IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS TUESDAY, THE 20TH OCTOBER 2009 / 28TH ASWINA 1931 AS.No. 728 of 1994 A -------------------------------------- OS.120/1990 of III ADDL.SUB COURT, KOZHIKODE .................... APPELLANT(S): PLAINTIFF: --------------------------------------- KAIPPAKASSERI SULAIMAN, S/O. KAMMU, TRIKKALANGODE AMSOM AND DESOM, ERNAD TALUK, TRIKKALANGODE, MALAPPURAM DISTRICT. BY ADV. SRI.M.A.MANHU, SRI. M.A.FAYAZ RESPONDENT(S): DEFENDANTS: ----------------------------------------------- 1. DR. P. SANAL KUMAR, PROFESSOR OF NEURO SURGERY, MEDICAL COLLEGE, CALICUT - 8. 2. DR. ZULIFIQUAR AHMED, NEURO SURGEON, MEDICAL COLLEGE, TRIVANDRUM. 3. STATE OF KERALA, REPRESENTED BY THE DISTRICT COLLECTOR, KOZHIKODE. ADV. SRI.S.CHANDRASENAN, SRI. M.C.GOPI & SRI.P.K.SOMARAJAN, FOR R1. ADV. SRI.G.UNNIKRISHNAN & SRI.P.V.RAMESH SHANKAR FOR R2 GOVERNMENT PLEADER SHRI K. RAMANAND FOR R3. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 1.10.2009, THE COURT ON 20.10.2009 DELIVERED THE FOLLOWING: K.M.JOSEPH & M.L.JOSEPH FRANCIS, JJ. ------------------------------------------------------ A.S.No.728 of 1994 ---------------------------------------------- Dated, this the 20th of October, 2009 J U D G M E N T K.M.Joseph, J. Plaintiff is the appellant. The suit was filed claiming damages allegedly suffered including loss of sight by the operation performed by the Ist respondent on the appellant. Briefly put, the case of the appellant is as follows: The appellant suffered head-ache and vomiting. He went to the K.M.H. Hospital, Manjeri for consultation and treatment on 13.1.1988. He was admitted in the hospital and given some treatment. On 19.1.1988 he was referred to the Medical College Hospital, Calicut. The Ist defendant diagonised the disease as Subdural haematoma. The appellant was told that he will have to undergo a minor operation for removing a clot. He was told that the operation would cure him of his head-ache and vomiting. The Ist defendant conducted surgery on 27.1.1988. On the next day there was a swelling on his left eye and gradual loss of his A.S.No.728/1994 -2- eye-sight. Similar swelling appeared on the right eye also with gradual diminution of eye-sight. This defect was brought to the notice of the Ist defendant who advised him that everything will be alright in a few days. The 2nd defendant was working under the supervision and control of the Ist defendant and he had attended the plaintiff before and after the operation. On the basis of the persistent complaint the plaintiff was taken to the Opthalmology Department of the Medical College Hospital. The Doctors there prescribed certain medicines. But the new medicines did not improve the matters. He lost his eye-sight. Thereafter, in June the plaintiff went to the C.B.M.Ophthalmic Institute of Little Flower Hospital, Angamaly, but with no effect. The appellant is an auto driver earning Rs.40 to 45 per day. It is stated that the State of Kerala is also vicariously liable. The appellant issued Section 80 CPC notice which is replied by raising untenable contentions. The appellant restricted his claims to Rs.2 lakhs. 2. The respondents contested the Suit by denying the allegations, filing separate Written Statements. The first defendant contended, inter alia, as follows: A.S.No.728/1994 -3- He did not conduct the operation. It is stated that the operation was done by competent Surgeons and with full care and caution. Consent was obtained from the close relatives only after explaining the correct nature of the operation. The appellant was being treated for prolonged head-ache. Due to Papilloedemic optic atrophy, his visual faculty was already damaged. The natural consequence of the disease is that the appellant was put in the dangerously ill list by the Medical College Hospital. Visual failure has been detected even prior to the operation. It is stated that the ravelling of the eye lid is not due to any lack of care during operation. It is natural with every operation on the head. It is also stated by the Ist defendant that the appellant could count the figures at 2 meters and one meter distance when he was referred to the Ophthalmologist. The appellant had exposure Keratitis (Neuroparalytic) due to the 7th nerve paralysis. He came with neurological deficit. He became much improved after the operation. The 2nd defendant also disputed the case of the appellant. It is stated, inter alia, that the chronic pappilloedema was due to intra-cranial pressure which is A.S.No.728/1994 -4- again due to Haematoma. It is also stated that the Doctor who treated the plaintiff at the K.M.H. Hospital was not able to diagnose the disease correctly and they diagnosed the disease as Tuberculous meningitis and treated the appellant with anti- tubercular drugs like ethambutol which contributed to worsening the vision of the appellant. It is stated that wrong diagnosis and consumption of ethambutol when the intra- cranial pressure was at its peak were fatal to the eye-sight. The nature of the operation and the risk involved were explained to the father of the appellant. The appellant was not conscious then. It is stated that the defendants had not been negligent even to the slightest degree. 3. The 3rd defendant also filed written statement disclaiming liability and denied negligence on the part of the defendants in treating the appellant. 4. The oral evidence consists of testimony of the appellant as Pw1 and his father as Pw2 and defendants 1 and 2 as Dw1 and Dw2. The documentary evidence consisted of Exts.A1 to A6(a) and Ext.B1 scan report besides Ext.X1 which is the case sheet from the Medical College Hospital. A.S.No.728/1994 -5- 5. The trial court found that the appellant has no case that there is any negligence in diagnosis or treatment and the negligence is attributed only in the surgery. It is found that there is no evidence to substantiate that the appellant was healthy before January 1988. It is further found that the appellant was having eye sight immediately after the operation and it was a gradual loss. It is stated that there is no specific allegation to establish that loss of eye sight was due to the negligence of the defendants. He found that the appellant has no case that any of the nerves connected with the brain and eye were cut down during operation. The trial court took note of the contention that there is no expert opinion. Ext.X1 is relied to find that consent is given by PW2, the father of the appellant. It is found that the case of the defendants that the appellant was not in a state of mind to give conscious answer regarding consent cannot be brushed aside. Noting in OP ticket is considered to the effect that the appellant was stuporous and he was put in the dangerously ill list on the same day. The court below took the view that the appellant was unconscious and not conscious as he would A.S.No.728/1994 -6- contend. It is found that the operation was a success. The following contentions of the defendants about the possible cause of loss of eye sight of the appellant were noted: 1. Misdiagnosis in K.M.H. Hospital. 2. In the said hospital they have applied drugs like ethambutol. 3. It occurred as a result of intracranial brain hereniation. It is noted by the court below that the appellant has not summoned the file kept in the K.M.H. hospital. It was found that he has consumed certain pills in the said hospital and there is no evidence in the said regard except what is stated in Ext.X1. The side effects of ethambutol is taken note of. It is stated that it is toxic to the optic nerve. The court found that the appellant had only vomiting and head-ache. The court below further taking note of the lengthy scar on the forehead of the appellant took the view that he has sustained some injuries to his head. The deposition of 2nd defendant is that there were clinical features of territorial hereniation in regard to the appellant. The trial court is not prepared to rule out the possibility that the delay in removing the clotting because of the wrong diagnosis in K.M.H. hospital has resulted in A.S.No.728/1994 -7- blindness. The operation had to be done to save the life of the appellant. It is found that defendants 1 & 2 are not guilty of any professional negligence. The court also found that the suit is bad for non-joinder of necessary parties in so far as the Doctor who treated the appellant at the K.M.H. hospital was not impleaded, nor examined as a witness. And still further, the file also was not called for from the said hospital. On this reasoning the trial court dismissed the suit. 6. We heard the learned counsel appearing on behalf of the parties. Learned counsel for the appellant Sri.M.A.Fayaz would point out that this is a clear case of medical negligence. According to him, immediately after the operation noticing problems in the eye sight, the appellant had immediately notified it to the defendant Doctors. They only told him that everything will be alright. It took 12 days to refer him to the Ophthalmologist. It is contended that appellant had gone to the hospital without any problem to his eye sight. He was told that he had to undergo the surgery on account of subdural haematoma and that his problems of head-ache and vomiting would be solved. He would submit A.S.No.728/1994 -8- that there was indeed negligence on the part of respondents 1 and 2 in conducting the surgery and in not referring him to Ophthalmologist in spite of the appellant informing the Doctors about the condition of his eye sight. 7. Learned counsel appearing for respondents 1 and 2 would contend that there is absolutely no merit in the Appeal. They would contend that in the state of law holding the field, the Appeal is meritless. The surgery in question was indispensable to save the life of the appellant. The condition of the appellant was not correctly diagnosed by the Doctor who originally treated the appellant in a private hospital. When he came to the Medical College Hospital, he was initially attended to by Dr. Warriyar, a well known Neuro Physician. His condition was diagnosed. A scanning was done. A diagnosis of Subdural Haematoma was made. The condition warranted immediate surgical intervention. The appellant was stuporous and had severe headache and vomiting. The result of the surgery was the elimination of the symptoms of the ailment. Thus, the operation itself was a success. As far as the loss of eye sight was concerned, it is contended that the A.S.No.728/1994 -9- appellant did not lose the eye sight in both his eyes. It is pointed out that the appellant was already afflicted with the condition of his eyes. Matters were made worse by the administration of the drug ethambutol in the private hospital. If the correct diagnosis had been made earlier in the private hospital, it is contended that the appellant would not have had any impairment in his eye sight. It is further pointed out that respondents 1 and 2 had acted to the best of their ability to save the life of the patient in a life threatening medical condition. Learned Government Pleader would, however, submit that since there was no medical negligence and the liability of the third respondent which can only be vicarious liability, the third respondent cannot be held liable. 8. It is, first of all, necessary to refer to the legal position obtaining in this matter. In the decision of the Apex Court in Jacob Mathew v. State of Punjab ((2005) 6 SCC 1), the Court, inter alia, held as follows: “(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 A.S.No.728/1994 -10- 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 sured. The essential components of negligence are three: “duty”, “breach” and “resulting damage”. (2).......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 A.S.No.728/1994 -11- precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence....... (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.” This was cited with approval by the Apex Court in a later decision in State of Punjab v. Shiv Ram and Others ((2005) 7 SCC 1). A.S.No.728/1994 -12- 9. Learned counsel for the appellant would emphasise the fact that despite the appellant informing the first respondent about the condition of his eye sight, there was inaction for twelve days. It is necessary to refer to the pleading in paragraph 3(2) of the plaint which reads as follows: “(2) It was in the first week of January, 1988 that the plaintiff for the first time suffered the frequent headache and vomiting. Before that, he did not have any such complaint or illness. He was quite hale and hearty and was pursuing his job as usual. He did not have any illness or defect with his body or any organ, besides the above said headache. As stated above, the plaintiff underwent the operation on 27.1.1988. Next day, he noticed some swelling on the left eye with gradual losing of his eye sight. Likewise, on the right eye also, some swelling appeared and with diminution of the eye sight of the right eye. This defect was immediately brought to the notice of the first defendant. The plaintiff was advised that every thing will be alright within a few days and was A.S.No.728/1994 -13- consoled that the eye sight will be regained within few days. Besides, the usual attention nothing in particular was done by the defendants with respect of the loss of eye sight of the plaintiff for some days immediately after the complaint thereof by the plaintiff. The second defendant was also working in the Medical College under the supervision and control of the first defendant and had attended on the plaintiff prior to and subsequent to the operation on 27.1.88. After persistent complaint by the plaintiff about his loss of sight of both eyes, on the 12th day of operation he was sent to opthalmology department of the Medical College Hospital. Thereafter, some medicines were prescribed by the doctors in opthalmology department. But, this did not help the plaintiff in regaining sight of his both eyes, since irreparable damage had already been done by the defendants' carelessness and negligence in conducting the operation. Before the ill-fated operation, the plaintiff did not have any trouble with his eye sight or any other disease. It is only because of the negligence and carelessness of the defendants 1 and 2 in doing the operation that the plaintiff lost his sight of both eyes.” A.S.No.728/1994 -14- There is no specific denial as such of the allegations regarding the appellant intimating about the condition of his eye sight and the delay of nearly twelve days in referring to the Ophthalmologist. But, it is pointed out by the respondents that the case of the appellant being that the blindness was brought about as a result of the negligent manner in which the surgery was conducted, it is for the appellant to prove that the surgery was conducted in a negligent manner. According to them, the appellant has failed to prove the same. In this connection, it is pointed out that there is no expert evidence. It is further pointed out that the appellant had suffered an injury as is self evident from the long scar on all forehead and the appellant, an auto driver had suffered injury in some accident. In fact in Ext.X1, it is noted, inter alia, as follows: “Involvement in a road traffic accident one year back” under the head “past history”. It is further pointed that Ext.X1 would bear out that the respondents in the contention that the appellant was administered with Ethambutol which only would have aggravated his condition. In other words, they would contend A.S.No.728/1994 -15- that the condition of his eye sight was certainly not brought about by virtue of the surgery and it was only the culmination of the progressive nature of the affliction affecting his eyes which had its origins not in the surgery, but in the traffic accident. It is also pointed out by the learned counsel for the second respondent that even if it is true that the taking the pleadings of the parties and applying the principle that a pleading not traversed is admitted, at the worst, it would only amount to the fact that the appellant was referred to the Ophthalmologist after nearly twelve days. It is pointed out that there is no material before the court, for the court to hold that the condition of his eye sight could have been prevented, had the appellant been referred to the Ophthalmologist earlier. 10. Learned counsel for the appellant would acknowledge that in a case of this nature, the appellant ought to have adduced expert evidence to establish his case. He would plead that the appellant may be referred to a Medical Board so that the lacuna about the absence of expert medical evidence may be eliminated. It is pointed out that the A.S.No.728/1994 -16- appellant is prepared to adduce evidence in this regard even at this stage. 11. The evidence in this case consists of the appellant as PW1, his father as PW2, the Doctors as DWs.1 and 2. There cannot be any doubt, having regard to the materials on record that the appellant was presented in the Medical College Hospital with headache for one month. There was vomiting also. It is clear that he was taken to a local private hospital earlier. He was treated there for tuberculous meningitis. It would appear from Ext.X1 further that he was administered with steroids, ETB etc. The appellant was brought stuporous. Even at that stage, it is noted in Ext.X1 that optic shows blurring. Pupils non-reacting to light. As already noted, it was under the head “past history”, it is noted that he was involved in a road traffic accident one year back. It is not disputed that the appellant was referred for scanning at Ernakulam. Scan report shows that the appellant had chronic subdural haematoma. This was indeed a life threatening situation warranting surgical intervention. The consent of the appellant's father was taken for surgery. The surgery was A.S.No.728/1994 -17- done. The surgery was successful in the sense, it resulted in the removal of the symptoms and the condition which produces symptoms. In fact, going by the appellant's own version, he has no complaint about the diagnosis or the treatment which was administered. 12. As far as the aspect of the appellant not being referred to the Ophthalmologist is concerned, it is true that there is no pleading on the part of the first respondent or second respondent controverting the same as such. But, it is to be noted that the specific case of the appellant is that the impairment to his eye sight was brought about as a result of the surgery. Further more, we cannot hold with certainty that if the appellant had been referred to the Ophthalmologist earlier, it would have resulted in the avoidance of the loss of eye sight and there is no evidence to the effect that the appellant lost his eye sight of both eyes as he alleged and in one eye as is maintained by the respondents as a result of the delay in referring the appellant for urgent consultation and treatment. The respondents also have a case of the appellant having had the injury in an accident. We cannot also ignore A.S.No.728/1994 -18- the evidence of DW2 to the effect that the blood in the subdural space is denser than the fluid in the brain, and that when pressure is applied on the brain, the patient loses consciousness. DW2 states that this condition is known as teritorial hereniation, the clinical features of which were found present in the appellant. In fact, the appellant was included in the dangerously ill list in the Medical College Hospital. The administration of drug ethambutol and its adverse consequences on the eyes cannot also be overlooked. In this context, having regard to the case of the respondents that the appellant was administered with the said drug and there was wrong diagnosis in the private hospital, the appellant ought to have taken steps to produce documentary evidence relating to his medical records in the said private hospital. The fact that he has not taken steps to examine the Doctor in support of his contention cannot also be overlooked, even if we take the view that the trial court erred in finding that the said Doctor of the private hospital was a necessary party. 13. We do not think that the appellant can derive any assistance from the rulings reported in Dr. T.T. Thomas v. A.S.No.728/1994 -19- Elisa & Others (1986 KLT 1026). In the said decision, the patient died due to perforated appendicitis. The appellant Doctor did not perform the surgery on the person on the date of admission in the hospital. The condition of the patient deteriorated fast and he passed away quite soon thereafter. The case set up was that the condition of the appellant was not conducive for surgery for surgery on 12.3.1974. The Division Bench appeared to agree with this contention. But, the court found that there is clinching evidence to show that the person could have been operated upon on 11.3.1974 and there was evidence to show that any delay in performing the surgery was fraught with dangerous consequences. The contention of the appellant as to why he did not perform operation on 11.3.1974 was that the patient did not give consent to it. The Court took the view that there can be instances where a Surgeon cannot say that he did not operate because he did not get the consent. Such cases include emergency operations. The Court further held that a Surgeon who failed to perform an emergency operation must prove with satisfactory evidence that the patient refused to undergo A.S.No.728/1994 -20- the operation not only at the initial stage, but even after the patient was informed about the dangerous consequences of not undergoing the operation. We do not think that the principle of the said decision can be canvassed by the appellant in support of his case, having regard to the facts. In the circumstances of the case and having regard to the long lapse of years, we are also not inclined