If a Patient suffers complications during a surgery not contemplated normally, the principle of ‘Res Ipsa Loquitor’ will apply: Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE S.V.BHATTI THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS FRIDAY THE 18TH DAY OF DECEMBER 2020 27TH AGRAHAYANA 1942 RFA.No.131 OF 2020 AGAINST THE DECREE AND JUDGMENT IN OS No.1111 2011 OF PRINCIPAL SUB COURT THIRUVANANTHAPURAM M S PRS HOSPITAL KILLIPALAM THIRUVANANTHAPURAM 695002 REPRESENTED BY ITS ADMINISTRATIVE OFFICERwith Endopyelotomy. The defendants averred that after consulting the Cardiologist and after controlling hypertension the plaintiff was taken for surgery under general anesthesia. While the track dilation was done with coaxial metal dilators the plaintiff developed cardiac problems and the procedure had to be abandoned. As advised by the Chief Cardiologist ECG was taken and the patient was put on ventilators and given proper treatment. Though he was moving both his upper limbs his lower limbs could not be moved. In short defendants denied that the disability of the plaintiff was caused due to the injury sustained on the spinal cord. The allegation that the incident occurred due to the negligence of the 2nd defendant was denied and on the other hand according to the defendants the problems arose either because of a pre R.F.A. No.131 20 :5: existing aneurysm rupture or because of cardiac arrest that occurred while the plaintiff was inside the operation theater and in either case there was no negligence on the part of the 2 nd defendant while performing the operation and that the operation was abandoned to treat the unexpected complication that arose to the plaintiff 5. Plaintiff examined himself as PW1 through an Advocate Commissioner along with four other witnesses as PWs 2 to 5 and marked Ext.A1 to Ext.A9(a) to Ext.A9(cd) while the defendants examined the 2nd defendant as DW1 and marked Ext.B1 and Ext.B2. PW4 and PW5 were expert witnesses who were examined pursuant to summons issued for their evidence 6. The issues raised for consideration by the trial Court included whether any injury was caused to the plaintiff if so who was negligent and also as to the quantum and the person liable to pay the compensation if any 7. The Sub Court Thiruvananthapuram by judgment dated 27.07.2019 decreed the suit holding that the facts circumstances and the evidence adduced proved that negligence on the part of the 2nd defendant was the cause of paraparesis sustained to the plaintiff that the 1st defendant was vicariously liable for the negligent act of the 2nd defendant that the R.F.A. No.131 20 :6: defendants were liable to compensate the plaintiff to the extent of Rs.20 40 000 with interest at 6% per annum from the date of suit till realization along with costs after exonerating the plaintiff from paying the court fee. Rs.40 323 was awarded as treatment expenses Rs.10 00 000 towards loss of future earning and Rs.10 00 000 towards pain and suffering and the total was rounded off to Rs.20 40 000 . Aggrieved by the judgment and decree the defendants have preferred this appeal 8. We have heard the learned counsel for the appellants Sri. C.R.Shyamkumar and the learned counsel for the plaintiff Sri. Anoop Bhaskar. 9. Adv. C.R.Shyamkumar submitted at the outset itself and quite fairly too that the appellants are not disputing the quantum of compensation awarded in the judgment under appeal and that they are questioning only the findings on negligence recorded by the trial court in the judgment under 10. Adv. Sri. C.R.Shyamkumar questioned the correctness of the impugned judgment by submitting that the trial court had traveled beyond the pleadings to enter the finding of negligence of the 2nd defendant and also that the plaintiff had miserably failed to prove negligence on the part of the 2nd defendant for the R.F.A. No.131 20 :7: incapacity the plaintiff suffered post operation. He further contended that reliance upon the principle of res ipsa loquitor was misplaced and undue reliance by the trial court upon the said principle caused prejudice to the appellants. It was also argued that the surgery performed or attempted to be performed and the injury alleged to have been caused on the spinal cord as pointed out by the plaintiff had no rationale or anatomical connection to infer negligence. He further argued that the procedure alleged to have been done by the 2nd defendant would not under any circumstances cause any injury as deep as to harm the spinal cord and there was absolutely no evidence whatsoever to show that the 2nd appellant was negligent. The learned counsel for the appellants further argued that the refusal by the court below to accept Ext.B1 as admissible evidence after marking it without any objection has caused prejudice to the defendants evidence. The decisions in Mohammed Sageer v Prakash ThomasKLT 400) Kalyan Singh Chouhan v. C.P.Joshi 11 SCC 786] were relied upon for the proposition regarding pleadings while the decisions in R.V.E.Venkatachala Gounder v. Arulmigu Viswesaraswami V.P.Temple and Another 8 SCC 752] Mohammed Aynuddin Alias Miyam v. State of A.P.7 SCC 72] and R.F.A. No.131 20 :8: Gourikutty v. Raghavan KLT 332) were referred for the proposition canvassed on the consideration of medical 11. On the other hand Adv. Sri.Anoop Bhaskar contradicted the arguments of the appellants and submitted that this is a classic instance of the maxim res ipsa loquitor to be applied and the trial court was perfectly justified in applying the said maxim to the instant case. He further argued that the uncertain and wavering defense case showed that the defendants were trying to build up a case especially after PW4 was examined. According to the learned counsel for the plaintiff in the written statement the defendants did not have a case of any cardiac arrest having occurred during the operation. He further submitted that the defendants during cross examination had admitted the case of the plaintiff. The learned counsel for the plaintiff further submitted that Ext.B1 though marked through the cross examination of PW1 its admissibility was rightly rejected by the Sub Court. It was pointed out that the production of a photocopy of the medical records of the plaintiff that too just before the evidence commenced made the said document not only inadmissible in evidence but also unreliable. It was contended that a document marked during the cross examination of the R.F.A. No.131 20 :9: opposite party can be utilized only to contradict the witness. The statutory requirement of laying down the foundation for producing secondary evidence was not done in the instant case and the failure to lay foundation rendered Ext.B1 unreliable and inadmissible in law. The learned counsel further relied upon the decisions in Gourikutty v. Raghavan KLT 332) V.Kishan Rao v. Nikhil Super Speciality Hospital and Another5 SCC 513] and H.Siddiquiby Lrs. v A. Ramalingam4 SCC 240 12. In view of the submissions as above the points that arise for consideration are i) Whether the plaintiff pleaded the material facts to constitute negligence ii) Whether Ext.B1 is admissible in evidence iii) Whether the defendants were negligent during the surgery resulting in injury to the plaintiff and whether the plaintiff is entitled to claim damages iv) Whether the damages awarded by the Subordinate require Thiruvananthapuram Judges Court interference If so to what extent 13. It is the admitted case of all parties to the instant lis that the plaintiff was a healthy person who drove his motorbike to the hospital two days before the operation and within half an hour of commencement of the operation the doctors were R.F.A. No.131 20 :10: compelled to abandon the operation. Plaintiff was under general anesthesia inside the operation theater. He was brought out of the operation theater within half an hour with loss of mobility of limbs and his ability of speech absent. He could move out of the hospital only after three months of treatment that too with the help of support. It is not in dispute that the plaintiff has become crippled for life and his condition is referred to in medical terms as postrio paresis Point No:1 14. Order 6 rule 2 of the Code of Civil Procedure 1908 states that every pleading shall contain and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defense as the case may be but not the evidence by which they are to be proved. As observed by Courts far too often pleadings are to be interpreted not with formalistic rigour but with the full awareness of the legal literacy levels of the litigants and also the nature of the case 15. A perusal of paragraph 6 to 9 of the plaint shows that the plaintiff has averred that he was given anesthesia and taken to the operation theater and within thirty minutes he was taken out after abandoning the operation and that he developed postrio paresis and became crippled for life. It was averred that R.F.A. No.131 20 :11: the injury sustained by the plaintiff on his spinal cord during keyhole surgery performed on him by the 2nd defendant was in a most callous negligent and irresponsible manner as a result of which the plaintiff had paraplegia from D4 level. It is further pleaded that the plaintiff was at his prime of youth and as a result of the negligent and callous keyhole surgery done on him he became disabled and bedridden and that the 2nd defendant is responsible for the negligence 16. The purpose of pleadings is to intimate the opposite party about the nature of the case that is set up against him. As held by the Supreme Court in Shyam Narayan Prasad v Krishna Prasad and Others7 SCC 646] pleadings are meant to give to each side an intimation of the case of the other so that it may be met to enable courts to determine what is really at issue between the parties. In the case of medical negligence alleged to have occurred under anesthesia and inside the operation theater the injured may be able to specify in his pleadings only the material fact of nature of injury caused Detailed or specific acts of negligence are not within the domain of the plaintiff’s knowledge since admittedly the plaintiff was under general anesthesia. 17. Further the pleading that due to the negligence of the R.F.A. No.131 20 :12: defendant’s the injury was caused to the plaintiff along with the other averments in the plaint constitute sufficient material pleading in cases where legal presumptions also get attracted At this juncture we bear in mind Order 6 rule 13 of the CPC which entitles that the parties need not plead any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side. In view of the above we find that the plaintiff had put the defendants to notice about the case set by him. The plaintiff had not traveled beyond the pleadings as argued by the learned counsel for the appellants and on the contrary he had pleaded in a concise form the material facts which he relied upon for his claim. 18. The decision relied upon by the defendants in Mohammed Sageer v. Prakash Thomas KLT 400 has no application to the instant case. In the aforecited decision the tenant claimed express consent for subletting the tenanted premises while in evidence he claimed implied consent. It was in such instance the court held that the claim was never made earlier and the tenant cannot travel beyond the pleadings. The decision in Kalyan Singh Chowhan v. C.P. John 11 SCC 786) though a case arising under the election laws the proposition stated therein cannot be disputed. Suffice to state R.F.A. No.131 20 :13: we are of the view that the pleadings in the plaint in the instant case constitute sufficient material pleading to put the defendants in the knowledge of the case of the plaintiff. The point is answered accordingly Point No.is a photocopy of the consent letter given by the plaintiff before the operation which bears his signature. The manner in which Exts.B1 and B1(a) were marked through PW1 is as follows: ആശ(cid:3)പത(cid:6)(cid:7)യ(cid:7)ൽ വ(cid:12)ച(cid:14) test കള(cid:17)(cid:18) മറ(cid:17)(cid:18) നടത(cid:24)ന(cid:24)യ(cid:7)ട(cid:14 ഉള സമ(cid:6)(cid:18) വക(cid:24)ട(cid:3)ത(cid:7)ട(cid:17)ണ(cid:31)(cid:24)എഴ(cid:3)(cid:6)(cid:7 ‌ഒപ(cid:7)ട(cid:7)ര(cid:7)ക(cid:3)നത ഞ(cid:24)ന(cid:24)ണ. Case sheet of PRS hospital relating to Anil Kumar P marked as exhibit B1since that alone contained the signature of the plaintiff. Plaintiff has no knowledge of the contents of Ext.B1 nor can he vouchsafe the truth of the facts stated in Ext.B1. By the mere marking of a document the person bound to prove that document cannot be absolved of the burden to prove it. Marking of a document is different from proof of the contents of a document. In this context it is necessary to refer to the decision in Sait Tarajee Khimchand and Others v. Yelamarti Satyam Alias Satteyya and Others4 SCC 562] where the Supreme Court held that mere marking of a document does not dispense with the proof of a document. Similarly in Ramji Dayawala and Sons P) Ltd. v. Invest Import 1 SCC 80] it was held that the truth or otherwise of the facts or contents of a document ought to be proved by admissible evidence. i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue. Thus the mere marking of Ext.B1 does not enable the court to look into the contents of the said document unless the said document is admissible in evidence. R.F.A. No.131 20 :16: 24. The mode in which proof of documents can be given as mentioned earlier is by primary or secondary evidence. When the primary evidence is not available or in cases where the original document is not produced at any time in order to establish the right to adduce secondary evidence a proper foundation is required to be laid. When the original of a document is not produced nor any factual foundation laid for giving secondary evidence it is not permissible for the court to allow a party to adduce secondary evidence. 25. In the decision in H.Siddiqui by Lrs. v. A Ramalingam4 SCC 240] it was held as follows “10. Provisions of S.65 of the Act 1872 provide for permitting the parties to adduce secondary evidence However such a course is subject to a large number of limitations. In a case where original documents are not produced at any time nor any factual foundation has been laid for giving secondary evidence it is not permissible for the court to allow a party to adduce secondary evidence. Thus secondary evidence relating to the contents of a document is inadmissible until the non production of the original is accounted for so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” R.F.A. No.131 20 :17: 26. There are four stages before a Court of law can rely upon a document. They are marking of a document proof of contents of the document andevaluation of the document. Reliance upon a document can be made by the court only if all the above four stages are complied with or satisfied. By the mere marking of a document it does not become admissible in evidence. Further the marking of a document and being admissible in evidence will still not render the contents of a document as proved . When a document admissible in evidence is marked still to be relied upon by the courts its contents will have to be proved. For the contents of a document to have a probative value the person who wrote the contents or is aware of the contents and its veracity must be invited to give evidence about it. It is thereafter the last stage i.e. evaluation takes place. Evaluation of the document is a judicial exercise. Unless all these stages are done a court of law cannot rely upon any document produced or marked before it. 27. In the instant case except for marking Ext.B1 during the cross examination of the plaintiff no foundation has been laid by the defendants to produce secondary evidence. The decisions in R.V.E.Venkatachala Gounder v. Arulmigu R.F.A. No.131 20 :18: Viswesaraswami & V. P.Temple and Another 8 SCC 752] and Malaykumar Ganguly v. Dr. Sukumar Mukherjee and Others 9 SCC 221] are also relevant in this context. Ext.B1 is not only inadmissible in evidence its contents are also not of any probative value. The finding of the learned Sub Judge that Ext.B1 is inadmissible in evidence is correct and justified in the circumstances and therefore warrants no interference. Hence the point held accordingly Point No.5 SCC 513] it has been held in paragraph 48 as "In the treaties on Medical Negligence by Michael Jones the learned author has explained the principle of res ipsa loquitor as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who for no fault of his own is unable to adduce evidence as to how the accident occurred. The principle has been explained in the case of Scott v London & St. Katherine Docks Co.by Chief Justice Erle in the following manner R.F.A. No.131 20 :21: where the thing is shown to be under the management of the defendant or the servants and accident such as in the ordinary course of things does not happen if those who have the management use proper care it affords reasonable evidence in the absence of explanation by the defendants that the accident arose from want of care 32. In the above decision the Supreme Court referred to the illustrations given by the learned author Michael Jones which were based upon decided cases. The illustrations were referred to in paragraph 49 of the aforesaid judgment of which three are similar to the present case. Those three illustrations are “(i) Where following an operation under general anesthetic a patient in the recovery ward sustained brain damage caused by bypoxia for a period of four to five minutes. 2 Med.LR 301 Where following a routine appendicectomy under general anesthetic an otherwise fit and healthy girl suffered a fit and went into a permanent coma 2 IR 147] at p.181 iii) Where an infection following surgery in a well staffed and modern hospital" remained undiagnosed until the patient sustained crippling injury36 0R 2d 669] at 33. The decision in Gourikutty v. Raghavan reported in 2001KLT 332) can also be of useful reference to the facts of this case. R.F.A. No.131 20 :22: 34. Ext. A1 discharge certificate issued by defendant no.1 shows that plaintiff was admitted on 25 09 2005 and was discharged only on 22 12 2005. Though Ext. A1 was prepared at the time of discharge of the plaintiff from the hospital still it mentions that right PCNL and Endopyelotomy under general anesthesia was planned on 27 09 2005 the patient was put to a prone position pelvicalicine was opacified with contrast injected through the ureteric catheter sub coastal mid posterior calyceal puncture and track dilation done and amplatz sheath introduced over the dilators. During the process the patient developed a cardiac problem and the procedure was abandoned and he was shifted immediately to ICCU and that both his lower limbs were not moving. Ext. A2 CT scan report dated 28 09 2005 at the Sree Uthradom Thirunal Hospital shows that cerebral oedema is present on the next day. Ext.A4 MRI of the brain shows findings that can represent hypoxic ischaemic encephalopathy. It also shows compression of D4 D6 level suggestive of subdural haemorrhage. Ext. A5 certificate issued by the Medical Board constituted by the Government of Kerala shows that the plaintiff suffers from a permanent disability of 50%. 35. From the above discussed documentary evidence coupled with the oral evidence of PW1 to PW3 and even that of R.F.A. No.131 20 :23: DW1 and the pleadings in the case it can be safely concluded that the plaintiff had sustained serious injuries during the operation performed by the 2nd defendant at the 1st defendant hospital. the maxim res ipsa loquitor applies in the instant case In the list of cases referred to as illustrations in V.Kishan Rao’s caseit would not be out of place to add the present case as an illustration as follows: "a healthy young man undergoing an operation for kidney stone removal under general anesthesia sustains paralysis and becomes crippled for life 36. The explanation offered by defendant no.2 falls way short of a plausible or valid explanation. In fact other than some vague suggestions no specific explanation was given by DW1 as to the cause of injury. Defendants failed to prove the cause of the injury sustained by the plaintiff. Even though he deposed that the cardiologist of the Hospital and two other Doctors had seen the plaintiff when the injury occurred none of them were examined as witnesses or even cited as witnesses. Even the anesthetist who was inside the operation theater throughout was not examined. These are all direct witnesses who were not examined. The absence of any independent oral evidence of the happenings inside the operation theater failure to produce the original of Ext.B1 the failure to examine anyone associated with R.F.A. No.131 20 :24: the preparation of Ext.B1 or who can vouchsafe the veracity of the contents of Ext. B1 all results in the defendants failing to prove that there was no negligence in the surgery performed on 27 09 2005. Even the vague and indirect reference to a possible lack of oxygen supply to the brain and its cause has not been explained by the defendants. They have miserably failed to discharge their onus or explain the cause of the injury 37. In this context it may be of relevance to refer to Ext.B1(a) which is the photocopy of the consent given by the plaintiff for the surgery. Even though the said document has many of the flaws that could be attributed to Ext.B1 still since the signature in Ext.B1(a) is admitted the same is looked into for the limited purpose of identifying the possible mishaps which were in contemplation for which consent was given. In none of the possible outcomes referred to in Ext.B1(a) is there a complication referred to or mentioned of the nature that occurred to the plaintiff. The disability now suffered by the plaintiff is not seen referred to as an expected complication from a procedure of this nature. This also indicates that it is not a normal complication that has occurred to the plaintiff. Thus by the application of the principle of res ipsa loquitor the defendants alone could have answered or explained the R.F.A. No.131 20 :25: allegation of negligence. In the nature of the evidence adduced the defendants have failed to prove the absence of negligence The findings of the learned Sub Judge regarding the negligence of the defendants was perfectly justified in the facts and circumstances of the case and calls for no interference in this appeal. Hence the point is held in favour of the plaintiff and against the defendants Point No. (iv 38. As mentioned in the earlier part of this Judgment the learned Counsel for the appellant had fairly submitted that the appellants are not challenging the quantum of damages awarded. Having stated so in the absence of any challenge against the quantum of damages awarded we affirm the judgment dated 27.07.2019 in O.S. No.1111 of 2011 of the Principal Subordinate Judge’s Court Thiruvananthapuram The appeal is therefore dismissed with costs Sd S.V.BHATTI JUDGE BECHU KURIAN THOMAS JUDGE vps 

Summary: The principle of ‘Res Ipsa Loquitor’ (rule of presumption that a particular act points towards negligence of another) applies in cases of medical negligence. If a patient suffers an complication which was not contemplated in the normal course of treatment/operation/surgery the above said principle will apply. The ration was laid down by the Kerala High Court presided over by J. S.V. Bhatti &amp; J. B.K. Thomas, in the case of M/s. PRS Hospital &amp; Anr. Vs. P. Anil Kumar [ RFA No. 131 of 2020]. The facts of the case are that a 29 year old was undergoing a surgery for removal of kidney stones and after the surgery he lost his sound and became a paraplegic. A suit for medical negligence was filed by the patient in the Sub-Court of Thiruvananthapuram, and the court affirmed that the patient suffered the complication due to medical negligence and awarded a compensation of Rs. 20,40,000/- along with interest and cost of the suit. The Hospital and doctor filed an appeal in the High Court only challenging the contention of Medical Negligence and not challenging the compensation. The High Court observed that before the surgery the patient was fit and came walking into the hospital 30 minutes after the surgery he suffered these two complications and hence this is a result of medical negligence. The court relied on the landmark judgment of V.Kishan Rao v. Nikhil Super Speciality Hospital &amp; Anr. [(2010) 5 SCC 513]. The Court stated that, “As a patient, when one lies on the operation table, that too under general anesthesia, it is impossible for the patient to comprehend what happens around him. When the patient is under general anesthesia, he is unaware of the processes that are being carried out. Admittedly, the plaintiff was being operated upon under general anesthesia. it was not possible for the plaintiff to specify the nature of acts done or performed on him, that could be depicted as negligent. Plaintiff, as a patient undergoing a procedure, can never claim knowledge of the niceties of the procedure and actual omissions, if any, by the professional, whom he relied upon for treatment.” The court dismissing the appeal stated that, “Defendants failed to prove the cause of the injury sustained by the plaintiff. Even though he deposed that the cardiologist of the Hospital and two other Doctors had seen the plaintiff when the injury occurred, none of them were examined as witnesses or even cited as witnesses. Even the anesthetist who was inside the operation theater throughout was not examined. These are all direct witnesses who were not examined. Even the vague and indirect reference to a possible lack of oxygen supply to the brain and its cause has not been explained by the defendants. They have miserably failed to discharge their onus or explain the cause of the injury.” Click here to view the judgment