Suraj Bai v. National Insurance Company, Revision Petition No. 4547 OF 2008 decided by the National Consumer Disputes Redressal Commission, New Delhi on 05.07.2019.
Facts: Complainant slipped on the floor of her house and was immediately taken to Dr. Mohd. Iqbal, the first Opposite Party 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. 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.
Defense: 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.. 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.
Observations: 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. A perusal of the medical record shows that the Complainant was admitted on 12.11.2000, the date of operation was 13.11.2000 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. 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.
Held: 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. 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.