REPORTABLE

                  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

J U D G M E N T

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

(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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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.  

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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

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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:

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“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

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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

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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    t  he  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.

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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

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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.

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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

21

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

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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

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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

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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.”

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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

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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).

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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.

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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.

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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

30

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

31

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

32

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.

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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.”

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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-

35

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

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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.”

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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. ( HARJIT SINGH BEDI )

New Delhi, Dated:  May 1, 2009

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