1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. Suit No.510 of 1985 Ms.Anita Nagindas Parekh & ors. .. .. Plaintiffs v/s. Dr.Anil C. Pinto .. .. .. Defendants Mr.K.K. Shah for Plaintiffs. Mr.R.A. Shaikh for Defendants ----- CORAM : SMT.ROSHAN DALVI, J. Dated : 10 th November, 2008 JUDGMENT : 1. The original Plaintiff No.1 and Plaintiff No.2 were the heirs of one Prakash Nagindas Parekh, who expired on 20 th February 1984 in KEM Hospital, Mumbai. Plaintiff No.1 expired pending the Suit. Plaintiffs 1(a) to 1(b) are the heirs and legal representatives of the original Plaintiff No.1 along with Plaintiff No.2. The Plaintiffs claim damages from the Defendant upon the tort of negligence. 2. The Defendant is a qualified practising Surgeon. The aforesaid Prakash Nagindas Parekh (the deceased) suffered from a condition called hyperhidrosis (excessive sweating). He was under the treatment of the Defendant who had performed a surgery medically called upper Dorsal or Cervical Sympathectomy which is a surgery to be performed on the hands (upper limbs) to alleviate the said medical 2 condition. Sympathectony is a surgical excision of a part of the nervous system which causes hyperhidrosis. It is the Plaintiffs' case that the Defendant was negligent during course of the surgery as well as the pre and post operative care. The Plaintiffs have claimed damages upon such negligence. 3. The Defendant has denied negligence. He refutes the claim for damages. 4. Based upon the respective cases of the parties, Justice A.S. Oka framed the following issues on 9.7.2007 which are answered as follows:- (i)Whether the Plaintiffs prove that the Defendant was negligent while performing a surgery upon Mr.Prakash Nagindas Parekh. - No. (ii)Whether the Plaintiffs prove that the Defendant was negligent and has not taken a proper pre and post operative care. - Yes – to the extent stated in the reasons. (iii)Whether the Defendant is liable to pay damages to the Plaintiffs. - Yes. 3 (iv)If answer to the earlier issues is in the affirmative, what is the amount of damages to which the Plaintiffs are entitled to? - As per final order. (v)What order and decree ? - As per final order. 5. In this Suit, the Plaintiffs have examined Dr.Bhagavant Rajaram Kalke as P.W.1 to prove negligence. He has been cross- examined by the Defendant. The Plaintiffs have also examined Plaintiff No.1(a) on behalf of the Plaintiffs to prove the damages suffered by them as P.W.2 . The Defendant has examined himself to prove the lack of negligence and to refute the claim of damages. He has been cross- examined. 6. The Plaintiffs have sought to rely upon the Defendant's statement made under Section 313 of the Criminal Procedure Code in the criminal trial that arose upon the same incident. The Plaintiffs have relied upon the case papers right from the notes of the Consulting Physician of the deceased who referred the deceased to the Defendant, including the case papers of the Defendant's Clinic, the notes made by the Defendant as well as the case papers of KEM Hospital where the deceased was shifted by the Defendant after the surgery was performed upon the deceased. The aforesaid documents have also been relied 4 upon in the criminal case. Certified copies of these documents have been obtained from the Additional Chief Metropolitan Magistrate, Mumbai and got produced in this Suit. Both the parties have relied upon and sought to interpret this documentary evidence. Of course, the parties have also got produced the complaint filed in the Metropolitan Magistrate's Court at Dadar and the judgment in the aforesaid case passed by the Metropolitan Magistrate's Court at Mazagaon, with which the issues in this Suit are not concerned. The Plaintiffs have further produced income tax returns of the deceased filed by the deceased prior to his death as well as the returns filed by the original Plaintiff No.1 and Plaintiff No.2 after the death of the deceased for the last financial year of his life. 7. The two main aspects of the case to be considered in this Suit based upon the aforesaid oral and documentary evidence are : (1) The factum of negligence, if any, before, during and after the surgery upon the deceased on the part of the Defendant and (2) if negligence is proved, the extent of damages to be granted to the Plaintiffs. 8. Issue Nos.(i) and (ii) Re : Negligence : The deceased was admittedly a patient of and accordingly treated by the Defendant. He has not lived to tell his tale of 5 what transpired between him and the Defendant. The Plaintiffs would have no personal knowledge of what transpired between the deceased and the Defendant with regard to the surgery and its aftermath; the Plaintiffs could have only make out their case from the case papers and upon considering the case of the Defendant in the earlier criminal proceedings. It has been the Plaintiffs' case that the surgery itself was avoidable. It is also their case that a gross error due to negligence of the Defendant came to be made during the surgery when, in common language, a wrong vein of the deceased was cut which proved fatal. It is further their case that even after the initial mistake by negligence, the Defendant was further negligent in delaying the post operative care which could have saved the deceased. The evidence of the Defendant, both examination- in-chief as well as cross- examination is relied upon by the Plaintiffs to show what transpired as per the say of the Defendant himself. In the scenario which the Plaintiffs have put the essential truth of the case can be best ascertained from the Defendant's own evidence. It would be just and equitable to both the parties to essentially consider the Defendant's own evidence and the admissions therein to recreate the ailment of the deceased, the treatment sought to be given, the care, if any, taken by the Defendant as his Surgeon, the surgery which was performed, the complications that arose out of the surgery, 6 the post operative care given to the deceased initially in the Defendant's Clinic and later upon his transfer by the Defendant in KEM Hospital resulting in his ultimate demise. 9. For this purpose, it would be apt to enumerate the admissions made by the Defendant as follows:- (a) The Defendant passed his M.S. In 1975 (Para- 1, examination- in-chief). He was attached to KEM Hospital between 1975 and 1980 (Para- 4 of examination- in-chief). He started his private practice in 1980- 81 (Ans.3). [The answers are given in the Defendant's cross- examination ]. The Defendant is a General Surgeon with specialty in vascular surgery (Ans.5 ). (b) The Defendant's Clinic had no ICU facility, blood matching facility or blood bank. He had 10 beds in the Clinic. (Ans.10 to 13). -(c) The deceased was referred to the Defendant by his Consulting Physician one Dr.Anand K. Joshi under the Note dated 8.2.1984. The note shows complaint of sweating of both palms and soles. It calls upon the Defendant to “do the needful” and also mentions “For Sympathectomy” (Exhibit P-3). 7 (d) The deceased met the Defendant on 8.2.1984. The deceased was called the following day (9.2.1984) at 5 p.m. for an investigative procedure medically called Cervical Sympathectomy Block to be given by Dr.Raghvan. [This is mentioned in the Note of the Defendant dated 8.2.1984 on his letterhead (Exhibit D-4). (e) This test showed that the surgery would be successful [Para- 3, examination- in-chief (Exh. P-3)]. (f) Certain blood tests were conducted/carried out. The reports were normal (Ans.51). (g) The urine test was done in the Defendant's Clinic. The report was normal (Ans.53). (h) The deceased's haemoglobin was checked. (i) The deceased was in normal health]. [Para 50, examination- in-chief]. (j) The deceased was administered certain drugs on 16.2.1984 and called at 7.30 A.M. on Friday, 8 17.2.1984 on an empty stomach for operation. [This is a part of the Note of the Defendant on his letterhead (Exhibit D-5)]. (k) Surgery was scheduled for 17.2.1984 at 7.30 a.m. (Ex.P-4). (l) The deceased was directed to keep his parents present at the time of the surgery (Para- 4, examination- in-chief). (m) On 17.2.1984, the parents of the deceased had not accompanied the deceased. The deceased was directed to call his parents. The surgery was postponed from 7.30 a.m. to 9 a.m. The deceased made a telephone call. The deceased stated to the Defendant that his parents were on the way (Para- 4, examination- in-chief). (n) The address of the deceased was written down by the Defendant in the case papers. The telephone number of neither the deceased nor his parents was taken down (Ans.68). 9 (o) The Defendant obtained the telephone number from the bag of the deceased after complications developed in order to call his parents (Ans.67). (p) The surgery started at 9 a.m. At first anesthesia was given. After 3 to 4 minutes the actual surgery started (Ans.36- 38). (q) The skin was cut. The muscles were separated. The subclavian artery was retracted downward and the sympathetic chain was cut. There was no bleeding. (Para- 4 of examination- in-chief). (The subclavian artery is a blood vessel which passes through the neck into the corresponding upper limb or upper extremity.) (r) Normally such operations would take 30/45 minutes. (Ans.59). (s) Within 1 hour of the surgery the subclavian artery went into severe spasm and no pulsation was felt in the left radial artery [Para- 4, examination- in-chief]. (A spasm is an involuntary muscular contraction). 10 -(t) Warm spung on the artery was given. Xylocain was administered (Para- 5, examination- in-chief). (u) A blood clot (Embolus) was suspected). Hence, Embolectomy (forgartisation) was done. (This is a procedure for removal of the blood clot causing an obstruction or blockage in the blood circulation in the blood vessel). This requires insertion of a Catheter with balloon. Clots were removed. The deceased started pulsation. The spasm reappeared after 40 minutes. Embolectomy was again done. The same result was seen. [Para- 5 of examination- in-chief]. (v) The Assistant Doctor of the Defendant one Dr.Antao was sent to KEM Hospital. Cardio Vascular Surgeon, one Dr.Khandeparkar was called to the Defendant's Clinic at Dadar [Para- 6 of examination- in-chief]. [Dr.Khandeparkar was not contacted on the telephone]. (w) KEM Hospital is 2/3 KM. away from the Defendant's Clinic. It would take 15 minutes to reach there. [Ans.120 & 121]. (x) Dr.Khandeparkar came at 1 p.m. [Part of the statement of the Defendant recorded in the criminal trial 11 under Section 313 of the Criminal Procedure Code]. (y) Dr.Khandeparkar was contacted in the afternoon and came in the afternoon. The Defendant did not remember the exact time. [Ans. 91 & 93]. (z) Dr.Khandeparkar also performed Embolectomy once (Ans. 104). (aa) Hence, Embolectomy was performed thrice, – twice by the Defendant and once by Dr.Khandeparkar. (bb) Embolectomy would take 30/45 minutes [Ans.107]. (cc) Embolization is the reverse action of Embolectomy. Embolization is done therapeutically. (Dr.Khandeparkar also performed Embolization. [Ans. 101, 102, 103 with 141]. (This consists in blocking the artery/blood vessel supplying the organ to stop blood flow.) (dd) Dr.Khadeparkar returned after 4 hours and advised the deceased to be shifted to KEM Hospital for by- pass grafting. [Ans 112 with 127 & 128]. 12 (ee) The entire surgery continued from 9 a.m. to 6 p.m. [Ans. 58]. (ff) The deceased was kept under anesthesia from 9 a.m. to 5 p.m. [Ans.65]. (gg) Usually the patient would regain consciousness after about an hour after the operation. When the surgery is prolonged, it would take longer time to regain consciousness. [Ans. 64]. (hh) The surgery ended at 6 p.m. [Ans. 108]. (ii) The deceased was returned to Room No.7 in the Defendant's Clinic [Para- 6, examination- in-chief]. (jj) The parents of the deceased had still not arrived. [Para- 56 of examination- in-chief]. (kk) Colour change was noticed in the limb of the deceased after the surgery. [Ans. 108]. That is called Ischemic Contracture IC. (ll) IC occurs when muscles become dark and de- oxygenated due to deficit blood supply to them. [Ans. 13 122]. (mm) Two of the many causes of IC are Embolus (clot) and injury [Ans. 123]. (nn) Chances of success in treating the patient would diminish after 6 hours of IC [Ans. 157]. (oo) Dr.Khandeparkar did end to end anastomosis [Ans. 94]. (pp) Anastomosis is suturing of one end of the artery to the other end of the divided artery surgically [Ans. 96]. After Dr.Khandeparkar advised by-pass grafting and before the deceased was shifted/transferred to KEM Hospital, the deceased was administered blood transfusion (Ans. 130). The sister of the deceased brought a bottle of blood from Dr.Gharpure's blood bank within 2 hours on being told to obtain it [Para- 9 of examination- in-chief]. (qq) The deceased was removed to KEM Hospital after 9.30 p.m. [Ans. 115 & 119]. (rr) [Time of admission of the deceased in KEM Hospital 14 papers is 11 p.m. (Part of Exh. P-5)]. (ss) The Defendant followed the deceased to KEM Hospital. [Ans. 62]. The sister of the deceased was with the deceased since prior to his transfer to KEM Hospital. (tt) Injury to subclavian artery is not usual in sympathectomy operation [Ans. 69]. (uu) The Defendant had performed over 50 sympathetomies; – 5 were in his Clinic [Ans. 7 & 9]. (vv) The Defendant had no records of any sympathetomies done in his Clinic because he did not keep records for over 3 years. [Ans. 47]. (ww) The Defendant did not know and did not take down the blood group of the deceased in the admission card or elsewhere. [Ans. 152]. (Detection of the blood group takes about 1 minute; it is always done when blood is sold for transfusion) 10. The evidence of the Defendant himself showing the aforesaid admissions narrows down the controversy between 15 the parties. 11. Though the Defendant has himself called for Dr.Khandeparkar and deposed about the procedure adopted by Dr.Khandeparkar and acted on his advice to show that he had done whatever was possible in the circumstances as not to be negligent in tort, the Defendant has not examined Dr.Khandeparkar. Even if the deposition of the Defendant with regard to the Embolectomy and Anastomosis performed by Dr.Khandeparkar and advice for by-pass grafting given by Dr.Khandeparkar is accepted, Dr.Khandeparkar would have been the only other qualified and independent witness to have deposed about the real medical condition of the deceased hitherto left unknown. 12. It is clear that the deceased developed embolus resulting in a spasm. Normally this would disappear upon administration of a warm spunge soaked in local anesthesia drug or vesodialacter drug. By administration of simple procedures the spasm did not disappear. Hence the Defendant suspected further complications and embarked upon further treatment. Whether or not this would constitute an accidental bonafide error of which the Defendant cannot be held liable in tort or whether it would constitute a tort of negligence would have to be adjudicated upon appreciation of the evidence of 16 Dr.Kalke, P.W.1 , who has been examined as an expert witness by the Plaintiffs. 13. His evidence shall be considered showing the references in the criminal case (cc) in which also he was examined and his Affidavit of examination- in-chief and the cross- examination filed in this Suit. 14. Dr.Bhagavant Rajaram Kalke is a Cardio Vascular and Thoracic Surgeon (CVTS) [P-80- CC]. He has experience in portal hypertension surgery [P-45- CC]. 15. He has deposed that there are two treatments for Hyperhidrosis (excessive sweating). (i) Medical : By administration of drugs. (ii) Surgical : It should be resorted to only if the medical treatment fails. He has deposed that the medical treatment has been in vogue for the last 15 years before his evidence. [His evidence has been given during July 1990/November 1991 in the criminal case against the Defendant herein]. Since then it has become the preferred mode of treatment customarily 17 tried out first [P-50- CC]. The surgical treatment consists of upper dorsal Sympathectomy or Cervical Sympathectomy. His evidence shows that the General Practitioner (GP) has to decide the aforesaid modes of treatment [P-48- CC]. However, he claims that when a patient is referred to the surgeon, he would have to examine, observe and decide the course of action himself [P-58- CC]. For this purpose he has relied upon a book on Medical Ethics “Doctor and Patient and the Law” by R. Crawford Morris & Alan R. Moritz, 1971 V Edition page 338. [P85- 86 CC]. 16. He has deposed about the test performed by the Defendant called Sympathetic Block test also called Para Vertibral Block. It is his evidence that that is the correct specific test to see whether the patient will benefit from the surgical treatment. His evidence in this Suit shows that it is customary to carry out the said test to see whether it would benefit the patient [Para 5, examination- in-chief]. Of course, the patient's general condition would have to be assessed and which was done. 17. He has also deposed about the consent of the patient required to be taken. The patient was an adult. His consent was taken as reflected in Exhibit P-2 in evidence, showing that the risks and consequences have been explained to the 18 patient. 18. Hence the evidence of P.W.1, as an expert witness given in the Criminal Court as well as in this Court shows that the said surgery is common and can be carried out for the condition which the patient suffered from. Upon such evidence, the opinion of the doctor with regard to the actual surgery must be first considered. At page 33 of the evidence initially led before the learned Metropolitan Magistrate, P.W.1 has opined as follows:- “ In my opinion, the operation that was carried out was adequate and properly carried out. I would like to mention that injury to artery can occur in any surgeon's hands. Because, we have to move the artery in upward direction or sometime in a downward direction.” That portion of the evidence is conspicuously absent as having been actually removed from the examination- in-chief of P.W.1 in this Suit. Though the entire initial evidence in the examination- in-chief is verbatim the same as in the criminal trial [as it is expected to be] this portion of the evidence which would have otherwise found its place between paragraphs 7 and 8 of the examination- in-chief is omitted. Nevertheless, an 19 admission once made by the witness in the criminal proceedings with regard to the same subject matter has to be considered as an admission of the initial successful surgery. 19. It may be mentioned that a direct question to that end was put by Court to P.W.1 as the expert witness during the criminal trial [P89- 90 CC]. It is worth reproducing the Court question as well as the witness's answer:- “COURT QUESTION : Q. Is there any rash and negligent act, in the operation which was performed by the accused doctor on the victim, caused death of the victim person, in the case ? Ans. In my opinion,there does not appear to be any rashness in performing the operation. However, there had been an inordinate delay in treating the complication that developed as a part of the surgery which resulted ultimately in the death of the patient.” 20. This material admission further narrows down the controversy between the parties. The Court is, therefore, not required to consider whether or not the surgery should have 20 been initiated in the first place and whether or not the surgery itself was improperly or negligently carried out. It is only with regard to post surgery complications that the Defendant's acts, omissions and conduct would be required to be adjudicated in this Suit. The deceased developed complications soon after the surgery. The surgery was expected to last about 30 to 40 minutes. The deceased was anesthesised. The anesthesia continued from 9 a.m. to 6 p.m. Yet the deceased was drowsy at the time of admission to KEM Hospital. This is reflected in the KEM Hospital's case papers, due to which his history could not be recorded properly. P.W.1, as the expert witness, has given the time schedule of the surgery and the expected required time during which the post surgery procedures should have been carried out to explain the delay in giving the treatment by transferring the deceased to the KEM Hospital which had the relevant infrastructure which the Defendant's Clinic lacked. The KEM Hospital's papers show the patient having been transferred and brought for admission in KEM Hospital at 11 p.m. That time of admission has, therefore, to be accepted though it has been the Defendant's case that he had been transferred at 9.30 p.m. In Para- 11 of the examination- in- chief of P.W.1 he has deposed that it is very important to note that the very few hours make all the difference between probable safety and destruction. 21 21. In the criminal trial, Dr.Kalke has testified about the delay essentially based upon the evidence of urine which was removed from the urinary bladder of the deceased at the end of the first procedure at KEM Hospital on the night between 17 th and 18 th February1984. The KEM Hospital papers show that 1000 CC of dark colour urine collected in the bladder was removed at cathetharisation. The KEM Hospital's doctors suspected myoglobinuria. The witness has deposed that the process of urine collection in the bladder would have started much earlier shown by the collection of 1000 CC of urine which would take “quite sometime to collect in the urinary bladder.” The witness has deposed, and the Defendant has not been able to show otherwise, that there was no removal of urine from the bladder in the Defendant's Clinic since the time of the operation. [Para- 11, examination- in-chief and P93 CC]. The witness has further deposed that the bladder would be distended by collection of 1000 CC of urine and hence such collection is never permitted. The witness has further deposed that normal urine output is 1500 CC per day. This evidence intrinsically shows that since the time of surgery no collection of urine of the patient has been shown. Even the normal urine output of the patient is not shown to be recorded. 22 22. The KEM hospital's papers show 500 CC of dirty brown coloured urine with granular sediment being recorded. Thereafter the doctor had advised urine output to be recorded every 2 hours [P99- CC]. The witness has deposed that the normal capacity of the urinary bladder is 9 to 24 ounces = 250 to 700 C.C. [P96- CC]. Hence, the witness has testified that the bladder was allowed to distend beyond its capacity which is itself responsible partly for the back pressure effect on the kidneys [P96- CC]. 23. The witness has testified that the suspicion of KEM Hospital's doctors that there would be problem of myoglobinuria. [P98- CC]. There was myohaemoglobine in the urine which is stated to be an incriminating factor. [P96- CC]. Myohaemoglobin is a haemoglobin present in the muscle, of a much lower molecular weight than the haemoglobin present in the blood. Due to muscle break- down such haemoglobin, gets detached from the muscle and enters the blood stream causing toxic effects. If then appears in the urine, resulting in “crush syndrome”, characterised by renal failure, which was stated to be the cause of the death of the deceased. Crush syndrome is explained as:- “A serious medical condition characterized by major shock and renal failure following a crushing injury to 23 skeletal muscle. As a result of massive crushing of muscles, shock associated with pronounced fall in blood volume occurs mainly due to leakage of blood into adjacent muscle. Myoglobin enters the circulation and acute renal tubular necrosis is likely to result.” 24. Whatever be the other procedures adopted by the Defendant upon the deceased for the complications that ensued [upon the deceased], the collection