High Court Kerala High Court

State Of Kerala vs Krishnankutty on 28 January, 2010

Kerala High Court
State Of Kerala vs Krishnankutty on 28 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 228 of 2000(A)



1. STATE OF KERALA
                      ...  Petitioner

                        Vs

1. KRISHNANKUTTY
                       ...       Respondent

                For Petitioner  :ADDL.ADVOCATE GENERAL

                For Respondent  :SRI.SANTHOSH SUBRAMANIAN

The Hon'ble MR. Justice K.M.JOSEPH
The Hon'ble MR. Justice M.L.JOSEPH FRANCIS

 Dated :28/01/2010

 O R D E R
                             K. M. JOSEPH &
                     M. L. JOSEPH FRANCIS, JJ.
               --------------------------------------------------
                         A.S.NO.228 OF 2000 A
               ---------------------------------------------------
                 Dated this the 28th January, 2010

                               JUDGMENT

K.M. Joseph, J.

Appellant is the State of Kerala. The first respondent filed

the Suit claiming compensation from the appellant and the

second respondent for damages arising out of the negligence

with which the second respondent Doctor treated the first

respondent culminating in the amputation of the left leg (below

knee) of the first respondent. The trial court decreed the Suit in

a sum of Rs.1,31,000/= with interest at six per cent from the

appellant and second respondent.

2. We shall refer to the parties as in the trial court. The

plaintiff suffered an injury when a silicate stone on the sunshade

of a building fell down and hit on his left leg, just above the

ankle on 19.11.1989. The plaintiff was working at the building

site. He was taken to the Medical College Hospital, Thrissur

where the second respondent was working. Plastering was done.

AS.NO.228/00 2

He was discharged on the same day in the evening. Thereafter,

he went back to the hospital on 23.11.1989, complaining of

severe pain. Then, the second defendant cut open the plaster

and the plaintiff was also administered with certain medicines.

On 24.11.1989, fasciotomy was done. However, it was found

that even though fasciotomy was done, amputation below the

knee was inevitable. The plaintiff apparently not being satisfied

with the treatment, got himself discharged and it is the admitted

case that he had to get his left leg below knee amputated at a

private hospital.

3. The defendants contended that there was no negligence.

In short, the case of the defendants was that the plaintiff

developed what is known as compartment syndrome and the

Doctors including the second defendant have treated the plaintiff

without any negligence and in accordance with the accepted

medical practice. However, unfortunately, it got out of hand for

no fault of the Doctors and amputation became unavoidable.

AS.NO.228/00 3

4. The trial court, however, found that the second

defendant being an experienced Doctor, should have recognised

the dangerous situation with his ordinary diligence and done

fasciotomy on 23.11.1989. It is found that compartment

syndrome had developed. It is found that blisters were noted on

the dorsum of the toe and the toe movements were diminished

and it is found that since emergency fasiotomy was not done on

23.11.2989 which the plaintiff required, there was negligence on

the part of the second defendant in giving proper treatment to

the plaintiff leading to the amputation of the left lower limb.

5. We heard the learned Government Pleader, the learned

counsel appearing on behalf of the plaintiff as also the learned

counsel appearing for the second defendant.

6. Learned Government Pleader would contend that the

plaintiff had come to court alleging negligence in the matter of

applying the plaster. But, the court below has correctly found

that amputation became inevitable in view of the plaintiff

developing compartment syndrome and in such circumstances,

AS.NO.228/00 4

the court below erred in finding that there was negligence on the

part of the second defendant and holding the appellant State is

vicariously liable. He took us through the evidence besides the

pleadings. He also pointed out that there was no expert

evidence adduced by the plaintiff in support of his claim.

Learned counsel for the second defendant would point out that

after the trial court found that the plaintiff had developed

compartment syndrome and the amputation was the fall out of

the said condition, it ought not to have found the second

respondent negligent. He would point out that on 19.11.1989,

when the plaintiff was brought to the Medical College Hospital,

a fracture was suspected. An X-ray was taken. A closed

undisplaced fracture was confirmed. A full leg plastering was

adopted under the supervision of the second defendant. He was

kept in observation for a few hours. Noticing that there was no

adverse circumstance warranting his continued retention in

accordance with the accepted practice, he was discharged. He

was asked to come after four days. However, it is pointed out

AS.NO.228/00 5

that he was also informed that if there was any complication, he

should come earlier. In this regard, he pointed out the entries in

Ext.B1 Case Sheet marked in red ink. When the plaintiff was

brought on 23.11.1989 and he complained of pain again, it is

pointed out that in accordance with the established facts, the

second defendant cut open the plaster. He contended that this is

one of the methods recommended when incipient compartment

syndrome is suspected. He relied on Medical Literature in this

regard. He would further point out that the plaintiff was also

administered certain medicines to improve his condition. He

would submit that resorting to fasciotomy was not necessary and

fasciotomy was not without attendant risk. It was only on

24.11.1989 when the plaintiff was examined, it became known

that he was developing compartment syndrome or rather acute

compartment syndrome and, therefore, it was found that

fasciotomy has to be done. This was the opinion of the senior

Doctors who were examined as DW1 and DW3. Fasciotomy

was accordingly done on 24.11.1989 itself. However,

AS.NO.228/00 6

unfortunately, it had become a case of ischemic gangrene,

necessitating amputation. He would submit that as far as the

medical practitioner is concerned, in claims for damages based

on negligence, the law is settled. He would submit that in the

facts of this case, it is clear that the trial court had erred in

finding that there was medical negligence on the part of the

second defendant by not having done fasciotomy on 23.11.1989.

He would submit that there was no case which the second

defendant was called upon to meet, that the situation developed

on account of the second defendant not performing fasciotomy

on 23.11.1989 and he would contend, therefore, that it cannot be

said that with the materials before the court, had fasciotomy

being done on 23.11.1989, the amputation could have been

avoided.

7. Learned counsel for the plaintiff would submit that this

is a case which attracts the doctrine of res ipsa loquitur. The

plaintiff, a construction worker, went to the Medical College

Hospital with a simple fracture and only on account of the

AS.NO.228/00 7

negligence on the part of the Doctor, he was deprived of his

lower left limb. He would submit that in the case of this nature,

the burden is squarely on the second defendant Doctor. He

would further point out that it is noteworthy that the second

defendant has not challenged the Decree by filing an Appeal

and, therefore, he cannot be heard to question the Decree in the

Appeal filed by the State. He would further contend that it is

not open to the second defendant to rely on the medical

literature in this Court without even having produced and put it

to the witnesses who were examined.

8. In order to appreciate the contentions, it is necessary to

refer to the pleadings of the parties. We would like to refer to

the following averments in the plaint:

“2. Immediately after this incident, the

plaintiff was taken to the Medical College

Hospital, Trichur and he was admitted there by

the doctor on duty Sri. Jayaprakash, the 2nd

defendant herein. Sri. Jayaprakash examined him

in a slipshod manner without any care and

attention most rashly and negligently. The 2nd

AS.NO.228/00 8

defendant without doing any washing or cleaning

of the injuries on the leg, knowing that there is

fracture of bones, administered plaster on the leg

and completely covered the leg in plaster from

above the knee, down to the ankle. On the same

day, by about 4.30 p.m., the 2nd defendant asked

the petitioner to go home and come after four

days, and accordingly the petitioner was sent

home by the 2nd defendant by about 4.30 p.m. on

19.11.89. The 2nd defendant at that time told the

petitioner that as there is fracture, there would be

some pain and there is no other go, but to suffer

it.

3. While at home, to the petitioner, there

had began pain in the leg, and as the 2nd

defendant had told him to come to the O.P. only

on the 4th day of putting plaster, we went to the

hospital again on 23.11.1989. The 2nd defendant

examined him, and immediately asked his

relatives to take him to the dressing room. By this

time, the petitioner had high temperature and (L)

leg was almost demobilised, there was infection,

swelling and oedema in the injuries on the leg.

The 2nd defendant was seen in panic and all on a

AS.NO.228/00 9

sudden the 2nd defendant cut the plaster

extensively and to his astonishment whole (L) leg

from ankle and upwards was completely infected

and there was heavy foul smell and on several

positions bone could be seen as flesh because pus.

During the time, the petitioner was fainting at

times, and he had the fear that a very dangerous

situation is ahead. Immediately, the 2nd defendant

admitted him in the ward, gave some medicines.

Next day, i.e. on 24.11.1989 morning 2nd

defendant along with one Dr. Sri. Sunny, visited

him and the 2nd defendant examined him, and

while so doing, the 2nd defendant was heard

saying to the other doctor “this is the very serious

case”. And by this time, the condition of the

plaintiff had already slipped in to grave danger

and according to the doctors in the hospital, the

patient ought to have been given correct and

proper treatment by yesterday itself, and ought

not have put plaster completely on the leg.

14. The loss of (L) leg below knee of the

petitioner occurred due to the rash and negligent

way, the 2nd defendant was treating the petitioner,

and the 2nd defendant was handling the situation

AS.NO.228/00 10

in a most irresponsible manner in callous

indifference in utter disregard of all medical

norms. The 2nd defendant was grossly negligent

and most irresponsible and guilty of doing a

wrong act in his administering plaster on the (L)

leg of the petitioner when there was injuries and

wounds on the leg and oedema formed. This had

caused and resulted in gangrene death of tissue

due to the failure of supply of blood to it.”

We shall now refer to paragraphs 3 and 5 of the Written

Statement filed by the second defendant. It reads as follows:

“3. It is true that the plaintiff was brought to

the causality of Medical College Hospital on

19.11.1989 as alleged in para No.2 of the plaint.

He had fracture in the form of tenderness over the

lower third of left tibia. It was confirmed

clinically and however, an X-ray was also taken

which showed an undisplaced fracture. The

patient had abnormal mobility with minimal

deformity. This defendant, after a very careful

examination, took a decision to apply a plaster

cast on his leg. After due procedures of cleaning

AS.NO.228/00 11

and dressing, administering injections, the plaintiff

was given a long leg cast from the plaster room.

Then, he was kept in the observation ward till

evening around 5 P.M. and as he did not develop

any problem or complication, he was discharged

from the observation ward. He was put on

antibiotics and other medicines. All the details of

the treatments recorded in the O.P. ticket. He was

specifically instructed to report for review on

thursday or earlier if necessary and this fact was

written in red ink in the O.P. ticket. It was done

with the purpose for the plaintiff for seek urgent

medical advice, if needed. The allegation that

there were injuries on his leg is incorrect.

5. Some of the allegations in para No.3 and

4 are not true. It is true that the plaintiff came to

the hospital on 23.11.89 with complaints of pain.

He was admitted to ward No.1 and on

examinations, presence of blisters were found on

the dorsum of foot. Then, the plaster of paris was

split completely and blisters were found on the leg.

He was directed to continue antibiotics etc., and

also to have toe movements. However, the

allegation that there was high temperature,

AS.NO.228/00 12

infection, demobilisation were all incorrect. The

further allegation that the bone was exposed is

also untrue. As swelling was found, according to

this defendant, the best treatment option was to cut

the plaster off and to observe his vascularity. It

was done so. His leg was kept elevated and other

necessary instructions were also given. On

24.11.89 in the morning, the unit chief Dr. P.C.

Sunny, Associate Professor was also consulted and

he also assessed the condition of the plaintiff. It

was suspected that the plaintiff was developing a

compartment syndrome and fasciotomy of all

compartments of the leg was advised with

subsequent evaluation of the circulation to the leg.

Then, this defendant had a personal discussion

with the anaesthetist. Finally, after other due

procedures at about 11.40 A.M. an extensive

fasciotomy of all the compartments of the leg was

done under spinal anaesthesia. Then, on the

dorsum of foot, there was a black haematoma

which was drained. Post operatively, he was put

on ampicillin and gentamycin. However, this

defendant noted that the toe movements were not

possible. On 24.11.89 itself, the relatives of the

AS.NO.228/00 13

patient were informed that it might be necessary to

remove the gangrenous portions of the leg, and

amputation was a possible eventuality. Hence,

consent was also obtained from Smt. Santha, wife

of the plaintiff for the same. But, there was a

redeeming feature of the increase in the warmth

noticed post operatively, gave a faint hope of

being able to salvage the limb.”

It is also contended that the occurrence of a complication shall

not be considered as a result of negligence on the part of the

Doctor who treated the patient.

9. The court below has found that the plaintiff developed

compartment syndrome. The court below has not accepted the

case of the plaintiff that there was negligence in the matter of

applying plaster. According to the defendants, once the court

found that there was no negligence in the matter of applying

plaster and what is more, accepted the case of the defendants

that the amputation was caused by compartment syndrome, the

court below erred in decreeing the Suit only on the basis that the

AS.NO.228/00 14

fasciotomy was done on 24.11.1989, and that it should have

been done on 23.11.1989. The plaintiff, on the other hand,

pointed out that this is a case where the doctrine of res ipsa

loquitur is squarely applicable.

10. In our view, the following questions must be

considered and answered by us:

1) What is the principle of law applicable in a civil action

for determining negligence ?

2) Is the doctrine of res ipsa loquitur applicable ?

3) What is compartment syndrome ?

4) Whether there was any breach of the duty of care by the

second defendant ?

5) What is the accepted mode of treatment for

compartment syndrome ?

11. As far as the first question is concerned, the matter is

no longer integra and is covered by a large body of case law.

The Indian Courts have essentially followed what is called as

the bolam principle, a principle which has come to be named

AS.NO.228/00 15

after the name of the parties in the case which was decided by a

court of appeal in 1957. Suffice it, for our purpose, that we refer

to the decision of the Apex Court in Jacob Mathew v. State of

Punjab And Another ((2005) 6 SCC 1). That was a case where

an aged patient in an advanced stage of terminal cancer

succumbed due to the unavailability of oxygen cylinders with

oxygen, which was sought to be administered by the appellant

Doctor. The appellant was sought to be charged under Section

304 A of the Indian Penal Code. The Apex Court after

exhaustive review of the principles in the case law on the point,

has, inter alia, held as follows:

“11. According to Charlesworth & Percy on

Negligence (10th Edn. 2001), in current forensic

speech, negligence has three meanings. They are:

(i) a state of mind, in which it is opposed to

intention; (ii) careless conduct; and (iii) the

breach of a duty to take care that is imposed by

either common or statute law. All three meanings

are applicable in different circumstances, but any

one of them does not necessarily exclude the other

meanings, (para 1.01). The essential components

AS.NO.228/00 16

of negligence, as recognised, are three: “duty”,

“breach” and “resulting damage”, that is to say:

(1) the existence of a duty to take care,

which is owed by the defendant to the

complainant;

(2) the failure to attain that standard of care,

prescribed by the law, thereby committing a

breach of such duty; and

(3) damage, which is both causally

connected with such breach and recognised by the

law, has been suffered by the complainant. (para

1.23).

If the claimant satisfies the court on the

evidence that these three ingredients are made out,

the defendant should be held liable in negligence.

(para 1.24).”

It is also important to refer to paragraph 12 wherein the Court

has noticed the distinction between criminal liability and civil

liability in the matter of negligence. It reads as follows:

“12. The term “negligence” is used for the

purpose of fastening the defendant with liability

under the civil law and, at times, under the

AS.NO.228/00 17

criminal law. It is contended on behalf of the

respondents that in both the jurisdictions,

negligence is negligence, and jurisprudentially no

distinction can be drawn between negligence

under civil law and negligence under criminal

law. The submission so made cannot be

countenanced inasmuch as it is based upon a total

departure from the established terrain of thought

running ever since the beginning of the

emergence of the concept of negligence up to the

modern times. Generally speaking, it is the

amount of damages incurred which is

determinative of the extent of liability in tort; but

in criminal law, it is not the amount of damages

but the amount and degree of negligence that is

determinative of liability. To fasten liability in

criminal law, the degree of negligence has to be

higher than that of negligence enough to fasten

liability for damages in civil law.”

It is also relevant to refer to paragraph 15 where the Court has

held as follows:

“15. In civil proceedings, a mere

AS.NO.228/00 18

preponderance of probability is sufficient, and the

defendant is not necessarily entitled to the benefit

of every reasonable doubt; but in criminal

proceedings, the persuasion of guilt must amount

to such a moral certainty as convinces the mind of

the Court, as a reasonable man, beyond all

reasonable doubt. Where negligence is an

essential ingredient of the offence, the negligence

to be established by the prosecution must be

culpable or gross and not the negligence merely

based upon an error of judgment.”

We would also think it apposite to refer to the following

passages:

“19. An oftquoted passage defining

negligence by professionals, generally and not

necessarily confined to doctors, is to be found in the

opinion of McNair, J. in Bolam v. Friern Hospital

Management Committee, 9 WLR at p.586 in the

following words: (All ER. p.121 D-F):

“Where you get a situation which
involves the use of some special skill or
competence, then the test as to whether
there has been negligence or not is not the
test of the man on the top of a Clapham

AS.NO.228/00 19

Omnibus, because he has not got this
special skill. The test is the standard of the
ordinary skilled man exercising and
professing to have that special skill. A man
need not possess the highest expert skill….It
is well-established law that it is sufficient if
he exercises the ordinary skill of an
ordinary competent man exercising that
particular art.” (Charlesworth & Percy,
ibid., para 8.02).

20. The water of Bolam test has ever since

flown and passed under several bridges, having been

cited and dealt with in several judicial

pronouncements, one after the other and has

continued to be well received by every shore it has

touched as neat, clean and a well-condensed one.

After a review of various authorities Bingham, L.J.

in his speech in Eckersley v. Binnie 10 summarised

the Bolam test in the following words: (Con. LR

p.79):

“From these general statements, it
follows that a professional man should
command the corpus of knowledge which
forms part of the professional equipment of
t43he ordinary member of his profession.
He should not lag behind other ordinary
assiduous and intelligent members of his
profession in the knowledge of new
advances, discoveries and developments in
his field. He should have such an
awareness as an ordinarily competent

AS.NO.228/00 20

practitioner would have of the deficiencies
in his knowledge and the limitations on his
skill. He should be alert to the hazards and
risks in any professional task he undertakes
to the extent that other ordinarily
competent members of the profession would
be alert. He must bring to any professional
task he undertakes no less expertise, skill
and care than other ordinarily competent
members of his profession would bring, but
need bring no more. The standard is that
of the reasonable average. The law does
not require of a professional man that he be
a paragon combining the qualities of
polymath and prophet.” (Charlesworth &
Percy, ibid., para 8.04).

21. The degree of skill and care required by a

medical practitioner is so stated in Halsbury’s Laws

of England (4th Edn., Vol.30, para.35):

“35. The practitioner must bring to
his task a reasonable degree of skill and
knowledge, and must exercise a reasonable
degree of care. Neither the very highest
nor a very low degree of care and
competence, judged in the light of the
particular circumstances of each case, is
what the law requires, and a person is not
liable in negligence because someone else
of greater skill and knowledge would have
prescribed different treatment or operated
in a different way; nor is he guilty of
negligence if he has acted in accordance
with a practice accepted as proper by a
responsible body of medical men skilled in

AS.NO.228/00 21

that particular art, even though a body of
adverse opinion also existed among
medical men:

Deviation from normal practice is not
necessarily evidence of negligence. To
establish liability on that basis it must be
shown (1) that there is a usual and normal
practice; (2) that the defendant has not
adopted it; and (3) that the course in fact
adopted is one no professional man of
ordinary skill would have taken had been
acting with ordinary care.”

The abovesaid three tests have also been stated

as determinative of negligence in professional

practice by Charlesworth & Percy in their celebrated

work on Negligence (ibid., para 8.110).”

The Apex Court also noted the need for looking at the issue of

negligence in the context of the medical profession with a

difference. It held, inter alia, as follows:

“31. The subject of negligence in the context

of the medical profession necessarily calls for

treatment with a difference. Several relevant

considerations in this regard are found mentioned

by Alan Merry and Alexander McCall Smith in

their work Errors, Medicine and the Law

AS.NO.228/00 22

(Cambridge University Press, 2001). There is a

marked tendency to look for a human actor to

blame for an untoward event, a tendency which is

closely linked with the desire to punish. Things

have gone wrong and, therefore, somebody must be

found to answer for it. To draw a distinction

between the blameworthy and the blameless, the

notion of mens rea has to be elaborately

understood. An empirical study would reveal that

the background to a mishap is frequently far more

complex than may generally be assumed. It can be

demonstrated that actual blame for the outcome

has to be attributed with great caution. For a

medical accident or failure, the responsibility may

lie with the medical practitioner and equally it may

not.”

Finally, the Apex Court in Jacob Mathew v. State of Punjab And

Another (2005) 6 SCC 1) concluded stating, inter alia, as

follows:

“48. We sum up our conclusion as under:

(1) …………Negligence becomes actionable

on account of injury resulting from the act or

omission amounting to negligence attributable to

AS.NO.228/00 23

the person sued. The essential components of

negligence are three: “duty”, “breach” and

“resulting damage”.

(2)………….A simple lack of care, an error of

judgment or an accident, is not proof of negligence

on the part of a medical professional. So long as a

doctor follows a practice acceptable to the medical

profession of that day, he cannot be held liable for

negligence merely because a better alternative

course or method of treatment was also available

or simply because a more skilled doctor would not

have chosen to follow or resort to that practice or

procedure which the accused followed. When it

comes to the failure of taking precautions, what

has to be seen is whether those precautions were

taken which the ordinary experience of men has

found to be sufficient; a failure to use special or

extraordinary precautions which might have

prevented the particular happening cannot be the

standard for judging the alleged negligence. So

also, the standard of care, while assessing the

practice as adopted, is judged in the light of

knowledge available at the time of the incident, and

not at the date of trial. Similarly, when the charge

AS.NO.228/00 24

of negligence arises out of failure to use some

particular equipment, the charge would fail if the

equipment was not generally available at that

particular time (that is, the time of the incident) at

which it is suggested it should have been used.

(4) The test for determining medical

negligence as laid down in Bolam case, WLR at p.

586 holds good in its applicability in India.”

12. Res ipsa loquitur:

Res ipsa loquitur means the thing speaks for itself. Syad

Akbar v. State of Karnataka ((1980) 1 SCC 30) was a case under

Section 304 A of the IPC. No doubt, the Court had occasion to

consider the principle. It held as follows:

“As a rule, mere proof that an event has

happened or an accident has occurred, the cause of

which is unknown, is not evidence of negligence.

But, the peculiar circumstances constituting the

event or accident, in a particular case, may

themselves proclaim in concordant, clear and

unambiguous voices the negligence of somebody as

the cause of the event or accident. It is to such

cases that the maxim res ipsa loquitur may apply, if

AS.NO.228/00 25

the cause of the accident is unknown and no

reasonable explanation as to the cause is coming

forth from the defendant. To emphasise the point, it

may be reiterated that in such cases, the event or

accident must be of a kind which does not happen in

the ordinary course of things if those who have the

management and control use due care.”

The Court further held as follows:

“25. From what has been said above, it is

clear that even in an action in torts, if the defendant

gives no rebutting evidence but a reasonable

explanation, equally consistent with the presence as

well as with the absence of negligence, the

presumptions or inferences based on res ipsa

loquitur can no longer be sustained. The burden of

proving the affirmative, that the defendant was

negligent and the accident occurred by his

negligence, still remains with the plaintiff; and in

such a situation, it will be for the Court to determine

at the time of judgment whether the proven or

undisputed facts, as a whole, disclose negligence.”

AS.NO.228/00 26

The Medical Literature relied on by the second
Defendant:

In JBJA Journal of Bone and Joint Surgery – American 1996 –

1998, September 1996, Volume 78-A, Number 9, it is, inter alia,

stated as follows:

“Compartment syndrome is a well recognized

complication of a fracture of the tibial shaft.

Despite attempts to document the pathophysiology

of compartment syndrome, the clinical recognition

of this disorder is frequently difficult. If left

untreated, compartment syndrome not only results

in the loss of nerve and muscle function but also

may lead to infection, myoglobnuria and renal

failure, and even amputation.

A closed tibial fracture is one of the

conditions most frequently associated with the

development of compartment syndrome.

Compartment syndrome occurs after both closed

and open tibial fractures; the prevalence has

ranged from five (1 per cent) of 411 fractures to

eighteen (9 per cent) of 198 fractures. The range

probably reflects the varying percentage of high-

velocity injuries seen at different medical centers.

AS.NO.228/00 27

Overview:

A compartment syndrome of the leg may be a

devastating complication of a tibial fracture.

Meticulous and repeated examinations of the

patient who has such a fracture are needed to

ensure that the diagnosis is not missed. In patients

who are conscious, sensory changes usually occur

before motor changes. Pain on passive stretching

of the muscles in a given compartment may be the

earliest clinical indication. In patients who are

obtunded or anesthetized, objective criteria must be

used to make the diagnosis. Intracompartmental

pressure is the sole objective measurement and

constitutes an indirect measurement of muscle and

nerve ischemia. We believe that the most reliable

measurement is the difference between the diastolic

blood pressure and the intracompartmental

pressure (differential pressure, or ^P), and we

consider a differential pressure of less than thirty

millimenters of mercury (4.00 kilopascals) to be

indicative of compartment syndrome. Patients who

are managed with tibial nailing are at particular

risk, especially if reamers and prolonged traction

are used. In these situations, monitoring of the

AS.NO.228/00 28

pressure in the anterior compartment is a judicious

step. If the nail is inserted without the use of

continuous traction or reaming, incidental but

short-lived increases in pressure will occur, but

continuous monitoring is not needed. Once a

compartment syndrome has been diagnosed,

emergent fasciotomy is needed to avoid permanent

neurological sequelac. Many techniques are

available, but regardless of the method chosen all

four compartments must be released throughout

their entire extent. A delay of more than six hours

in the diagnosis or the fasciotomy usually leads to

permanent weakness. The surgeon must have a

high index of suspicion for compartment syndrome

for all patients who have a tibial fracture.”

In Orthopaedic Care Textbook by John Gray Seller III, M.D., it

is stated that there are three major classifications, namely

incipient compartment syndrome, acute compartment syndrome

and chronic compartment syndrome. We are not concerned with

chronic compartment syndrome. As far as incipient

compartment syndrome and acute compartment syndrome, it is

AS.NO.228/00 29

stated as follows:

“Incipient Compartment Syndrome:

This condition represents an impending

compartment syndrome. Compartment syndrome is

likely to develop unless intervening measures

prevent it. In incipient compartment syndrome, the

tissue-pressure measurements may not be high

enough to fulfill the criteria for compartment

syndrome, but the patient is at high risk for its

development. During this early stage, there is no

irreversible muscle or nerve damage due to

increased pressure. An example of an incipient

compartment syndrome would be a patient

complaining of intolerable pain after having an

extremity cast applied. If action is not taken to

remove or bivalve the cast, compartment syndrome

may develop. Another example is revascularizing a

limb that has had prolonged ischemia (over 6

hours). If prophylactic fasciotomies are not done,

there will most likely be reperfusion injury, edema,

and pathologic intracompartmental pressures.

Acute Compartment Syndrome:

Acute compartment syndrome is the most common

AS.NO.228/00 30

type of compartment syndrome. There is usually a

specific point in time when an injury occurred. An

acute compartment syndrome develops when a

significant injury is imparted to an extremity,

causing soft-tissue and often skeletal damage.

While acute compartment syndromes are usually

from traumatic causes, they can be associated with

atraumatic ones (e.g., post viral rhabdomyolysis).

For established compartment syndromes, surgical

treatment is indicated. Fasciotomy is the most

effective way to diminish interstitial pressures.”

In Campbell’s Operative Orthopaedics (Ninth Edition), it is,

inter alia, stated as follows:

“When incipient compartment syndrome is

suspected, several procedures can be used to

decrease the likelihood of development of a full-

blown compartment syndrome. Schwartz et al.

listed as factors in the development of the

syndrome in the thigh multiple injuries, systemic

hypotension, history of external compression of the

thigh, use of military antishock trousers,

coagulopathy, vascular injury, and trauma to the

thigh with or without femoral fracture. The use of

AS.NO.228/00 31

colloid or crystalloid fluids, blood replacement,

and maintenance of coagulability by replacement

of platelets and plasma can deter the development

of compartment syndrome. Heppenstall et al.

showed that cellular metabolic derangement in

skeletal muscle is more closely associated with the

difference between mean arterial pressure and

compartment pressure than with compartment

pressure alone. They believe a pressure difference

of 30 mm Hg in normal muscle and of 40 mm Hg in

more severely traumatized muscle with a higher

metabolic demand to be safe levels.

In isolated limb injuries, splitting of the

cast and underlying padding can decrease

compartment pressure by as much as 50% to 85%.

Any circular constrictive bandages also should be

released. Positioning of the limb is important;

placing the limb at the level of the heart produces

the highest arteriovenous gradient. On the other

hand, elevation of the limb decreases arterial

inflow without significantly increasing venous

outflow, thus increasing local ischemia. If

symptoms do not resolve within 30 to 60 minutes

after appropriate treatment, pressure

measurement should be repeated, and, if

AS.NO.228/00 32

equivocal, fasciotomy is indicated.”

In JBJS, it is, inter alia, stated as follows:

“The application of a plaster cast to a

traumatized limb may result in excessive

compression due to secondary swelling of the

injured soft tissues. When signs and symptoms of

this compression appear, it is accepted orthopaedic

practice to cut the cast and underlying padding to

relieve the pressure. The effect of this empirical

practice, however, has not been substantiated by

experimental evidence as to the extent of the

reduction in pressure that results from cutting the

cast and padding. Similarly, an absolute need to

cut the underlying padding along with the plaster

cast has not been demonstrated, although it has

been strongly recommended.

In this experiment, which was designed to

evaluate these recommendations quantitatively, we

analyzed the following: (1) the effects of a plaster

cast on limiting compartment size (volume

containment), and (2) the effects on

intracompartmental pressure produced by

sequential splitting of first the cast and then the

AS.NO.228/00 33

padding.

In Group 1 (dry Webril), the data showed that

the average intracompartmental pressure fell 30

per cent after the cast was split on one side. More

significant, however, was the 65 per cent total

reduction in pressure that occurred after the cast

was spread. Splitting the Webril caused only

another 10 per cent reduction in

intracompartmental pressure. Complete removal

of the cast decreased the pressure another 15 per

cent – a total decrease of 85 per cent from the

original maximally elevated state. Groups 2 and 3

showed similar results, although the percentage

reductions in pressure after the procedures were

not as great as in Group 1.”

Findings:

13. DW1 was the Professor and Head of the Department of

Orthopaedics at the Medical College Hospital, Thrissur during

the relevant time. He has MCH Orthopaedics from the

Liverpool University in England. He would say as follows:

“We have applied long leg cast. This is the usual type of

AS.NO.228/00 34

cast used. Usually, in an undisplaced fracture, we put plaster

and kept for observation for a few hours and will be treated as

out-patient. They will be asked to go back after a few days for

review, or if they find any problem like pain or swelling, they

can report earlier at any time. Whenever this complaint of pain,

we have to bivalue (split) the plaster and observe the circulation

and toe movements usually kept elevated. That is seen done in

this case also.” He would say that there were blisters on his skin

on 24.11.1989 and that the patient was developing compartment

syndrome. In such a situation, a liberal fasciotomy has to be

done. He would further say that he did not find any of the

symptoms of gas gangrene. In Cross Examination, he would say

as follows:

The patient was a man of ordinary health and 38 years of

age in 1989. He would say that when blood is blocked, tissues

became dead. Gas gangrene occurred in dead tissues. He says

that he was not able to say how old were the blisters. He would

say that ischemia means poor circulation. He would further say

AS.NO.228/00 35

that blisters may occur within 24 hours of ischemia. He would

say that the case-sheet does not show that the patient was kept

under observation. He would say that the patient had ischemic

gangrene and was, therefore, advised amputation. In answer to a

question, whether usually a person having fracture shall be kept

under medical observation at least for 48 hours, he would say

that it is advisable. He has stated that this 48 hours can be

crucial. He would then say that usually, an undisplaced fracture

was treated as out-patient. He is not able to say who has written

undisplaced fracture in red ink. He would say that there is

facility to treat in-patient in the Hospital. Undisplaced fracture

is considered as low veracity fracture. He would say that all

fractures cannot be admitted in the hospital. He would say that

the lack of facility was not recorded in Ext.B1.

14. DW2 is the second defendant himself. He is also a

MCH from Liverpool University in England. He has done MS

in Orthopaedics from MNA. MS. He was an Assistant Professor

in 1989. He would say that the plaintiff had fracture on the

AS.NO.228/00 36

lower third of the left tibia. It was an undisplaced fracture. He

would say that it was ascertained to be a closed fracture. A long

leg plaster was applied. He would say that there was no external

injury. He kept the plaintiff under observation, to know whether

the patient is developing any problem and for setting his plaster.

The patient was allowed to go only in the evening after nearly

six hours. Had the patient developed any problem, he would

have been kept. He would say that it is not necessary to keep a

person with closed fracture in the hospital for observation. He

would say that he had instructed review on Thursday or earlier if

necessary, and that is recorded in Ext.B1(a). It is marked in red

ink. When he returned on 23.11.1989, as soon as he came, his

plaster was split. The plaintiff was complaining of pain inside

the plaster. There were a few blisters on the dorsum of the toes.

The toe movements were diminished. He instructed that

circulation be watched and routine tests were done. In answer to

a question as to why his plaster was split, he would say that he

wanted to know the condition of the leg and to relieve the

AS.NO.228/00 37

pressure of the plaster. He prescribed necessary medicines. On

24.11.1989, he consulted his Unit Chief and Professor Mani

(apparently DW1). At that time, he would say that the patient

was developing compartment syndrome. Blood circulation was

decreased. His seniors wanted him to do an emergency

fasciotomy. It was done within one hour. The purpose of

operation was to relieve the pressure inside the leg

compartments and to improve the circulation. There was

ischemic gangrene. He was on leave on the 25th as his sister’s

marriage was on 26th. He denies negligence on his part. In

Cross Examination, he would say as follows:

It is not necessary always to keep the patient under

observation for not less than 48 hours. He would say that

blisters can develop as early as 3 to 4 hours or after 3 to 4 days.

He would say that they developed due to the oedema under the

tissue. In answer to a question whether blisters usually come

when there is injury, he would say that blisters always occur on

intact skin. A question is put as to how much will it take to

AS.NO.228/00 38

develop blisters at the site of injury and his answer was that it

depends on the violence, injury and the response of the person to

the injury. He would say that he did not see any problem till

evening and, therefore, he suggested him to go home and rest at

home. He prescribed four medicines. One was to reduce the

swelling. The other two were to relieve the pain. He would say

that he did not record in Ext.B1 that the patient had closed

fracture on 19.11.1989. He would say that silicate stone coming

into contact with the skin can cause skin injury and it may cause

a fracture without skin injury also. He would submit that he did

not anticipate any infection, since it was a closed fracture. In

answer to the question why the patient required fasciotomy,

though it was a closed fracture, he would say that following the

facture, oedema developed inside. That increased the pressure

and decreased the blood circulation. That acts like a cyclical

change and fasciotomy was done to reduce the pressure. A

question was put as follows:

“I say that you without noticing the injury on the outer side

AS.NO.228/00 39

of the fracture, applied long leg plaster and it caused to develop

infection ?” He replied in the negative. He would say that he

sent the patient from the hospital in good faith and has given

clear instructions to follow up. He had consulted seniors

whenever it was necessary. He denies that there was lack of

proper treatment which caused infection and so he consulted

seniors. He denies the allegation of wrong treatment. In Re-

examination, he would say that there was no wrong diagnosis

and that the entry that it was a closed fracture was made on

23.11.1989. DW3 is also a MS and MCH from Liverpool

University. He was the Unit Head. He had also occasion to see

the plaintiff on 24.11.1989 at the request of the second

defendant. When he saw him, there was no blister. He would

say further as follows:

There was consultation among them and it was decided to

do fasciotomy of all the compartments because he was

developing a compartment syndrome. He would say that in the

case of a fracture like this, they usually give above knee plaster

AS.NO.228/00 40

which was done in this case also. He would say that it was not

necessary to retain him in the hospital after plastering. He

would say, in answer to the question as to what was the exact

cause that necessitated amputation, that the patient developed

compartmental syndrome which did not respond to fasciotomy.

He would say that he has seen the record of treatment given to

the plaintiff and that is a usual method of treatment. In Cross

Examination, he would say, inter alia, as follows:

Compartmental syndrome developed due to the obstruction

of the micro circulation of the tissue of the leg. The obstruction

can occur within a few hours or after a few days. In answer to a

question that the patient under plaster be kept under observation

for 48 hours, he would say not necessary. Compartment

syndrome can develop slowly. He would say in answer to a

question that it is necessary to make the treatment foolproof to

keep the patient under observation of an expert Doctor. He was

further asked the following question:

“This unfortunate development could be avoided, if the

AS.NO.228/00 41

patient was kept in the hospital. He answers it by saying “yes, if

could see him”. He would say that he cannot say when the

syndrome developed. He would say that on 25.11.1989 when he

saw the patient, the extremity was cold. The muscles were

black. There was no vascularity. It showed that the leg had

become gangrenous. He would say that in certain cases, it is

very speedy. In Re-examination, he would say that the

possibility of compartment syndrome in the case of a closed

fracture is very rare.

15. The plaintiff suffered a fracture of the third portion of

the left tibia on 19.11.1989. It is recorded in Ext.B1(a) as a

closed fracture. This was recorded on 23.11.1989. This was

after taking an X-ray. Plaster cast was applied. Even though the

plaintiff had a case in regard to the negligence in applying

plaster cast, the court below has not accepted the said version.

We also do not think that there is anything on record to justify

and interfere with the said finding.

16. The case of the defendants is that the amputation

AS.NO.228/00 42

became inevitable on account of ischemic gangrene which, in

turn, resulted from compartment syndrome.

17. In the light of the evidence of Dws.1 to 3, we are

inclined to accept the case of the defendants that the plaintiff

developed compartment syndrome which led to the amputation.

18. The question further arises whether in the light of the

case set up by the plaintiff and the evidence on record, the court

below was justified in finding the second defendant negligent

and consequently the first defendant is liable, on the basis that

the fasciotomy should have been done on 23.11.1989 itself.

19. When a patient develops fracture, the amputation of

the leg cannot be said to be a normal consequence of the

fracture. In fact, in the Literature we have extracted, it is stated

that a closed fracture is one of the conditions frequently

associated with the development of compartment syndrome.

The plaintiff did complain of severe pain even on 19.11.1989.

He was consoled by the defendant who told him that there will

AS.NO.228/00 43

be some pain following the fracture. Admittedly, medicines

were prescribed for the pain by the second defendant. The

plaintiff presented himself on 23.11.2009 in the morning. The

second defendant cut open the plaster. According to him, it was

done to see the condition and also to relieve the pressure.

Admittedly, he noticed blisters on the dorsum of the toes.

Admittedly, he further noticed that there were decreased toe

movements. Undoubtedly, compartment syndrome is a

condition which can arise from a fracture. Even going by the

literature produced before us, what can be said to be established,

is this: In a case of an acute incipient compartment syndrome

which it is argued before us by the second defendant, was

suspected on 23.11.1989, going by the literature which was

made available, while cutting open the plaster, could be said to

be regarded as a method, the very same literature would clearly

indicate that fasciotomy must be resorted to if within 30 to 60

minutes, symptoms do not resolve after pressure measurement, if

AS.NO.228/00 44

it is an equivocal. We also notice that the medical literature

cited by the second defendant would itself indicate that a

Surgeon must have a high index suspicion for compartment

syndrome for all patients who have a tibial fracture and more

importantly, a delay of more than six hours in the diagnosis or

the fasciotomy leads to permanent weakness. It is no doubt true

that evidence was not led as to whether even if fasciotomy had

been done on 23.11.1989, the amputation could have been

avoided. But, we notice that even with the medical literature

made available, when on 23.11.1989 the second defendant

suspected, even according to him, the onset of incipient

compartment syndrome, there was indeed a breach of duty on

his part in not resorting to immediate fasciotomy, at least after

closely observing the patient on 23.11.1989. We cannot

overlook the fact that in a civil action based on medical

negligence, there need not be gross negligence as in a criminal

action, to order compensation.

AS.NO.228/00 45

We see no merit in the Appeal. It is dismissed. The

parties are to bear their respective costs.

Sd/=
K.M. JOSEPH,
JUDGE

Sd/=
M. L. JOSEPH FRANCIS,
JUDGE
kbk.

// True Copy //

PS to Judge

AS.NO.228/00 46

K. M. JOSEPH &
M. L. JOSEPH FRANCIS, JJ.

A.S.NO.228 OF 2000 A

JUDGMENT

28th January, 2010.