Jesus John vs M/S. Specialist Hospital & 3 Ors

M. Shreesha, Member

The present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") has been preferred by the Complainant against the order dated 30.06.2015 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short "the State Commission"). By the impugned order, the State Commission has dismissed the Appeal preferred by the Complainant against the Order dated 25.01.2011 of District Consumer Disputes Redressal Forum, Ernakulam (for short "the District Forum") vide which the District Forum had dismissed his Complaint.

Briefly stated, the facts of the case, as stated in the Complaint, are that the Complainant on 25.02.2006 at about 8 a.m. met with a road accident and immediately after the accident the Complainant was admitted in K.V.M., Hospital Cherthala. After taking X-ray of the right leg, Dr. Kammath advised him for putting screw plate and to undergo a surgery within 24 hours. For better management the Complainant approached Specialists' Hospital (hereinafter referred to as "the Hospital") at about 1 p.m. At the Hospital 2 nd , 3 rd and 4 th Opposite Party doctors jointly examined him and advised to cling weight on his injured right leg and accordingly a rod was inserted in his right leg. He was admitted in the ICU. The third Opposite Party assured him that the weight was only put up for 74 hours and the surgery would be done on the third day. However, on the next day the fourth Opposite Party informed him that yjr weight must be continued for some days and the surgery would be done only on the 5 th day. Thereafter the Complainant was shifted to a room from ICU with the weight. It is averred that when the Complainant was in ICU, he suffered obstruction in passing urine and a temporary catheter was inserted at about 11 p.m. and on 26.02.2006 a permanent tube was inserted. On 02.03.2006, the surgery was conducted by the 2 nd , 3 rd and 4 th Opposite Parties. After the said surgery, he suffered from suffocation and If the mask would not have been removed by the Complainant himself, he would have died. He was suffering from acute pain and asked for pain killers. However, the staff of the Hospital had misplaced his pain killers. His sister had to purchase new pain killers. Due to this he had so suffer acute pain for one hour. On 03.03.2006 he was shifted to the room from ICU. On that day itself, second OP asked the Complainant to remove tube and pass urine. Accordingly, the permanent tube was removed. The Complainant tried to pass urine without tube but he had felt severe pain with the urine blockage. It is averred that he requested to put the tube but his request was not heeded by the Hospital authorities. Complainant had to suffer a lot of pain. One Dr. Vidyadharan asked nurse not to harass the Complainant and instructed the duty nurse to put permanent tube. However, the duty nurse did not pay any attention to that. When the Complainant suffered obstruction in passing urine, the Opposite Parties inserted temporary tube instead of permanent one.

It is further stated that after discharge from the Hospital the Complainant regularly visited the Hospital for follow-up treatment. After 1 and 1/2 weeks of the removal of the stiches he felt the shortening of his right leg. He informed about the same to the Opposite Parties but they did not pay any heed to that. When he persisted with his complaint the Opposite parties asked him not to bother about the defect as the shortage was only 1 c.m. Although the shortage of right leg was only 1 inch, it caused grave inconvenience to him. The Complainant then consulted doctors of Amrita Hospital, Ernakulam and the said doctor opined that the length of the right leg ought to have been corrected by the Opposite Parties during the surgery. Subsequently, Dr. P.S. John, Professor and Head of Department of Ortho, Medical College Hospital, Kottayam and doctor at ESI Hospital, Kalamasseri also opined the same. All experts opined that at the time of surgery the length of the right leg was not corrected and this caused bone overlap in the right leg. Due to careless and negligent act of the Opposite Parties, Complainant has become handicapped. He was working as a machine operator but due to his handicap now he is unable to do the work due to defect in his leg. It is prayed that Opposite Parties be directed to pay a sum of Rs. 20 lakhs towards compensation along with costs.

The Opposite Parties resisted the Complaint and filed their Written Version stating therein that the Complainant approached them having comminuted subtrochantic fracture with extension into lesser trochanter and femoral shaft. He was advised surgical correction. However, the same had to be delayed for at least 96 hours since major complication like fat embolism within 48 to 96 hours could develop at any time during that period. Hence the skeletal traction was applied till the time of surgery. Complainant was admitted in the ICU for observation and to observe any early signs of embolism. On developing urinary obstruction catheter had to be inserted. After operation the Complainant was discharged on 08.03.2006 and was advised for knee mobilization exercise and also non-weight bearing crutch walking. He was also for psychotherapy to regain muscle tone and strength. The stitches were removed on 16.03.2006. The callus formation was poor in the Complainant and thus was advised for bone grafting if the next X-ray did not show proper union. The limb length discrepancy was seen to be 1.5 c.m. and the fracture showed united properly. The Complainant was reviewed on 13.03.2007 and advised for review after one year for implant removal.

It was averred that the ideal treatment for comminuted fracture was surgical correction and the surgery was delayed since major complications like fat embolism could develop at any time within 48 to 96 hours and during that period the skeletal traction was applied which is the standard procedure in such a scenario. It was denied that the Complainant had to suffer suffocation due to absence of oxygen in the oxygen mask. It was stated that the hospital had a centralized oxygen system and the oxygen supply was continuing during the relevant period. The allegation of the Complainant regarding not administering pain killers to him was also denied. It was stated that the quantity and the medicines to be administered cannot be decided by the patient. The Catheter was inserted to the complainant to enable him to pass urine. When shortening of leg by 1.5 cm was brought to their notice he was informed that the same could be adjusted by using rubber piece in the bottom of the chappal. It was contended that in comminuted fracture the bone brakes into fragments which may impact with each other and can be displaced. The multiple pieces of bone have to be united where in the transverse fracture only 2 pieces of bone have to be united. There is no internal stability in comminuted fracture unlike in a transverse fracture. Upto one inch shortening can be compensated by a sole raise without any surgical intervention. They conducted the surgery with utmost care and caution and there was no post operative complication other than a minor shortening which is a common defect in communicated fracture cases. It is pleaded that they had carried out the standard procedure in conducting the surgery and united the fracture properly. It was stated that the shortening of upto one inch would not cause any disability and the same can be adjusted by raising of the sole and also by proper exercises.

District Forum dismissed the Complaint on merits after considering the expert evidence on record.

Aggrieved, Complainant preferred an Appeal before the State Commission which also dismissed the same.

Heard the Petitioner in person and the Learned Counsel appearing for the Hospital and the Treating Doctors. The Petitioner has vehemently argued that it was only on account of the negligence of the Hospital and the Treating Doctor that his leg was shortened by one inch which led to him being physically disabled. The Complainant submitted that he was never informed that there could be shortening of his leg and that it was a post-operative complication and had he been informed he would not have decided to go for 'Surgery'. He submitted that subsequent to the road accident on 25.02.2006 at 8 a.m., he was immediately admitted to K.V.M. Hospital, Cherthala and the doctors there had diagnosed fracture of his right leg and advised him to undergo surgery by putting a screw plate within 24 hours. He contended that he was brought to the Respondent Hospital by 1 p.m. on 25.02.2006 itself and the Treating Doctors had advised to put a weight bearing on the right leg and it was only on the 5 th day i.e. on 02.03.2006 that the surgery was performed which led to shortening of his leg by one inch. He argued that it was never explained to him that there was a possibility of bone overlapping or the shortening of the length of his right leg. He submitted that the Opposite Party had abstained from making any statement on oath and that before surgery no informed consent was taken. He drew our attention to the treatment certificate in which it is clearly stated that on 02.03.2006 reconstruction nailing of the right femur was done and the patient was crutch walking and he was advised knee mobilization and 'Q' ceps exercises. For better understanding of the case the Treatment Certificate is reproduced as hereunder:-

"TREATMENT CERTIFICATE

NAME: JESUS JOHN

AGE: 29 Years

SEX: Male

OP No.: 52595

DIAGNOSIS:

COMMUNITED SUBTROCHANTERIC FRACTURE OF RIGHT FEMUR.

Patient was involved in a road traffic accident on 25/2/06. Referred from K.V.M. Hospital, Cherthala.

DATE OF ADMISSION: 25/2/06.

TREATMENT GIVEN:

The following were the surgical procedures done on the below mentioned dates:

On 2/3/06, reconstruction nailing of right femur done with 10x400 mm(SMPL) nail, 2 hip screw (86mm each) and distal locking bolt (50 mm) fixed.

NWB crutch walking started along with knee mobilization and 'Q' ceps exercises.

Discharged on 8/3/06

Patient was on follow up at periodic intervals as out patient and was last reviewed on 06/12/06. He has a full range of motion of hip and knee and is walking full weight bearing without support." (Emphasis supplied).

It is the Complainant's case that the defect in surgery could have been cured by inserting steel rod which was belatedly inserted, that Dr. P.S. John of Kottayam Medical College had advised him that the length of the leg can be increased by the process of "illisarro" which could be done by complete union of the bone. He submitted that he could not work for a period of 8 months and had to undergo physiotherapy and it is only in view of the defect in the surgery of the Opposite Parties that he had become disabled.

Learned Counsel appearing for the Respondents i.e. Hospital and the Treating Doctors submitted that the Complainant first came to the Hospital on 25.02.2006 after the road accident. There was swelling, tenderness and abnormal mobility in the upper thigh and that the X-ray of the right femur showed comminuted subtrochantic fracture with extension into the lesser trochanter and femoral shaft. He submitted that the ideal treatment of the fracture was surgical correction which was delayed for 9i6 hours to prevent fat embolism which generally develops in the first 48 to 96 hours. He contended that after the surgery when the patient was shifted to ICU on 03.03.2006 he had developed urinary infection and, therefore, urinary catheter was inserted to mobilize the Patient. The Patient was also put on physiotherapy, knee mobilization and non-weight bearing crutch to enable walking. He submitted that at the time of discharge the Patient was stable and he was informed that immobilization causes wasting of muscles and that physiotherapy was required to regain muscle tone and strength and that there was no negligence on the part of the Treating Doctors and they followed the standard protocol and the surgery was a success.

On a pointed query from the Bench as to whether the Complainant was explained about the risks and complications prior to the surgery, the Learned Counsel contended that shortening of leg, non-union of bones and infection were common and known complications that arise post operatively after such a surgery. It is the Complainant's case that no such risk and complications were explained to him. It is an admitted that when the Patient had come for review on 16.03.2006 and on 19.07.2006 a limb length discrepancy of 1 cm was noted. Thereafter he was reviewed again on 01.09.2006 and a limb length discrepancy of 1.5 cm was noted. It is the case of the Respondents that 1.5 cm shortening persisted only because the Patient was not doing physiotherapy properly and that the X-ray showed solid union of the fracture. It is an admitted fact that the patient suffered from comminuted subtrochantic fracture of the upper thigh femur for which the Respondents performed surgery on 02.03.2006.

Learned Counsel for the Respondents drew our attention to the Interrogatories in which the Expert Doctor i.s. PW4 Dr. Rajappan Sreenivasan, Orthopedic Surgeon of AVM Hospsital, Charthala had deposed that minimum shortening of 2 cm can occur even if the fractured bone is fixed in the correct position; that if the shortening is above 4 cm, depending upon many factors limb lengthening can be considered; post-operative known complications include non-union or mal-union of bones and angular deformity and rotational deformity including nuero-vascular complications. A perusal of the Interrogatories also shows that the surgery that was conducted is closed reduction and reconstruction nailing which is a standard protocol and standard procedure for patients suffering from such fractures. The X-ray also shows that there was good union of bones which was not rebutted by the Complainant.

Based on the material on record, we agree with the submission of the Learned Counsel for the Respondents that for comminuted subtrochantic fracture of the right femur the standard treatment is closed reduction and reconstruction nailing which the Respondents had adhered to. Therefore, we are of the considered view that there is no negligence per se in the conduction of the surgery.

The Hon'ble Supreme Court in Dr. S.K. Jhunjhunwala Vs. Mrs. Dhanwanti Kumari & Anr. (2019) 2 SCC 282, has observed that negligence has to be decided on the touch stone whether the treating Doctor has exhibited reasonable degree of care and adhered to the normal practice of medical parlance. Since the formulation of the Bolam test , English Courts have formulated a significantly nuanced doctrine pertaining to the standard of care. In Halsbury's Laws of England the degree of skill and care required by a medical practitioner is detailed as follows:-

"The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each cases, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.

Deviation from normal practices is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."

A doctor has a legal duty to take care of his patient. Whenever a patient visits a doctor for treatment there is a contract by implication that the doctor will take reasonable care to treat him. If there is a breach of that duty and if it results in injury or damage, the doctor will be held liable. The doctor must exercise a reasonable degree of care and skill in his treatment; but at the same time he does not and cannot guarantee cure.(Emphasis Supplied)

The Hon'ble Supreme Court in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee, (2009) 9 SCC 221, case has preferred Bolitho test to Bolam test . The Supreme Court redefined medical negligence saying that the quality of care to be expected of a medical establishment should be in tune with and directly proportional to its reputation. The decision also says that the court should take into account patient's legitimate expectations from the hospital or the concerned specialist doctor. In the instant case the legitimate expectations which the Complainant would have is to know the most common complications which would arise after surgery which he has to undergo.

The next issue which needs to be addressed is whether there was negligence on the part of the Treating Doctor in not taking informed consent and in not explaining the risks and complications to the patient. The Complainant has vehemently argued that he was never explained the risk and he was never informed that the shortening of the limb is a known post-operative complication. Hon'ble Supreme Court in Samira Kohli Vs. Dr. Prabha Manchanda & Anr. has clearly laid down the principle with respect to informed consent as follows:-

"(i) A doctor has to seek and secure the consent of the patient before commencing a "treatment" (the term "treatment" includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.

(ii) The "adequate information" to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose

(a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoid the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.

(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life and preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.

(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.

(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment." (Emphasis supplied) .

On a pointed query from the Bench with respect to the informed consent, Complainant drew our attention to the Consent Form, which shows that all the six risks that can occur are left blank. Therefore, the contention of the Learned Counsel for the Respondents that all risks were explained and informed consent was taken, is unsustainable. We find the Respondents negligent only with respect to not having obtained informed consent and explaining the known complications to the Complainant. At the cost of repetition admittedly, as deposed by the Treating Doctors themselves, shortening of leg is a known complication. If that may be so it ought to have been explained to the Complainant prior to the surgery. Even otherwise in the informed consent all risks are left 'BLANK', which is contrary to the ratio laid down by the Hon'ble Supreme Court in Samira Kohli (supra). Therefore, we are of the considered view that there is negligence on the part of the Hospital and the Treating Doctor only to the extent indicated above i.e. not having explained the known complications to the Complainant and, therefore, the Revision Petition is partly allowed and the order of the State Commission is set aside.

Although the Complainant has prayed for awarding of an amount of Rs. 20 lakhs, keeping in view the facts and circumstances of the case and also the keeping in view that the Complainant was a machine operator and the shortening of the leg by one inch would damage his livelihood to a certain extent to meet the ends of justice we find it a fit case to award a compensation of Rs. 3,00,000/- to the Complainant along with costs of Rs. 25,000/- which shall be paid by the Hospital alone. We are of the considered view that the Treating Doctors (Respondents No. 2, 3 and 4) cannot be held to be liable for any 'blanks' which have been left in the Consent Form as we have held that there was no negligence per se in the very conduction of the surgery. At the cost of repetition only negligence is with respect to not explaining the known complications of the Complainant, for which Act, we held Hospital alone liable.

This Revision Petition is allowed in part to the extent indicated above. Time for compliance within four weeks from the date of receipt of the certified copy of the order failing which it shall attract interest @ 8% p.a. from the date of the filing of the Complaint till the date of realization.