C.P.Sreekumar M.S (Ortho) vs S.Ramanujam

1. This judgment will dispose of C.A. No.6168 of 2008, and C.A.No.6167/2008 as they arise out of the same order. The facts are being taken from C.A. No.6168 of 2008.

2. These appeals are directed against the order of the National Consumer Disputes Redressal Commission 2 (hereinafter called the "Commission") whereby a sum of Rs.5.50 Lac alongwith interest on a part of the aforesaid amount and costs of Rs.25000/- has been awarded to the complainant - respondent. The facts leading to this appeal are as under:

3. The respondent, who was then employed in the Indian Overseas Bank, Chennai was going on his bicycle at about 8:20 a.m. on 31st December 1991 when he was hit by a motorcycle leading to an injury to his leg. He was admitted to the Surya Hospital, of which the appellant, Dr. C.P. Sreekumar was the Managing Director, at about 9.45 a.m. An X-ray of the leg revealed a hairline fracture of the neck of the right femur. The appellant, as the attending doctor, chose a conservative line of treatment and put the respondent's leg in a plaster of paris bandage known as `derotation boots' in order to immobilize the leg. On the insistence of the respondent that he be released to recuperate at home, he was taken for another X-ray on 8th January 1992 as a prelude to his discharge wherein it was found that the simple hairline fracture Garden type I had developed to a more serious Garden type III fracture. The 3 appellant thereupon decided that an operation be performed on the injured leg. Pre-operative evaluations were made on 9th January 1992 and the appellant, on considering the various options available, decided to perform a hemiarthroplasty instead of going in for the internal fixation procedure. The respondent consented to the choice of the surgery after the various options had been explained to him. The surgery was performed on the next day. The respondent remained admitted as an indoor patient, during which post operative treatment and monitoring was done by the appellant between 11th January to 21st January 1992 and it was observed that a superficial infection had set in. The sutures were actually removed on 21st January 1992. The respondent was thereafter made to undergo physiotherapy and was finally discharged on 5th February 1992. On 6th March 1992, the respondent appeared in the hospital and his condition was reviewed and he was instructed to go in for physiotherapy on a daily basis and to return for a subsequent review two weeks later but he neglected the advice. It is the case of the respondent that on account of lingering pain, he had consulted 4 various doctors, including Dr. Mohandas of Tamil Nadu hospital on 27th May 1992 who gave his opinion on the matter. The appellant has however pleaded that the respondent, in the meanwhile, continued to make a nuisance of himself with frequent visits to and unbecoming behaviour in the hospital on which the appellant gave a sum of Rs.50,000/- as an ex-gratia payment in order to pacify him. It appears however, that notwithstanding the aforesaid payment the respondent sent an Advocate's notice on 19th November 1992 alleging negligence and deficiency in service as the simple fracture had got displaced to a more complicated one, on account of mishandling by the hospital staff as also in the choice and the manner of the surgery and calling for compensation of Rs.3 Lac of which Rs.50,000/- had (statedly) already been paid as an advance. The appellant in his reply dated 15th December 1992, denied any negligence in the surgery and further pointed out that the displacement of the fracture had come about on account of natural causes i.e. a muscular spasm and that respondent after being informed about the various lines of treatment available had consented to the hemiarthroplasty. 5 Dissatisfied with the reply given by the appellant, the respondent in May, 1993 filed a complaint before the State Commission alleging that his consent had not been taken for the hemiarthroplasty and that this procedure was not justified as the bone was in good condition. The appellant in his reply denied the allegations and prayed for the dismissal of the complaint. It appears that while the complaint was yet pending, the respondent underwent a total hip replacement on 24th April 1995 at the Tamil Nadu hospital performed by Dr. Mohandas, on which he moved an application before the State Commission seeking to amend the complaint whereby the claim was increased from Rs.3 to Rs.12 Lac. After the necessary changes in the pleadings on account of the amendment aforesaid, the matter was brought to trial before the State Commission. The appellant appeared as a witness and was examined and cross-examined over several days. Several documents were also filed by the respective parties. By its order dated 29th January 1999, the State Commission dismissed the complaint holding that there had been no negligence or deficiency in service on the part of the appellant 6 and that the respondent had not been able to prove mishandling by the hospital staff. The State Commission, inter alia, noted that the complainant had not appeared as a witness and further that no witness had been examined by him in support of his case.

4. Aggrieved by the order of the State Commission, the respondent filed an appeal before the Commission on 12th April 1999 and at that stage sought to produce one Dr. David, the duty doctor at the relevant time, as a witness, but thereafter took no steps to secure his presence. Vide its order of 15th November 2006, the Commission, however, allowed the appeal but limited the respondent's claim to Rs.2.5 Lac, ( being the balance amount after deducting Rs.50,000/- allegedly paid as an advance) but, in addition granted a further sum of Rs.3 Lac to cover the contingency that he might have to undergo yet another surgery at some later stage. Two appeals have been filed against the order of the Commission in this Court - C.A. No.6168 of 2008 by Dr. C.P. Sreekumar seeking a dismissal of the complaint and the second, C.A.No.6167 of 2008 by the respondent, S.Ramanujam, seeking an enhancement of the 7 compensation to Rs.12 Lac. Both matters are being disposed off by this judgment.

5. The Commission in its order noted that the respondent had suffered only a hairline fracture (described as Garden type I fracture) for which he had been admitted in the hospital and had been immobilized by being put in a plaster with a suggestion of six weeks bed rest so that the fracture could heal on its own, and as such there was no occasion for the respondent to be taken for another X-ray on the 8th January 1992 as there was absolutely no complaint from him and it was at that stage that it was discovered that the simple hairline fracture had developed into a displaced Garden type III fracture. The Commission concluded that this complication had happened when the respondent had been moved from the first to the ground floor of the hospital for the purpose of X-ray by a ward boy, Elango, assisted by some laborers, who were not qualified to handle a patient. The Commission also observed that there was no warrant for the stand of the appellant that the hairline fracture had been displaced due to a muscular spasm and for that reason the averments made in the 8 complaint could not be disregarded. The Commission emphasized that within 2 days of the X-ray on 10th January 1992 the respondent had undergone a hemiarthroplasty, a surgical procedure whereby half of the hip joint had been replaced leaving the other half in its natural state and relied heavily on several medical texts placed by the parties to hold that this procedure was performed only on patients of the age of 60 years and above and as the respondent was, at the relevant time, 42 years of age, the open reduction procedure, whereby the bones are brought together and clamped by metal screws etc., was the appropriate one. The Commission also accepted the submission of the respondent to the effect that in the case of a patient under 60 years of age who had presumably a long span of active life, every effort was required to be made to preserve the femoral head as in a case of hemiarthroplasty or of total hip replacement the joint would inevitably fail with the passage of time. The Commission further observed that the respondent had approached Dr. Mohandas on 16th March 1992 with a complaint of pain in the right leg and inability to walk and Dr. Mohandas had recorded that the respondent had some 9 kind of infection and had advised for the removal of the prosthetic and further advised for a total hip replacement. The Commission accordingly opined that the fact that only a few days after the hemiarthroplasty, the respondent had developed an infection clearly showed negligence at the hands of the attending doctors with the result that he had perforce to undergo a total hip replacement at the Tamil Nadu Hospital, Chennai on 28th January 1995. In conclusion, the Commission observed as under:

6. The Commission then came to the question of the payment of Rs.50,000/- by the appellant to the respondent and observed that there were strong reasons to believe the respondent's 10 plea that it was a part payment towards a compromise for the larger sum of Rs.3 Lac that had been promised. The Commission further observed that from the certificate issued by Dr. N.K. Sundaram of Tamil Nadu Hospital it was clear that a total hip replacement would fail over a period of time and would need to be revised again with a new artificial joint, which would cost Rs.3 Lac and that this amount too was payable to the respondent. A total sum of Rs.5.50 Lac was, thus, computed and awarded.

We are of the opinion that in the face of this observation, no case of negligence can be spelt out.

fractures (Garden I and some Garden 2) may be treated conservatively, and this is an important consideration, especially wherein an ageing population these fractures are on the increase, and where surgical time is in heavy demand. Overall a lower mortality rate has been claimed in those treated conservatively as opposed to surgically. Method:(1)The leg is rested in a gutter splint until pain settles (usually after about a week).(2)Partial weight bearing with crutches is then commenced, and continued for 8 weeks, after which full unsupported weight bearing may be allowed.(3)Check radiographs are taken 2 days after the start of mobilisation, and thereafter every 2 weeks until the eight week.(4) If the fracture disimpacts and becomes unstable (a 14% incidence only is claimed) then active treatment becomes necessary, when a hemi-or total arthroplasty may be performed.

Subsequent avascular necrosis or non-

3. In the very old or frail patient,all femoral neck fractures are recommended to undergo hemiarthroplasty."

Internal fixation may reasonably be offered to mentally alert, independent and fully mobile patients, whose life expectancy is likely to exceed 5 years provided that the fracture can be accurately reduced in patients under 60 years of age every effort must be made to preserve the femoral head. Prosthetic replacement will inevitably fail with the passage of time.

The evidence suggests that displaced subcapital fractures unite better with adequate internal fixation. 30 Two implants are better than one, and a screw can be inserted with less trauma than a nail and is less likely to disturb the reduction.

Trouble is often experienced with the radiographic control. Unless the setting up of the apparatus is supervised by the surgeon himself films that are virtually useless may be produced. In particular, they often fail to show the femoral head adequately in the lateral projection. The reason for this is usually that the cassette is not pushed firmly enough into the loin, or that the beam is wrongly directed. These points must be checked every time a film is exposed. The same remarks apply to the use of the image intensifier.

A hazard that needs further mention is that of inadvertently driving the guide wire forwards with the nail. This can present a very serious difficulty if the wire is driven across the hip joint into the iliacfossa, for the guide wire may be broken off by repeated hammer blows upon the nail. In such a case the only way of retrieving the broken-off part of the guide wire is by exposing the iliac fossa and locating the tip of the wire from within the pelvis. This dilemma is, however, easily avoided if the precaution is taken of examining the guide wire repeatedly while the nail is being driven in. This entails removal of the cannulated 32 punch and measurement of the protruding part of the guide wire to see whether it is being driven on. At the same time is wise to grip the guide wire in a hand chuck and to rotate it to and fro: if the wire is being gripped dangerously by the point of the nail it will not rotate freely, and at this danger signal the wire should be promptly withdrawn.

All these points of detail are important: neglect of any one of them may easily lead to failure.

Displaced fractures can be treated by internal fixation or prosthetic replacement.

Indications.

Internal fixation: fit; young, little displacement Prosthesis: unfit, old, displaced fractures Results Internal fixation: better long term result. More complications. May need second operation. Slow rehabilitation.

Prosthesis: early mobilization. Long- term complications are rarer but more serious. A good guideline is to fix the fractures of fit patients under 65 and replace the rest.

The fracture must be protected from full weigh bearing after fixation, which is difficult in the elderly patient.

If successful, internal fixation of the fracture produces an almost perfect hip if the fracture is complicated by aseptic necrosis or non-union, a second operation will be required to replace the head with a prosthesis. The femoral head may also collapse onto the pins, damaging the acetabulum.

Prosthetic replacement. Immediate replacement of the head with a Thompson or Austin-Moore prosthesis avoids the complications of non-union and aseptic necrosis and allows immediate full weight bearing.

As always with prosthetic replacement, the results are better than other techniques t when they are successful but far worse when they are not."

20 years of experience attached to Government General Hospital, Madras.

22. We thus, allow Civil Appeal No. 6168 of 2008 and dismiss the respondent's complaint. Ipso facto Civil Appeal No.6167 of 2008 is dismissed. In the light of the fact that the respondent had appeared in person and is physically handicapped, we direct that a copy of this judgment be sent to him free of cost to his address under Registered cover.