" Masterly Inactivity of a Doctor i.e. wait, watch and then treat in certain medical conditions, is NOT a negligence." Adv. ROHiT ERANDE ©

Masterly Inactivity of a Doctor i.e. wait, watch and then treat in certain medical conditions,  is NOT a negligence. Merely a second intervention is required that by itself does not make 1st Surgeon as Negligent"  

Adv. ROHiT ERANDE ©  

Case Details :

AGARWAL ORTHOPEDIC HOSPITAL & ANR. , U.P. V/s. SANDEEP ARORA & ANR.

F.A. 1323/2018, decided on 31st August, 2020,

by : HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT & HON'BLE DR. S.M. KANTIKAR,MEMBER

The Judgement Link. 

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FFA%2F1323%2F2018&dtofhearing=2020-08-31

The Judgement begins with the Following lines . 

   “Watchful waiting” is one of the option, also called as related to Masterly Inactivity or Expectant Management is a `hands-off management` philosophy in which certain medical conditions are closely monitored, but treatment is withheld until symptoms either appear or some measurable parameter changes.

Facts of the case in Short :

1. These are two cross appeals filed the parties against each other, the Hospital filed the appeal against order of State Commission order which held the Doctor and the Hospital liable to pay Rs. 2 lakhs + and the Complainant filed the appeal for enhancement of the amount. 

2.   One Mr. Sandeep Arora, Patient - Complainant No. 1  suffered scooter accident on 04.08.2000 and suffered fracture to his left hand. Initially, he consulted Dr. T.N. Gupta at Deoria. X-ray showed fracture of Humerus (arm) and took treatment for 4 days. Thereafter on 09.08.2000 he approached Dr. R. A. Agarwal i.e. the Opposite Party No. 2 at Agarwal Orthopaedic Hospital , the Opposite Party No. 1 at Gorakhpur. 

3. Dr. Agarwal  examined the patient and advised for surgical correction of fracture and the patient got admitted in the  Hospital. As the Titanium Rod was to be obtained from Delhi, the operation was fixed and performed on 13.08.2000 wherein the Doctor fixed the Titanium Closed Interlocking Rod with 4 screws in the fractured Humerus bone. The Complainant alleged that the rod and the screws were oversized and were not fixed properly. It was further alleged that on 14.08.2000, the Doctor examined the X-ray of patient’s left arm which showed the interlocking rod and screws were oversized and a gap visible between the broken bones. 

4. The Complainants were apprehensive and they asked the Doctor to get another X-ray done on 16.08.2000 to check whether the gap had increased, but Doctor advised the patient to continue the medicines as the bone was uniting. The patient was discharged from the Opposite Party No. 1 Hospital on 18.08.2000, though he had pain in his left hand. 

5. Thereafter, on 16.01.2001, the patient got himself examined in the District Hospital, Deoria and the fresh X-ray showed the gap was more and the bones were not united and thereafter, patient went to Mariampur Hospital at Kanpur and got operated on 31.01.2001, wherein the Titanium close interlocking rod was removed and bone grafting with plating was done. The post-operative X-ray showed the bone was united.

Defence :

1. The Opponents refuted all the allegations and challenged the Judgement of State Commission which awarded Rs. 2 lakhs + compensation.

2. The operation of Titanium closed interlocking rod was done on 13.08.2000, as per standard procedure. The X-ray taken on 16.8.2000 showed proper position of rod and there was no gap between the fractured area. The Opposite Party No. 1 denied the penetration of screws and rod into the muscles, which was not possible for such a long period. It was further contended that the patient did not follow the instructions for physiotherapy. He was in good condition when the stitches were removed. 

3. It was also contended that  the patient, over phone, informed the Doctor that he fell down from his bed and suffering from pain in his left hand. The patient was called on 11.11.2000, the X-ray of his hand showed that the screws were loose with a minor gap. However, the rod was in correct place and the fractured bone showed proper alignment with new bone formation. Patient was advised to wait as the minor gap would be covered by the new formation of bone. , but thereafter patient never turned up, which was against the advise.

Held :

1. The National commission allowed the Appeal of the Doctors against awarding compensation and dismissed the appeal of Patient for the enhancement of compensation.

2. The Commission observed that the treating Doctor  is a qualified and experienced Orthopedician and he followed the accepted standard method to treat the fracture Humerus with use of C-Arm during the procedure. The Commission further held that the new bone (callus) formation at fractured site takes long period and thus the patient was advised to wait and do regular exercise and physiotherapy. 

3. It further observed that  it was the act i.e. “Watchful waiting” from the Doctor, which  is also called as related to Masterly Inactivity or Expectant Management is a `hands-off management` philosophy in which certain conditions are closely monitored, but treatment is withheld until symptoms either appear or some measurable parameter changes.

4. The Commission observed in clear words that, "thus, watchful expectancy or masterly inactivity is despite whatever appears to a patient, is NOT, and we reiterate is NOT neglect or negligence, as the layperson might be tempted to believe - it simply means acting with necessary patience, using good sense, experience coupled with Prudence, as the situation dictates in circumstances in which, there is no pressing action or no qualified need for urgent or emergent intervention and therefore, we are unable to understand that within short span of time i.e. 3 months the patient underwent the second surgery at Mariampur Hospital, Kanpur. It was hurried intervention which is not advisable."

5. The Most important observation of the Commission is that, 'Merely because a second intervention was executed and has led to bone union, it does not automatically imply that the first intervention would have necessarily failed wherein the Surgeon was keeping a vigilant eye on the progress of the healing and was ready to, if necessary, intervene.'

6.  Further, it observed that literature suggests that `an apparent gap` despite internal fixation is often seen on post-operative radiographs. These gaps are not physical gaps but merely zones of decalcified bone at the site of the opposing fracture surfaces. It is all too easy to point out these gaps to a layperson that in his vulnerable state, panics and starts doubting the original intervention performed.

A surgeon is not negligent when.... 

7. The original Surgeon who has shown patience, supported by literature and yet, is ready for `further intervention if need be` does not always qualify as negligent or neglectful by any stretch of imagination. Indeed, history is testimony that many surgical disasters could also have been avoided by preventing overenthusiastic and interventions whereas watchful expectancy would have sufficed.

8. What may appears as a heroic `early second intervention` which has palpably caused a positive impression on the patients mind cannot be used as a weapon to castigate the original surgeon or his methods who was following a well-accepted treatment plan including `watchful expectancy`. 

9. Lastly the Commission while holding the Doctors as not negligent while performing fracture operation with Titanium rod and screws, relied upon the celebrated judgement of Hon. Apex Court in the case of Achutrao Haribhau Khodwa and others V/s. State of Maharashtra & Ors., (1996) 2 SCC 634, wherein it was observed that, The doctor is not liable for negligence if he performs his duty with reasonableness and with due care. The mode of treatment and skill differ from doctor to doctor.  

This judgement has stressed on very important point. Wait, watch and see and then treat, this mantra may be useful in many medical conditions. But whats is seen many a times that the second surgeons /doctors instead of backing their  brother colleagues, tell patients as to how the first Doctor was wrong and the patients easily believe  also. 

Thanks and Regards

Adv. ROHiT ERANDE ©

Pune.