Satish Chandra Verma vs Dr. Rikin S Shah & 4 Ors

Dr. S.M. Kantikar, Presiding Member

The present Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (in short, the ‘Act, 1986’) by the Complainant - Satish Chandra Verma against the OPs - Sterling   Hospital   and its four doctors for the alleged medical negligence seeking Rs. 5 Crore compensation.

The facts which led to the filing of this complaint are that on  13.07.2012, the complainant herein who is an IPS officer, suffered a fall which resulted in suffering a Basicervical fracture of Left Femur Neck. On the next day he got himself admitted to Sterling Hospital.   On the same day he was operated for Fixation of Basicervical fracture wherein surgical implants of- Dynamic Hip Screw (DHS) and Plate + CC screw were fixed in his left hip. Two days after the surgery on 16.07.2012 , a post-operative X-ray was taken wherein the status of the surgical condition of the complainant was noted as “Upper shaft of femur appears normal”. Complainant was thereafter discharged on 18.07.2012 with follow-up instructions.

On 23-8-2012, the complainant visited Sterling Hospital for a follow-up and the X-ray was done. Dr. Sanjay Patel (OP-4) who was a consultant Radiologist reported that “Visualized upper shaft of femur appears normal”.

On 12.10.2012 after three months the complainant visited Sterling Hospital for 2nd  follow-up. He was examined by Dr. Rikin Shah (OP-1), the X-ray revealed that the fracture was uniting well and that there was no shortening. The complainant was also advised full weight bearing and exercises to improve strength of hip muscles.

After more than six months, on 23.01.2013 the complainant visited Dr. Satish Patel (OP-4) with a complaint of having lurch while walking as well as occasional pain. The OP-4 advised him to have a shoe raise as there was one centimeter shortening of the left leg (limb). The complainant thereafter visited Dr. Kirit Shah on 05.02.2013 wherein the shortening of his left leg was documented as ¾ inch i.e. 1.9 cms. Thereafter, on 28.02.2013 he consulted Dr. Harshvardhan Hegde wherein the shortening has increased to 2.2 cms. Dr. Kirit Shah and Dr. Hegde advised the complainant to undergo a corrective surgical procedure of ‘Valgus Osteotomy’. The complainant is said to have undergone such surgery on 04.10.2013 and at this juncture i.e. on 03.10.2013 the complainant’s left leg was shown to have shortened by 1½” i.e. 3.81 centimeters. In the interregnum period the complainant issued legal notices to the OPs. Being aggrieved the complainant filed the present complaint.

This Commission, noticing the technical nature of the instant complaint, thought it fit to be referred to AIIMS, a board of medical experts for its independent opinion. The medical board came to be constituted consisting of 7 members who have reviewed the entire case papers and medical reference and have submitted their opinion on 03.10.2016. The relevant part of the opinion reads as below:

“The board members observed that mode of fixation used is a standard one and is the most common instrumentation system used in India. The common reasons to delay healing and/or affect collapse in these fractures include but are not limited to osteoporosis, comminution, unstable reduction and early weight-bearing, in addition to systemic factors such as smoking, steroid intake etc. Despite taking all known preventable measures, such collapse is not entirely preventable. Once healed, further increase in shortening is unlikely.

The board members also opined that it is difficult to comment on the disability status of patient on the basis of these documents alone. In view of the 2nd surgery already done, it is difficult to attribute the amount of disability to index surgery, if any.”

In view of the above, what falls for consideration of this commission is whether the complainant establishes that there has been any negligence on part of the OPs in performing the surgery of fixation of basicervical femoral neck fracture and whether OPs have followed the established reasonably standard procedure and techniques.

Heard the arguments at length from all the parties. The Complainant was present, he argued himself. The Commission took  assistance of Amicus Curie, Dr. Satishchandra Kale, the Sr. Orthopedic Surgeon, Dr. R. N. Cooper Municipal General Hospital and Medical College Mumbai who was present during arguments. The videos on relevant medical references including the Image Intensified Television (IITV) images were displayed during arguments. The IITV demonstrates the step by step procedure followed during the surgery. I have perused expert reports filed by both – the complainant as well as the OPs.

The Complainant argued that the surgery was negligently performed by the OPs. They did not fix the implant in question being DHS screw and Plate +CC screw at a proper angle. According to the complainant, the OPs selected 1300 DHS to match the complainant’s Neck Shaft Angle (NSA) of left hip and, therefore, fixed its hip screw with an upward angle of approximately 120 in comparison to the central Axis of the femur neck. Therefore, the NSA got fixed at an angle of 1180 approximately. Thus it was contrary to the recommended protocol for positioning the hip screw along the central axis of the femur neck in Basi Cervical Fracture. As a result of the incorrect fixation of the femur plate of the implant became flush with the proximal femur shaft, the complainant’s left hip neck shaft angle got fixed at 1180 which resulted in a deformity called Coxa Vara. He further argued that the operating surgeons did not apply proper traction to reduce the complainant’s left hip to correct alignment. The greater trochanter tip was left higher than the center of the femoral neck and therefore the overriding position of the trochanter would compromise the ability of the abductors to engage in left leg stance eventually resulting in Trendelenburg gait. Therefore, his leg was shortened, and union of his fracture was delayed. He further argued that he was misled during the post-operative follow-up and the OPs failed to do or take any steps to mitigate the situation even though they were aware of the defect in the surgical procedure.

The learned counsel for OPs argued that the instant case is of a surgical procedure to fix a trochanteric hip fracture. The surgery in question was performed on 14.07.2012 using dynamic hip screw (DHS) plate +CC screw. The complainant was discharged on 18-7-12 in stable hemodynamic condition. During the first and second follow-up, the situation of the complainant appears normal and no shortening was noticed until by during an examination by Dr. Satish Patel on 23.01.2013 which was after six months of the surgery. The learned counsel submitted that  shortening of limb is on normal phenomena and consequence of surgery. The fracture in question heals by collapsing which may lead to shortening of the limb. The case of the OPs that after a lapse of six months, the complainant alleges to have progressive collapse as per the medical reports of Dr. Kirit Shah and Dr. Harshvardhan Hegde. The Complainant’s limb shortening has progressed from 1 cm to 1.9 cms and further to 2.2 cms. When the second surgical procedure was said to have taken place on 03.10.2013, the shortening of leg stood at 3.81 cms. He further argued that there are internal contradictions in the reports of the consulting surgeons of the complainant, being Dr. Kirit Shah & Dr. Harshavardhan Hegde. According to Dr. Kirit Shah there was   partial union of the fracture. However, Dr. Harshavardhan Hegde within a span of 15 days after the report of Dr. Kirit Shah finds on 20.02.2013 that the fracture has united. The Counsel submitted that there was no merit in the theory of the complainant and no liability be attributed to the OPs for the shortening of the left leg of the complainant. Thus the opinions of experts on behalf of Complainant are based only on post-operative x-rays and not on the IITV Images of operative procedure. It is submitted by OP that the complainant has deliberately withheld IITV Images of operative procedure from the expert to get a favorable opinion.

It is further contended by the opposite parties that the implant that is used for performing the surgery was fixed at an appropriate angle and the complainant is incorrectly measuring the angle in which the implants are fixed. It is contended that if the fracture would have been fixed as per the complainant following anomaly would have ensued like firstly, there would have been outer stretch (more valgus) at fracture site, which would not have allowed closure of medial (inside) gap, i.e. medial buttress. That means desirable maximum contact of surfaces of fractured ends of bones would not have been achieved. This would have led to originally unstable fracture to become more unstable. Secondly, there would not have been enough space in femur neck and rotation at the fracture site. This would have left this fracture rotationally unstable. Fixation of CC screw is must in this type of fracture in the interest of patient. Thirdly, usage and fixation of DHS barrel plate according the complainant would have led to catastrophic results like-Superior cut-out of lag screw, implant failure and non-union of fracture. In simple understanding, Lag screw that is the anchor of corrective hardware, will cut through the upper surface of the head of the femur (a major complication), destroy it and also the surface of cup of the hip joint (acetabulum) leading to need of total replacement of hip joint- which was against the interest of patient. In support of the arguments, the OPs have produced medical article on “Measurements and Classifications in Musculoskeletal Radiology” by Simone Waldt and Klaus Woertler. The relevant portion is reproduced herewith for ready reference.

M.E. Muller uses the following method for an accurate   reconstruction of NSA:

The centre of the femoral head is located with a circle template or a computer assisted technique. Reference points for the circular arc are the lateral portion (outermost point) of the epiphysis and the medial corner of the femoral neck.

The point of deepest concavity on the lateral border of the femoral neck is marked.

Another arc through that point using the center of the femoral head as the center is drawn.

The points where the circle intersects the femoral neck are connected.

A line is drawn perpendicular to that line through the center of the femoral head. That line represents the femoral neck axis.

The femoral shaft axis is drawn midway between the lateral and medial borders of the femoral shaft

The OPs have adopted the accepted method for fixation of fracture according to the text book procedure as is detailed in chapter on intertrochanteric fractures by Thomas A. Russell.

I have perused the pleadings, evidence and entire medical record. Also gone through few articles filed by the parties. During arguments the IITV images were displayed on the screen. The procedural details and Biomechanics were explained by the Amicus on the basis of IITV images. The Amicus opined on similar lines as that of AIIMS expert committee’s report. It is pertinent to note that the OP-2 reviewed this case from  various doctors of international repute namely Dr. Yogesh R. Parikh and Dr. V. Balaji Srinivasan and Dr. Narendra Patel. OP-2 filed their affidavits who unanimously opined that there is no element of negligence in the treatment of the Complainant by the OPs.

The AIIMS medical board’s report clearly mentioned as “Mode of fixation used was standard one and most common instrumentation system in India”. It also impels to the method of fixation, reduction of fracture and use of number of screws etc.  The patient was a chronic smoker as mentioned in clinical history, which leads to osteoporosis, which are the causes for collapse as mentioned in AIIMS report. It is known that “despite taking all known preventive measure, such collapse is not entirely preventable.” Thus, the treating doctors had taken all precautions. The AIIMS report indicates that proper reduction of fracture and standard implant was fixed and also used extra cannulated screw, derotation screw proximally to prevent rotation and collapse (varus), however post-operatively collapse has occurred.

Upon careful consideration of the medical reference material along with the report of medical board of experts at AIIMS, Delhi, it is apparent that the surgery in question was performed using standard procedure and what is obvious from the IITV images is that the fracture was anatomically reduced at the end of the surgery. From the perusal of the hospital case-papers that have been submitted along with the complaint, it is clear that the complainant had a history of smoking and was also diagnosed with osteoporosis. Clear advice has also been given to the complainant to stop smoking. The habits of the complainant/patient would be relevant components which would also determine the healing cycle of the patient. Smoking and osteoporosis is a known condition (as reported in AIIMS report) which would alter the way and manner in which the a fracture heals.

It was surprising that the Complainant in his submissions made vague and baseless references to various fracture configurations and geometry of fixation. It was very obvious to the bench that none of the submissions were backed with any substantial or credible evidences, no doubt because he is not a medical practitioner. At a certain point the he submitted that the history given by him to the doctors was given by his wife while none of this was taken as a defense in the long history of this litigation. Further he claims that despite him being a smoker he has not suffered from lung cancer yet and tried to trivialize the osteoporosis caused from his smoking which would no doubt interfere with bone healing as is well known. Needless to add such bizarre submissions coming from a highly educated officer was considered unworthy of serious consideration by this bench.

Based on the discussion above, in my view, the OPs performed the surgical procedure with due diligence. They took necessary care   to ensure that the fracture was anatomically reduced during the surgery. The operating surgeons have adopted appropriate and accepted procedures for treating and fixing the fracture in question. It is pertinent to note that the complainant’s case is limited to the extent of his limb shortening for which he blames incorrect fixation of implant. The X-ray report  from  Mahajan Imaging – New Delhi   clearly shows that the fracture was united.  The NSA was 1240 and not 1300 as alleged.  On careful perusal of operative IITV images the Varus collapse and telescoping was post-operative and not during or at the end of operation. Thus, it is clear that the fracture was anatomically reduced with proper traction. The complainant failed to prove the proximate cause of his injury.

To bring successful claim (complaint) in medical negligence case the victim or victim’s family bringing the action must prove the four D’s against the erring doctor/hospital. The 4 D’s of medical negligence stand for ‘Duty’, ‘Deviation’, ‘Direct Cause’ and ‘Damages’.   In the instant case, the Complainant establishes the ‘Duty’, however, he failed to establish the ‘Deviation’ (Breach in the duty of care) that the OPs deviated from the expected standard of care and it was the ‘Direct Cause’ of his alleged injury. The Complainant failed to prove by a preponderance of the evidence that the treating doctor’s deviation caused damages to him. The medical record, IITV images failed to prove that the OPs adopted improper procedure during basicervical fracture of femur.

It is known that when  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency to blame the doctor for  such happening. In Jacob Mathew’s case[(2005) SSC (Crl) 1369], it was held by Hon’ble Supreme Court as under:

“When  a  patient  dies  or  suffers  some  mishap,  there  is  a  tendency to blame the doctor for  this.  Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case  in  his  professional  career but surely  he  cannot be  penalized for  losing  a  case  provided  he appeared in it and made his submissions.”

In my view, the Complainant’s allegations are not supported by cogent evidence to prove his case. The observations of Hon’ble Supreme Court in the case of C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam[2009) 7 SCC 130], it was held that the Commission ought not to presume that the allegations in the complaint are inviolable truth even though they remained unsupported by any evidence. It was held as under:

“37. We find from a reading of the order of the Commission that it proceeded on the basis that whatever had been alleged in the complaint by the respondent was in fact the inviolable truth even though it remained unsupported by any evidence. As already observed in Jacob Mathew case [(2005) 6 SCC 1 : 2005 SCC (Cri) 1369] the onus to prove medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint which is denied by the other side can, by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia.”

The Hon’ble Supreme Court laid down certain duties of the doctor.  In the cases, Dr. Laxman Balakrishna Joshi vs. Dr. Trimbak Bapu Godbole & Anr.[ (1996) 1 SCR 206] and A.S. Mittal vs. State of U.P,[ (1989) 3 SCC 223)] it was observed that the doctor owes to his patient certain duties which are:

(a) a duty of care in deciding whether to undertake the case;

(b) a duty of care in deciding what treatment to give; and

(c) a duty of care in the administration of that treatment.

In the instant case, admittedly, the operating surgeons had requisite qualifications. Healing of fracture depends upon several factors such as osteoporosis, comminution, unstable reduction and early weight-bearing as well as systemic factors such as smoking, steroid intake etc.  Despite taking all known preventable measures, such collapse is not entirely preventable. Once healed, further increase in shortening is unlikely. What is apparent is that there has been a continuous progressive collapse resulting in the increase in the shortening of the leg of the complainant. The opinion of medical board constituted at AIIMS is clear in this regard.

Based on the entirety, there is neither infirmity in the surgical procedure performed by the opposite parties, nor is there any fault in the advice given by OP-1 to the complainant after the surgery. In light thereof, the present Complaint is liable to be dismissed and is hereby dismissed.

There shall be no order as to costs.

I appreciate and expresse gratitude to the Amicus Curiae for his prompt assistance to the Bench.