IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 4TH FEBRUARY 2011 / 15TH MAGHA 1932 SA.No. 832 of 2000(G) ---------------------------------- AS.NO.49/98 OF I ADDL.SUB COURT, ERNAKULAM O.S.NO.711/96 OF IIND ADDL.MUNSIFF COURT, ERNAKULAM. ...... APPELLANT(S): APPELLANT/1ST DEFENDANT: ---------------------------------------------------------------------- DR. AJAYAN, ASST.SURGEON, GOVT. HOSPITAL, PEROORKADA, TRIVANDRUM. BY ADV. SRI.GEORGE THOMAS (MEVADA) RESPONDENT(S): 1ST & 2ND RESPONDENTS/PLAINTIFF/2ND DEFENDANT: --------------------------------------------------------------------------------------------------------------- 1. MRS. MONI, W/O.DIVAKARAN, CHITTETH HOUSE, PONNURUNNI, VYTTILA PO, KOCHI - 682 019. 2. THE STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVRNMENT OF KERALA, TRIVANDRUM. R1 BY ADV. SRI. K.R. MOHANAN R2 BY GOVERNMENT PLEADER SRI. JAYAKRISHNAN P.R. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 20/01/2011, THE COURT ON 04/02/2011 DELIVERED THE FOLLOWING: Kss ORDER ON I.A.NO.399/2003 IN S.A.NO.832/2000 DISMISSED 4/02/2011 SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.S.TO JUDGE Kss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 832 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4th day of February, 2011. JUD GMENT The courts below found that the first defendant in O.S. 711 of 1996 before the Munsiff's court, Ernakulam to be negligent in treating the plaintiff in the suit, whereby she had to incur heavy damages for further treatment at a different hospital. The aggrieved first defendant has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court. 2. It is not in dispute that the plaintiff was admitted in General Hospital, Ernakulam in the early hours of 26.6.1995. On the said day, at about 8.30 a.m. the first defendant is said to have examined her and according to the plaintiff she and her husband were told that a surgery is necessary to cure her illness. The plaintiff speaks about some payments made to the doctor. Several tests were done on 1.7.1995, 4.7.1995 and 8.7.1995. All along, according to the S.A.832/2000. 2 plaintiff, the first defendant reiterated that a surgery was the only option. According to the plaintiff, it so happened that the Minister for Health happened to visit the hospital and the husband of the plaintiff complained about the hospital building. It is also stated that somebody had complained to the Minister about bribes being insisted by the first defendant and that annoyed and irritated him. He thereafter became indifferent and careless in treating the plaintiff and discharged her on 11.7.1995 when she had not recovered from her illness. Thereafter she had to go to Ernakulam Medical Centre and to undergo a surgery. She had incurred heavy expenses and had undergone lot of sufferings. Pointing out that the need for operation arose due to the negligence on the part of the first defendant doctor, the suit was laid for damages. 3. The first defendant resisted the suit. He denied the allegations in the plaint and pointed out that he had done what a doctor would do in the circumstances under which the plaintiff was placed and he had never told either S.A.832/2000. 3 the plaintiff or the husband of the plaintiff that operation was the only remedy. He asserted that he had followed conservative method of treatment and since the patient had responded to the treatment, he felt that surgery was unnecessary. He also pointed out that at the time of discharge the plaintiff was given specific instruction that if there was any discomfort or illness, she should at once come and meet him. But after getting discharged, the plaintiff never turned up and he had no reason to think that the plaintiff was not cured. Denying that he was in any way negligent in treating the plaintiff, he prayed for a dismissal of the suit. 4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 8 and marked Exts.A1 to A19 from the side of the plaintiff. The first defendant examined himself as D.W.1. Exts. X1 and X2 series were marked as third party exhibits. The trial court on an examination of the medical records and on the basis of the evidence of the first S.A.832/2000. 4 defendant as D.W.1 came to the conclusion that there was gross negligence on the part of the first defendant and decreed the suit. 5. The first defendant carried the matter in appeal as A.S. 49 of 1998 before the Sub Court, Ernakulam. The lower appellate court after an evaluation of the evidence concurred with the trial court and dismissed the appeal. 6. Notice is seen to have been issued on the following questions of law: “1) Were not the courts below wrong in awarding damages to the plaintiff in the absence of any proof regarding negligent conduct from the part of the 1st defendant resulting in any injury to the plaintiff? 2) Were not the courts below totally in error in completely ignoring the evidence of P.W.7 and Ext.X2 that the plaintiff had a long previous history of stomach complaints and she had undergone several months of continuous treatment at Ernakulam Medical Centre for discharge of blood through mouth and anus etc even after the surgery in July 1996 and the S.A.832/2000. 5 claimed cure and yet finding the 1st defendant is guilty of negligence in not performing a surgery on the plaintiff? 3. Were not the courts below totally in error in allowing Rs.6,000/- also as compensation to the plaintiff which amount was admittedly expended for the treatments at Ernakulam Medical Centre unconnected with the surgery for intussusception? 4. The Hon'ble Supreme Court of India in AIR 1969 Sc 132 held that a Doctor is entitled to decide the course of treatment in an emergency. Were not the court below wrong in refusing to follow this principle of law laid down by the apex court and finding the first defendant guilty of negligence in not operating on the plaintiff? 5. In as much as there is no proof of any injury being suffered by the plaintiff due to the alleged negligence of the 1st defendant are not the judgments against the dictum laid down in AIR 1936 PC 154? 6. Has not the courts below completely misread the pleadings and evidence in the case and came to absurd conclusions? 7. Is the judgment and decree passed nearly an year after the final hearing valid in law? Is not S.A.832/2000. 6 such judgment invalid and inoperative in view of the mandate under Order 20 of CPC?” 7. In fact the only question that arises for consideration is whether there is sufficient proof to show that the first defendant was negligent in treating the plaintiff. 8. Learned counsel appearing for the appellant pointed out that both the courts below had not properly addressed themselves to the legal principles involved in the case and have mechanically acted on the basis of some records which too had not been properly considered. Learned counsel pointed out that allegation regarding the taking of bribe etc. remains unproved and there is nothing to indicate that the first defendant was negligent in treating the plaintiff. In fact the evidence of the doctors examined by the plaintiff herself would show that the first defendant had resorted to the normal course of treatment which a doctor would adopt in a circumstance under which the plaintiff was placed and there is nothing to show that he S.A.832/2000. 7 had done any negligent act, which aggravated the illness of the plaintiff. Learned counsel very fairly conceded that there may be some inconsistencies in the evidence of D.W.1 and the records maintained in the hospital. But that is insufficient to show that the first defendant was negligent. The test to be applied is whether the first defendant had exercised the skill and expertise required of him and not whether there were slight discrepancies in the evidence. The proper approach is to ascertain whether a person with skill and expertise of the first defendant would have normally resort to the mode of treatment adopted by him in the case of the plaintiff. If the course of treatment chosen by the first defendant is an accepted mode of treatment, then the mere fact that a better method could have been chosen is not a ground to hold that the first defendant was negligent. An appreciation of the evidence in the case, according to learned counsel, would clearly show that the claim of the plaintiff that the first defendant had told her and her husband that surgery was the only option cannot be S.A.832/2000. 8 true. Even going by the evidence adduced by the plaintiff, it is clear that surgery is the last option. It was also pointed out that except for the ipsi dixit of the plaintiff, there is nothing to show that she was not relieved of her illness at the time of discharge from the General Hospital on 11.7.1995. Of course, she was asked to continue taking medicines for a while. According to learned counsel, there is absolute want of evidence to show that the first defendant was in any way negligent in giving treatment to the plaintiff. 9. In reply, learned counsel appearing for the respondents pointed out that both the courts below meticulously analysed the evidence on record and have come to the conclusion that the first defendant was negligent. There is considerable inconsistency between the evidence of D.W.1 and the official records maintained in the hospital and that is sufficient to show that there was absolute want of care and caution on the part of the first defendant in treating the plaintiff. Learned counsel went on to contend that the nature of illness of the plaintiff was such S.A.832/2000. 9 that immediate surgery had to be done and the first defendant, who is a person with expertise in that field of medicine, deliberately abstained from conducting surgery due to extraneous reasons. It is also contended that at the time of discharge, the plaintiff was still suffering from her illness and she had soon thereafter to go to another hospital where she underwent surgery. First defendant was well aware of the fact that surgery was the only remedy for the illness of the plaintiff, but he abstained from performing a surgery due to extraneous considerations. It is also pointed out that both the courts below were concurrently found that the first defendant has been negligent. Being a question of fact, no interference is called for in Second Appeal. 10. Merely because this court is sitting in Second Appeal, it does not mean that this court is precluded from considering the evidence in the case to see that the finding of the courts below suffers from gross illegality and injustice. Learned counsel for the appellant took this court through S.A.832/2000. 10 the entire evidence adduced in the case and contended that the finding of the courts below that the first defendant was negligent cannot be sustained. 11. At the outset itself, it must be said that there is considerable force in the above submission. That the plaintiff was admitted in the General Hospital on 26.6.1995 is a matter not in dispute. It is also not in dispute that the first defendant had attended to her on the same day. The evidence discloses that the plaintiff had intussusception, which means 'the enfolding of one segment of the intestine within another'. Learned counsel appearing for the respondent would contend that in such cases the only remedy is to subject the patient to surgery and the course adopted by the first defendant cannot be appreciated. The above contention does not appear to be correct. 12. One may in this regard refer to the evidence of the doctors examined by the plaintiff herself. 13. P.W.4 was a doctor in the Medical Centre Hospital at the relevant time. He deposed that on S.A.832/2000. 11 18.7.1995 the plaintiff was admitted in the hospital. He said that on examining the X-Ray taken, he did not find any problem with the large intestine. He then speaks about the various modes of investigation adopted in such cases. He finally says that he only examined the patient to ensure the physical fitness of the patient to undergo surgery. 14. P.W.6 was a Gastro intestinal surgeon attached to Medical Centre Hospital. He speaks about the operation conducted on the patient on 19.7.1995. He would say that she was suffering from Jejunial intussusception. It is significant to notice that in chief examination itself this witness had stated that it was only on opening of the abdomen it was diagnosed as Jejunial intussusception. It is also equally important to notice that even if the patient suffers from acute intussusception, it is not necessary that surgery should be immediately conducted. The doctor would specifically depose that surgery is not the only mode of treatment in such cases. The patient can be asked not to take food including water and put the patient on I.V. It is S.A.832/2000. 12 possible that there may be spontaneous reduction. He speaks about other modes of treatment also. In cross examination this witness has stated that Jejunial intussusception is a very rare phenomenon. He would also depose that on conservative treatment if the obstruction in the intestine gets removed, then surgery may not be necessary at all. Even if the patient responds to the conservative method of treatment, the patient will not be discharged immediately and kept under observation for a while. 15. P.W.7 is yet another doctor attached to the Medical Centre Hospital. He is a surgeon. He would depose that at the time of admission of the patient they suspected intestinal intussusception. He also deposed that the patient was having similar symptoms for the last 3 or 4 years. After going through the records of the General Hospital, where the patient had undergone treatment, they were not able to come to a definite conclusion regarding her ailment. He however deposed that in the General Hospital all required S.A.832/2000. 13 tests were done. He would say that immediately the patient was put on conservative treatment. But they found no improvement on the next day and therefore they decided to conduct a laproscopy. When they did that, they detected a fairly large lump in the intestine. When they found it, they could not reduce it though laproscopy, they decided to open the abdomen. Only when they opened the abdomen and investigated they found that the patient was suffering intussusception. After operation, the patient recovered without much complication. Through this witness, the records of the Medical Centre Hospital were marked. 16. What is significant about the evidence of this witness is that in chief examination itself he says that as soon as intestinal intussusception is detected, it is not necessary to go in for a surgery. The usual practice followed is to adopt conservative method of treatment and if the condition of the patient does not improve, then go in for operation. In several cases on conservative treatment the patient's condition improve, otherwise the patient would be S.A.832/2000. 14 subjected to surgery. Even if the patient shows improvement, P.W.7 would say that the patient is kept under observation for a few days. 17. P.W.8 is an independent witness, who speaks about having gone along with P.W.2 to the doctor to give money. His evidence is not of much relevance. 18. D.W.1 is the first defendant, who had attended to the patient when she had gone to the General Hospital. At the relevant time he was functioning as the Surgeon in the General Hospital. He speaks about the treatment given to the patient by him and says that since the patient showed considerable improvement, then put on conservative method of treatment. He discharged the patient on 11.7.1995. He would also depose that at the time of discharge, the patient was cautioned that in case of any illness the patient should at once come and meet him. He would say that after discharge, the patient had never returned to him. The witness would maintain that if on adopting conservative method of treatment, the condition of S.A.832/2000. 15 the patient does not improve, then alone surgery is resorted to. In the case on hand, he would say that the plaintiff responded to the conservative method of treatment and therefore he did not feel it necessary to subject the patient to a surgery. 19. Ext.X1 is the file maintained in the General Hospital and Ext.X2 is the file maintained in the Medical Centre Hospital. 20. Before going into the evidence relating to the negligence on the part of the doctor, it will be useful to refer to the law on the point. The law of negligence regarding professional has undergone considerable change in recent times. The law of which was initially reluctant to attribute negligence to professional men, has now developed will laid principles to judge the standard of care and caution to be exercised by a professional. As far as medical profession is concerned, the law laid down in Bolam v. Froern Hospital Management Committee ((1957) 2 S.A.832/2000. 16 All ER 118) is considered to be the locus classica in the field. In the said decision it was held as follows: “The test is the standard of the ordinary skilled man exercising and professing 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. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent.” The above principle continues to be the law even now. 21. A doctor's liability to patient arises both under tort and in contract. The question often arises as to what is the degree of care and caution that is expected of a doctor. Lord Denning in The Discipline of Law at page 243 states as follows: S.A.832/2000. 17 “You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure -- for negligence in a medical man is deserving of censure.” It is further stated: “But so far as the law is concerned, it does not condemn the doctor when he only does that which may a wise and good doctor so placed would do. It only condemns him when he falls short of the accepted standards of a great profession; in short, when he is deserving of censure.” 22. Salmond and Heuston on the Law of Torts Eighteenth Edition at page 215 observes thus: “It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. So a barrister is S.A.832/2000. 18 not expected to be right: it is enough that he exercises reasonable care. So a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of the kind occurs, or because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment. There is no rule that a doctor must tell a patient what is the matter with him.” 23. In the decision reported in Antonio Dias v. Frederick Augustus (AIR 1936 PC 154) it was held as follows: “Where a suit is filed for damages against a doctor, the onus of proof is upon the plaintiff, and if he is to succeed he must demonstrate, beyond reasonable doubt, that the defendant was negligent, and that his negligence caused the injury of which the plaintiff complains.” 24. In the decision reported in Poonam Verma v. Ashwin Patel (AIR 1996 SC 2111) it was held as follows: S.A.832/2000. 19 “The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do.” 25. According to Halsbury's Laws of England, 4th Edn., Vol.26 pp.17-18, the definition of negligence is as under: “22. Negligence.- Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.” S.A.832/2000. 20 26. In the decision reported in Jacob Mathew v. State of Punjab (2005(3) K.L.T. 965(SC), which has considered the matter in detail following the principle laid down in Bolam's case held as follows: “We sum up our conclusions as under:- (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 medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the S.A.832/2000. 21 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. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while 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. Similarly, when the charge of negligence arises out of failure S.A.832/2000. 22 to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the