1. On 19.09.1997, the complainant Krishna Kumar (patient) sustained accidental injury by falling from 60 feet height. He was taken to V.K. Neurocare Hospital of Dr. V.K. Gupta (OP-1). He was diagnosed having spinal injury with fracture of both legs. The OP1 applied plaster of Paris to right leg/ foot. There was a wound; the complainant felt severe pain in his leg. Therefore, OP1 made a 4" x 4" window in the POP. The patient was discharged on 06.10.1997 and advised follow up after 15 days. The OP1 assured that the foot was alright and plaster would be removed after two months but the pain got aggravated. Therefore, complainant visited to hospital of OP1. There Dr. Rajesh Jain was called for consultation, who examined the right leg and advised to ampute the right leg due to gangrene. Complainant was not satisfied with the advice, therefore, he consulted his Dr. Chawla for re-check-up, who gave same opinion. Patient''s right leg was amputed on 15.10.1997 at City Hospital, Hisar by Dr. Aggarwal and he was discharged on 24.10.1997. Therefore alleging negligence on the part of OP1, the complainant filed the complaint before the District Forum, Hissar.
2. The District Forum dismissed the complaint whereas, the appeal filed by the complainant was allowed by the State Commission, Haryana, Panchkula and directed the OP to pay Rs.2,00,000/- with interest @ 9% per annum from the date of filing of the complaint along with Rs. 10,000/- as cost of litigation.
3. Aggrieved by the impugned order of the State Commission, OP-1 /Petitioner filed this Revision Petition.
4. We have heard the counsel for both parties. The learned Counsel for OP Mr. Lav Kumar Aggarwal, Advocate along with Dr. V.K. Gupta was present. The counsel for OP argued that there was a spinal cord injury; it was properly treated by OP-1 as per standard protocol. There is no role of the petitioner/OP1 in the instant case of alleged medical negligence. During arguments, we have permitted the petitioner, Dr. V.K. Gupta to clarify certain points. He submitted that, he is a Neurosurgeon, treated the patient''s spinal injury only. The fracture of leg (foot) was treated by Dr. Rajesh Jain. The complainants are well aware that Dr. Rajesh Jain put the plaster to his leg. In the instant case, Dr. Rajesh Jain was not made a necessary party. The counsel further submitted that the petitioner moved an application before the District Forum for impleading Dr. Rajesh Jain and Rajiv Aggarwal as necessary parties, but it was not considered. Therefore, the Petitioner/OP-1 should not be held liable for the right leg amputation.
5. The counsel for complainant argued that, it was negligence on the part of OP1 as the hospital in the name of Mr. V.K. Neurocare centre is run by OP-1. The complainant is not aware of Dr Rajesh Jain, but the POP was put by the OP1 himself. He further, submitted that the OP1 made the debridement of right foot wound and put the stitches. The counsel submitted that the patient is a villager, does not understand procedural aspects, therefore, the other doctors are not made necessary parties.
6. We have perused the impugned orders of both the fora below. The District forum observed that the OP on the request of the complainant and his attendant called Dr. Rajesh Jain, a qualified Orthopedician of N.C. Jindal Hospital, Hisar, who treated the complainant for his fractured legs and charged his own fees directly from the complainant. The complainant has alleged deficiency of service only in respect of fracture of leg, therefore, there is no nexus between the treatments given by the OP as alleged by the complainant. Therefore, District Forum dismissed the complaint. However, the State Commission accepted the appeal and held the OP-1 liable.
7. It is very important to know about who treated the fracture of metatarsal, put the POP and performed the window in the POP. As per the treatment chart and progress report, it has been specifically recorded that,
''Call attended for physiotherapy.
POP both ankles by Dr. Rajesh Jain on 20/9
& spinal surgery by Dr. V. K. Gupta on 21/9''.
Advised - active assisted movements in Rt. LL & passive movements in Rt. LL.''
On 30.09.1997 it is mentioned in progress record that,
''Right foot POP window made by Dr. Jain, stitches removed, wound gaped, Adv.
dressing daily''.
Therefore, it is clear that due to not-making a window in the POP, the wound remained closed for
a period of 10 days i.e. from 20.09.1997 to 30.09.1997, the complainant developed the gangrene.
About the treatment procedure of compound fracture, we took reference from Campbell''s
Operative Orthopaedics 12th edition. As a standard of practice, the compound fracture with
wound, it is a duty of orthopedician to make a window in the POP at the site of injury. The
complainant remained in the hospital for 16 days. The OP did not record about the techniques
adopted during the fracture treatment, how the POP was applied, etc. The OP contended that there
is no expert evidence. In our view, this was not necessary in the instant case because as per the
decision in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr. , 2010 CTJ 868 (SC)
(CP) in each case expert opinion is not necessary.
8. On the basis of medical record from VK Neurocare Centre. It is clear that the OP1 treated
the patient for spinal injury. It is also confirmed by the prescriptions of Dr. Aggarwal at City
Hospital and Dr. Preveen Chawala at Chawala Nursing Home. In our view, the fracture of foot
(metatarsal) was treated by Dr. Jain, but, the window in POP was prepared after 10 days.
Therefore, the doctors failed to take proper care to avoid gangrenous development in the foot. It
was an act of omission either by OP1 or Dr.Rajesh Jain. Thereafter, it was the duty of the
Orthopedician or the hospital to take proper care and proper follow up of the patient. The law is
well settled by Hon''ble Apex Court and this Commission that, the act of doctors or consultants
irrespective of full time or visiting, they are held liable for negligence. In the instant case, we
even though do not find OP-1 liable for medical negligence, but we have to consider that Dr.
Rajesh Jain, an orthopedician was called by OP1, who put the POP which resulted into gangrene
and amputation of the leg. Therefore, the V.K. Neurocare Centre is vicariously liable. Our view
on vicarious liability neatly dovetails from the Hon''ble Supreme Court''s decision in Savita Garg
Vs. National Heart Institute , (2004) 8 SSC 56, it was also followed in case of Balram Prasad
v. Kunal Saha , (2014) 1 SCC 384 .
9. On the basis of forgoing discussion we do not find any apparent error in the order of State Commission. Accordingly, the Revision Petition is dismissed with costs which are assessed at Rs.25,000/- to be paid by the OP to the complainant within 90 days otherwise it will carry interest at the rate of 12% per annum till realisation.
