commission.

A perusal of the impugned order would show that OP Nos.1 to 4, 6 & 7, had filed a joint written version denying any deficiency in the treatment of the complainant. It was interalia stated in their written version that tightening of the plaster was a common occurrence due to gradual increase of swelling at the injury site, and therefore the plaster was slit throughout the length, while alleviating the limbs and encouraging the patient to move his toes. It was further stated that when the complainant complained of loss of sensation, the matter was discussed with Neuro-surgeons and Neuro-physicians and investigations such as MRI and EMG were done. In view of the opinion given by Neuro-surgeon and Neuro-physician, he was advised operation which was performed on 5.12.93, whereafter the complainant was able to feel sensation in his toes and foot. He was therefore discharged on 9.12.93. Thereafter he visited the OPD on several dates, but there was no cross evidence of infection.

The complainant filed his own affidavit in support of the allegations made in the complaint with respect to his treatment etc. In his affidavit, he interalia stated that in RML Hospital infected plate was removed and an External Fixator was applied. He also stated that he has a left foot drop and his left leg was shorten by 1.5 inch and he can walk only at a slow place and is unable to maintain his balance on uneven floor. He also stated that he has suffered 40% permanent disability as certified by Lok Nayak Hospital and was taking treatment at Medanta Hospital. In his additional affidavit filed before the State Commission, the complainant also alleged that PVC splint had caused a big sore thereby withering away part of his left heel and flesh had to be removed from badly affected part. He also stated that leaving the Tibia exposed was a strange technique entirely unknown and unheard in medical history and his simple closed fracture was converted and transformed into an open, exposed and complicated facture.

The appellant Dr. G.K. Aggarwal filed an affidavit stating interalia as under:

"The complainant was in bed with his leg in badage soaked with discharge. The complainant told the deponent that daily lot of pus is coming out from the wound. The deponent advised the complainant for admission. The deponent got himself admitted at Parmarth Mission Hospital, Shakti Nagar, Delhi, where the deponent opened the wound and lot of foul smelling pus came out. The deponent did the untie dressing and told the complainant about his serious condition. As per condition of the complainant, the complainant needed the debridement of all dead tissues from the wound. Subsequently on the request of complainant, I did the debridement of dead and necrotic muscles of anterior compartment of leg. The muscles extended from the upper end of the tibia and went down to leg to remove all the dead tissues. Then a long incision had to be given to the complainant. After four weeks of operation, the plates were not removed for the benefit of the complainant as the removal of plates will lead to fracture fragment loose and will increase the infection. The complainant was treated outside with plate osteosynthesis. The complainant had infection and anterior compartment syndrome. The deponent treated the complainant only for complications his fracture by debridement and removal of dead tissues from his leg. This is a standard universal practice to treat such infection.''

The State Commission vide impugned order dated 21.09.2016 directed as under:-

Considering the overall facts and circumstances, we award a total amount of Rs.25,00,000/- (Rupees Twenty five Lacs only) to the complainant which is inclusive of compensation and interest also. Out of aforesaid amount, we direct OP-1 to pay Rs.15,00,000/- (Rupees Fifteen lakhs only) to the complainant and further direct OP-2 and OP-4 to pay Rs.5,00,000/- (Rupees Five lakhs) each to the complainant.

Being aggrieved from the order passed by the State Commission, the appellant Dr. G.K. Aggarwal who was OP-4 in the consumer complaint is before this Commission. No appeal has been preferred by the other opposite parties against whom the consumer complaint was allowed by the State Commission.

Since only Dr. G.K. Aggarwal has assailed the order passed by the State Commission, I need not examine the negligence imputed by the complainant to the other opposite parties. The complainant has alleged negligence on the part of the appellant Dr. G.K. Aggarwal primarily on the following three counts:-

The plate which the doctors of Sunder Lal Jain Hospital had inserted in his leg, despite having become infected, was not removed by the appellant Dr. G.K. Aggarwal at the time the surgery/procedure was performed by him at Parmarth Mission Hospital on 4.12.93.

PVC Splint above his knee was advised to him after the said procedure, which had caused a big sore and withered away a part of his left heel.

His left Tibia was left exposed after the surgery/procedure performed by Dr. G.K. Aggarwal on 14.1.94.

As regards not removing the plate at the time of procedure performed on 4.1.1994, the appellant Dr. G.K. Aggarwal interalia stated in his affidavit that the said plates were not removed for the benefit of the complainant, since removal of the plates would have led to fracture fragment becoming loose and would have increased the infection. He stated that the complainant was treated outside with plate osteosynthesis. According to him, he had treated the complainant only for the complications of his facture, by debridement and removal of dead tissues from his leg which was a standard universal practice to treat such infection. No medical expert has been examined by the complainant to prove that the plates which Dr. G.K. Aggarwal did not remove at the time of performing the procedure on 4.1.1994 ought to have been removed. No expert opinion to this effect has been taken and produced by the complainant. Dr. A.K. Khare who treated the complainant in RML Hospital also did not say in his affidavit that the said plates ought to have been removed on 4.1.1994 or at any time during the period the complainant remained under the treatment of Dr. G.K. Aggarwal. Though the said plates were removed at RML Hospital on 11.3.1994, it has to be kept in mind that there was a time lag of about two months between the procedure performed upon the complainant by Dr. G.K. Aggarwal and the date on which the plates were removed in RML Hospital. In any case, there is no expert opinion or medical literature produced by the complainant to prove that the said plates ought to have been removed either at the time the first procedure was performed on 4.11.1994 or at the time the second procedure was performed on 14.1.1994. No expert evidence or medical literature has been produced by the complainant to prove that the procedure adopted by Dr. G.K. Aggarwal for his treatment was in deviation from the standard operating protocol for treating such problems. There is no evidence to rebut the contention of the appellant that after four weeks of operation removal of the plates would have led to fracture fragment becoming lose and would have increased the infection. The explanation given by him for not removing the plate therefore remains unrebutted by way of an expert evidence or medical literature. Therefore, it would be difficult to say that non-removal of the plates from the leg of the complainant was an act of negligence on the part of the appellant Dr. G.K. Aggarwal.

It is not in dispute that after the procedure performed on 14.1.1994, the Tibia of the left leg of the complainant was left exposed. No expert evidence has been led by the complainant to prove that the Tibia of his left leg ought not to have been left exposed or that the infection would have aggravated on account of the Tibia of his left leg having been left exposed. Dr. A.K Khare of RML Hospital did not say anywhere in his affidavit that the Tibia of the left leg of the complainant ought not to have been left exposed or that leaving the said Tibia exposed had resulted in increased infection and further complications. However, on a perusal of the affidavit of the appellant Dr. G.K. Aggarwal dated 15.7.2009, I find that the said affidavit is conspicuously silent as to why the Tibia of the left leg of the complainant was left exposed by him on 14.1.1994. The case of the complainant in this regard is that at the time of internal fixation, the bone has never to be exposed as it ultimately leads to chronic infection and complications. As noted earlier, in his affidavit the complainant has stated that exposing the Tibia was a strange technique entirely unknown and unheard in medical history.

In Post Graduate Institute of Medical Education & Research Vs. Jaspal Singh & Ors. [II (2009) CPJ 92 (SC) decided on 29.5.2009, the Hon'ble Supreme Court interalia held as under :-

It needs no emphasis that in the medical negligence actions, the burden is on the claimant to prove breach of duty, injury and causation. The injury must be sufficiently proximate to the medical practitioner's breach of duty. In the absence of evidence to the contrary adduced by the opposite party, an inference of causation may be drawn even though positive or scientific proof is lacking.

On the first thought, I felt that in the absence of any expert opinion or medical literature by the complainant, to show that Tibia should not be left exposed, the complainant had failed to discharge the onus placed on him but, on examining the matter in the light of the decision of the Hon'ble Supreme Court in Post Graduate Institute of Medical Education & Research (Supra), alongwith the affidavit filed by the appellant, I feel that since there is absolutely no explanation/justification given by the appellant in his affidavit, for leaving the Tibia exposed, the negligence on his part can be inferred even in the absence of any expert opinion and medical literature from the complainant, to show that the Tibia should not have been left exposed.

The affidavit of the appellant, while giving justification for not removing the plates and treating the complainant from outside, is conspicuously silent as regards the reason for leaving the Tibia exposed. The appellant was the surgeon who had performed a procedure on the complainant and had left his Tibia exposed. Therefore, once the complainant alleged in the complaint that leaving the Tibia exposed results in infections and complications, it became necessary for him to at least tell the State Commission, as to why the Tibia was left exposed by him. In the absence of any explanation at all from the appellant, it cannot be accepted even in the absence of expert evidence and medical literature, that leaving the Tibia exposed on 14.1.1994 was an act of negligence.

As regards the PVC Splint advised to the complainant, though the said splint was cut in RML Hospital, no expert evidence has been produced by the complainant to show that such a splint ought not to have been advised. Dr. Khare of RML Hospital who cut the PVC splint did not say in his affidavit that the said splint ought not to have been advised or that use of the said splint had resulted in causing a sore and withering away a part of the left heel of the complainant. But, again the affidavit of the appellant Dr. G.K. Aggarwal is silent with respect to advising splint to the complainant. Though the case of the complainant is that the application of the splint had resulted causing a big sore and had withered away a part of his left heel, the appellant has not even claimed in his affidavit that the use of the splint could not have caused a sore nor could it have withered away a part of the left heel of the complainant. There is absolutely no justification given by the appellant for advising a PVC splint.

I fail to appreciate that why in his affidavit, the appellant did not even advert to the allegation of the complainant that he was negligent since he left the Tibia exposed and advised PVC splint to him, despite the complainant expressly alleging in the consumer complaint itself that leaving the Tibia exposed was a novel procedure, unheard of in the medical history and it leads to chronic infections and complications whereas the application of the splint had resulted in a big sore besides withering away a part of his left heel. In view of the decision of the Hon'ble Supreme Court in Post Graduate Institute of Medical Education & Research (Supra), the Commission would be justified in accepting the unrebutted testimony of the complainant in this regard.

For the reasons stated hereinabove, I hold that the appellant was negligent in rendering services to the complainant, he having left the Tibia of his left leg exposed and having advised PVC splint to him.

However, considering all the facts and circumstances of the case including the compensation awarded to the complainant against the other opposite parties, the compensation awarded against the appellant needs some reduction. I find that the compensation awarded by the State Commission was inclusive of interest. The complaint before the State Commission was instituted in the year 1996 whereas it was finally decided by the State Commission only on 21.9.2016 after about 20 years. The State Commission directed the opposite parties to make payment to the complainant within six weeks of receiving a copy of the order. There is no evidence of the appellant having paid the compensation awarded against him. Vide order dated 8.6.2018, this Commission recording that a sum of Rs.10 lakhs had already been received by the complainant in furtherance of his settlement with the hospital, stayed the impugned order qua the appellant. Considering all the facts and circumstances, it is directed that the appellant shall pay a sum of Rs.3 lakhs to the complainant as compensation alongwith interest on that amount @ 8% per annum w.e.f. six weeks from the order of the State Commission till the date of payment. The appeal stands disposed of.