ORDER
Rajyalakshmi Rao, Member
1. This First Appeal is arising out of Complaint No. 41 of 1999 decided by the State Commission, Chandigarh by order dated 4.6.2002 whereby complaint against Dr. Pradeep Aggarwal and others was dismissed. Aggrieved by the order complainant Ajay Gupta has filed this appeal. Brief facts of the case are:
The case of the appellant/complainant is:
2. Mr. Ajay Gupta was working as Senior Sales Executive in E.L.F. Lubricant India Ltd. He was 28 years old and drawing a salary of Rs. 20,000 per month. The car in which he was travelling met with an accident at 9.00 p.m. on 18.5.1998 and he got injuries on his left upper arm at humerus bone. He was taken to Chawla Nursing Home, Mohali and was given first aid and Dr. Chawla applied the plaster on full arm to keep it in a straight position. Dr. Chawla after applying the cast asked the appellant to check movement of his hand, wrist and fingers which were found to be in good working order. Thereafter, appellant was taken to his home at Chandigarh where he had proper sleep.
3. On 19.5.1998 on the advice of his friends and relatives, the appellant contacted Dr. Pradeep Aggarwal, respondent No. 1, who was running a clinic–Bone and Joint Surgical Centre at Chandigarh. Dr. Aggarwal took the xray of the appellant of his left upper arm and told the appellant that it was a serious fracture which was required to be corrected by applying internal metal plate to give support at the fractured site through surgical operation. On his advice, the appellant admitted in Verma Maternity Centre and Nursing Home, which was being run by Dr. D.S. Verma, Anaesthetist, respondent No. 2 on 19.5.1998 at around 11.00 a.m. After administering anaesthesia by Dr. D.S. Verma, surgery was performed by Dr. Pradeep Aggarwal, who was assisted by Dr. Salil. The operation was started at 3.00 p.m. and completed at 8.30 p.m. After the operation, appellant was shifted to a private room of the Nursing Home.
4. At 9.30 p.m. on the same day the appellant regained consciousness and felt loss of sensation and numbness in his lower left arm, wrist drop and experienced inability to extend his thumb and fingers. He also experienced an abnormal sound at the fractured site indicating that the fixation and support to the fractured bone by the metal plate was not proper. The appellant brought these problems to the notice of Dr. Aggarwal on the day of operation itself.
5. Dr. Pradeep Aggarwal, however, explained to the appellant that it was normal and when calcification will start, this will go and in case it persisted then another minor operation may be considered necessary about which decision will be taken later on within two months. Regarding wrist drop and numbness of the left arm and hand, it is alleged, Dr. Pradeep Aggarwal explained that the radial nerve which provided sensation and passive movement to wrist, fingers and thumb was under compression and it has been explored and released from the compression and arm, wrist, hand and fingers would resume the normal function in about two to three months time. The appellant was discharged from Verma Nursing Home on 22.5.1998 and was advised to come for check up and dressing on 24.5.1998.
6. The appellant again brought to the notice of Dr. Pardeep Aggarwal on 24.5.1998 that he was undergoing acute pain in the left upper arm and the problem of abnormal cracking sound at fractured side. He was advised to get himself admitted in Verma Nursing Home for proper care. He was readmitted on 24.5.1998 and remained under the care of Dr. Pradeep Aggarwal till 30.5.1998 and was finally discharged from the Verma Nusing Home.
7. Appellant visited Dr. Pardeep Aggarwal’s clinic on 8.6.1998, 15.6.1998, 6.7.1998 and 23.7.1998 and on each visit, he told Dr. Pradeep Aggarwal about the abnormal pain which he was having in the upper left arm and also about no improvement in the numbness of the hand, wrist drop etc. He was assured that it was quite normal and there is sign of recovery and re-generation of radial nerve. During the visit of the complainant from 15.6.1998 to 23.7.1998, the plaster was removed and re-plastered.
8. The appellant found no improvement in the operative part of the left arm and he went to PGIMER, Chandigarh on 31.7.1998 for expert consultation and advices. The doctors at PGIMER examined the X-ray’s taken by Dr. Pradeep Aggarwal.
9. The appellant was advised by the doctors at PGIMER to get admitted for second surgery on the bone to remove the previously applied implants i.e. metal plate, screws, wire, clamps etc. and to insert new implants at the right position to give proper support to the bone to insure proper calcification at the fractured site for the union of the fractured bones. It was further opined that as there was numbness in the lowest arm, wrist and fingers they would require to open the operated site to explore the radial nerve which they apprehended to be under compression or under concussion.
10. The complainant was admitted in the PGI, Chandigarh on 8.8.1998 and an operation was carried out on 20.8.1998 by Dr. R.K. Sen and three other assistants. During the operation, the surgeon found that out of third crushed radial nerve, the total segmental loss was about 4 cm. The complainant states that the Surgeon toyed with an idea of doing a nerve graft but they gave it up due to some other medical problems. As such, subsequent to this operation, he got specialized nerve tests done by Dr. S.K. Bansal of Prakriti Brain and Nerve Research Centre, Chandigarh. Then he got himself admitted in AIIMS, New Delhi on 7.11.1998 and was operated on 30.11.1998. During this operation, the Surgeon found that the nerve grafting would not give him any benefit since both the ends of the nerve have detracted and the gap was about 20 cms. The Doctors at AIIMS instead advised the complainant to go in for tendon transfer after recovery from the operation.
11. The complainant then consulted one Dr. S.M. Tuli of Vidya Sagar Institute of Mental Health and Neuro Science, New Delhi, who advised that tendon transplant has an expected recovery of about 75%. Accordingly, the complainant underwent an operation on 25.11.1998, for tendon transplant from Dr. Tuli. After the operation, the function of the left hand has been restored only to the extent of 60% and he was told that the final assessment was possible by the end of year 1999.
12. After narrating all these treatments undergone by him, the complainant alleges that all this was because of the mis-management done by O.P. No. 1, Dr. Pradeep Aggarwal at the time of the first operation. In his complaint with the State Commission, he sought a compensation for a sum of Rs. 15 lakh.
Case of the Respondents:
13. It may be stated at the outset that the complainant conceded that he has no case against O.P. No. 2, O.P. No. 3 is the Insurance Company from whom O.P. No. 1 has taken a policy and any liability would accrue to O.P. No. 3 only if O.P. No. 1 is held responsible for neglect. The case of O.P. No. 1 is that the surgery done on the complainant was not a planned surgery but was necessitated because of the car accident whereby the left humerus bone and associated nerves were crushed badly. The complainant immediately after the accident went to one Dr. Parminder Singh of Chawla Nursing Home at Mohali. Dr. Parminder Singh’s evidence clearly reveals that the complainant came to him with a badly comminuted fracture with radial nerve palsy and wrist drop. Hence, it is argued by Dr. Pradeep Aggarwal that when the complainant approached him the next morning, his radial nerve has already suffered injury during the accident due to the badly comminuted fracture. The damage to the radial nerve or the development of the wrist drop is not due to the subsequent operation or due to medical negligence and deficiency in service on the part of O.P. No. 1. According to him the radial nerve was not crushed under the plate which was implanted during the surgery as alleged by the complainant and there is no expert opinion or medical evidence in support of such a contention.
14. It is the argument of the O.P. No. 1 that a case of this nature would take time of 5 to 6 months to heal and to show some improvement. The success rate is also limited. But it is argued that complainant wanted instant results and because of his impatience, approached one Doctor after the other and underwent two more surgeries which also did not help him.
Findings:
15. We have carefully gone through the case record and heard the arguments of both the sides. In support of his case, O.P. No. 1 Dr. Pradeep Aggarwal relied on his own affidavit and Dr. Salil who assisted him in the operation. Further, he relied on the affidavit of Dr. Parminder Singh of Chawla Nursing Home, who was the first doctor to examine the complainant immediately after the operation and who has applied P.P. cast and Dr. Vijay Sehgal, Consulting Orthopaedic Surgeon from Chandigarh. The complainant built his case mostly on the basis of his own affidavit and that of Dr. R.K. Sen, Orthopaedic Surgeon of PGIMER, Chandigarh, who conducted the second operation about three months after the first surgery. We have gone through the affidavits and cross-examination of these doctors carefully and we find that no case of medical negligence has been made out against the opposite parties.
16. Firstly, Dr. Parminder Singh, who is the first doctor to examine the complainant immediately after the accident, clearly stated that the complainant’s x-rays taken by him clearly revealed a badly comminuted fracture and clinical examination revealed radial nerve palsy and wrist drop. He suggested to the complainant that in view of the badly bruised radial nerve, an urgent operation is required. Dr. Parminder Singh further stated that the standard treatment as per medical literature is immediate surgery and exploration of radial nerve and that he had told the complainant that he could perform the surgery. However, the complainant wanted to have a second opinion and also to consult with his family members before he accepts surgery.
17. Dr. Pradeep Aggarwal in his statement mentioned that the complainant had told him that before approaching Dr. Aggarwal, the complainant consulted another Orthopaedic Surgeon, Dr. Lalit Kaushal. The above clearly shows that the radial nerve was already involved in the accident and got bruised which led to the development of radial nerve palsy and wrist drop even before the complainant visited Dr. Pradeep Aggarwal.
18. Opposite party No. 1, Dr. Pradeep Aggarwal has explained why he has to readmit the complainant in his hospital during the period 24th May to 30th May, 1998 and why it was necessary to change the plaster. It appears that after being discharged on 22nd May, 1998, the complainant came on 24th May for a check up, he stated that he lives alone and do not have any blood relations there and wanted to be readmitted for the purpose of better care and medication since the expenditure in any case would be reimbursed by his employer. Dr. Aggarwal also mentioned that tinel’s sign was positive and progressing towards fore arm indicating that the nerve was showing recovery. Re-plaster was necessary since the previous casting had become loose after the tissue swelling subsided gradually.
19. Dr R.K. Sen of PGIMER, who performed the second operation mentioned that the second operation was necessitated because of the plate installed earlier was not holding the fractured fragments adequately. The discharge certificate of PGIMER shows that the radial nerve was found below the plate and was crushed for 3 inches. The crushed portion of the radial nerve was cut and ends were sutured with silk sutures. Dr. Sen, however admitted, both in his statement as well as in his cross-examination that there was radial nerve palsy which can be pre or post-operative. He also mentioned that there was no nueroma formation at the nerve ends. He further admitted that the procedure adopted at the earlier surgery done by O.P. No. 1 could be adequate. In view of this contradictory statement of Dr. Sen one cannot entirely rely on the evidence of Dr. Sen. He has, however, admitted that the procedure followed by O.P. No. 1 could be adequate.
20. Dr. Salil, is the Assistant of O.P. No. 1 and assisted in the operation. We do not propose to rely very much on his statement. However, evidence tendered by Dr. Vijay Sehgal, Consulting Orthopaedic Surgeon is quite clear. Replying to a question whether crushing of the radial nerve by the plate can cause loss of sensation in that part and result in disability, he replied; “Yes, but in the instant case, nothing of this kind happened”. Explaining further, he mentioned that “under the circumstances of the case, the plate was correctly placed and thus there was no possibility of the nerve being compressed under the plate. The breadth of the plate is 1 cm. A nerve cannot be buried to such an extent (3″) as alleged by the complainant. It is only a small portion of the radial nerve which comes in contact with the humerus bone on its lateral side”.
21. The discharge summary of AIIMS shows that according to the patient’s history at the time, of the second operation, cut ends of the radial nerve were tagged. As per records, the gap was 4 cms. Talking about the surgical procedure folio wed, the report says, “13.11.1998-Exploration of left radial nerve at arm, proximal end was badly crushed and unhealthy. Both ends retracted and the gap was 20 cm. No grafting attempted”.
22. There has been no adequate explanation brought on record as to how a gap of 4 cms. between nerve ends has increased to 20 cms. in a matter of three months, i.e. from August, 1998 to November, 1998. In any case, this has happened after the second operation and the damage cannot be attributed to Dr. ‘Aggarwal, O.P. No. 1, who did the first surgery.
23. The complainant in his statement has alleged the following shortcomings of the surgery performed by O.P. No. 1:
1. that the incision should have been made at the posterior side so that there was no chance of radial nerve injury during the operation;
2. that the position and placement of the support plate was not proper and did not give adequate support to the fractured bone;
3. that the length of the screw was much larger than the diameter of the bone and the protruding screw caused damage to other tissues; and
4. the wire has been tied around the bone very crudely and left hanging inside.
24. Though, these allegations were made by the complainant, none of the medical experts who were examined in the case have made any reference to these points. No medical authorities or literature have been quoted before us to show that the above allegations have support of experts. Dr. Aggarwal stated that some of the screws fixed were a little longer but the same were within the permissible limit and were safe.
25. On the other hand, we found that at the time of the first operation all possible methods of treatment; the pros and cons of the proposed operation and the possible complications were explained to the complainant and his informed consent has been taken. It was clearly mentioned to him that recovery in such cases can take as much as 5 to 6 months. In spite of that, the complainant rushed from one doctor to another and chose to undergo re-exploration of the injured arm.
26. Dr. Vijay Sehgal has clearly deposed that whenever a nerve is bruised, (in this case it is clear from Dr. Parminder Singh’s evidence that it was bruised because of the accident), the nerve may recover and this can take about 4 to 6 months for the nerve to regenerate. In case, the nerve is severed, a nueroma at the proximal and thickening at the distal end of the nerve is formed. Dr. Sehgal has stated that sufficient time was not given for the union of bone and regeneration of the radial nerve, particularly in a situation of axontamesis lesion, which is a recoverable injury. The tinel’s sign being positive, in this case which means that nerve recovery had already started.
27. It is thus clear that Dr. Pradeep Aggarwal, O.P. No. 1 followed established medical procedure in the surgery and treatment of the complainant and he has satisfied the three tests laid by Hon’ble Supreme Court in the case of Dr. Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr., namely:
(a) that he exercised duty of care in deciding whether to undertake the case of the complainant;
(b) that he exercised reasonable degree of care in deciding what treatment to be given to the complainant as per the established medical norms;
(c) that he exercised a duty of care in the administration of that treatment.
28. The complainant also could not show that the said treatment given is in any way contrary to establish medical norms, we therefore support the well reasoned judgment of the State Commission and there is no reason for us to interfere with the same.
In view of the above discussion, First Appeal is dismissed accordingly. There shall be no order as to costs.