Inference
of Negligence
FIRST APPEAL NO. 613 OF 2017
DR. G.K. AGGARWAL Versus LALIT SAYAL & ORS decided by the Hon’ble National Consumer Disputes Redressal Commission on 04 Feb 2020
Facts: The complainant 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, with a
fracture in his left Tibia and 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 was
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 was 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, was operated upon by Dr. A.K. Khare on
11.3.1994 for Debridement and
Sequestrectomy, infected surgical plate was removed besides drilling his Tibia,
a window had to be made in the Tibia which got shortened, remained in RML Hospital for about two months
and 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, was
diagnosed as a case of Compartment Syndrome and Chronic Osteomyelitis, 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. Consumer complaint was
filed 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.
DEFENSE: 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, 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, was advised operation which was performed on
5.12.93, where after the complainant was able to feel sensation in his toes and
foot, was therefore discharged on 9.12.93. Thereafter he visited the OPD
on several dates, but there was no cross evidence of infection.
EVIDENCE OF PARTIES: Complainant filed his own affidavit(s), that in RML Hospital infected plate was
removed and an External Fixator was applied, that he has a left foot drop and
his left leg was shortened by 1.5 inch and he can walk only at a slow place and
is unable to maintain his balance on uneven floor, that he has suffered 40%
permanent disability as certified by Lok Nayak Hospital and was taking
treatment at Medanta Hospital, 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, and 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. Dr. G.K. Aggarwal filed an affidavit : "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.''
CHALLENGD AWARD IN
COMPLAINT: Total amount of
Rs.25,00,000/- , OP-1 to pay Rs.15,00,000/- OP-2 and OP-4 to pay Rs.5,00,000/-
(Rupees Five lakhs) each to the complainant.
OBSERVATIONS: 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 partie, (Allegations against Dr.
G.K. Aggarwal are: ) that plate which the doctors of Sunder Lal Jain Hospital
had inserted in his leg, despite having become infected, was not removed at the
time the surgery/procedure was performed by 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, and left
Tibia was left exposed after the surgery/procedure performed on 14.1.94.
FINDINGS: 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, that the complainant was
treated outside with plate osteosynthesis, 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.
Case Law Reliance: 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 :-
“20.
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 (not) 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.
HELD: 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, 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.
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