Case: Laxman Balkrishna Joshi Vs. Trimbak Bapu Godbole And Anr

2. At about sunset on May 6, 1953, Ananda, the son of respondent 1, aged about twenty years, met with an accident on the sea beach at Palshet, a village in Ratnagiri District, which resulted in the fracture of the femur of his left leg. Since the sea beach was at a distance of 1-1/4 miles from the place where he and his mother lived at the time it took some time to bring a cot and remove him to the house. Dr. Risbud, a local physician, was called at about 8.80 or 8.45 p. m. the only treatment he gave was to tie wooden planks on the boys leg,with a view to immobilise it and give rest. Next day, he visited the boy and though he found him, in good condition, he advised his removal to Poona for treatment. On May 8, 1953, Dr. Risbud procured Mac Intyres splints and substituted them for the said wooden planks. A taxi was thereafter called in which the boy Ananda was placed in a reclining position and he along with respondent 2 and Dr. Risbud, started for Poona at about 1 a. m. They reached the city after a journey of about 200 miles at about 11.30 a. m, on May 9, 1953. By that time respondent 1 had come to Poona from Dhond where he was practising as a medical practitioner.They took the boy first to Tarachand Hospital where his injured leg was screened. It was found that he had an overlapping fracture of the femur which required pin-traction. The respondents thereafter took the boy to the appellants hospital where, in his absence, his assistant, Dr. Irani, admitted him at 2.15 p. m. Sometime thereafter the appellant arrived and after a preliminary examination directed Dr. Irani to give two injections of 1/8th grain of morphia and 1/200 th grain of Hyoscine H. B. at an hours interval. Dr. Irani, however, gave only one injection. Ananda was thereafter removed to the x-ray room on the ground floor of the hospital where two x-ray photos of the injured leg were taken. He was then removed to the operation theatre on the upper floor where the injured leg was put into plaster splints. The boy was kept in the operation theatre for a little more than an hour and at about 5.30 p. m., after the treatment was over, he was removed to the room assigned to him. On an assurance given to respondent 1 that Ananda would be out of the effect of morphia by 7 p. m., respondent 1 left for Dhond. Respondent 2 however, remained with Ananda in the said room. At about 6.30 p. m. she noticed that, he was finding difficulty in breathing and was having cough. Thereupon Dr. Irani called the appellant who, finding that the boys condition was deteriorating, started giving emergency treatment which continued right until 9 p. m. when the boy expired. The appellant thereupon issued a certificate Ext. 138, stating therein that the cause of death was fat embolism.      3. The case of the respondents, as stated in para 4 of the plaint, was that the appellant did not perform the essential preliminary examination of the boy before starting his treatment that without such preliminary examination a morphia injection was given to him that the boy soon after went under morphia; that while he was under morphia the appellant took him to the x-ray room, took x-ray plates of the injured leg and removed him to the operation theatre. Their case further was that"While putting the leg in plaster the defendant used manual traction and used excessive force for this purpose, with the help of three men although such traction is never done under morphia alone, but done under proper general anaesthesia. This kind of rough manipulation is calculated to cause conditions favourable for embolism or shock and prove fatal to the patient. The plaintiff No. 1 was given to understand that the patient would be completely out of morphia by 7 p. m. and that he had nothing to worry about Plaintiff No. 1 therefore left for Dhond at about 6 p. m. the same evening."In his written statement the appellant denied these allegations and stated that the boy was only under the analgesic effect of the morphia injection when he was taken to the x-ray room and his limb was put in plaster in the operation theatre. Sometime after the morphia injection the patient was taken to the x-ray room where x-ray plates were taken. The boy was co-operating satisfactorily. He was thereafter remove to the operation theatre and put on the operation table. The written statement then proceeds to state:"Taking into consideration the history of the patient and his exhausted condition, the defendant did not find it desirable to give a general anaesthetic. The defendant, therefore, decided to immobilise the fractured femur by plaster of paris bandages. The defendant accordingly reduced the rotational deformity and held the limb in proper position with slight traction and immobilised it in plaster spica. The hospital staff was in attendance. The patient was cooperating satisfactorily. The allegation that the defendant used excessive force with the help of three men for the purpose of manual traction is altogether false and mischievous and the defendant does not admit it."The appellant further averred that"the defendant put the patients limb in plaster as an immediate preliminary treatment on that day with a view to ameliorate the patients condition."4. His case further was that at about 6.30 p. m. it was found that the boys breathing had become abnormal whereupon the appellant immediately went to attend on him and found that his condition had suddenly deteriorated, his temperature had gone high, he was in coma, was having difficulty in breathing and was showing signs of cerebral embolism and that notwithstanding the emergency treatment be gave, he died at about 9 p. m. The parties led considerable evidence, both oral and documentary, which included the correspondence that had ensued between them following the death of Ananda, the appellants letter dated July, 17, 1958 to respondent 1, the complaint lodged by respondent 1 to the Bombay Medical Council , the appellants explanation thereto and such of the records of the case as were produced by the appellant. The oral testimony consisted of the evidence of the two respondents, Dr. Gharpure and certain other doctors of Poona on the one side and of the appellant and his assistant, Dr. Irani, on the other. The nurse who attended on the boy was not examined. At the time of the arguments the parties used extensively well-known works on surgery, particularly with reference to treatment of fractures of long bones such as the femur.      5. On this evidence, the trial court came to the following findings: (a) The accident resulting in the fracture of femur in the left leg of Ananda occurred at about 7 p. m. on May 6, 1958 at the sea beach of village Palshet. That place was about one and a quarter mile away from the place where he and respondent 2 had put up. Arrangement had to be made for the cot to remove him and the boy was brought home between 8.30 and 9 p. m. (b) Dr. Risbud was called within ten minutes but except for tying three planks to immobilise the leg he gave no other treatment. This was not enough because the fracture was in the middle third of the femur and, therefore, the hip joint and the knee joint ought to have been immobilised. (c) On May 8, 1953, Dr. Risbud removed the planks and put the leg in Mac Intyres splints. There was on that day swelling in the thigh and that part of the thigh had become red. The Mac Intyres protruded a little beyond the foot. (d) At about midnight on 8/9 May 1953, a taxi was brought to Palshet. Ananda was lifted into it and made to lie down in a reclining position. The party left at 1 a. m. and reached Poona at about 11.30 a.m. The journey took nearly eleven hours.The boy was first taken to Tarachand hospital and from there to the appellants hospital where he was admitted by Dr. Irani at about 2.15 p. m. (e) After the appellant was summoned to the hospital by Dr. Irani, he first examined his heart and lungs, took temperature, pulse and respiration and the boy was thereafter taken to the x-ray room where two x-ray plates were taken. The appellant then directed Dr. Irani to give two morphia injections at an hours interval but Dr. Irani gave only one injection instead of two ordered by the appellant. The trial court found that the appellant had carried out the preliminary examination before he started the boys treatment. (f) The morphia injection was given at 3 p. m. The boy was remove to the x-ray room at about 3.20 p. m. He remained in that room for about 45 minutes and was then removed to the operation theatre at about 4 p. m. and was there till about 5 p. m. when he was taken to the room assigned to him. The boy was kept in the operation theatre for a little over an hour. (g) Respondent 1 was all throughout with Ananda and saw the treatment given to the boy and left the hospital for Dhond at about 6 p. m. on the assurance given to him that the boy would come out of the morphia by about 7 p. m. (h) At about 6.30 p. m. respondent 2 complained to Dr. Irani that the boy was having cough and was finding difficulty in breathing. The appellant, on being called, examined the boy and found his condition deteriorating and, therefore, gave emergency treatment from 6.30 p. m. until the boy died at 9 p.m.      6. On the crucial question of treatment given to Ananda, the trial Court accepted the eye-witness account given by respondent 1 and came to the conclusion at notwithstanding the denial by the appellant, the appellant had performed reduction of the fracture; that in doing so he applied with the help of three of his attendants excessive force, that such reduction was done without giving anaesthetic, that the said treatment resulted in cerebral embolism or shock which was the proximate cause of the boys death. The trial court disbelieved the appellants case that he had decided to postpone reduction of the fracture or that his treatment consisted of immobilisation with only light traction with plaster splints. The trial Judge was of the view that this defence was an afterthought and was contrary to the evidence and the circumstances of the case. On these findings he held the appellant guilty of negligence and wrongful acts which resulted in the death of Ananda and awarded general damages in the man of Rs. 3,000.      7. In appeal the High Court came to the conclusion that though the appellants case was that a thorough preliminary examination was made by him before he started the treatment, that did not appear to be true. The reason for this conclusion was that though Dr. Irani swore that the patients temperature, pulse and respiration were taken, the clinical chart, Ext. 213, showed only two dots, one indicating that pulse was 90 and the other that respiration was 24. But the chart did not record the temperature. If that was taken, it was hardly likely that it would not be recorded along with pulse and respiration.

Reasoning: 8. As regards the appellants case that be had decided to delay the reduction of the fracture and that he would merely immobilise the patients leg for the time being with light traction, the High Court agreed with the trial court that that case also was not true. The injury was a simple fracture. The reasons given by the appellant for his decision to delay the reduction were that (1) there was swelling on the thigh, (2) that two days had elapsed since the accident, (3) that there was no urgency for reduction and (4) that the boy was exhausted on account of the long journey. The High Court observed that there could not have been swelling at that time for neither the clinical notes, Ext. 213, nor the case paper, Ext. 262, mentioned swelling or any other symptom which called for delayed reduction. Ext. 262 merely mentioned one morphia injection, one x-ray photograph and putting the leg in plaster of paris. The reference to one x-ray photo was obviously incorrect as actually two such photos were taken. This error crept in because the case paper, Ext. 262 was prepared by Dr. Irani some days after the boys death after the x-ray plates had been handed over on demand to respondent 1 and, therefore, were not before her when she prepared Ext. 262. Her evidence that she had prepared that exhibit that very night was held unreliable. Exhibit. 262, besides, was a loose sheet which did not even contain either the name of the appellant or his hospital. It was impossible that a hospital of that standing would not have printed forms for clinical diagnosis9. The next conclusion that the High Court reached was that if the appellant had come to a decision to postpone reduction of the fracture on account of the reasons given by him in his evidence he would have noted in the clinical chart Ext. 213 or the clinical paper, Ext. 262 the symptoms which impelled him to that decision. The High Court agreed that the medical text books produced before it seemed to suggest that where time has elapsed since the occurrence of the fracture and the patient has arrived after a long journey, deferred reduction is advisable. But the High Court observed, the question was whether the appellant did defer the reduction and performed only immobilisation to give rest to the injured leg. After analysing the evidence, it came to the conclusion that what the appellant actually did was to reduce the fracture, that in doing so he did not care to give anaesthetic to the patient, that he contented himself with a single morphia injection, that he used excessive force in going through this treatment, using three of his attendants for pulling the injured leg of the patient, that he put that leg in plaster of paris splints, that it was this treatment which resulted in shock causing the patients death, and lastly, that the appellants case that the boy died of cerebral embolism was merely a cloak used for suppressing the real cause of death, viz. shock10. These findings being concurrent, this Court, according to its well established practice, would not ordinarily interfere with them. But Mr. Purshottam urged that this was a case when we should reopen the findings, concurrent though they were, and reappraise the evidence as the courts below have arrived at them on a misunderstanding of the evidence and on mere conjectures and surmises. In order to persuade us to do so, he took us through the important parts of the evidence. Having considered that evidence and the submissions urged by him, we have come to the conclusion that no grounds are made out which could call for our interference with those findings12. While considering the rival cases of the parties, it is necessary to bear in mind that respondent 1 is a medical practitioner of considerable standing and though not an expert in surgery, he is not a layman who would not understand the treatment which the appellant gave to the boy. It is not in dispute that he was present all throughout and saw what was being done, first in the X-ray room and later in the operation theatre. The trial court and the High Court had before them his version on the one hand and that of the appellant on the other and if they both found that his version was more acceptable and consistent with the facts and circumstances of the case than that of the appellant, it would scarcely be legitimate to say that they acted on sheer conjecture or surmise16. As regards the cause of death, the respondents case was that the boys condition was satisfactory at the time he was admitted in the appellants hospital; that if fat embolism was the cause of death, it was due to the heavy traction and excessive force resorted to by the appellant without administering anaesthetic to the boy. The appellants case, on the other hand, was that fat embolism must have set in right from the time of the accident or must have been caused on account of improper or inadequate immobilisation of the leg at Palshet and the hazards of the long journey in the taxi and that the boy died, therefore, of cerebral embolism. In the death certificate issued by him, the appellant no doubt had stated that the cause of death was cerebral embolism. It is true that some medical authors have mentioned that fat embolism is seldom recognised clinically and is the cause of death in over twenty per cent of fatal fracture cases. But these authors have also stated that diagnosis of fat embolism can be made if certain physical signs are deliberately sought by the doctor. Mental disturbance and alteration of coma with full consciousness occurring some hours after a major bone injury should put the surgeon on guard. He should examine the neck and upper trunk for petechial haemorrhages. He should turn down the lower lid of the eye to see petechiae; very occasionally there would be fat in the sputum or in the urine, though these are not reliable signs17. In our view, there is no reason to think that the High Court was wrong in its conclusion that death was due to shock resulting from reduction of the fracture attempted by the appellant without taking the elementary caution of giving anaesthetic to the patient. The trial court and the High Court were, therefore, right in holding at the appellant was guilty of negligence and wrongful acts towards the patient and was liable for damages.