Max Balaji Hospital, orthopaedic surgeon slapped Rs 5 lakh compensation over failure to treat medial malleolus fracture

The history of the case dates back to 2010, when the complainant, aged 56, was admitted to Max Hospital with complaints of pain and swelling in the right ankle following a fall. The patient was treated under the direct supervision of Dr. Tomar, an orthopaedist.

An X-ray film of the Gangaram Hospital reflected three fractures- one below the knee, the second exactly on the ankle and the third one just below the ankle. Surgery was conducted on 03.06.2010 and internal fixation was done with two cannulated cancellous screws for the posterior malleolus. The complainant remained hospitalised till 07/06/2010 and an amount of Rs. 76,167 was spent on the hospitalisation. At the time of discharge, the complainant was assured of full recovery within four to six weeks. The plaster was removed from the leg of the complainant after a few days.

However, despite regular follow-up and physiotherapy sessions under the supervision of a qualified physiotherapist, the complainant was feeling excruciating pain in her ankle and was not able to stand properly, even while using a crutch. 

Consequently, in the last week of August and the second week of September, the complainant sought opinions from two orthopaedists, one at Delhi and the other at Orissa and showed the prescriptions and X-ray films to them. After examining the patient physically, both of these doctors opined that the complainant might require another surgery as the treating doctor had not fixed the screws for another fracture below the ankle and had left a fracture unattended.

The said two doctors further opined that the treating doctor did not follow the generally accepted medical procedure as followed in similar cases, and had it been carried out, the complainant would be able to walk properly till now. It was submitted that the complainant is now forced to take the services of an attendant and take physiotherapy. Therefore, the complainant prayed for compensation of Rs 7,25,000 besides the cost of litigation.

On the other hand, the hospital and the doctor denied the allegations of medical negligence and argued that the post operative radiograph done on 06.06.2010 showed good alignment, adequate fixation and no displaced bony fragments. The complainant was discharged after satisfactory treatment and under stable condition with advice not to bear weight, contribution of casting and follow-up in OPD. It was submitted that radiographs taken after the removal of the cast also reflected proper alignment of the ankle mortis and no fracture line or displaced fragments. Further, they claimed that the clinical records of physiotherapy also indicated improvement and reduction in pain and swelling.

While considering the matter, the District Consumer Court perused the records and observed that the complainant was diagnosed with Fracture Dislocation Right Ankle with posterior malleoli fracture and fracture fibula proximal third. Regarding the question of whether the treating doctor and hospital were negligent in the treatment, the Commission took note of glaring inconsistency in the two versions of the Discharge Summary of the treating hospital.

In the Typed version, under the head "Diagnosis", it was mentioned that the complainant was diagnosed to have fracture dislocation right ankle with posterior malleoli fracture and fracture fibula proximal third. However, in the hand-written version, under the head "Course in Hospital", a note has been made that the Patient was admitted after an injury to right ankle.

"On clinicoradiological evaluation was diagnosed to be fracture dislocation right ankle with fracture posterior malleolus and fracture medial malleolus. (The discrepancy is evident, glaring and writ large on the bare perusal of the said two versions of Discharge Summary in as much as the respondents have not mentioned the fracture of medial malleolus in the Typed version but the same has been included in the noting of the Hand-written Discharge Summary wherein they have erred to note the fracture of fibula proximal third which has been clearly mentioned in the Typed version of the Discharge Summary. It is pertinent to mention here that as a general practice prevalent in the medical field, the Typed version of the Discharge Summary is prepared from its Hand-written version and, thus, the contents of the two versions of the Discharge Summary should be identical with no variations at all," the District Commission had observed.

"On reading the two versions of the same document together there is no room for doubt that the patient was having three fractures (fracture dislocation right ankle with posterior malleoli fracture, fracture medial malleolus and fracture fibula proximal third) and not two as assailed by the respondents and all the three fractures were well within the knowledge of the respondents. Despite having full knowledge of the three fractures the respondents had attended only two fractures viz.. fracture of posterior malleolus and fracture of fibula proximal third...The fact that despite knowledge of the fracture the treating doctor had given a standard treatment to the medial malleolus fracture and not treated it specifically reflects sheer negligence on the part of the respondents who had in fact left the medial malleolus fracture literally unattended causing pain and suffering to the complainant," the Commission had also observed.

Accordingly, DCDRC had directed the treating hospital and doctor to pay Rs 5 lakh as compensation to the complainant.

Challenging the order, the hospital and doctor approached the State Consumer Court and argued that the District Commission failed to appreciate that typed and handwritten versions of the discharge summary can have multiple corrections and discrepancies, keeping in view the medical facts and circumstances.

It was further submitted that the District Commission failed to appreciate that the handwritten discharge summary does not mention fracture of proximal third fibula (fracture below the knee), because it was not prepared by the treating doctor but by an intern; whereas the said fact is included in the signed/ typed Discharge summary.

Further, they submitted that as per the Expert Opinion received from the GTB Hospital, no medical negligence can be carved out on their part. They claimed that all possible measures were taken and the hospital and the doctor acted according to the standard medical practice and therefore no medical negligence can be attributed to their conduct.

However, while considering the matter, the State Commission observed,

"It is the contention of the Appellant that discrepancies are bound to occur in the hand-written and typed discharge summary and the hand written discharge summary does not mention fracture of proximal third fibula (fracture below the knee), because it was not prepared by the treating doctor but by intern. However, it is pertinent to remark that controversy in the present case is not whether the Hand-written or typed Discharge Summary is final, rather the pivotal point is that the fracture of medial malleolus was left out by the treating doctor, thus implying an overt act of negligence."

"Furthermore, we are not impressed by the submission of the Appellant that the Hand-written Discharge Summary was prepared by an intern. The Appellant cannot simply shrug off its responsibility by stating that a documents as crucial as the Discharge Summary was prepared by the intern. Here, it is to be noted that even if it is assumed that the said summary was prepared by the intern and corrections were made in the typed Discharge Summary which the Appellant is vehemently projecting as final and error-free, it is abysmally surprising to note that the hand-written summary makes a clear mention of fracture of the medial malleolus while in the final summary, this necessary piece of information guiding the whole course of treatment was simply omitted. In our considered opinion, the fact remains that the treating doctor, ignored a particular fracture i.e. Medial Malleolus fracture is clearly evident from the record," it further noted.

Further, the Commission observed that even though the hospital and the doctor claimed that the fracture medial malleolus was not evident, at the same time, the Appellants/Opposite Parties in their written statement before the District Commission submitted that "the presence of an undisplaced medial malleolus fracture or deltoid ligament injury was simultaneously treated in below knee cast as the standard treatment".

"It is to be noted further that the Appellant No.2/Opposite Party No.2-doctor, in his written statement before the District Commission has contended that the medial malleolus fracture was not evident. However, it is again surprising to note that the document titled “Course in the Hospital” (annexed at pg-122 alongwith the Appeal) clearly mentions the presence of medial malleolus fracture," the Commission further observed.

The State Consumer Court also noted that even though the medical literature cited by the hospital and doctor suggested that "displaced fractures on med malleolus should be treated surgically because persistent displacement allows the talus to tilt into varus" and that it is particularly important in individuals with high functional demand", "it is pertinent to mention that the patient was treated with a below knee POP cast, which is evidently not the standard/recommended treatment for medial malleolus fracture."

While addressing the question of whether the District Commission erred in rejecting the Expert Opinion of doctors at GTB Hospital, the State Commission observed, "A bare perusal of the Expert Opinion rendered by the Medical Board constituted at GTB Hospital makes it abundantly clear that the panel of doctors have deliberately overlooked the opinions sought by the Respondent from two orthopedic surgeons namely, Dr. Shankar Acharya of Sir Ganga Ram Hospital (dated 31.08.2010) and that of Prof. U.N. Misra (dated 10.09.2010). A bare perusal of the opinion given by Dr. Acharya reflects that he has specifically made a note about fracture in the right ankle – medial malleolus. Furthermore, a perusal of the report of Prof. U.N. Misra also makes a categorical mention to the effect that the undisplaced fracture of medial malleolus stood ununited as on 10.09.2010, i.e. the date on which the Respondent had sought the aforesaid opinion. In our thoughtful opinion, no credence can be attributed to the Expert Opinion given by the panel of doctors at GTB hospital in so much so that the said Medical Board deliberately overlooked to take into consideration the opinions given by Dr.Acharya & Prof. U.N. Misra, before forming their own opinion and failed to investigate the case from a comprehensive perspective as to whether there was any fracture of medial malleoli which had been lying ununited."

"Even otherwise, it is to be noted that the observations by doctors of the Expert Medical Board to the effect that "Non-union of medial malleolus, post traumatic stiffness and RSD are known complication of this injury" is not germane to the case of the Respondent. The controversy in the present case relates to the conduct of the Appellant No.2-treating doctor who has nowhere mentioned that he has addressed the injury of medial malleolus. It is settled position of law that the opinion of experts is only advisory in nature and the Court is not bound by the same as has been held by the Hon'ble National Commission in the case of Dr. Neeraj Awasthi Vs. Jagdish Bharti reported as 2010 CTJ (CP) NCDRC, and the Court can reject the expert's opinion when such an opinion does not appeal to the conscience of the Court. Therefore, we opine that the District Commission rightly rejected the expert's opinion in view of the material placed on record," it further noted.

The Commission mentioned that it is a settled position of law that if medical practitioner falls short of following the standard medical protocol, which is expected of an ordinary prudent doctor, a clear case of medical negligence is made out.

"The medical practitioner though, is not required to possess the highest level of expertise, but is expected to adhere to the standard of extending reasonable care and following the standard medical procedure, which in the instant case, the Appellants have evidently failed to do," it observed.

Accordingly, not finding any ground to warrant interference with the order passed by the District Commission, the SCDRC dismissed the appeal made by the hospital and doctor.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/max-hospital--306354.pdf

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