Sandeep Arora & Anr. v. Agarwal Orthopaedic Hospital & ANR.
Decided by the Hon’ble National Consumer Disputes Redressal Commission on 31.08-2020
Facts: Mr. Sandeep Arora suffered scooter accident on 04.08.2000 and suffered fracture to his left hand. Initially, he consulted Dr. T.N. Gupta at Deoria. X-ray showed fracture of Humerus (arm) and took treatment for 4 days. Thereafter on 09.08.2000 he approached Dr. R. A. Agarwal at Agarwal Orthopaedic Hospital at Gorakhpur,who examined the patient and advised for surgical correction of fracture and the patient got admitted in the Opposite Party No. 1 Hospital. As the Titanium Rod was to be obtained from Delhi, the operation was fixed for 13.08.2000, operated the patient on 13.08.2000 and fixed the Titanium Closed Interlocking Rod with 4 screws in the fractured Humerus bone. The Complainant alleged that the rod and the screws were oversized and were not fixed properly, that on 14.08.2000, the Opposite Party No. 2 examined the X-ray of patient’s left arm which showed the interlocking rod and screws were oversized and a gap visible between the broken bones, Complainants were apprehensive and they asked the Opposite Party No. 2 to get another X-ray done on 16.08.2000 to check whether the gap had increased, but the Opposite Party No. 2 advised the patient to continue the medicines as the bone was uniting, patient was discharged from the Opposite Party No. 1 Hospital on 18.08.2000, though he had pain in his left hand, on 16.01.2001, the patient got himself examined in the District Hospital, Deoria and the fresh X-ray showed the gap was more and the bones were not united, doctors therein suggested the patient to undergo another operation, patient went to Mariampur Hospital at Kanpur and got operated on 31.01.2001, wherein the Titanium close interlocking rod was removed and bone grafting with plating was done and that he post-operative X-ray showed the bone was united.
Defence: X-ray showed a fracture shaft of left Humerus, operation of Titanium closed interlocking rod was done on 13.08.2000, as per standard procedure, X-ray taken on 16.8.2000 showed proper position of rod and there was no gap between the fractured area, denied the penetration of screws and rod into the muscles, which was not possible for such a long period, patient did not follow the instructions for physiotherapy, and that he was in good condition when the stitches were removed. The patient, over phone, informed that he fell down from his bed and suffering from pain in his left hand, was called on 11.11.2000, the X-ray of his hand showed that the screws were loose with a minor gap,, the rod was in correct place and the fractured bone showed proper alignment with new bone formation, patient was advised to wait as the minor gap would be covered by the new formation of bone and that the patient, thereafter, did not turn up to the Opposite Party No. 1 hospital.
Findings: We have perused the material on record inter alia the Medical Record of the Hospital and the medical text on long bone fractures from Campbell’s Operative Orthopaedics (14th Edition). The patient was operated on 13.08.2000. The post-operative X-rays dated 14.08.2000 and 16.08.2000 revealed minimal gap. The Complainant approached the Opposite Party No. 1 Hospital after about 3 months on 11.11.2000. According to the patient the X-ray done on 11.11.2000 revealed the gap was widened and the Opposite Party No. 2 should have taken necessary steps to correct the gap but the patient after two months. It is pertinent to note that the patient did not follow the medical advice for exercise and the physiotherapy. Moreover he fell down from the bed and sustained external trauma / pressure on his left hand which caused increase in the gap between the fractured bones. However, it is evident from X-ray dated 11.11.2000 there was proper bone alignment and the rod in proper shape. We do not find any cogent evidence produced by the Complainant that the rod or screws used during surgery were oversized. It is further noted from the medical record of Mariampur Hospital that Dr. P. M. Gadre operated the patient on 31.01.2001. He did not comment on the size/extent of gap at the fractured site and any negligence from the Opposite Party No. 2 during previous operation caused either non-union or mal-union of bones. Opposite Party No. 2, who is a qualified and experienced Orthopedician followed the accepted standard method to treat the fracture Humerus with use of C-Arm during the procedure. The new bone (callus) formation at fractured site takes long period and thus the patient was advised to wait and do regular exercise and physiotherapy. In our considered view, it was the act i.e. “Watchful waiting” from the Opposite Party No. 2. It is also called as related to Masterly Inactivity or Expectant Management is a hands-off management philosophy in which certain conditions are closely monitored, but treatment is withheld until symptoms either appear or some measurable parameter changes. (Ref: Segen’s Medical Dictionary. © 2012 Farlex, Inc.). Thus, watchful expectancy or masterly inactivity is despite whatever appears to a patient, is NOT, and we reiterate is NOT neglect or negligence, as the layperson might be tempted to believe – it simply means acting with necessary patience, using good sense, experience coupled with prudency, as the situation dictates in circumstances in which, there is no pressing action or no qualified need for urgent or emergent intervention. Therefore, we are unable to understand that within short span of time i.e. 3 months the patient underwent the second surgery at Mariampur Hospital, Kanpur. It was hurried intervention which is not advisable. Technically, a Non-union is defined as, A fracture that is a minimum of 9 months post occurrence and is not healed and has not shown radiographic progression for 3 months (FDA 1986). In the instant case, it is indeed documented by the first Surgeon that 3 months after first surgery there was evidence of early callus formation and thus he recommended watchful expectancy for fracture healing. Merely because a second intervention was executed and has led to bone union, it does not automatically imply that the first intervention would have necessarily failed wherein the Surgeon was keeping a vigilant eye on the progress of the healing and was ready to, if necessary, intervene. Further, literature suggests that an apparent gap despite internal fixation is often seen on post-operative radiographs. These gaps are not physical gaps but merely zones of decalcified bone at the site of the opposing fracture surfaces. It is all too easy to point out these gaps to a layperson that in his vulnerable state, panics and starts doubting the original intervention performed.
Held: It should be borne in mind that an Active monitoring is a well-accepted form of any on-goingtreatment. Patients are led to believe, albeit in many cases by secondary service providers that great and hurried intervention is always required or vital in their case and thus the original Surgeon who has shown patience, supported by literature and yet, is ready for further intervention if need bedoes not always qualify as negligent or neglectful by any stretch of imagination. Indeed, history is testimony that many surgical disasters could also have been avoided by preventing overenthusiastic and interventions whereas watchful expectancy would have sufficed. What may appears as a heroicearly second intervention which has palpably caused a positive impression on the patients mind cannot be used as a weapon to castigate the original surgeon or his methods who was following a well-accepted treatment plan including watchful expectancy. Such an assumption based on what could have been … is too presumptuous, simplistic and thus, untenable. It has become all too common for some medical personnel to present a one up `view of their own practice to impress or convince a patient of additional treatments or alternative remedy, which may be in essence unrequired at that point of time. Such a patient intent on blaming someone for their misfortune and possibly arisen to a combination of his injury mechanism or complex pattern, his existing co-morbidities, in combination with slower biology by many other variables, is now all too ready to blame the original Surgeon and thereby cause injustice to the actually prudent practitioner of medicine. In the instant case, the Opposite Party No. 2 treated the patient as per the standards. There was no negligence while performing the fracture operation and fixing the Titanium interlocking rod and screws to the Humerus. On the basis of the examination made above, deficiency / medical negligence is not established. We set aside the Order passed by the State Commission and dismiss the Complaint. Parties to bear their own cost.
