IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RFA No.297 of 1997. Reserved on:11.05.2007. Date of decision: June 18, 2007. Jagdish Ram and Others. ….Appellants Versus State of H.P. and others ……Respondents. Coram The Hon’ble Mr.Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the Appellants: Mr.Rajnish Maniktala, Advocate. For Respondents 1-3: Mr.Virender Verma, Additional Advocate General. For Respondent No.4: Mr.K.D. Sood, Advocate. Dev Darshan Sud, J. This is plaintiffs’ appeal against the judgment and decree of the learned District Judge, Bilaspur, dismissing the suit of the plaintiffs for compensation. Facts of the case: Brief facts of the case are that Smt.Soma Devi, wife of the first plaintiff and mother of plaintiffs No.2 to 5, was motivated for a family planning operation by the defendants. The plaintiffs have pleaded that defendants No.4 and 5 were in-charge of the operation/surgery and actual surgery of 1 Whether reports of Local Papers may be allowed to see the judgment? Yes. 2 tubectomy was performed on Smt.Soma Devi by defendant No.4. It has been pleaded that no proper medical care was taken and the plaintiff’s wife, who was hale and hearty, died as a result of negligence of defendant No.4 who performed surgery on her. The plaintiffs have alleged that there were no proper facilities for surgery at Civil Dispensary, Kalol and nor any Anesthetist was attending the patients. In reply, the defendants denied any negligence and pleaded that the surgery was performed under local and I.V. Anaesthesia. It was submitted that defendant No.4 was an experienced surgeon who had performed hundreds of surgical procedure and Smt.Soma Devi died of anaphylactic shock resulting from the administration of anaesthesia. The defendants pleaded that the best possible medical care had been provided to the deceased and that there was no negligence in performing the tubectomy operation or after care, emergency medical treatment rendered to the deceased. The suit was filed in this Court, but with the increase in the pecuniary jurisdiction of this Court, it was transferred to the Court of the District Judge, Bilaspur. Four issues were framed by this Court. The first issue was, whether Smt.Soma Devi had died for reasons beyond the control of defendant No.1 and its functionaries? The second was, as to whether death of Smt.Soma Devi was direct consequence on the negligence 3 of defendants in general and defendants No.4 and 5 in particular? The third and fourth issues related to the quantum of damages. The learned trial Court, after consideration of the entire evidence, dismissed the suit of the plaintiff holding that the defendants had proved that there were proper arrangements in the operation theater and the doctor who performed the surgery was competent as he had conducted about 700 tubectomy operations and about 300 vasectomy operations. When the condition of Smt.Soma Devi deteriorated, he immediately administered artificial respiration and medicines, but of no avail. The learned trial Court, in order to reach its conclusion, considered the evidence of the parties, and judgments cited before it on the question of degree of care required etc. I have heard learned counsel for the parties and have gone through the record. On the first two issues, the learned trial Court has not at all considered the evidence on record. The findings are contrary to the documentary and oral evidence. The judgment itself is sketchy as it reproduces only some of the passages from the case law cited without considering the factual matrix of the case. There is no proper appraisal of the facts nor of the application of the principles of law. The documents on record show that Smt.Soma Devi was admitted on 12th December, 1984 at 11.00 A.M. for 4 surgery. The bed-head ticket Ex.DW-1/A, which records the medication administered to her and the tubectomy performed on her, is quite revealing. It has been produced and proved in evidence by DW-1, Dr.Paras Ram Katwal and contains the pre-operative/post operative notes of the treatment given to the deceased. The learned trial Court has not even cared to have a cursory glance through this document in order to arrive at the findings which have been rendered by it. There is nothing in this document which shows that any sensitivity test for the anaesthesia was performed on Smt.Soma Devi. It records; (i) that the blood pressure is normal, (ii) the pulse is also regular, and there is no abnormality in the chest and heart. Below this is a note in the following terms, “S.P. Sensitivity to be done”. Whether this test was actually carried out or not or any attempt made, is not recorded. The pre-medication to be given half an hour before sending the deceased to the operation theater is recorded as (i) injection atropine and (ii) injection morphine. The reverse of this document contains the notes of the time when the deceased was sinking. It shows that at around 3.30 P.M., the deceased was having a weak pulse respiration was about 10 per minute. At this stage, emergency medication was administered to the deceased. At around 3.45 P.M., the condition further deteriorated and mouth to mouth artificial respiration was given. In-spite of all 5 these efforts, the patient did not show any improvement and therefore, was referred to the District Hospital for further treatment. This was done at about 4.30 P.M. This is the entire record of the treatment given to the deceased. It is in the light of this documentary evidence that the statements of the defence witnesses are to be considered. DW-1, (defendant No.4) Dr.Paras Ram Katwal, stated that he has ample experience of performing family planning. He states that there is a well equipped operation theater at Kalol where the surgery was performed and that it has been functional for the last about 15 years. He admits that Ex.DW-1/A has been filled-in in his hand and has been signed by him and that the various steps taken by him before performing the tubectomy on the deceased have been entered by him in this document in his own hand. He states that after the surgery had been completed, the Pharmacist informed him that Smt.Soma Devi’s pulse was weak and slow. He examined her and prescribed the treatment. This has also been entered in the bed-head ticket. When the condition of Smt.Soma Devi did not show any improvement, she was referred to District Hospital at Bilaspur. According to him, when they were about 41/2 kilometers from Bilaspur, Smt.Soma Devi died due to cardio-respiratory failure as a reaction of Xylogaine 2% which had been administered as a local anaesthesia for conducting the tubectomy operation. He is 6 categoric in stating that he performed sensitivity test to determine whether it was safe to administer such anaesthesia although, he admits that there was no anesthetic expert at Kalol on that day. He states that usually Medical graduates are competent to administer local anaesthesia. The evidence of this witness cannot be believed as Ex.DW-1/A does not show any sensitivity test having been performed, the amount of anaesthesia administered as a test dose and the time for which any reaction was observed or the actual dosage of anaesthesia at the time of surgery. It is unfortunate that this witness should state on oath that which does not find support from a very vital piece of evidence Ex.DW-1/A which is the bed-head ticket recording the entire treatment and which admittedly is in his hand. DW-2, Dr.Vinod Bhargava, was the Principal- cum-Director, Indira Gandhi Medical College, Shimla. DW-3 was Dr.C.Madhav Ram, Professor in Forensic Medicine at the Indira Gandhi Medical College, Shimla, DW-4, Dr.I.D. Santoshi, was Associate Professor in Anaesthology in the Medical College and DW-5 and DW-6 were Dr.T.R. Bhardwaj, Director Health Services and Dr.S.K. Dass Gupta, respectively. They have been produced by the defendants to prove Ex.DW-2/D, which are the findings of the Expert Committee, composed on the orders of the Commissioner-cum-Secretary(Health & F.W.) to the Government of Himachal Pradesh, 7 constituted to elicit expert technical opinion regarding the death of late Smt.Soma Devi. The composition of the Committee makes an impressive reading. Ex.DW-2/D, which is the report rendered by this Committee under the signatures of Dr.Vinod Bhargava (DW-2), purports to conclude on the basis of expert opinion the reasons for the death of late Smt.Soma Devi. The report being short is reproduced hereunder:- “The clinical record of the case was apprised by Dr.R.K.Sharma Director Health Services and the first hand clinical information of the case was provided by Dr.P.R. Katwal, Medicala Officer of Jhandutta Primary Health Centre and Dr.P.R. Sankhyan and autopsy findings were provided by Dr.T.R. Bhardwaj, Chief Medical Officer, Bilaspur District. After a careful review and discussions of the circumstances of the case all the members have come to the following unanimous and considered conclusions:- It is evident from the clinical records as well as from autopsy report that the patient Soma Devi wife of Shri Jagdish Chand, resident of village Bakian post office Kalol, Tehsil Ghumarwin, District Bilaspur, Himachal Pradesh, died due to severe anaphylactic shock as a result of lignocain which was given to her for local anaesthesia. 8 The selection of the case was proper and pre-anaesthetic check-up was found to be proper. Also the pre- anaesthetic regime was found normal and usual clinical doses have been given to the deceased. This was followed by injection lignocain in correct therapeutic dosses (6 ml.of 2% lignocain with adrenaline). Intolerance (hypersensitivity reaction) to lignocain resulted in severe anaphylactic reaction soon. Proper resuscitation measures were promptly and adequately instituted but inspite of these measures, she died in around 4 hours of the reaction. It is well known that individual susceptibility is one of the major factor causing this reaction. Proper sensitivity test has been performed and revealed a negative response, however, this does not rule out drug sensitivity and this type of reactions have been reported in world literature”. In order to prove this record, the defence witnesses have stated that the selection of the anaesthesia as also the dose which was administered was proper. Prima-facie, the report may be seen beyond the pale of judicial scrutiny as it has been authored and submitted under the authority of experts. However, when the witnesses are tested in cross- examination, there is nothing on the record to show that this report Ex.DW-2/D is based on existing facts. 9 Dr.Vinod Kumar Bhargava (DW-2) is unable to explain as to from where he has concluded that the sensitivity test was carried out, or the doses and quantity of anaesthesia which was administered. To similar effect is the testimony of DW-4 Dr.I.D. Santoshi, who after having stated in examination-in-chief of the evidence that a particular dose of anaesthesia was administered, is unable to state as to from where he has derived this information or whether it is on the record. The testimony of these witnesses is to be rejected outright as being a mere fabrication of facts. When tested on the anvil of cross-examination, DW-2, Dr.Vinod Bhargava, after stating about his achievements in the field of medicine, states that during the deliberations of the Committee, the postmortem report (Mark `X’ as it had not been exhibited at that time), bed-head ticket (DW-1/A) and Chemical Examiner’s report (Ex.DW-2/A) were considered. He also states that these documents indicated that test dose of lignocaine has been given to the patient to check her hypersensitivity. In Cross-examination he states that these are documents examined by the Board including himself, but he could not state as to what dose was administered on the deceased in order to determine hypersensitivity. He also could not state as to at what time the dose was administered and for what period the sensitivity reaction was observed. He supports his opinion 10 regarding reaction of drugs from an article published in Journal of Forensic Medical and Toxicology, Vol.IV. None of the documents Ex.DW-1/A, the Chemical Examiner Report Ex.DW-2/A and the postmortem report Ex.DW-5/A show as to whether lignocaine was actually administered to check the sensitivity of the drug. In-fact, the pre-operative notes do not even show as to whether this drug was administered both to check-up the sensitivity or as a drug for performing the surgery. DW-2/A is the Chemical Examiner’s report which only states that no poison had been found in the sample sent for analysis. As per the postmortem report Ex.DW-5/A, the opinion is “patient died of cardio-respiratory failure due to shock”. The column requiring regarding the probable time that elapsed between the injury and death contains over-writing. The material from where this witness concluded that the sensitivity test was performed is not on record and there is no material to support it. Only these three documents were produced before the Committee. His statement is to be rejected outright as being fabricated. DW-3, Dr.C.Madhav Ram is more forthright in his testimony and admits in cross-examination that the record does not disclose the time and the quantity of administration of the anaesthetic dose. He admits that it is not reflected from the record nor it is 11 indicated therein to show for how long the patient has been observed etc. DW-4, who at the relevant time was the Associate Professor in Anaesthology, has not deposed on facts. His statement that according to the record, 6 ml. of 2% Xylocaine was administered has been given in the ultimate report submitted by DW-2, cannot be believed. He has no knowledge regarding the test which was performed nor any record supporting his testimony. How and under what circumstances, he has submitted on oath that the necessary doses were administered and tests were carried out and that the anaesthesia was administered, is not clear. Rather it can be said that facts have been fabricated. To similar effect are the testimonies of DW-5 and DW-6. The lesser said about the report of these experts the better. It is nothing but fabrication and concoction of facts and an attempt to suppress the truth. None of the documents referred to namely; the bed-head ticket (DW-2/A), the postmortem report (Ex.DW-5/A) and Chemical Examiner’s report (Ex.DW-2/A) do not show administration of the anaesthesia in any dose whatsoever. There is no indication as to whether any sensitivity test has been performed and the quantity of anaesthesia which was administered either as an anaesthetic dose to test sensitivity or as a local anaesthesia for the performance of surgery. In these 12 state of affairs, the report Ex.DW-2/D deserves outright rejection. The lesser said about these witnesses the better as they want to overawe the ultimate decision of this Court merely by their qualifications and the posts which they hold in the Medical College. Even the learned Trial Court, has not cared to look at the documentary and oral evidence to come to a just and proper conclusion. The findings arrived at to say least are perverse and cannot be sustained on any count. Of the other two documents; namely; the Chemical Examiner’s Report Ex.DW-2/A and the Postmortem report Ex.DW-5/A, there is nothing to indicate that any test for checking the sensitivity of anaesthesia was performed and that a particular quantity was administered. Of the two documents placed on record dealing with the question of anaphylactic shock; namely; DW-2/C and Ex.DW-2/B are extract photocopies from some journals, they deal with the administration of penicillin and not anaesthesia. Even a layman knows that penicillin is an antibiotic and not anaesthesia as used in surgery. These documents cannot be accepted for the reasons that part of photocopy has been placed on record and secondly they do not deal with the effects of administration of anaesthesia used in the surgery performed on the deceased or any other kind of anaesthetic. In the circumstances, I hold that the defendants have been 13 negligent in performing the surgery on the deceased and have not taken care and caution which is expected of them. So much so, even the rudiments of performing surgery has been thrown to the winds. The pre- operative notes does not support the testimony of these witnesses. The law applicable: In the entirety of the evidence which has been led, it is necessary and essential to consider as to whether medical negligence in tort has been established by the plaintiffs. I have noticed here that the defendants were in possession of the best evidence dealing with the matter and onus would loose significance. The Hon’ble Supreme Court of India in Gopal Krishnaji Ketkar vs. Mohamed Haji Latif and others, AIR 1968 SC 1413, approving the decision of the Privy Council in Murugesam Pillai vs. Gnana Sambandha Pandara Sannadhi, 44 Ind Alpp 98 at p.103 = (AIR 1917 PC 6 at p.8), has held that irrespective of the onus and burden, the parties in possession of the best evidence should produce it. In the present case, the defendants, admittedly being in possession of this evidence, have led such evidence which cannot be discarded. Admittedly, the defendants are the guardians of the record prepared by them and preserved and kept in safe custody with themselves. What is the plaintiff is required to do to such a situation? The 14 obvious answer would be to prove from this very record that a particular line of treatment which was required in prudent medical procedure/management has not been followed. It is also undisputed that whatever treatment/tests were carried out on the deceased, have been recorded in Ex.DW-1/A. The postmortem report and the Chemical Examiner Report Ex.DW-DW-5/A and DW-2/A cannot record this as the Chemical Examiner report deals only with the presence of poison in the human body and the postmortem report cannot be treated as recording the treatment given to the deceased except for opining with reference to the cause of death, since this report is prepared after the death of the patient. The first factor to be considered as to whether Ex.DW-1/A, which is the bed head ticket, reflects the entirety of the treatment given to the deceased or not. If not, how and under what circumstances were the sensitivity test carried out, who conducted the test, what was the quantity of anaesthesia administered on the deceased, what was the period between the test dose and the time of surgery, are important vital links which have not been recorded in the Ex.DW-1/A and the bald statement of DW-1 cannot be accepted that such tests were infact carried out. If they were, why were they not recorded in the bed head ticket? There is no answer. As held by me DW- 2/D, the report of the expert committee, is not worth the paper on which it is written. It bases its 15 factual matrix on three documents DW-1/A, bed head ticket, DW-2/A, report of the Chemical Examiner and DW-5/A, the postmortem report. The conclusion in the report is based on anything but the existence of facts. A perusal of all these three documents shows that none of them records; (a) as to whether any sensitivity test was conducted; (b) the dose for testing sensitivity which was administered; (c) the dose of actual anaesthesia which was administered; (d) the observation period between the test dose and the time which elapsed for observing the reaction. Where and under what circumstances the Committee records that such test was conducted is not clear and infact, when confronted with these facts the defendants’ witnesses admitted that none of the documents recorded these events/facts. In these circumstances, Ex.DW-2/D is to be rejected outright, as a document which is prepared on hypothesis without reference to any facts whatsoever. The Hon’ble Supreme Court, in Jacob Mathew vs. State of Punjab and Another, (2005)6 SCC 1, has laid down in extenso the law dealing with the criminal negligence and actionable medical negligence in tort for the practitioner in the present petition, it is only in civil law the negligence of medical tort have to be considered. The Hon’ble Court holds as under:- “Negligence by professionals” 16 “18. In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be 17 exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D. Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03)”. Their Lordships further laid down the principles to be followed in judging medical negligence:- “47. Before we embark upon summing up our conclusions on the several issues 18 of law which we have dealt with hereinabove, we are inclined to quote some of the conclusions arrived at by the learned authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at the end of the book in the chapter titled “Conclusion”) highlighting the link between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. Hence we quote :- (i) The social efficacy of blame and related sanctions in particular cases of deliberate wrongdoings may be a matter of dispute, but their necessity - in principle - from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. A society in which blame is overemphasized may become paralysed. This is not only because such a society will inevitably be backward-looking, but also because fear of blame inhibits the uncluttered exercise of judgment in relations between persons. If we are constantly concerned about whether our actions will be the subject of complaint, and that such complaint is likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality 19 between persons is inevitable. (ibid, pp. 242-243) (ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of