Suraj Bai vs National Insurance Company & Anr

M. Shreesha, J

Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short "the Act") is to the order dated 29.08.2008 in Appeal No. 684 and 1812 of 2015 passed by the Rajasthan State Consumer Disputes Redressal Commission (in short "the State Commission"). By the impugned order, the State Commission has allowed the Appeals preferred by the Insurance Company and Dr. Mohd. Iqbal, consequently dismissing the Complaint.

The facts material to the case are that the Complainant slipped on the floor of her house and was immediately taken to Dr. Mohd. Iqbal, the first Opposite Party (hereinafter referred to as "the treating Doctor") and was admitted at Bharat Vikas Parishad Hospital, Kota. It was pleaded that there was only one simple fracture in her left leg and there were no other external injuries, but she was advised an operation for the broken leg and the same was conducted on 13.11.2000 by the treating Doctor. Thereafter, there was severe pain in the leg and it was averred that she completely lost sensation and the colour of the leg became bluish. The same was informed to the treating Doctor, but he had assured the Complainant that there was nothing to worry about. On 14.11.2000, the Complainant was examined by another Dr. Anwar, who informed her that Gangrene had developed in her left leg. It was averred that on 15.11.2000, the Complainant was not examined at all despite the fact that infection was spreading rapidly, the situation remained the same till 17.11.2000. It was pleaded that on 17.11.2000 the Complainant's family member requested the treating Doctor to once again examine the Complainant and at about 4.00 p.m. in the evening, the Complainant was advised to get a Colour Doppler test done at Sudha Hospital. After the test the Complainant was taken back to Bharat Vikas Parishad Hospital. When the report was requested for, the Complainant and her attendants were informed that the report would be handed over only to the treating Doctor. Thereafter, the Complainant was examined by Dr. Jaswant singh, who advised the Patient to be taken immediately to Vascular Surgeon in Sawai Man Singh Hospital as Gangrene has developed. Thereafter at about 9.30 p.m. on 17.11.2000, the Complainant was discharged from the Hospital and taken to Jaipur, where her leg was amputated upto the knee and she was informed that this amputation was only on account of the delay in diagnosing the spread of Gangrene.

It was further pleaded that the Complainant's leg has further became black and she was again admitted to MBS Hospital on 13.12.2000 and after all investigations were completed, on 18.12.2000 the Complainant's leg was further amputated by five inches and the rod and the nails inserted by the treating Doctor were removed. It was pleaded that the decision of interlocking of nails taken by the treating Doctor without having necessary equipment namely, 'Image Intense Faber' caused the pressure leading to stoppage of blood circulation in leg. Even, during the post-operative period the treating Doctor did not take any steps on 14.11.2000, 15.11.2000, 16.11.2000 or on 17.11.2000 to conduct a test despite the fact that the colour of the leg had turned bluish. It was averred that it was only on account of the negligence of the treating Doctor that she lost her left leg and has became dependant on others for performing any physical activities. Hence the Complaint seeking an amount of ₹4,50,000/- from the Opposite Parties along with interest.

The Complainant was amended impleading the Insurance Company as the Second Opposite Party.

The treating Doctor filed his Written Version to the amended Complaint stating that the femur was fractured and that the injuries occurred at the bone near the knee; that the fracture was not a simple fracture as the bone near the knee which was broken passes very close to the main artery and the possibility of injury to the main artery cannot be ascertained at the time of examination of the bone. The operation on the upper part of the knee on 13.11.2000 was conducted and the procedure of 'interlocking of the nails' was also conducted. The treating Doctor denied that the Complainant complained of pain and loss of sensation in her left leg. It was only on 17.11.2000 that a bluish spot had occurred and Gangrene was suspected and therefore the Colour Doppler was advised. As per opinion of Dr. Jindal, blood clot was seen on the artery, which has interrupted the blood circulation. It was denied that it was told to the Complainant that the report would be given only to Dr. Iqbal. It was averred that only after receiving the report and consulting with Dr. Jaswant Singh and also taking the opinion of all the Doctors, that the Complainant was referred to Jaipur for better management. In the Colour Doppler Test, blood clot of approximately 3 inches was seen and the Patient required a Vascular Surgery and it was denied that Gangrene had developed in their Hospital. Vascular Surgery cannot be performed when there is Gangrene. It was further averred that the Complainant was 70 years old, there was no demand for any additional charges to be paid and that there was no negligence on their behalf as all the standard protocol with respect to the Surgery was followed.

The Insurance Company filed their reply reiterating the defense of the treating Doctor and stated in their Written Version that the treating Doctor has violated condition No. 8 of the Policy as no notice was given to the Insurance Company and has denied all other allegations.

The District Forum based on the evidence adduced allowed the Complaint directing the treating Doctor and the Insurance Company to pay an amount of ₹2,00,000/- plus ₹26,000/- within a period of 60 days with interest @ 6% p.a. from the date of filing of the Complaint i.e. 15.01.2001, failing which the amount shall attract interest @ 12% p.a. from the date of order, cost of ₹5,000/- was also awarded.

The State Commission while allowing both the Appeals preferred by the treating Doctor and the Insurance Company observed as follows:

"We are satisfied by the Respondents explanation. By the progress note upto 16.11.2000 it was clear that complainant was normal, if on14.11.2000 the information of gangrene was existing, the condition of the patient being normal would not have been written upto 16.11.2000. It is presumed that the place not being available on the back side opinion by Dr. Anwar was given on the front side. The aforesaid reason could not infer that respondent had the knowledge of gangrene in complainant's leg on 14.11.2000 and the respondents had remained negligent in the treatment. The statement of the respondent that the bone of the complainant as was broken, operation of which and deduction behind it had probability of main vassal being injured, the opinion of the learned forum that respondents have remained unable to explain as to what precaution was taken. As per the learned forum respondents would have carried out investigation of the bone taking into account the probability of main blood vassal being injured. We have considered the finding of the learned forum. There is no evidence available on record which could prove that during nail interlocking done by respondent the main blood vassal of the complainant was injured. The gangrene could also have been developed on account of main blood vassal being injured due to falling of complainant. The main blood vassal having been injured could have obstructed the blood flow resulting into gangrene in the leg. The injury in main blood vassal, how has taken place, had no evidence for it available on record. If during interlocking nail procedure the vassal was injured, its result could have been after few seconds. On account of internal injury if the vassal was affected, respondent were to be aware about it, could not be inferred. There was no evidence available on record which could reach to the conclusion that on account of medical negligence of the respondents gangrene in complainant's leg had taken place. The amputation of leg of the complainant is however painful, but the respondents could not be held liable for it. The respondents have remained negligent in the treatment of complainant had not satisfactory evidence available on record. The appeal is thus liable to be allowed. "

(Emphasis supplied)

Heard all parties at length.

It is the main case of the Revision Petitioner/ Complainant that subsequent to the operation on 13.11.2000, despite the Complaint of severe pain and loss of sensation in her left leg, which resulted in blackening of the leg, the Doctor, though was informed, had given assurance 'not to worry'. On 14.11.2000, Dr. Anwar had checked the Complainant and opined that there was Gangrene, by which time the left leg completely lost sensation. Learned Counsel appearing for the Revision Petitioner vehemently contended that it was only because of lack of post-operative care on 15.11.2000, 16.11.2000 and on 17.11.2000 that the Complainant's left leg was amputated during the subsequent treatment at Jaipur. He argued that the Colour Doppler test was conducted in another Hospital only in the evening of 17.11.2000, by which time the entire leg had blackened. He argued that the operation had taken place twice i.e. first amputation on 23/24.11.2000 and further amputation on 18.12.2000. It is only on account of the damage to the main blood vessel that the leg had become blackened as the blood circulation was affected. It is the Complainant's case that this occurred during nail interlocking, the treating Doctor while submitting that there are chances of the main blood vessel being damaged, did not take the proper care which resulted in improper circulation.

Learned Counsel appearing for the treating Doctor vehemently argued that the discomfort was reported only on 17.11.2000 and that Dr. Anwar made the observations and noting on the page dated 14.11.2000 on account of shortage of space in the relevant page; that there was no negligence during the procedure of Surgery and that Vascular Surgery cannot be performed if there is Gangrene and therefore there is no evidence that Gangrene had developed on account of the treatment rendered by the treating Doctor. On a pointed query as to what should be the standard protocol in such cases, he has filed along with his Written submission a letter by Dr. Mohan Manti, M.S. Orthopaedics, who stated that 'routine use of Pharmacological Prophylaxis for Thromboembolism had not been our standard Protocol in surgical treatment of isolated fracture Shaft Femur in any Patient in any age group in year 2000 and even till today. Our routine protocol is early fixation/ early mobilization of Patient to avoid DVT and bed ridden complication especially elderly age patient.' He relied on the medical literature given in the Postgraduate Medical Journal stating that the incidence of Deep Vein Thrombosis in Indian Patients undergoing major Orthopaedic Surgery is a complication which may occur in Patients, where the age is greater than 60 years, female sex, smoker, history of cancer, varicose veins prolonged immobilisation chronic renal failure etc.

The issue of medical negligence shall be decided on the touch stone of the principle laid down by the Hon'ble Supreme court in a catena of judgements. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.

In 1969, the Supreme Court in the case of Dr.Laxman Balakrishna Joshi v. Dr. Trimbak Babu Godbole AIR 1969 SC 128 held:-

A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose,

he owes a duty of care in deciding whether to undertake the case,

he owes a duty of care in deciding what treatment to give and,

he owes a duty of care in the administration of that treatment.

A breach of any of these duties gives a right of action for negligence to the patient.

This means that when a medical professional, who possesses a certain degree of skill and knowledge, decides to treat a patient, he is duty bound to treat him with a reasonable degree of skill, care, and knowledge.

Failure to act in accordance with the medical standards in vogue and failure to exercise due care and diligence are generally deemed to constitute medical negligence.

It is not in dispute that the Complainant underwent surgery involving interlocking nails procedure undertaken by the treating Doctor on 13.11.2000 for repairing the fracture of the femur.

A perusal of the medical record shows that the Complainant was admitted on 12.11.2000, the date of operation was 13.111.2000 and she was discharged on 17.11.2000. Diagnosis as written in the discharged ticket shows 'fracture shaft femur with impending Gangrene'. The procedure followed was 'open interlocking nail with bone grafting'. The treatment advised was urgent Vascular Surgery as the Colour Doppler indicated thrombosis formation in the filarial artery mid-thigh for three inches segment.

Learned Counsel along with the Written Submissions has filed a letter of Dr. Mohan Mantri stating that the routine protocol is early fixation/ early mobilization of Patient to avoid DVT and bed ridden complications. We observed that the filing of this information along with Written Submission did not give any opportunity to the Complainant to rebut the same. Be that as it may, we are of the view that it is not the procedure per se which is followed during the Surgery, which is defective or negligent. The Hon'ble Supreme court has laid down that even if the Doctor followed one procedure when another procedure is available, it does not amount to negligence if the Doctor, in his discretion, selects one procedure which is of standard protocol. The issue which arises here is with respect to whether proper post-operative care was followed or not.

The operative notes show that the Patient was referred for the Colour Doppler test only on 17.11.2011. It is the main contention of the Complainant that though Dr. Anwar had seen the Patient on 14.11.2000 and observed that Gangrene had developed, no post-operative care was taken to address to the issue of Gangrene. The contention of the Learned Counsel appearing for the treating Doctor is that Dr. Anwar saw the Patient on 17.11.2000 at 1.15 p.m. and because of shortage of space on the relevant page had made the noting in continuation and the same cannot be construed that the advice was given on 14.11.2000 and also that Fragmin injection was advised to stop clotting. The Medical record indicates that on 14.11.2000 the Patient was seen by Dr. Anwar at 1.15 p.m. and has advised that there was a bluish pallor which has developed on the left foot and that Gangrene and embolism was suspected and tablet Fragmin was advised. The medical record is silent about the treatment rendered regarding the discolouration and loss of sensation. For the procedure that was followed doing the Surgery to repair the fracture of the femur the standard protocol as per the medical literature filed by the Respondents itself shows that Deep Vein Thrombosis and Pulmonary Embolism are one of the most feared complications and that a 'High level suspicion and close clinical monitoring is mandatory'. Considering that the age of the Patient was more than 60 years and it is written in the literature itself that incident of DVT in female of more than 60 years is highly probable, the treating Doctor ought to have closely monitored the Patient. The treatment record and the medical literature filed before us do not indicate any such monitoring. The medical records do not specify time wise, the condition of the Patient whether her complaint of loss of sensation and pain in the leg was addressed to on 15.11.2000 and on 16.11.2000, even if we take into consideration that Dr. Anwar has noted only on 17.11.2000 that the colour of the leg had turned completely bluish. It is not understood as to why the medical record is silent about various clinical Parameters even on the previous day i.e. 16.11.2000. In the light of the statements in the medical literature, the treating Doctor ought to have rendered proper post-operative care and we are of the considered view that had the Colour Doppler test been done earlier instead of belatedly on 17.11.2000, the Patient's leg could have been saved as Gangrene would not have spread.

Learned Counsel appearing for the Insurance Company contended that there was no negligence on behalf of the treating Doctor and that the State Commission has rightly allowed the Appeal preferred by the Insurance Company. It is significant to mention that it is not the case of the Insurance Company that the policy was not issued or that the alleged negligence was not covered. It is relevant to mention that there is no documentary evidence filed on behalf of the Insurance Company to establish that there was any violation of the conditions of the Policy. It is also pertinent to note that the policy itself is not filed here.

We are of the considered view that the State Commission has not appreciated what the Hon'ble Supreme Court has laid down in Smt. Savita Garg Vs. Director, National Heart Institute (2004) 8 SCC 56, wherein it has been observed that the onus shifts on the treating Doctor to explain the exact line of treatment rendered to the Patient. In the instant case the treatment record does not comprehensively evidence anywhere the exact line of treatment that was rendered to the Patient post-operatively between 13.11.2000 to 17.11.2000. It is pertinent to mention that the progress notes after the surgery does not give any detailed recording of any significance in the Patient's condition and even the clinical parameters which vary in frequency depending upon the stages of treatment, is also not mentioned. In the normal course frequent entries immediately following the surgery would be made as treatment progresses. The purpose of the notes is to indicate the Patient's condition to the entire team who are involved in the rendering of treatment to the Patient. This absence of any detailed progress notes with respect to the condition of the Patient subsequent to the Surgery is a breach of 'Standard of Care' set by the Hon'ble Supreme Court. To reiterate, post-operative noting that have been made do not reflect the time period only 1.15 p.m. has been written in the medical record though it is the contention of the Complainant that it was on 14.11.2000, whereas the contention of the Opposite Parties is that it was written on 17.11.2000. The State Commission has not taken into consideration the aforenoted ratio and has given a wrong finding that 'Gangrene could also have been developed on account of main blood vessel being injured due to fall of the Complainant' and that there is no evidence on record with respect to any injury in the blood vessel. The point for consideration in this case of medical negligence is whether post-operative care was conducted properly by the treating Doctor and his team which has ultimately led to occurrence of Gangrene and amputation of the Patient's leg in the Hospital where she had subsequently taken treatment. The State Commission has not appreciated the same issue. Hence we are of the considered view that there is negligence on behalf of the treating Doctor in not rendering proper post-operative care, when the medical literature itself shows that close monitoring in such cases is mandatory.

For all the aforenoted reasons, these Revision Petitions are allowed and the order of the State Commission is set aside and the order of the District Forum is restored, modifying the interest rate and the quantum of costs only. It is seen from the record that the Petitioner has prayed for an amount of ₹4,50,000/- as compensation.

We observe from the record that the District Forum has awarded only a reasonable and meagre compensation of ₹2,26,000/- with interest @ 6% p.a. We find it a fit case to enhance the interest to 9% p.a. and the cost awarded by the District Forum, which is only ₹5,000/- to ₹25,000/-.

Time for compliance four weeks from the date of receipt of a certified copy of this order, failing which the amount shall attract interest @ 12% p.a. for the same period.