IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS THURSDAY, THE 28TH JANUARY 2010 / 8TH MAGHA 1931 AS.No. 228 of 2000(A) --------------------------------------- OS.35/1994 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): 1ST DEFENDANT: ----------------------------------------------- STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY ADDL.ADVOCATE GENERAL SRI. RENJITH THAMPAN GOVERNMENT PLEADER SRI.K.B. RAMANAND. RESPONDENT(S): PLAINTIFF & 2ND DEFENDANT: ----------------------------------------------------------------------- 1. KRISHNANKUTTY ALIAS ANIYAN NAIR, S/O. KRISHNAN NAIR, ARANGATH HOUSE, CHITYSSERY P.O., PUDUKKAD, THRISSUR. 2. DR. JAYAPRAKASH, ORTHO UNIT - 2, MEDICAL COLLEGE HOSPITAL, THRISSUR. ADV. SRI.SANTHOSH SUBRAMANIAN FOR R1 SRI.SHEJI P.ABRAHAM FOR R1 SRI.V.CHITAMBARESH (SENIOR ADVOCATE) FOR R2 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 14.12.2009, THE COURT ON 28.01.2010 DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- A.S.NO.228 OF 2000 A --------------------------------------------------- Dated this the 28th January, 2010 JUDGMENT K.M. Joseph, J. Appellant is the State of Kerala. The first respondent filed the Suit claiming compensation from the appellant and the second respondent for damages arising out of the negligence with which the second respondent Doctor treated the first respondent culminating in the amputation of the left leg (below knee) of the first respondent. The trial court decreed the Suit in a sum of Rs.1,31,000/= with interest at six per cent from the appellant and second respondent. 2. We shall refer to the parties as in the trial court. The plaintiff suffered an injury when a silicate stone on the sunshade of a building fell down and hit on his left leg, just above the ankle on 19.11.1989. The plaintiff was working at the building site. He was taken to the Medical College Hospital, Thrissur where the second respondent was working. Plastering was done. AS.NO.228/00 2 He was discharged on the same day in the evening. Thereafter, he went back to the hospital on 23.11.1989, complaining of severe pain. Then, the second defendant cut open the plaster and the plaintiff was also administered with certain medicines. On 24.11.1989, fasciotomy was done. However, it was found that even though fasciotomy was done, amputation below the knee was inevitable. The plaintiff apparently not being satisfied with the treatment, got himself discharged and it is the admitted case that he had to get his left leg below knee amputated at a private hospital. 3. The defendants contended that there was no negligence. In short, the case of the defendants was that the plaintiff developed what is known as compartment syndrome and the Doctors including the second defendant have treated the plaintiff without any negligence and in accordance with the accepted medical practice. However, unfortunately, it got out of hand for no fault of the Doctors and amputation became unavoidable. AS.NO.228/00 3 4. The trial court, however, found that the second defendant being an experienced Doctor, should have recognised the dangerous situation with his ordinary diligence and done fasciotomy on 23.11.1989. It is found that compartment syndrome had developed. It is found that blisters were noted on the dorsum of the toe and the toe movements were diminished and it is found that since emergency fasiotomy was not done on 23.11.2989 which the plaintiff required, there was negligence on the part of the second defendant in giving proper treatment to the plaintiff leading to the amputation of the left lower limb. 5. We heard the learned Government Pleader, the learned counsel appearing on behalf of the plaintiff as also the learned counsel appearing for the second defendant. 6. Learned Government Pleader would contend that the plaintiff had come to court alleging negligence in the matter of applying the plaster. But, the court below has correctly found that amputation became inevitable in view of the plaintiff developing compartment syndrome and in such circumstances, AS.NO.228/00 4 the court below erred in finding that there was negligence on the part of the second defendant and holding the appellant State is vicariously liable. He took us through the evidence besides the pleadings. He also pointed out that there was no expert evidence adduced by the plaintiff in support of his claim. Learned counsel for the second defendant would point out that after the trial court found that the plaintiff had developed compartment syndrome and the amputation was the fall out of the said condition, it ought not to have found the second respondent negligent. He would point out that on 19.11.1989, when the plaintiff was brought to the Medical College Hospital, a fracture was suspected. An X-ray was taken. A closed undisplaced fracture was confirmed. A full leg plastering was adopted under the supervision of the second defendant. He was kept in observation for a few hours. Noticing that there was no adverse circumstance warranting his continued retention in accordance with the accepted practice, he was discharged. He was asked to come after four days. However, it is pointed out AS.NO.228/00 5 that he was also informed that if there was any complication, he should come earlier. In this regard, he pointed out the entries in Ext.B1 Case Sheet marked in red ink. When the plaintiff was brought on 23.11.1989 and he complained of pain again, it is pointed out that in accordance with the established facts, the second defendant cut open the plaster. He contended that this is one of the methods recommended when incipient compartment syndrome is suspected. He relied on Medical Literature in this regard. He would further point out that the plaintiff was also administered certain medicines to improve his condition. He would submit that resorting to fasciotomy was not necessary and fasciotomy was not without attendant risk. It was only on 24.11.1989 when the plaintiff was examined, it became known that he was developing compartment syndrome or rather acute compartment syndrome and, therefore, it was found that fasciotomy has to be done. This was the opinion of the senior Doctors who were examined as DW1 and DW3. Fasciotomy was accordingly done on 24.11.1989 itself. However, AS.NO.228/00 6 unfortunately, it had become a case of ischemic gangrene, necessitating amputation. He would submit that as far as the medical practitioner is concerned, in claims for damages based on negligence, the law is settled. He would submit that in the facts of this case, it is clear that the trial court had erred in finding that there was medical negligence on the part of the second defendant by not having done fasciotomy on 23.11.1989. He would submit that there was no case which the second defendant was called upon to meet, that the situation developed on account of the second defendant not performing fasciotomy on 23.11.1989 and he would contend, therefore, that it cannot be said that with the materials before the court, had fasciotomy being done on 23.11.1989, the amputation could have been avoided. 7. Learned counsel for the plaintiff would submit that this is a case which attracts the doctrine of res ipsa loquitur. The plaintiff, a construction worker, went to the Medical College Hospital with a simple fracture and only on account of the AS.NO.228/00 7 negligence on the part of the Doctor, he was deprived of his lower left limb. He would submit that in the case of this nature, the burden is squarely on the second defendant Doctor. He would further point out that it is noteworthy that the second defendant has not challenged the Decree by filing an Appeal and, therefore, he cannot be heard to question the Decree in the Appeal filed by the State. He would further contend that it is not open to the second defendant to rely on the medical literature in this Court without even having produced and put it to the witnesses who were examined. 8. In order to appreciate the contentions, it is necessary to refer to the pleadings of the parties. We would like to refer to the following averments in the plaint: “2. Immediately after this incident, the plaintiff was taken to the Medical College Hospital, Trichur and he was admitted there by the doctor on duty Sri. Jayaprakash, the 2nd defendant herein. Sri. Jayaprakash examined him in a slipshod manner without any care and attention most rashly and negligently. The 2nd AS.NO.228/00 8 defendant without doing any washing or cleaning of the injuries on the leg, knowing that there is fracture of bones, administered plaster on the leg and completely covered the leg in plaster from above the knee, down to the ankle. On the same day, by about 4.30 p.m., the 2nd defendant asked the petitioner to go home and come after four days, and accordingly the petitioner was sent home by the 2nd defendant by about 4.30 p.m. on 19.11.89. The 2nd defendant at that time told the petitioner that as there is fracture, there would be some pain and there is no other go, but to suffer it. 3. While at home, to the petitioner, there had began pain in the leg, and as the 2nd defendant had told him to come to the O.P. only on the 4th day of putting plaster, we went to the hospital again on 23.11.1989. The 2nd defendant examined him, and immediately asked his relatives to take him to the dressing room. By this time, the petitioner had high temperature and (L) leg was almost demobilised, there was infection, swelling and oedema in the injuries on the leg. The 2nd defendant was seen in panic and all on a AS.NO.228/00 9 sudden the 2nd defendant cut the plaster extensively and to his astonishment whole (L) leg from ankle and upwards was completely infected and there was heavy foul smell and on several positions bone could be seen as flesh because pus. During the time, the petitioner was fainting at times, and he had the fear that a very dangerous situation is ahead. Immediately, the 2nd defendant admitted him in the ward, gave some medicines. Next day, i.e. on 24.11.1989 morning 2nd defendant along with one Dr. Sri. Sunny, visited him and the 2nd defendant examined him, and while so doing, the 2nd defendant was heard saying to the other doctor “this is the very serious case”. And by this time, the condition of the plaintiff had already slipped in to grave danger and according to the doctors in the hospital, the patient ought to have been given correct and proper treatment by yesterday itself, and ought not have put plaster completely on the leg. 14. The loss of (L) leg below knee of the petitioner occurred due to the rash and negligent way, the 2nd defendant was treating the petitioner, and the 2nd defendant was handling the situation AS.NO.228/00 10 in a most irresponsible manner in callous indifference in utter disregard of all medical norms. The 2nd defendant was grossly negligent and most irresponsible and guilty of doing a wrong act in his administering plaster on the (L) leg of the petitioner when there was injuries and wounds on the leg and oedema formed. This had caused and resulted in gangrene death of tissue due to the failure of supply of blood to it.” We shall now refer to paragraphs 3 and 5 of the Written Statement filed by the second defendant. It reads as follows: “3. It is true that the plaintiff was brought to the causality of Medical College Hospital on 19.11.1989 as alleged in para No.2 of the plaint. He had fracture in the form of tenderness over the lower third of left tibia. It was confirmed clinically and however, an X-ray was also taken which showed an undisplaced fracture. The patient had abnormal mobility with minimal deformity. This defendant, after a very careful examination, took a decision to apply a plaster cast on his leg. After due procedures of cleaning AS.NO.228/00 11 and dressing, administering injections, the plaintiff was given a long leg cast from the plaster room. Then, he was kept in the observation ward till evening around 5 P.M. and as he did not develop any problem or complication, he was discharged from the observation ward. He was put on antibiotics and other medicines. All the details of the treatments recorded in the O.P. ticket. He was specifically instructed to report for review on thursday or earlier if necessary and this fact was written in red ink in the O.P. ticket. It was done with the purpose for the plaintiff for seek urgent medical advice, if needed. The allegation that there were injuries on his leg is incorrect. 5. Some of the allegations in para No.3 and 4 are not true. It is true that the plaintiff came to the hospital on 23.11.89 with complaints of pain. He was admitted to ward No.1 and on examinations, presence of blisters were found on the dorsum of foot. Then, the plaster of paris was split completely and blisters were found on the leg. He was directed to continue antibiotics etc., and also to have toe movements. However, the allegation that there was high temperature, AS.NO.228/00 12 infection, demobilisation were all incorrect. The further allegation that the bone was exposed is also untrue. As swelling was found, according to this defendant, the best treatment option was to cut the plaster off and to observe his vascularity. It was done so. His leg was kept elevated and other necessary instructions were also given. On 24.11.89 in the morning, the unit chief Dr. P.C. Sunny, Associate Professor was also consulted and he also assessed the condition of the plaintiff. It was suspected that the plaintiff was developing a compartment syndrome and fasciotomy of all compartments of the leg was advised with subsequent evaluation of the circulation to the leg. Then, this defendant had a personal discussion with the anaesthetist. Finally, after other due procedures at about 11.40 A.M. an extensive fasciotomy of all the compartments of the leg was done under spinal anaesthesia. Then, on the dorsum of foot, there was a black haematoma which was drained. Post operatively, he was put on ampicillin and gentamycin. However, this defendant noted that the toe movements were not possible. On 24.11.89 itself, the relatives of the AS.NO.228/00 13 patient were informed that it might be necessary to remove the gangrenous portions of the leg, and amputation was a possible eventuality. Hence, consent was also obtained from Smt. Santha, wife of the plaintiff for the same. But, there was a redeeming feature of the increase in the warmth noticed post operatively, gave a faint hope of being able to salvage the limb.” It is also contended that the occurrence of a complication shall not be considered as a result of negligence on the part of the Doctor who treated the patient. 9. The court below has found that the plaintiff developed compartment syndrome. The court below has not accepted the case of the plaintiff that there was negligence in the matter of applying plaster. According to the defendants, once the court found that there was no negligence in the matter of applying plaster and what is more, accepted the case of the defendants that the amputation was caused by compartment syndrome, the court below erred in decreeing the Suit only on the basis that the AS.NO.228/00 14 fasciotomy was done on 24.11.1989, and that it should have been done on 23.11.1989. The plaintiff, on the other hand, pointed out that this is a case where the doctrine of res ipsa loquitur is squarely applicable. 10. In our view, the following questions must be considered and answered by us: 1) What is the principle of law applicable in a civil action for determining negligence ? 2) Is the doctrine of res ipsa loquitur applicable ? 3) What is compartment syndrome ? 4) Whether there was any breach of the duty of care by the second defendant ? 5) What is the accepted mode of treatment for compartment syndrome ? 11. As far as the first question is concerned, the matter is no longer integra and is covered by a large body of case law. The Indian Courts have essentially followed what is called as the bolam principle, a principle which has come to be named AS.NO.228/00 15 after the name of the parties in the case which was decided by a court of appeal in 1957. Suffice it, for our purpose, that we refer to the decision of the Apex Court in Jacob Mathew v. State of Punjab And Another ((2005) 6 SCC 1). That was a case where an aged patient in an advanced stage of terminal cancer succumbed due to the unavailability of oxygen cylinders with oxygen, which was sought to be administered by the appellant Doctor. The appellant was sought to be charged under Section 304 A of the Indian Penal Code. The Apex Court after exhaustive review of the principles in the case law on the point, has, inter alia, held as follows: “11. According to Charlesworth & Percy on Negligence (10th Edn. 2001), in current forensic speech, negligence has three meanings. They are: (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances, but any one of them does not necessarily exclude the other meanings, (para 1.01). The essential components AS.NO.228/00 16 of negligence, as recognised, are three: “duty”, “breach” and “resulting damage”, that is to say: (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognised by the law, has been suffered by the complainant. (para 1.23). If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. (para 1.24).” It is also important to refer to paragraph 12 wherein the Court has noticed the distinction between criminal liability and civil liability in the matter of negligence. It reads as follows: “12. The term “negligence” is used for the purpose of fastening the defendant with liability under the civil law and, at times, under the AS.NO.228/00 17 criminal law. It is contended on behalf of the respondents that in both the jurisdictions, negligence is negligence, and jurisprudentially no distinction can be drawn between negligence under civil law and negligence under criminal law. The submission so made cannot be countenanced inasmuch as it is based upon a total departure from the established terrain of thought running ever since the beginning of the emergence of the concept of negligence up to the modern times. Generally speaking, it is the amount of damages incurred which is determinative of the extent of liability in tort; but in criminal law, it is not the amount of damages but the amount and degree of negligence that is determinative of liability. To fasten liability in criminal law, the degree of negligence has to be higher than that of negligence enough to fasten liability for damages in civil law.” It is also relevant to refer to paragraph 15 where the Court has held as follows: “15. In civil proceedings, a mere AS.NO.228/00 18 preponderance of probability is sufficient, and the defendant is not necessarily entitled to the benefit of every reasonable doubt; but in criminal proceedings, the persuasion of guilt must amount to such a moral certainty as convinces the mind of the Court, as a reasonable man, beyond all reasonable doubt. Where negligence is an essential ingredient of the offence, the negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.” We would also think it apposite to refer to the following passages: “19. An oftquoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. in Bolam v. Friern Hospital Management Committee, 9 WLR at p.586 in the following words: (All ER. p.121 D-F): “Where 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 AS.NO.228/00 19 Omnibus, because he has not got this special skill. 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.” (Charlesworth & Percy, ibid., para 8.02). 20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. After a review of various authorities Bingham, L.J. in his speech in Eckersley v. Binnie 10 summarised the Bolam test in the following words: (Con. LR p.79): “From these general statements, it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of t43he ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in the knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent AS.NO.228/00 20 practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.” (Charlesworth & Percy, ibid., para 8.04). 21. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (4th Edn., Vol.30, para.35): “35. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in AS.NO.228/00 21 that particular art, even though a body of adverse opinion also existed among medical men: Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had been acting with ordinary care.” The abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth & Percy in their celebrated work on Negligence (ibid., para 8.110).” The Apex Court also noted the need for looking at the issue of negligence in the context of the medical profession with a difference. It held, inter alia, as follows: “31. The subject of negligence in the context of the medical profession necessarily calls for treatment with a difference. Several relevant considerations in