1 HIGH COURT OF MADHYA PRADESH BENCH AT INDORE (SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA) First Appeal No.311/2004 Smt. Soniya Bai W/o Ramswaroop Morya, Aged - 55 years, Occ. - Household work, R/o - House No.48, Pipliyarao, Bholaram Ustad Marg, Indore (M.P.) .... Appellant Vs. Dr. Pramod Sharma S/o Ramawtar Sharma, and 7 others. .... Respondents ------------------------------------------------------------------------------------ Shri N.K. Maheshwari, learned counsel for the appellant. Shri Brajesh Pandya, learned counsel for the respondents no.1, 2, 4, 5 & 7. Shri Piyush Kansal, learned counsel for the respondent no.3. Shri Bhagwan Singh, learned counsel for the respondent no.6. ------------------------------------------------------------------------------------ Whether approved for reporting : J U D G M E N T (Delivered on 19/10/2011) 1/ This appeal under Section 96 of the CPC has been filed by the plaintiff against the judgment and decree dated 1st January, 2002 passed by the Court of Additional District Judge, Indore dismissing the Civil Suit No.43-B/99. 2/ The plaintiff had filed the suit for recovery of a sum of Rs.15,85,000/- on account of the death of her son Santosh Kumar Morya due to the alleged negligence on the part of the respondents. 3/ The case of the appellant(plaintiff) is that her son 2 aged about 24 years, in the year 1993, was complaining about stomach pain, therefore, initially preliminary treatment was given by the respondent no.2 Dr. Kailash Chandra Patel and thereafter he was admitted in the Shraddha hospital. Santosh was operated for appendix by the respondents Dr. Pramod Sharma, Kailash Chandra Patel and Dr. H.K. Gupta, without the consent of the appellant or her husband. The consent was subsequently obtained by force. Santosh was discharged on 23.11.1993 from the hospital but on 24.11.1993 his condition became serious, therefore, he was shown to Dr. Kailash Chandra Patel, who treated him from 24.11.1993 to 26.11.1993. On 26.11.1993 when condition of Santosh deteriorated, the respondent no.2 Dr. Kailash Chandra Patel got him admitted in Charak Hospital, where again the doctors treated him negligently resulting into his death on 27.11.1993. It was alleged that the respondent no.2 Dr. Kailash Chandra Patel was not having MBBS degree yet he had treated Santosh and operated him. It was further alleged that Santosh was suffering from malaria still the operation was performed and that the respondent no.4 Dr. Prashant Mishra prepared the forged blood report on 28.11.1993 to save the other respondents. 4/ Suit was opposed by the respondents. Respondents no.1 and 4 took the plea that Santosh was unwell since 16.11.1993. The blood report was obtained on 18.11.1993 and with the consent of the father of Santosh, he was operated for appendix and after the recovery he was discharged on 23.11.1993. 5/ Respondent no.2 Dr. Kailash Chandra Patel also 3 opposed the suit taking the plea that the suit was barred by time and there was defect of non-joinder of party. He took the defence that he had not participated in the operation and that Santosh was discharged after full recovery. On 24.11.1993 on examination of Santosh, he had advised blood test and when malaria was diagnosed, he had advised hospitalization but in spite of his advice the family members of Santosh did not admit him in the hospital and continued his treatment at home and finally admitted him in the hospital on 26.11.1993, when he became very serious. 6/ Respondent no.3 Dr. H.K. Gupta took the plea that he had only given anesthesia during the operation and had not committed any negligence in this regard. 7/ Respondent no.5 Dr. Sanjay Jain and respondent no.7 Charak Hospital Pvt. Ltd. also opposed the claim of the appellant taking the plea that Santosh was treated as per the advice of the experts and he died on 27.11.1993 on account of the medical complications, for which respondents no.5 & 7 are not responsible. According to these respondents, water had deposited in the stomach of Santosh and he was suffering from falciparum malaria and acute jaundice and his liver was not functioning, which was his cause of death. 8/ Respondent no.6 Dr. C.L. Gurjar, Manager Shraddha Cooperative Hospital, took the plea that Santosh was properly treated by the concerned doctors and there was no negligence on the part of the hospital staff. He took the further plea that Shraddha hospital had later gone into liquidation and liquidator was appointed and all the papers were seized by the 4 liquidator, therefore, liquidator is a necessary party. 9/ Trial Court by the impugned judgment found that the respondent no.1 Dr. Pramod Sharma, respondent no.2 Dr. Kailash Chandra Patel, respondent no.3 Dr. H.K. Gupta and Dr. Gurjar were negligent in treatment of Santosh. The trial Court also found that the respondent no.4 Dr. Prashant Mishra had prepared fabricated blood report of Santosh dated 18.11.1993. The trial court also found respondent no.6 Dr. Gurjar negligent but the trial Court dismissed the suit finding it to be barred by time. 10/ It is undisputed between the parties that Santosh Kumar Morya S/o appellant had died in Charak Hospital on 27.11.1993. He was treated by respondent no.2 Dr. Kailash Chandra Patel since 19.11.1993 and was admitted in Shraddha hospital by him on 20.11.1993 and was operated for appendix by the respondent no.1 Dr. Pramod Sharma. Dr. H.K. Gupta, respondent no.3, had administered anesthesia to Santosh at the time of operation and Santosh was discharged from Shraddha hospital on 23.11.1993. He was admitted in Charak Hospital on 26.11.1993, where he had died on 27.11.1993. On the report of the husband of the appellant, the charge sheet was filed under Section 304-A and 120-B IPC, in which the Chief Judicial Magistrate by order dated 24.7.1996 had discharged all the accused/respondents except the respondent no.2 Dr. Kailash Chandra Patel. 11/ Learned counsel appearing for the appellant submits that the trial Court committed an error in dismissing the suit on the ground of limitation without appreciating that Article 5 113 of the Limitation Act will be attracted in the present suit and not Article 82 of the Act. He has supported finding relating to the negligence recorded by the trial Court against the respondents no.1 to 4 and 6. 12/ Learned counsel appearing for the respondents have submitted that no error has been committed by the trial Court in rejecting the suit as barred by time. They have submitted that the limitation, as prescribed under Article 82 of the Limitation Act, is attracted in the present case. 13/ Respondents no.1, 2, 3, 4 & 6 have filed their cross objection. In these cross objections the respondents have questioned the finding relating to the negligence recorded against them. 14/ Another important fact worth noting is that though in the suit the appellant had raised a claim of Rs.15,85,000/- but in the appeal she has confined her claim to Rs.1,50,000/- as is clear from the order dated 30.6.2004 passed by this Court in this regard. 15/ From the arguments advanced by the learned counsel for the parties, following issues arise for consideration of this Court :- i. Whether the operation of Santosh was performed with the consent of his family members? ii. Whether there was a medical negligence in the treatment of Santosh resulting into his death on 27.11.1993? iii. If yes, which respondent is responsible for the said medical negligence? 6 iv. Whether the suit filed by the appellant was within the period of limitation. The above issues are answered as under :- Issue No.1:- 16/ The first issue is as to whether the operation of Santosh was performed without the consent of his family members? 17/ The plea of the appellant is that though the operation was performed without consent but after the operation signatures were taken on some papers. PW-5 Ramswaroop Mourya, the father of Santosh, has stated that he had left the hospital to arrange for money and when he came back after 20-25 minutes, Santosh was already operated without his consent. It is worth noting that Santosh had died on 27.11.1993 but prior to that no objection was taken in writing at any place by the family member of Santosh that he was operated without their consent. A written report to the S.P. was sent on 9.2.1994 after the death of Santosh but in that report also it was not mentioned that the operation was conducted without the consent. In the FIR (Ex.P/12) also no such complaint was made. After a lapse of a long time, for the first time before the trial Court the plea was raised that no consent was obtained before operation. The trial Court has rightly disbelieved the statement of PW-5 Ramswaroop Mourya that the operation was performed within 15-20 minutes in his absence without his consent. Thus the appellant has failed to establish that the operation of Santosh was done without obtaining the consent. Issue No.2 :- 18/ To prove the medical negligence on the part of the 7 respondents, the appellant-plaintiff had examined herself and also examined PW-2 Dr. K.D. Bhargava, PW-3 Bharat Joshi, PW-4 Lakshminarayan Yadav, PW-5 Ramswaroop Mourya, PW-6 Indrajeet Mishra, PW-7 Jagannath Singh Chouhan and PW-8 Yashwant Singh. The appellant had produced the documents Ex.P/1 to P/27 relating to the educational qualification and profession of the deceased Santosh, and the documents relating to the medical treatment. 19/ As against this, the respondents had examined themselves before the Court and produced the documents Ex.D/ 1 to D/7 to establish that there was no medical negligence on their part in the treatment of the deceased. 20/ The Superintendent, M.Y. Hospital, in pursuance to the letter dated 16.4.1994 received from Police Station Bhanvarkua, had constituted a medical team consisting of Dr. K.D. Bhargava, Professor and Head of the Department of Medicine, MGM Medical College, Indore, Dr. Mrs. S. Munjal, Professor of Pathology, MGM Medical College, Indore and Dr. R.K. Singh, Lecturer and Head of the Department of Forensic Medicine and Toxiology, MGM Medical College, Indore to investigate the cause of death of Santosh. This team of experts had given the report Ex.P/11. The team had gone through the investigation reports, bed head ticket of Charak hospital and discharge ticket of Shraddha Hospital and also the other relevant papers, and had opined that the investigation report dated 18.11.1993 suggests polymorph leucocytosis with normal urine corroborating acute inflammatory condition like acute appendicitis also. They found that the patient was not 8 thoroughly evaluated prior to operation and anesthesia on 20.11.1993. As per operative note, the appendix of the patient was found inflammed but it was not confirmed by histopathological examination. The pulse, B.P. and temperature recored of the patient, when admitted at Shraddha Hospital, did not appear logically factual because when fall of B.P. to 80/50 and even 80/40 was noted on 20.11.93, 21.11.93 & 22.11.93 no treatment for correction of this condition was given and also pulse rate, as recorded, were not found commensurate with the fall of B.P. The temperature record was also found incorrect in view of the condition of the patient and the previous history given by the Charak Hospital at the time of admission. The experts observed in their report that the investigation report dated 24.11.1993 and the condition of patient at the time of admission in Charak Hospital indicated that the patient had been suffering from hepatitis during stay in Shraddha Hospital, which was not taken note of and performance of surgery on the patient led to deterioration in the patient's condition. The investigation report dated 27.11.1993 additionally indicated kidney damage. The liver disease and malaria (cerebral malaria) probably conjointly contributed to the grave turn in the patient condition, which subsequently culminated into death on 27.11.1993. The patient was treated subsequently in Charak Hospital but because the patient condition was already grave, his life could not be saved. Thus the report of the expert team (Ex.P/11) clearly indicate that there was negligence in the treatment of Santosh and vital parameters were not taken note of before performing appendectomy. 9 21/ PW-2 Dr. K.D. Bhargav was one of the member of the three member expert team, who had given the report (Ex.P/11). He has stated that it was not available on record that prior to the appendix operation the pre anesthetic check up was done, which was to be done by anesthetist. The pathology report of the removed appendix was also not produced. The blood pressure of the patient was 80/40 and 80/50, which was very low and from the record it did not appear that any treatment in this regard was given. In the record the temperature of the patient was shown as normal, whereas after 3+ malaria the temperature is normally not so low. On 24.11.1993 when the patient was medically examined, the condition of jaundice and malaria was acute. He opined that in the report dated 24.11.1993, the quantity of bilirubin was 14.97, which can not increase within one day. The bilirubin can increase to that level due to the combined effect of jaundice and malaria. The patient was suffering from jaundice when he was under treatment in Shraddha Hospital and when operation is done during jaundice, the condition can become serious. He has also stated that on 23.11.1993 when the patient was discharged from Shraddha Hospital, in the discharge ticket there was no mention of jaundice. Performance of surgery in such a serious jaundice can prove to be fatal. He also stated that if the patient is operated when he is suffering from liver problem along with malaria, then it can be dangerous. He has also stated that as per the record of treatment in Shraddha Hospital, the blood pressure of the patient was recorded 80/40 several times but from the record it did not appear that any 10 medicines were given to the patient for treating the blood pressure or any other treatment was given to him in this regard. In such a low blood pressure, the pulse rate, temperature and the breath is not normal, whereas in the hospital record these parameters were shown as normal. He has opined that in the market good antibiotics are available, therefore, during the jaundice the appendectomy should be postponed since such an operation can be dangerous. 22/ Though in the expert report (Ex.P/11) and in the statement of PW-2 Dr. K.D. Bhargav some observations have been made in favour of the respondents but these observations do not dilute the statement of facts and their opinion as expert made in the enquiry report and before the Court. The report (Ex.P/11) was prepared and PW-2 Dr. K.D. Bhargav had made the statement before the Court after going through the entire relevant documents relating to the treatment of Santosh, therefore, the contrary oral evidence of the respondents in this regard can not be accepted. The report (Ex.P/11) as well as the statement of PW-2 Dr. K.D. Bhargava also indicate that the concerned respondent had not kept the medical record of treatment of the deceased in the proper manner. 23/ The law in respect of the proof of medical negligence is settled. The doctor must have a reasonable degree of skill and knowledge and he must also exercise care of reasonable degree, neither higher nor very low, in the light of the particular circumstances of the case, and he would be liable for negligence only where the conduct falls below that of a reasonable competent doctor. In the matter of Kusum Sharma 11 and others Vs. Batra Hospital and Medical Research Centre and others reported in 2010(3) SCC 480, the Supreme Court while noting the distinction of negligence in medical service in reference to civil law and criminal law held that simple lack of care attracts civil liability, whereas very high degree of negligence is required in criminal cases. In the matter of Jacob Mathew Vs. State of Punjab and another reported in AIR 2005 SC 3180 while dealing with the issue of negligence in context of medical profession, the Supreme Court held that the professional may be held liable on one of the two findings i.e. either he was not possessed of requisite skill which he professed to have possessed or he did not exercise with reasonable competence, in given case, the skill which he did possess. The error of judgment on the part of professional is not negligence perse. In the matter of Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another reported in AIR 1969 SC 128, the Supreme Court has held that a person who suggest 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 i.e. a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in administration of that treatment. So a reach 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. 24/ Considering the evidence which has been noted 12 above in the light of the aforesaid settled principles of law, I find that there was medical negligence in the treatment of deceased Santosh when he was under treatment and operated for appendix in Shraddha Hospital. 25/ So far as the treatment of Santosh in the Charak Hospital is concerned, the evidence indicates that he was admitted in Charak Hospital on 26.11.1993 subsequently when his condition was serious and he expired on 27.11.1993. There is no material on record to reach to the conclusion that there was any medical negligence on the part of the treating doctors when Santosh had remained under treatment in the Charak Hospital from 26.11.1993 to 27.11.1993. Issue No.3 :- 26/ The next question is as to which of the respondents are responsible for the negligence in the treatment of Santosh? 27/ So far as the respondent no.1 Dr. Pramod Sharma is concerned, he in paragraph-26 of his statement has admitted that he had not taken the old history of the patient, whereas as per the statement of PW-2 Dr. K.D. Bhargava if the history of the patient was taken from his family members, then the ailment of jaundice and malaria would have come to the knowledge. The blood report Ex.P/17(4) of Kavita Pathology Laboratory dated 9.3.1993 indicates that the patient was taking the treatment of malaria and jaundice since much prior to his treatment at Shraddha Hospital. Since the patient was suffering from malaria and jaundice for a long time prior to the operation, therefore, by not taking previous history Dr. Sharma 13 had acted negligently. So far as respondent no.2 Dr. Kailashchandra Patel is concerned, he had treated the patient on 24th and 25th November 1993 after his discharge from Shraddha Hospital. In spite of the acute jaundice and malaria, he had not got him admitted in the hospital. So far as respondent no.3 Dr. H.K. Gupta is concerned, he had administered anesthesia to the patient but when taking note of the vital parameters he had ignored that the patient was suffering from malaria and jaundice. The evidence on record establishes that respondents no.1 to 3 were negligent in the performance of their duty inasmuch as they took steps for the operation of patient though he was not in a fit condition for operation due to his previous ailments. They were also negligent in discharging the patient from the hospital on 23.11.1993 when he was in a serious condition, which is apparent from the material showing that on the very next day on 24.11.1993 he was found to be medically suffering from jaundice and malaria. So far as the respondent no.6 Dr. C.L. Gurjar, Director and Manager of Shraddha Cooperative Hospital is concerned, he is a post graduate doctor and during the relevant time of treatment of the patient, he was Director of the hospital, therefore, he was responsible for the negligence in the treatment of the patient in his hospital along with the other respondents, who were negligent in treating the patient, since it was the duty of Dr. Gurjar to ensure proper medical treatment of the patient in his hospital. The patient had remained admitted in his hospital from 20.11.1993 to 23.11.1993 but no evidence is produced showing that any doctor of his clinic or he 14 himself had examined the patient. He was completely negligent in performance of his duty. Santosh was operated though he was suffering from jaundice and malaria and no medicines were given to him during this period for the treatment of malaria and jaundice, on the contrary such medicines were given which aggravates this illness, which resulted into damage of his liver and kidney. So far as respondent no.4 Dr. Prashant Mishra is concerned, the allegation against him is that he had given the forged blood report on 18.11.1993. DW-3 Dr. Prashant Mishra has admitted that he had done the blood investigation of Santosh on 18.11.1993. He admitted that he had given the laboratory receipt. In the report of the expert (Ex.P/11) and as per the statement of PW-2 Dr. K.D. Bhargav, the blood report dated 18.11.1993 is found to be suspicious. There is uncontroverted statement of PW-4 Lakshminarayan Yadav that Santosh had gone with him to Pithampur in a party on 18.11.1993 and had returned at 10:00 P.M., therefore, he was not available in Indore on 18.11.1993 for giving the blood sample for the investigation. There is mention of this report in the record of the Shraddha Hospital but it has not been disclosed as to who had mentioned it in the record. On the basis of the evidence on record, it is established that no blood sample was given from Santosh on 18.11.1993 in Unique Pathology and therefore the disputed blood report was apparently prepared to save the other respondents. Thus the allegation of preparation of forged blood report against the respondent no.4 Dr. Prashant Mishra is correct. 28/ So far as respondent no.5 Dr. Sanjay Jain, 15 respondent no.7 the Director of Charak Hospital and respondent no.8 Dr. Maheshnarayan Thorani, a medical practitioner in Charak Hospital are concerned, they had not committed any negligence in the treatment of Santosh since there is no evidence on record in this regard. The evidence indicates that when Santosh was admitted in the Charak Hospital on 26.11.1993, he was already in critical condition and he died on 27.11.1993. 29/ In view of the aforesaid analysis, it is found that no error has been committed by the trial Court in recording the finding of medical negligence against the respondents no.1 to 4 and 6. The said finding is hereby affirmed. Issue No.4 :- 30/ The next issue is as to whether the suit filed by the appellant was within time? 31/ The appellant has raised the plea that in the present case Article 113 of the Limitation Act is attracted, which gives the limitation of 3 years and the trial Court has committed an error in applying the limitation of 2 years under Article 82 of the Limitation Act. 32/ The trial Court has found that the claim of the appellant was covered under Section 1A of the Fatal Accidents Act, 1855 (for short “the Act”), therefore, Article 82 of the Limitation Act will apply. 33/ Section 1A of the Act provides for suit for compensation to the family of a person for loss occasioned to it by his death by actionable wrong. It further provides that 16 whenever the death of a person is caused by a wrongful act, neglect, or default which would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if the death had not ensued, shall be liable to an action or suit for damages, notwithstanding the death of the person injured. The action under Section 1A of the Act is for the benefit of the wife, husband, parent or child