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.
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A.S.NO.228 OF 2000 A
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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 ClaphamAS.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 competentAS.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 inAS.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.