IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH JANUARY 2010 / 7TH MAGHA 1931 AS.No. 91 of 2003() ------------------------------ OS.84/1989 of SUB COURT, VADAKARA .................... APPELLANT(S): DEFENDANT ----------------------- STATE OF KERALA, REP. BY THE DISTRICT COLLECTOR, KOZHIKODE. BY GOVERNMENT PLEADER MR.N.K.THANKACHAN RESPONDENT(S): PLAINTIFFS ------------------------- 1. ILLATH NARAYANAN, RESIDING AT ALONHI VAYALIL, THURAYUR, QUILANDY TALUK. 2. LEELA (WIFE), RESIDING AT ALONHI VAYALIL, THURAYUR, QUILANDY TALUK. R1 & R2 B ADVS.MR.V.V.ASOKAN SMT.S.AMINA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 7/01/2010, THE COURT ON 27/01/2010 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. No. 91 of 2003 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of January, 2010. JUDGMENT The defendant State in O.S. 84 of 1989 before the Sub Court, Vadakara, who has been called upon to pay a sum of Rs.50,000/- as damages to the second plaintiff with future interest at 6% is the appellant. The parties and facts are hereinafter referred to as they were available before the court below. 2. The plaintiffs had three children aged seven years, four and a half years and two and a half years, namely Vipesh, Vipin and Vijila respectively. One of the children had congenital defects. Plaintiffs hail from poor circumstances. They were unable to bring up another child. Therefore they decided to go in for family planning. At that time, it so happened that on 11.10.1985 the respondent State was organising a female sterilization Camp at Thiruvangoor. From the literature distributed with reference to the said Camp, A.S.91/2003. 2 plaintiffs were given to understand that laparoscopic sterilization method is safe and fool proof. They were given to understand that the operation would be done by experienced doctors with the assistance of qualified persons. Lured by the literature and also forced by the circumstances, the second plaintiff underwent laparoscopic sterilization operation. It was done by Dr.Biswas Vydia. However, later she conceived quite contrary to the assurance given by the persons who had conducted the Camp. Pointing out that the pregnancy was due to the negligence in the conduct of operation done by the doctor, she sued the State. The doctor, who had conducted the operation was not alive on the date of the suit. 3. The State resisted the claim. It denied that there was any negligence on the part of the doctor, who had conducted the operation and it was pointed out that the plaintiff had no cause of action. It was contended that they had given no assurance that laproscopic sterilization was the fool proof. The State contended A.S.91/2003. 3 that the operation was in 1985 and the second plaintiff had conceived only in 1988. It is therefore contended that even if the second plaintiff had conceived subsequently, it could not be attributed to any negligence, even assuming there was any, on the part of the doctor, who had conducted the operation. They denied the allegation of inefficiency of staff etc. and pointed out that the plaintiffs are not entitled to any relief. 4. The court framed necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and exhibits marked as Exts.A1 to A14. The defendant chose not to adduce any evidence. Exts.X1 to X3 are third party exhibits. The court below on an appreciation of the evidence came to the conclusion that the plaintiff had succeeded in establishing that laparoscopic sterilization operation was done negligently and therefore granted a decree for a sum of Rs.50,000/- in favour of the plaintiff. The said judgment and decree are assailed in this appeal. A.S.91/2003. 4 5. The question that arises for consideration is whether any interference is called for with the judgment and decree of the court below. 6. The facts fall within a narrow compass. Even though the defendants had initially disputed that the second plaintiff had undergone the operation, that issue no longer survives in view of the categoric finding of the court below that she did undergo the operation on 11.10.1985. The plaintiffs pointed out that they were ignorant of the need of post-operative care, since they received no proper advice etc., and later on the second plaintiff conceived quite contrary to the assurance given by the authorities, who had conducted the Camp, to the dismay of the plaintiffs. According to the plaintiffs, they already have three children and they cannot afford to bring up another child. They contended that the present state of affairs was due to the negligent act on the part of the doctor and the staff, who conducted the operation. A.S.91/2003. 5 7. The defendant State denied the allegations and pointed out that there was no negligence or want of care on the part of either the doctor, who conducted the operation or the staff who had assisted him. It is also pointed out that the burden is on the plaintiff to establish the allegations. 8. The learned Government Pleader appearing on behalf of the State pointed out that the court below was not justified in decreeing the suit. It was contended that the operation was in 1985 and the second plaintiff had conceived only in 1988. There was absolutely no proof at all of any negligence on the part of the doctor and the staff, who had conducted the operation on the second plaintiff. None of the doctors, who had attended to the second plaintiff was examined to show that there was any negligence or carelessness on the part of the doctor, who had conducted the laparoscopic sterilization operation. It is not possible for the plaintiffs to simply rely on res ipsa loquitur theory without even proving a prima facie case of negligence. Learned A.S.91/2003. 6 Government Pleader pointed out that there may be several circumstances, even assuming that the operation was done in a perfect manner, that the person may conceive later. It was for the second plaintiff to establish that she had conceived due to the negligence on the part of the doctor and it is not a matter of presumption. There is no such proof in this case and therefore, the learned Government Pleader submitted that the plaintiffs ought to have been non-suited. 9. Learned counsel appearing for the respondents on the other hand pointed out that the plaintiffs are illiterate persons and they are not in the know of things. Believing the attractive offers and announcements made by the State, in order to ensure that the second plaintiff does not conceive again, she underwent the operation. Counsel would say that the plaintiffs were given to understand that it is a fool proof method to ward off pregnancy. This is a case where the principle of res ipsa loquitur comes into play. Attention was also drawn to the fact that the defendants have A.S.91/2003. 7 not adduced any evidence in support of their contention and the evidence adduced by the plaintiffs remain unchallenged. Under such circumstances, the learned counsel pointed out that no interference is called for. 10. Negligence usually is omission to do something what a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence is a tort. Law initially was very reluctant to attribute negligence to professional man. It was concerned with the reputation, status and the alarming consequences that would result by attributing negligence to professional men. Law did not remain static. It marched forward. If then evolved principles whereby professional men too were attributed with negligence. 11. A doctor's liability to patient arises both under tort and in contract. The question 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: A.S.91/2003. 8 “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 many 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.” 12. 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 not expected to be right: it is enough that he A.S.91/2003. 9 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.” 13. C. Kameshwara Rao's Law of Damages and Compensation 5th Edition in Third Volume at page 2603 it is stated as follows: “Doctors owe to their patients a duty in tort as well as in contract. 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 or 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. Although the standard is a high one, a medical practitioner should not be found negligent simply because one of the risks inherent in an A.S.91/2003. 10 operation of that 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. The Civil liability of medical men towards their patients is perhaps compendiously stated in R.V. Bateman, as follows: “If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward ........ The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient's death has been caused by the defendant's indolence or carelessness, it will not avail to show that he had sufficient knowledge, nor will it avail A.S.91/2003. 11 to prove that he has diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness ...... As regards cases where competence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There treatment and recklessness in the conduct of it. It is not doubt, conceivable that recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare .........” The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill. There is no question of warranty undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. A defendant charged with negligence can clear himself if he shows that he acted in A.S.91/2003. 12 accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence.” 14. The question as to what is the degree of care expected from a doctor has come up for consideration in a number of decisions. In the decision reported in (AIR 1996 SC 2377), it was held as follows: “Before considering whether the respondents in the present case could be held to be negligent, it will be useful to see as to what can be regarded as negligence on the part of a doctor. The test with regard to the negligence of a doctor was laid down in Bolam v. Friern Hospital Management Committee [1957) I WLR 582]. It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical- men skilled in that particular art. This principle in Bolam's case has been accepted by the House of Lords in England as applicable to diagnosis and treatment. A.S.91/2003. 13 (See Sidaway v. Board of Governors of Bethlem Royal Hospital, (1985) AC 871 at 881). Dealing with the question of negligence, the High Court of Australia in Rogers v. Whitaker, (1993) 109 ALR (sic), has held that the question is not whether the doctor's conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the court to decide and the duty of deciding it cannot be delegated to any profession or group in the community. It would, therefore, appear that the Australian High Court has taken a somewhat different view than the principle enunciated in Bolam's case. This Court has had an occasion to go into this question in the case of Dr.Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128. In that case the High Court had held that the death of the son of the claimant was due to the shock resulting from reduction of the patients fracture attempted by the doctor without taking the elementary caution of giving anaesthesia. In this context, with reference to the duties of the doctors to the patient this Court, in appeal, observed as follows: A.S.91/2003. 14 “The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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.” The above principle was again applied by this Court int he case of A.S. Mittal v. State of U.P. AIR 1989 SC 1570. In that case, irreparable damage had been done to the eyes of some of the patients who were operated upon at an eye camp. Though this court refrained from deciding, in that particular case, whether the doctors were negligent, it observed “A mistake by a medical practitioner which no reasonably competent and a A.S.91/2003. 15 careful practitioner would have committed is a negligent one.” The Court also took note that the law recognises the dangers which are inherent in surgical operations and that misttakes will occur, on occasions, despite the exercise of reasonable skill and care. The Court further quoted Street on Torts (1983) (7th Edn.) wherein it was stated that the doctrine of res ipsa loquitur was attracted:.”...........Where an unexplained accident occurs from a thing under the control of the defendant, and medical or other expert evidence shows that such accidents would not happen if proper care wer eused, there is at least evidence of negligence for a jury”. The latest case to which reference can be made is that of Indian Medical Association v. V.P.Shantha, (1995) 6 SCC 651: (1995 AIR SCW 4463). The question which arose in this case was whether the Consumer Protection Act, 1986, applied to medical practitioners, hospitals and nursing homes. It was held in this cae that medical practitioners were not immune from a claim for damages on the ground of negligence. The Court also approved a passage from Jackson & Powell on Professional Negligence and held that “the approch of the Courts is to require that professonal A.S.91/2003. 16 men should possess a certain minimum degree of competence and that they should exercise reasonable care int he discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercie reasonable care in giving advice for performing service”. The skill of medical practitioners differs from doctor to doctor The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of acition to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.” A.S.91/2003. 17 15. In the decision reported in AIR 2000 SC 1888 it was held as follows: “Negligence is a 'tort' . Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This what is known as “implied undertaking” by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, MC Nair, J. summed up the law as under: “The test is the standard of the ordinary skilled man exercising and professing to have that special 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.” A.S.91/2003. 18 16. One may at this point of time refer to one aspect. The basis for all this decision is Bolam's case. It was held in that case 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.” In the decision reported in Jacob Mathew v. State of Punjab ((2005) 6 SCC 1), it was held that even after the passage of time the test enunciated in Bolam's case still holds good. It is no doubt true that in the decision reported in Jacob Mathew's Case the Apex Court was considering a case under Section 304 of the Indian Penal Code. But the concept of negligence as understood in A.S.91/2003. 19 law, the degree of proof required and the concept of negligence in civil and criminal cases etc. were considered in detail. In the said decision negligence was defined as follows: “The jurisprudential concept of negligence defies any precise definition. 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. 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. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person A.S.91/2003. 20 sued. The essential components 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 casually connected with such breach and recognised by the law, has been suffered by the complainant. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.” The decision also emphasised the difference in considering negligence in the context of medical profession. It is pointed out that a case of occupational negligence is different from one of professional negligence. 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 the a doctor follows a practice acceptable A.S.91/2003. 21 to the medical profession of that day, he cannot be held liable for negligence because another body of doctors thinks otherwise or that a better method could have been adopted. The decision deals exhaustively with various aspects of medical negligence. 17. The issue was again considered in the decision reported in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee ((2009) 9 SCC 221), wherein reference was made to the decision reported in Jacob Mathew's Case. Ultimately, it has been held that it is not necessary for every professional to possess the highest level of expertise in that branch he practices. In the decision reported in Jacob