C.P.Sreekumar M.S
(Ortho) Vs. S.Ramanujam [2009] INSC 867 (1 May 2009)
Judgment
IN THE SUPREME COURT
OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.6168 OF 2008 Dr. C.P.
Sreekumar, M.S. (Ortho) ......Appellant Versus S. Ramanujam ...... Respondent
WITH C.A.No.6167 of 2008
HARJIT SINGH BEDI, J.
1.
This
judgment will dispose of C.A. No.6168 of 2008, and C.A.No.6167/2008 as they
arise out of the same order.
The facts are being
taken from C.A. No.6168 of 2008.
2.
These
appeals are directed against the order of the National Consumer Disputes
Redressal Commission 2 (hereinafter called the "Commission") whereby
a sum of Rs.5.50 Lac alongwith interest on a part of the aforesaid amount and
costs of Rs.25000/- has been awarded to the complainant - respondent. The facts
leading to this appeal are as under:
3.
The
respondent, who was then employed in the Indian Overseas Bank, Chennai was
going on his bicycle at about 8:20 a.m. on 31st December 1991 when he was hit
by a motorcycle leading to an injury to his leg. He was admitted to the Surya
Hospital, of which the appellant, Dr. C.P. Sreekumar was the Managing Director,
at about 9.45 a.m. An X-ray of the leg revealed a hairline fracture of the neck
of the right femur. The appellant, as the attending doctor, chose a
conservative line of treatment and put the respondent's leg in a plaster of
paris bandage known as `derotation boots' in order to immobilize the leg. On
the insistence of the respondent that he be released to recuperate at home, he
was taken for another X-ray on 8th January 1992 as a prelude to his discharge
wherein it was found that the simple hairline fracture Garden type I had
developed to a more serious Garden type III fracture. The 3 appellant
thereupon decided that an operation be performed on the injured leg.
Pre-operative evaluations were made on 9th January 1992 and the appellant, on
considering the various options available, decided to perform a
hemiarthroplasty instead of going in for the internal fixation procedure. The
respondent consented to the choice of the surgery after the various options had
been explained to him. The surgery was performed on the next day. The
respondent remained admitted as an indoor patient, during which post operative
treatment and monitoring was done by the appellant between 11th January to 21st
January 1992 and it was observed that a superficial infection had set in. The
sutures were actually removed on 21st January 1992. The respondent was
thereafter made to undergo physiotherapy and was finally discharged on 5th
February 1992. On 6th March 1992, the respondent appeared in the hospital and
his condition was reviewed and he was instructed to go in for physiotherapy on
a daily basis and to return for a subsequent review two weeks later but he
neglected the advice. It is the case of the respondent that on account of
lingering pain, he had consulted 4 various doctors, including Dr. Mohandas of
Tamil Nadu hospital on 27th May 1992 who gave his opinion on the matter.
The appellant has
however pleaded that the respondent, in the meanwhile, continued to make a
nuisance of himself with frequent visits to and unbecoming behaviour in the
hospital on which the appellant gave a sum of Rs.50,000/- as an ex-gratia
payment in order to pacify him. It appears however, that notwithstanding the
aforesaid payment the respondent sent an Advocate's notice on 19th November
1992 alleging negligence and deficiency in service as the simple fracture had
got displaced to a more complicated one, on account of mishandling by the
hospital staff as also in the choice and the manner of the surgery and calling
for compensation of Rs.3 Lac of which Rs.50,000/- had (statedly) already been
paid as an advance. The appellant in his reply dated 15th December 1992, denied
any negligence in the surgery and further pointed out that the displacement of
the fracture had come about on account of natural causes i.e. a muscular spasm
and that respondent after being informed about the various lines of treatment
available had consented to the hemiarthroplasty.
5 Dissatisfied with
the reply given by the appellant, the respondent in May, 1993 filed a complaint
before the State Commission alleging that his consent had not been taken for
the hemiarthroplasty and that this procedure was not justified as the bone was
in good condition. The appellant in his reply denied the allegations and prayed
for the dismissal of the complaint. It appears that while the complaint was yet
pending, the respondent underwent a total hip replacement on 24th April 1995 at
the Tamil Nadu hospital performed by Dr.
Mohandas, on which he
moved an application before the State Commission seeking to amend the complaint
whereby the claim was increased from Rs.3 to Rs.12 Lac. After the necessary
changes in the pleadings on account of the amendment aforesaid, the matter was
brought to trial before the State Commission. The appellant appeared as a
witness and was examined and cross-examined over several days. Several
documents were also filed by the respective parties. By its order dated 29th
January 1999, the State Commission dismissed the complaint holding that there
had been no negligence or deficiency in service on the part of the appellant 6
and that the respondent had not been able to prove mishandling by the hospital
staff. The State Commission, inter alia, noted that the complainant had not
appeared as a witness and further that no witness had been examined by him in
support of his case.
4.
Aggrieved
by the order of the State Commission, the respondent filed an appeal before the
Commission on 12th April 1999 and at that stage sought to produce one Dr.
David, the duty doctor at the relevant time, as a witness, but thereafter took
no steps to secure his presence. Vide its order of 15th November 2006, the
Commission, however, allowed the appeal but limited the respondent's claim to
Rs.2.5 Lac, ( being the balance amount after deducting Rs.50,000/- allegedly
paid as an advance) but, in addition granted a further sum of Rs.3 Lac to cover
the contingency that he might have to undergo yet another surgery at some later
stage. Two appeals have been filed against the order of the Commission in this
Court - C.A. No.6168 of 2008 by Dr. C.P. Sreekumar seeking a dismissal of the
complaint and the second, C.A.No.6167 of 2008 by the respondent, S.Ramanujam,
seeking an enhancement of the 7 compensation to Rs.12 Lac. Both matters are
being disposed off by this judgment.
5.
The
Commission in its order noted that the respondent had suffered only a hairline
fracture (described as Garden type I fracture) for which he had been admitted
in the hospital and had been immobilized by being put in a plaster with a
suggestion of six weeks bed rest so that the fracture could heal on its own,
and as such there was no occasion for the respondent to be taken for another
X-ray on the 8th January 1992 as there was absolutely no complaint from him and
it was at that stage that it was discovered that the simple hairline fracture
had developed into a displaced Garden type III fracture. The Commission
concluded that this complication had happened when the respondent had been
moved from the first to the ground floor of the hospital for the purpose of
X-ray by a ward boy, Elango, assisted by some laborers, who were not qualified
to handle a patient. The Commission also observed that there was no warrant for
the stand of the appellant that the hairline fracture had been displaced due to
a muscular spasm and for that reason the averments made in the 8 complaint
could not be disregarded. The Commission emphasized that within 2 days of the
X-ray on 10th January 1992 the respondent had undergone a hemiarthroplasty, a
surgical procedure whereby half of the hip joint had been replaced leaving the
other half in its natural state and relied heavily on several medical texts
placed by the parties to hold that this procedure was performed only on
patients of the age of 60 years and above and as the respondent was, at the
relevant time, 42 years of age, the open reduction procedure, whereby the bones
are brought together and clamped by metal screws etc., was the appropriate one.
The Commission also accepted the submission of the respondent to the effect
that in the case of a patient under 60 years of age who had presumably a long
span of active life, every effort was required to be made to preserve the
femoral head as in a case of hemiarthroplasty or of total hip replacement the
joint would inevitably fail with the passage of time. The Commission further
observed that the respondent had approached Dr. Mohandas on 16th March 1992
with a complaint of pain in the right leg and inability to walk and Dr.
Mohandas had recorded that the respondent had some 9 kind of infection and had
advised for the removal of the prosthetic and further advised for a total hip
replacement. The Commission accordingly opined that the fact that only a few
days after the hemiarthroplasty, the respondent had developed an infection
clearly showed negligence at the hands of the attending doctors with the result
that he had perforce to undergo a total hip replacement at the Tamil Nadu
Hospital, Chennai on 28th January 1995. In conclusion, the Commission observed
as under:
"It is thus
clear that: (i) a hairline fracture developed into displaced fracture due to
wrong handling in the opposite party's hospital; (ii) the opposite party
performed a Hemi-arthroplasty on a young patient of 42 years without
consideration open reduction and internal fixation and against established
medical practices; (iii) the post-operative infection was not properly
conducted with the result that prosthesis got loosened within a period of two
months. There is thus a clear case of negligence and deficiency in service
rendered by the opposite party."
6.
The
Commission then came to the question of the payment of Rs.50,000/- by the
appellant to the respondent and observed that there were strong reasons to
believe the respondent's 10 plea that it was a part payment towards a
compromise for the larger sum of Rs.3 Lac that had been promised. The
Commission further observed that from the certificate issued by Dr. N.K.
Sundaram of Tamil Nadu Hospital it was clear that a total hip replacement would
fail over a period of time and would need to be revised again with a new
artificial joint, which would cost Rs.3 Lac and that this amount too was
payable to the respondent. A total sum of Rs.5.50 Lac was, thus, computed and
awarded.
7.
Mr.
Ranjit Kumar, the learned senior counsel for the appellant, has first and
foremost pointed out that the Commission had proceeded on the basis that all
that had been pleaded by the respondent in his complaint was the gospel truth
despite the fact that all the allegations had been controverted and in the
background that no ocular evidence had been led by the respondent and neither
he himself, nor his wife, who appeared to be well informed about the procedures
that had been adopted, had appeared to give evidence, there was no warrant for
believing the entire story on his mere ipse dixit. It has also been pleaded
that there was 11 neither any mishandling of the respondent by Elango and the
others nor any misjudgment in the choice of the surgery as at the very initial
stage the Doctor had chosen a conservative line of treatment as the fracture
was a simple Garden type I, but which had been later transformed into a Garden
type III fracture on account of a muscular spasm which required a
hemiarthoplasty and that this line of treatment had been chosen as it would
make for quicker recovery so that patient's ambulation could be restored. It
has also been argued that the mere fact that a complete hip replacement had
been made on 28th April 1995 i.e. three long years after the hemiarthroplasty
showed that this procedure was in fact the correct one. It has also been
submitted that there was no warrant for the very broad proposition that the
only procedure in the given circumstances to be performed on a 42 year old
patient was internal fixation and that hemiarthroplasty had to be completely
ruled out unless the patient was beyond 60 years of age. He has reiterated that
as per the evidence of the appellant doctor, the nature of the fracture had
changed from Garden type I to Garden type III on account of a 12 muscular
spasm and the condition of the bone had also deteriorated and as this statement
had not been challenged or controverted by the respondent by adducing evidence,
there was no justification in disbelieving the statement as he was the best
judge in selecting the appropriate procedure in the given circumstances. It has
finally been submitted that there is no basis for the conclusion that the
payment of Rs.50,000/- to the respondent was a part payment towards a
compromise involving a total settlement of Rs.3 Lac, as this amount had been
paid to mollify the respondent who was creating a nuisance in the hospital
premises and the appellant's residence and causing inconvenience to the other
patients. It has, thus, been prayed that in the light of this background, there
was no justification for the award and that no compensation whatsoever was
called for.
8.
Mr.
Ranjit Kumar's stand has been strongly controverted by the respondent, who
appeared in person. As a matter of fact, owing to the limitations of untrained
litigants who appear in person, we had asked the respondent if he wished to
engage a lawyer or we could even arrange one to represent him as an 13 amicus
curiae. He brusquely declined the offer and on the contrary vehemently suggested
that he had no faith in members of the legal profession as he had been cheated
by his lawyer before the State Commission as he had connived with the opposite
party and had deliberately dissuaded him from producing any substantive
evidence which had led to the dismissal of his complaint at the first instance.
During the course of his arguments and in his affidavit dated 19th June 2007 as
also in his written submissions given to this Court, the respondent repeatedly
requested that the matter be remanded to the State Commission for recording his
evidence, that of his wife and some expert witnesses and also to produce some
additional objects as evidence. We, however, questioned the respondent as to
whether he had made any such prayer or complaint in writing before the State
Commission or the Commission and he admitted that he had not done so. In this
background, and the fact that the incident had happened some 18 years ago, we
feel that it would be inappropriate to remand the matter to the State
Commission for additional evidence at this stage.
9.
We
find that three basic issues arise in the present case, (1) whether Dr. C.P.
Sreekumar, the appellant herein, had the competence to perform a
hemiarthroplasty and whether he had chosen this procedure as he was not
qualified for the internal fixation procedure; (2) whether it was the
negligence of the Surya Hospital of which Dr. C.P. Sreekumar appellant was the
Director and of the ward boy Elango and three labourers, who are said to have
removed the respondent from his room for X- ray department on 8th January 1992
that had resulted in the aggravation of the Garden type I fracture to Garden
III type fracture necessitating more radical treatment and (3) even assuming
that some radical procedure was necessary, whether hemiarthroplasty was the
appropriate one in the light of the fact that the respondent was at the
relevant time 42 years of age.
10.
The
basic principles under which a case of medical negligence as a criminal offence
as also a tort has to be evaluated has been succinctly laid down in Jacob
Mathew vs. State of Punjab & Anr. (2005) 6 SCC 1. One of the primary
arguments raised by the respondent herein is that the appellant Dr. C. P.
Sreekumar, though qualified in Orthopedics, did not have the basic skill to
carry out a hemiarthroplasty or an internal fixation and for that reason was
not competent to perform the procedure. In Jacob Mathew's case, this Court
adopted the test laid down in Bolam vs. Friern Hospital Management Committee
(1957) 2 All ER 118 (QBD) in which it has been observed as under :
"[W]here 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 omnibus, because he has not got this special skill.
The test is the standard of the ordinary skilled man exercising and profession
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."
11.
This
Court then observed that this judgment had been followed repeatedly not only in
India but in other jurisdictions as well and that it was the statement of law
as commonly understood today. In paragraphs 24 and 32 of Jacob Mathew's case it
has been observed thus:
16 "The
classical statement of law in Bolam's case has been widely accepted as decisive
of the standard of care required both of professional men generally and medical
practitioners in particular. It has been invariably cited with approval before
the courts in India and applied as a touchstone to test the pleas of medical
negligence. In tort, it is enough for the defendant to show that the standard of
care and the skill attained was that of the ordinary competent medical
practitioner exercising an ordinary degree of professional skill. The fact that
a defendant charged with negligence acted in accord with the general and
approved practice is enough to clear him of the charge. Two things are
pertinent to be noted. Firstly, the standard of care, when 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. Secondly, when the charge of
negligence arises out of failure to use some particular equipment, the charge
would fail if the equipment was not generally available at that point of time
on which it is suggested as should have been used.
32. At least three
weighty considerations can be pointed out which any forum trying the issue of
medical negligence in any jurisdiction must keep in mind. These are: (i) that
legal and disciplinary procedures should be properly founded on firm, moral and
scientific grounds; (ii) that patients will be better served if the real causes
of harm are properly identified and appropriately acted upon; and (iii) that
many incidents involve a contribution from more than one person, and the
tendency is to blame the last identifiable element in the 17 chain of
causation, the person holding the "smoking gun".
12.
These
observations postulate the underlying principle that too much suspicion about
the negligence of attending Doctors and frequent interference by Courts would
be a very dangerous proposition as it would prevent Doctors from taking
decisions which could result in complications and in this situation the patient
would be the ultimate sufferer. Jacob Mathew's case was followed in State of
Punjab v. Shiv Ram & Ors. (2005) 7 SCC 1 which was a case of a failed
tubectomy leading to a plea of medical negligence. This is what this Court had
to say in paragraph 33:
"A Doctor, in
essence, needs to be inventive and has to take snap decisions especially in the
course of performing surgery when some unexpected problems crop up or
complication sets in. If the medical profession, as a whole, is hemmed in by
threat of action, criminal and civil, the consequence will be loss to the
patients. No doctor would take a risk, a justifiable risk in the circumstances
of a given case, and try to save his patient from a complicated disease or in
the face of an unexpected problem that confronts him during the treatment or
the surgery.
It is in this
background that this Court 18 has cautioned that the setting in motion of the
criminal law against the medical profession should be done cautiously and on
the basis of reasonably sure grounds.
In criminal
prosecutions or claims in tort, the burden always rests with the prosecution or
the claimant. No doubt, in a given case, a doctor may be obliged to explain his
conduct depending on the evidence adduced by the prosecution or by the
claimant. That position does not change merely because of the caution advocated
in Jacob Mathew in fixing liability for negligence, on doctors."
13.
In
Samira Kohli vs. Dr.Prabha Manchanda & Anr (2008) 2 SCC 1 the basic issue
was as to the principle governing "consent" to be taken from a
patient prior to any invasive procedure. We find, however, that in the present
case, the question of consent has not been raised by the respondent and on the
contrary the case seems to be that the consent had, in fact, been taken. Even
in his arguments the respondent did not deny lack of consent and on the
contrary (as Mr. Ranjit Kumar has pointed out) in the Advocate's notice issued
to Dr.
C.P. Sreekumar
appellant, on 19th November 1992, the fact that the respondent had agreed to
the operation, has been admitted.
14.
Before
we embark on an evaluation of the three issues it bears reiteration that the
respondent did not produce any evidence in court and did not even appear as a
witness in support of his own case. Realizing the consequences of this
omission, the respondent had requested that the matter be remitted to the State
Commission for recording additional evidence, which request has been declined
by us.
15.
The
first issue is with regard to the doctor's expertise in his field of
orthopaedics, as it is the respondent's plea that he had chosen
hemiarthroplasty as he was not qualified to go in for the internal fixation
procedure and that he lacked the elementary knowledge of hemiarthroplasty as
well. We have considered this argument and find that there is absolutely no
evidence to back up this wide claim. On the contrary, we have gone through the
evidence of the appellant who deposed that he was an M.B.B.S. from the Tanjore
Medical College and had thereafter done his Masters in General Surgical Science
from the University of Madras in the year 1983 and his Masters in Orthopaedic
Sciences from the University of London in the year 1985 and that on the day of
the operation he had about 15 20 years of experience in the field of
Orthopaedics. We have also gone through the very lengthy cross-examination of
the appellant spread (intermittently) over several days and find not the
slightest suggestion that the appellant was unable to perform an internal
fixation. The bald statement of the respondent (in the course of his arguments
and in his written submissions) with respect to the lack of expertise in
performing the internal fixation procedure on which the appellant had chosen to
go in for hemiarthroplasty, cannot thus, be accepted.
16.
Admittedly
the respondent had suffered a simple Garden Type I hairline fracture in the
course of the accident on 31st December 1991 and after he had been examined by
the appellant on that day, his leg had been immobilized with the help of
derotation boots. It is the case of the respondent that when he was taken for
an X-ray on 8th January 1992 it was found that the simple Garden I type
fracture had developed into a complicated Garden III type fracture, and that
this happened on account of rough handling by Elango and the other attendants
who were mere labourers whereas it is the case of the appellant that this had
occurred due to a muscular spasm.
21 We find from a
reading of the order of the Commission that it proceeded on the basis that
whatever had been alleged in the complaint by the respondent was in fact the
inviolable truth even though it remained unsupported by any evidence. As
already observed in Jacob Mathew's case the onus to prove medical negligence
lies largely on the claimant and that this onus can be discharged by leading
cogent evidence. A mere averment in a complaint which is denied by the other
side can, by no stretch of imagination, be said to be evidence by which the
case of the complainant can be said to be proved. It is the obligation of the
complainant to provide the facta probanda as well as the facta probantia.
17.
The
Commission has, further, relied on the cross- examination of the appellant with
regard to the speculation about the defective lift as being the reason for the
shift of the respondent on a stretcher to the X-ray room. This is on the face
of it misplaced, as no inference can flow that the displacement had occurred on
account of rough handling by the staff. The appellant, on the contrary, in the
course of his evidence, pointed out that as the respondent's smoking over a 22
period of 15 years had resulted in chronic bronchitis, that he was obese and
had taken hormonal treatment for sterility and in this context re-emphasized
that the displacement had occurred due to a strong muscular spasm. When cross-
examined on 7th April 1998 he pointed out that in order to immobilize the leg
he had used de-rotation boots which extend below the navel and to the injured
leg to half of the uninjured leg and that such a cast would normally immobilize
the hip by 75% but notwithstanding this fact a muscular spasm could still
happen. It will be seen from the cross-examination that there was no suggestion
whatsoever that a simple hairline fracture of the femur could not be
transformed to a Garden type III fracture due to a muscular spasm. We thus find
from the appellant's reply to the complaint and also in the course of his
evidence that the fracture had been displaced on account of muscular spasm and
that this point has gone unrebutted as no contrary evidence has been produced.
It cannot therefore be said with any certitude that the displacement had
occurred on account of the rough handling by Elango and the others on the 23
8th January 1992. In its order, while referring to the radical change in the
fracture, the Commission has observed:
"There is no way
to ascertain the reason for this development but one cannot disregard the
averment made by the complainant that it is due to rough handling of the staff
of the hospital."
We are of the opinion
that in the face of this observation, no case of negligence can be spelt out.
18.
The
question as to whether hemiarthroplasty or internal fixation was the proper
procedure in the background that the respondent was 42 years of age at the
relevant time, has been hotly debated. It is the case of the appellant that on
evaluation of the respondent's condition he had thought it fit to carry out a
hemiarthroplasty whereas it is the case of the respondent that as per the
various text books which have been placed on record, this procedure was
invariably carried out on a patient who was 60 years of age or above and
hemiarthroplasty was thus not the favoured option for him. Mr. Ranjit Kumar has
taken us through several passages from various text books, most of which have
in fact been produced by the respondent, and it does appear that ordinarily in
the case of a patient of less 24 than 60 years of age, hemiarthroplasty is not
the preferred option and internal fixation involving the use of a clamp with
screws was the more acceptable one. In Subcapital Fractures of the femur, A
Prospective Review by R.Barnes, J.T.Brown, Glasoow, Scotland, R.S.Garden,
Priston,and E.A.Nicoll, Mansfield, England. With a statistical analysis by
D.F.Goda, Edinburgh, Scotland, it has been pointed out that the choice between
the internal fixation and immediate prosthetic replacement is often difficult
to make and no full proof criteria exists for assessing which of the two
procedures is the proper one in the facts of the particular case. Likewise, in
the Article "The displaced femoral neck fracture internal fixation versus
Bipolar Endoprosthesis : Results of a Prospective Randomised Comparsion (Bray -
TJ ; Smith Hoefer.E, Hooper.A, Timmerman.L. University of California, Davis
Medical Center, Sacramento Clin Orthop.1988 May (230) 127-40 wherein the
dilemma as to the procedure to be adopted has again been highlighted, it does
appear that in the case of a young patient, internal fixation is the favoured
procedure. In 25 Practical Fracture Treatment (Third Edition) by Ronald Mcrae
it has been observed as under:
"Alternative
treatments of intracapsular fractures(1): Non- operative management: All
impacted fractures (Garden I and some Garden 2) may be treated conservatively,
and this is an important consideration, especially wherein an ageing population
these fractures are on the increase, and where surgical time is in heavy
demand. Overall a lower mortality rate has been claimed in those treated
conservatively as opposed to surgically. Method:(1)The leg is rested in a
gutter splint until pain settles (usually after about a week).(2)Partial weight
bearing with crutches is then commenced, and continued for 8 weeks, after which
full unsupported weight bearing may be allowed.(3)Check radiographs are taken 2
days after the start of mobilisation, and thereafter every 2 weeks until the
eight week.(4) If the fracture disimpacts and becomes unstable (a 14% incidence
only is claimed) then active treatment becomes necessary, when a hemi-or total
arthroplasty may be performed.
Disimpaction is seen
most often in those over 70 especially those in poor general health, or in the
younger patient with a low life expectancy. The problems of prolonged
recumbency in the elderly may nevertheless follow this line of treatment."
26 This basic
principle has been repeated again in Emergency Orthopaedics and Trauma by
Andrew Unwin and Kirsten Jones in which it has been observed as under:
"Subcapital
fractures of the neck of the femur:
These common
fractures have been classified according to the Garden classification.
Garden I Impacted
fractures with an incomplete facture line.
Trabeculae through
fracture angulated as the head is abducted.
Garden 2 Impacted
fracture with a complete fracture line.
The trabeculae appear
interrupted but not angulated.
Garden 3 Femoral head
is displaced.
The trabeculaeare
interrupted and angulated.
Garden 4 Femoral head
is more displaced (fallen off).
Trabeculae may appear
parallel as the head may not be abducted.
This classification
system corresponds with increasing insult 27 to the blood supply of the femoral
head. Grades 1and 2 are relatively undisplaced fractures with a lower risk of
avascular necrosis than the more displaced Grades 3and 4. The system also allows
a treatment strategy(see below).
Subcapital fractures
are prone, in addition to other complications associated with all femoral neck
fractures, to two particular problems:
(a) avascular
necrosis of the femoral head - this is unpredictable, but generally the
prognosis is worse with greater displacement and with proximal fractures; and
(b)non-union of the fracture.
The treatment of
these fractures is controversial. Many centres now adopt the following
protocol:
1. All young patients
undergo internal fixation as a surgical emergency in an attempt to reduce the
fracture, decompress the intracapsular haematoma and fix the fragments.
Subsequent avascular
necrosis or non- union is treated on its merits, often with a total hip
replacement.(Primary total hip replacement as an emergency treatment is
regarded by many to have an unacceptable complication rate,although this policy
is adopted by some).
2. In older
patients:- Garden 1 and 2 fractures are internally fixed.
Garden 3 and 4
fractures are assumed to have a high risk of complication with internal
fixation, and so as to avoid multiple operations, undergo a hemi-arthroplasty,
replacing the head of the femur whilst leaving the acetabulum intact
(Fig.20.9). A risk of hemiarthroplasty is that the metallic femoral head may
`bore' its way into the acetabulum, causing pain and erosion.
For this reason, with
their softer bone, hemiarthroplasty should be avoided in patients with
rheumatoid arthritis.
3. In the very old or
frail patient,all femoral neck fractures are recommended to undergo
hemiarthroplasty."
In Intracapsular
Fractures of the Neck of the Femur By C.E.Ackroyd.G.C.Bannister and
V.G.Langkamer, it has been observed as under:
Indications for
internal fixation If undisplaced fractures are managed without fixation, 12 per
cent displace and are therefore less likely to unite. The trabecular bone is
already impacted and fixation with two screws is sufficient to maintain
stability.
29 British and
Danish controlled trials suggest that in patients over 70 years of age with
displaced fractures, primary prosthetic replacement results in lower morbidity,
fewer reoperations and comparable mortality over 6 months when compared with
internal fixation.
However,femoral head
replacement results in progressive acetabular erosion and after 5 years 20 per
cent of survivors have undergone total hip replacement.
Internal fixation may
reasonably be offered to mentally alert, independent and fully mobile patients,
whose life expectancy is likely to exceed 5 years provided that the fracture
can be accurately reduced in patients under 60 years of age every effort must
be made to preserve the femoral head. Prosthetic replacement will inevitably
fail with the passage of time.
Fixation devices The
profusion of fixation devices is testimony to the poor union rate of
intracapsular fractures and the endeavours to improve this by more secure
fixation.The literature is confused by reports quoting wide differences in
results between individual authors and from different institutions but when
randomized prospective controlled trials have been carried out by some authors,
results are all very similar.
The evidence suggests
that displaced subcapital fractures unite better with adequate internal
fixation.
30 Two implants are
better than one, and a screw can be inserted with less trauma than a nail and
is less likely to disturb the reduction.
In Standard
Orthopaedic Operations, Third Ediction by J.Crawford Adams Comment Efficient
internal fixation of femoral neck fractures is not always simple and it demands
considerable precision. The slogan should be: "Get it right first
time".
All too often the
operator accepts an inferior reduction, an imperfect position of the nail or
screw, or incorrect length of the fixation devices. Defeat must not be accepted
perseverance is well rewarded.
Trouble is often
experienced with the radiographic control. Unless the setting up of the
apparatus is supervised by the surgeon himself films that are virtually useless
may be produced. In particular, they often fail to show the femoral head
adequately in the lateral projection. The reason for this is usually that the
cassette is not pushed firmly enough into the loin, or that the beam is wrongly
directed. These points must be checked every time a film is exposed. The same
remarks apply to the use of the image intensifier.
If the correct
rotational position of the limb is not insisted upon it often happens that the
lateral radiographs show the femur semi-obliquely rather 31 than in the true
lateral projection.
Acceptance of such an
incorrect position makes accurate insertion of the nail and screw unnecessary
difficult.
Choosing the correct
length of the nail and of the screw should not present any special problem
because the length of the guide wire within the bone can be determined
accurately by measuring the amount still protruding, and to this may be added
or from it subtracted an amount as measured on the check radiographs. One
necessary precaution needs to be mentioned, however, that is, to measure the
length of the nail directly with a ruler before it is inserted, and not to rely
simply on the figure engraved upon it: the length as engraved is not always the
effective length that will enter the bone, for it may include the head of the
nail.
A hazard that needs
further mention is that of inadvertently driving the guide wire forwards with
the nail. This can present a very serious difficulty if the wire is driven
across the hip joint into the iliacfossa, for the guide wire may be broken off
by repeated hammer blows upon the nail. In such a case the only way of
retrieving the broken-off part of the guide wire is by exposing the iliac fossa
and locating the tip of the wire from within the pelvis. This dilemma is,
however, easily avoided if the precaution is taken of examining the guide wire
repeatedly while the nail is being driven in. This entails removal of the
cannulated 32 punch and measurement of the protruding part of the guide wire
to see whether it is being driven on. At the same time is wise to grip the
guide wire in a hand chuck and to rotate it to and fro: if the wire is being
gripped dangerously by the point of the nail it will not rotate freely, and at
this danger signal the wire should be promptly withdrawn.
All these points of
detail are important: neglect of any one of them may easily lead to failure.
Alternative
Techniques It is not universally accepted that fixation by a nail and a screw
is the most effective method. The compression hip screw, the use of which is
described."
In Watson-Jones
Fractures and Joint Injuries, Edited by J.N.Wilson, Sixth Edition, Vol.I it has
been observed as under:
Treatment The choice
of treatment for femoral neck fractures depends upon three factors:
1.The age and fitness
of the patient 2.The type of fracture 3.The degree of displacement Undisplaced
fractures are treated by protected weight bearing until union occurs or by
internal fixation in situ to prevent displacement. If it is decided not to
operate, regular radiographs are 33 needed to be sure that the position does
not change.
Displaced fractures
can be treated by internal fixation or prosthetic replacement.
Internal Fixation.
The fracture can be held with several fine pins, a pair of crossed nails or a
dynamic compression screw and plate. This device compresses the fracture site
and is the preferred treatment in most centres. All of these are inserted under
image intensifier control. Internal fixation is particularly suitable for the
larger fragments caused by basal fractures. Accurate reduction and fixation is
more difficult in severely displaced fractures and those with small fragments.
Indications.
Internal fixation:
fit; young, little displacement Prosthesis: unfit, old, displaced fractures
Results Internal fixation: better long term result. More complications. May
need second operation. Slow rehabilitation.
Prosthesis: early
mobilization. Long- term complications are rarer but more serious. A good
guideline is to fix the fractures of fit patients under 65 and replace the
rest.
34 The fracture must
be protected from full weigh bearing after fixation, which is difficult in the
elderly patient.
If successful,
internal fixation of the fracture produces an almost perfect hip if the
fracture is complicated by aseptic necrosis or non-union, a second operation
will be required to replace the head with a prosthesis. The femoral head may
also collapse onto the pins, damaging the acetabulum.
Prosthetic
replacement. Immediate replacement of the head with a Thompson or Austin-Moore
prosthesis avoids the complications of non-union and aseptic necrosis and
allows immediate full weight bearing.
Early mobilization
has many advantages, but the prosthesis may loosen or the femoral head may
erode the floor of the acetabulum. If either complication occurs, a total hip
replacement will be needed. The wound may also become infected, making excision
arthroplasty necessary.
As always with
prosthetic replacement, the results are better than other techniques t when
they are successful but far worse when they are not."
19.
Mr.
Ranjit Kumar and the respondent have filed some additional texts alongwith
their written submissions but as they are largely repetitive they need not be
referred to. In view of the aforesaid decisions, we find that no firm conclusion
as to the preference of one or the other procedure can be drawn but for a
Garden type III fracture on a young person, internal fixation is ordinarily the
favoured but not the only option as some of the texts afore-referred also
proceed on a school of thought which prescribe that in order to avoid long
drawn out recovery and other complications, it is advisable to go in for a
hemiarthroplasty notwithstanding the age factor. It has also been observed that
condition of the patient and of the bone would be relevant determining factors
in the choice which the doctor wishes to make. The appellant, in his evidence,
explained as to why he had chosen hemiarthroplasty over internal fixation in
the following words:
"During the
surgery I was assisted by Dr. Naivasivayam who was a Surgeon for 20 years of
experience attached to Government General Hospital, Madras.
One Dr. Gopinath was
a stand-by during the Surgery. He was the Doctor who had treated him for
infertility. From the 1st X- 36 ray it was found that the fracture was garden
type I. From the second X-ray it was found that the fracture was garden type
III. During the operation I found the head of femur to be unhealthy. The size
of the prosthesis is a measure from the head of the femur removed from the
patient during the course of surgery by a special measuring device. I was
satisfied with my whole procedures."
20.
In
cross-examination, he further stated that due to deterioration of the fracture
site, he had decided to go in for surgery instead of internal fixation. It is
also relevant that though the respondent had sought the opinion of Dr. Ajit
Yadav of the Tamil Nadu Hospitals on 30th May 1992, he produced no evidence to
off-set the appellant's evidence as to why he had chosen hemiarthroplasty over
internal fixation. It is equally significant that the respondent had taken the
advice of several renowned doctors including Dr. Mohan Das and Dr. Nand Kumar,
but none of them in their treatment notes observed adversely about the choice
of treatment nor any negligence in the actual operation. In the light of the
fact that there is some divergence of opinion as to the proper procedure to be
adopted, it cannot be said with certainty that 37 the appellant, Dr. Sreekumar
was grossly remiss in going in for hemiarthroplasty. In Jacob Mathew case
(supra) it has observed as under:
"48(1)
Negligence is the breach of a duty caused by omission to do something which a
reasonable man guided by those considerations which ordinarily regulate the
conduct of human affairs would do, or doing something which a prudent and
reasonable man would not do. The definition of negligence as given in Law of
Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to
hereinabove, holds good. Negligence becomes actionable on account of injury
resulting from the act or omission amounting to negligence attributable to the
person sued. The essential components of negligence are three:
"duty",
"breach" and "resulting damage".
(2) Negligence in the
context of the medical profession necessarily calls for a treatment with a
difference. To infer rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of occupational
negligence is different from one of professional negligence. 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."
21.
It
would, thus, be seen that the appellant's decision in choosing hemiarthroplasty
with respect to a patient of 42 years of age was not so palpably erroneous or
unacceptable as to dub it as a case of professional negligence.
22.
We
thus, allow Civil Appeal No. 6168 of 2008 and dismiss the respondent's
complaint. Ipso facto Civil Appeal No.6167 of 2008 is dismissed. In the light
of the fact that the respondent had appeared in person and is physically
handicapped, we direct that a copy of this judgment be sent to him free of cost
to his address under Registered cover.
....................................J.
(DALVEER BHANDARI)
.....................................J.
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