Gujarat High Court
Chimanbhai Bhikhabhai Chauhan vs Ahmedabad Municipal Corporation on 28 August, 2018
Equivalent citations: AIR 2019 GUJARAT 7
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/FA/944/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 944 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or any
order made thereunder ?
Circulate this judgement in the subordinate judiciary
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CHIMANBHAI BHIKHABHAI CHAUHAN
Versus
AHMEDABAD MUNICIPAL CORPORATION
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Appearance:
HL PATEL ADVOCATES(2034) for the PETITIONER(s) No. 1
ADVOCATE NAME DELETED(26) for the RESPONDENT(s) No. 1
MR ANUJ K TRIVEDI(6251) for the RESPONDENT(s) No. 1
MR RATHIN P RAVAL(5013) for the RESPONDENT(s) No. 3
RULE NOT RECD BACK(63) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 28/08/2018
ORAL JUDGMENT
1. This first appeal is at the instance of the original plaintiff Page 1 of 21 C/FA/944/2017 JUDGMENT and is directed against the judgment and decree dated 22 nd April, 2015 passed by the City Civil Judge of the City Civil Court, Ahmedabad in the Civil Suit No.5407 of 1990.
2. It appears from the materials on record that the son of the plaintiff, who at the relevant point of time, was a minor, had some problems with his left ear. The son of the plaintiff complained of oozing or discharge of liquid from his left ear. The plaintiff took his son to the L.G. Hospital for necessary medical treatment. At the relevant point of time, the respondent No.2 herein, original defendant No.2, was serving as an honorary E.N.T surgeon in the hospital. The hospital is run and managed by the respondent No.1, Ahmedabad Municipal Corporation-original defendant No.1. The son of the plaintiff was admitted on 1st August, 1988 in the E.N.T ward of the L.G. Hospital. On 2nd August, 1988, the defendant No.2 operated upon the left ear of the patient. After the surgery, few complications cropped up. The post operative complications led the father of the patient to believe that the doctor had not performed the surgery in a proper manner and his negligence had led to the post operative complications. In such circumstances, the minor through his father preferred the civil suit in the City Civil Court for compensation in terms of money.
3. The defendants appeared and contested the suit. The defendants Nos.1 and 2 filed their written statement at Exh.14 and denied the entire case put up by the plaintiff. It appears that there is one another written statement also at Exh.16 filed by the defendant No.2. In the written statement, Exh.14, it has been stated that as the patient had granulations in the ear, Page 2 of 21 C/FA/944/2017 JUDGMENT the facial nerve had become week and had got exposed due to such pathology. The nerve was damaged during the surgery, but the damage was due to the post operative tissue oedema and the pathology, the patient was having. The father of the patient was advised to consult a plastic surgeon as well as an ophthalmic surgeon.
4. Having regard to the pleadings of the parties, the trial court framed the following issues;
"(1) Whether the plaintiff proves that due to the negligence on the part of the defendant No.2, as a Doctor, the plaintiff has sustained permanent disability as alleged?
(2) Whether the plaintiff is entitled for the claim amount with interest?
(3) Whether the plaintiff is entitled for the relief as prayed for?
(4) What order and decree?"
5. The issues, framed by the court below, came to be answered as under;
"(1) In the negative
(2) In the negative
(3) In the negative
(4) As per final order."
6. The findings recorded by the court below as regards the issue No.1 are as under;
14. REASONS (A) Issue No.1:-Page 3 of 21
C/FA/944/2017 JUDGMENT It is an admitted fact that the plaintiff who had at the relevant time was a minor, was taken to the LG. Hospital for his treatment in the left ear. The plaintiff in the plaint states that he had pain in the ear for which he had gone to LG. Hospital for treatment, whereas defendant Nos.1 and 2 have in the written statement to the suit, stated that due to the discharge coming out of the left ear of the plaintiff, the plaintiff had come to LG. Hospital for treatment. Be that as it may, the fact that due to some problems, the plaintiff had gone to LG. Hospital on 1.8.1988. It is also an admitted position that on 2.8 1988, the plaintiff was operated for the problem in the left ear.
The plaintiff has stated that it was due to the negligence of defendant No.2 who was the attending doctor in the concerned E.N.T. Ward at the relevant time and who had operated him for the alleged problem in his left ear that the plaintiff had suffered post- operative problems resulting into his permanent disablement. As against this, defendant Nos.1 and 2 have denied the said facts of the plaintiff, stating that there was no negligence or lack of reasonable care exercised by defendant No.2 while carrying out the operation of left ear of the plaintiff. In the written statement, defendant No.2 states that at the time of operation, there was no facial paralysis detected, but it was subsequently on the second day that the same was detected due to post tissue edema.
15. The plaintiff has deposed at Exh.28. He has almost reiterated all the facts which he has stated in the plaint. He has been cross-examined at length by the defendants. In the cross-examination, he admits that he had problem of discharge from his ear for which he had come to the LG. Hospital for treatment. He also admits that because of the said discharge coming out from the ear, he was operated in the hospital of defendant No.1 by defendant No.2. A question was put up by defendant No.2 in the mouth of the plaintiff asking him that it is true that the paralysis on the face is post- operative effect, to which he has answered in the affirmative. The plaintiff has in the cross-examination by defendant No.1 denied the fact that he had not gone to the hospital in follow-up. In his cross-examination by defendant Nos.2 and 3, he has admitted that initially, when he had problem in his ear, he had consulted other doctors. He has denied to have taken treatment in LG. Hospital four months prior to Page 4 of 21 C/FA/944/2017 JUDGMENT the operation. He has denied the fact that during the operation, his ear bone was removed. He has also denied that thereafter, the bone was tested in the laboratory. He has also denied that two days after the operation, he had the effect of paralysis. He has stated that after the operation, neither the doctor nor the hospital staff came to attend him. He admits that after he was given discharge, the doctor had advised him to go for physiotherapy and to show his eye to the Ophthalmologist. He admits that he has not gone for physiotherapy or to the Ophthalmologist. However, he states that he has gone wherever his father was advised to go by the doctor. He has denied to have asked for a certificate from the doctor after his discharge from the hospital. He has admitted that it is true that the doctor issued a certificate to the extent that he is eligible to go to the school. He has admitted that the doctor had told him that after taking treatment of eyes and going for physiotherapy, his problems would be cured. He has stated that in the cross that his marriage has not been dissolved, but his wife has separated from him. He has denied that the problems which he had suffered post-- operative were not due to the negligence of defendant No.2.
16. PW. No 2-Dr. Belaben Jayeshbhai Trivedi(Exh. 34) has deposed that she had issued the certificate produced at Exh. 35 (mark 27/4) wherein she has stated that the plaintiff has hearing loss of 56%. In the cross- examination, she has stated that she had diagnosed the plaintiff and thereafter had issued certificate. She has stated that the plaintiff had the problems in both the ears. She has also stated that from the certificate it can be stated that the plaintiff had hearing loss of 40% in the right ear and 60% hearing loss in the left ear.
17. Defendant No.2-Dr.Chimanbhai Shamjibhai Gohil has deposed at Exh.68. He has deposed in his examination-in-chief in respect of the illness or the problems to the plaintiff. He has deposed that he has taken all due care while carrying out the operation of the plaintiff. He has in his cross-examination of the plaintiff, admitted that the facial nerve controls muscles of movements of ear, eyes and cheek. He has also admitted that 7th nerve which is called for facial nerve is passing Page 5 of 21 C/FA/944/2017 JUDGMENT below the mastoid bone. He has admitted that post- operative, the plaintiff was vomiting and on the second day of the operation, he found the patient having difficulty in the movement of the eyelids and also found stiffness in the cheek muscles. He has admitted that the plaintiff had complained about the same, but he had not referred him to the neurologist or plastic surgeon. He has also admitted that the problems caused to the plaintiff post-operative occurred due to the damage to the 7th nerve i.e. facial nerve. He has also admitted that it is true that if the nerve is not permanently damaged, then within a month or two, edema gets normal.
18. In the case on hand, in order to show that all due care was taken, the doctor- defendant No 2 has deposed about each and every minute happening and investigation that were carried out of the plaintiffs left ear by the hospital. In paragraph Nos. 1 2 and 3 of his deposition at Exh 68, he has stated all these facts and further deposed that the treatment given to the plaintiff pre and post Operative is being written in the case- papers produced by him at Exhs 69 & 70. It is significant to note that the plaintiff has not controverted him on this deposition. The plaintiff has also not rebutted the evidence produced at Exhs. 69 & 70. It is also Significant to note that the plaintiff has not put his case in the mouth of defendant No. 2 to the extent that it was due to his sheer negligence that the plaintiff has sustained permanent disability and/or deformities. This much the plaintiff is required to do as it is not merely a formality, but an essential rule of evidence. The certificate of Dr. Belaben Jayeshbhai Prajapati is revealing that the plaintiff had loss of hearing to the extent of 56%. Thus, the said certificate is nowhere stating about the facial paralysis or any other deformities on the face of the plaintiff.
19. It is equally significant to note that the case of the plaintiff that after the operation, he had continuous and profuse bleeding was denied by defendant No.2. The case of the plaintiff that his artery was also cut in the operation by defendant No.2 is denied by the doctor. The existence of the said fact is not proved by the plaintiff. It is the fundamental rule of evidence that one who asserts the existence of the facts and wishes the court to believe Page 6 of 21 C/FA/944/2017 JUDGMENT those facts has to prove it. When these facts were denied by defendant No.2, it was incumbent upon the plaintiff to prove the existence of said facts beyond any reason of doubt. The plaintiff in the case on hand has miserably failed to do so.
20. The plaintiff has in his cross-examination by defendant Nos.2 and 3 admitted that he had not gone in follow-up. He also admits that he had not gone for physiotherapy and before the Ophthalmologist. He also admits that he was told by defendant No.2 that if he would show his eye to the Ophthalmologist and go for physiotherapy then, his complaints would be cured. Thus, it was the plaintiff who did not follow the advise given to him by defendant No.2. Under the circumstances, it cannot be said that defendant No.2 was negligent in performing his duties. The plaintiff has also admitted that the doctor had certified that he could go to school. The plaintiff has asked a question to the doctor that in spite of the complaints being told to him by the plaintiff, the doctor did not refer him to the Neurologist and plastic surgeon. The plaintiff has not explained this court as to what would be the role of a Neurologist and plastic surgeon in such circumstances. He has not shown any medical literature showing that in particular facts and circumstances of medical case like the one on hand, what is the role and importance of a Neurologist & plastic surgeon.
21. It is pertinent to note that the plaintiff at the relevant time when he was admitted in LG Hospital and had undergone the operation of his left ear was a minor. Thus, it was the father of the plaintiff who at the relevant time had been taking the plaintiff to L.G. Hospital and he was the person who could be said to be more conversant with the actual facts that happened at the relevant time of this incident. Admittedly, there is no evidence of the plaintiff's father on the record of this suit. Under the circumstances, it was then incumbent upon the plaintiff to get himself examined by an expert doctor and put on the record of this suit the doctor's certificate in respect of the alleged disabilities and/or deformities of the plaintiff. It was then incumbent upon the plaintiff to put before the court the best (expert's) evidence by Page 7 of 21 C/FA/944/2017 JUDGMENT examining such expert doctor in support of his say. Unfortunately, no such evidence has been led by the plaintiff. The plaintiff has not led any evidence to prove the negligence of the doctor. It was necessary for the plaintiff to prove that the negligence of defendant No.2 was of such a degree that the injury resulting therefrom was most likely to be eminent. The plaintiff has also miserably failed to prove that defendant No.2 is guilty of medical negligence or that he has not exercised ordinary degree of professional skill and competence. The plaintiff has also not proved that defendant No.2 acted against the general approved practice. It was incumbent upon the plaintiff to cross-examine the doctor i.e. defendant No.2 to the extent that he has failed to perform his duty, that he has made breach of the same and that has resulted into damages to the plaintiff. No such questions have been asked by the plaintiff to defendant No.2 in his cross-examination. This much was imperative on the part of the plaintiff more particularly in cases where damages are sought on the ground of medical negligence. My aforesaid reasoning is well supported by the several precedents of the Hon'ble Supreme Court which have been delivered over in the last decade".
7. The Trial Court, upon appreciation of the oral as well as the documentary evidence on record, dismissed the suit on the ground that the plaintiff failed to prove any medical negligence.
8. Being dissatisfied with the judgment and decree passed by the court below, dismissing the suit, the original plaintiff is here before this Court with this first appeal.
9. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the court below committed any error in dismissing the suit.
Page 8 of 21C/FA/944/2017 JUDGMENT
10. In the case on hand, having gone through the entire oral as well as documentary evidence on record, I find it difficult to disturb the findings recorded by the court below. Indisputably, something went wrong immediately after the surgery was performed, but there is no evidence worth the name on record to even draw an inference that such post operative complications were on account of the gross negligence on the part of the doctor concerned. Negligence, more particularly, medical negligence cannot be inferred. There has to be something substantial on record to reach to an appropriate conclusion that the negligence on the part of the doctor led to the complications or damage to any part of the body.
11. It is only if such negligence is proved on the basis of some evidence that the onus would, thereafter, shift on the defendants to show that there was no negligence worth the name. In the case on hand, the plaintiff, in my opinion, has not been able to discharge the initial burden of proof to show that there was negligence on the part of the doctor which led to damage in the 7th nerve of the ear. It appears from the materials on record that the patient had granulation in the ear and his facial nerve had become very week and exposed by such pathology. It is the case of the defendants that the nerve was not damaged during the surgery but the facial damage was on account of the post-operative tissue oedema and the pathology, the patient was having. In such circumstances, referred to above, even upon re-appreciation of the entire oral as well as documentary evidence, I find it difficult to take the view that the Trial Court committed an error in dismissing the suit filed by the plaintiff for compensation.
Page 9 of 21C/FA/944/2017 JUDGMENT
12. 'Liability' is normally grounded on some finding of fault or wrong in addition to a finding of responsibility for some occurrence. According to Bouveir's Law Dictionary 'liability is the state of being bound or obliged in law or justice. Anderson's Law Dictionary defines 'liability' as the state of being bound or obliged in law or justice to do, pay or make good something, legal responsibility. In Black's Law Dictionary the expression 'liability' has been indicated to denote 'every kind of legal obligation, responsibility, or duty, the state of being bound or obliged in law or justice to do, pay, or make good something; the state of one who is bound in law and justice to do something which may be enforced by action.
13. A perusal of the plaint indicates that the plaintiff has not asserted the material facts in regard to either the want of competent care and skill in providing medical help or establishing the necessary connection or nexus between the negligence of the respondents and the post operational complications. The defendants have denied their liability which is sought to be saddled upon them. When a negative fact has to be proved the party can be expected to do nothing more than to substantiate his allegations prima facie. The onus thereafter shifts on other side to prove positively his assertion. However, the rule that burden rests on the persons who makes an affirmative allegation is always not a true test. There are many exceptions to this proposition. The burden also rests on a person who has a negative assertion to make. The amount of evidence required to shift the burden, however, depends on the circumstances of each case. The Apex Court in its decision in the case of K. S. Nanji and Co. v. Jatashankar Dossa and Page 10 of 21 C/FA/944/2017 JUDGMENT Ors., reported in AIR 1961 SC 1474 had pointed out that there is an essential distinction between the phrase, burden of proof, as a matter of law and pleading and as a matter of adducing evidence. Their Lordships have stated that under Section 101 of the Evidence Act, the burden in the former sense is upon the party who comes to Court to get a decision on the existence of certain facts which he asserts and that burden is constant throughout but the burden of proof in the sense of adducing evidence shifts from time to time having regard to the evidence adduced by one party or the other or the presumption of fact or law raised in favour of one or the other.
14. In the present case, the plaintiff has claimed damages for the alleged negligence on the part of the defendants. It was for the plaintiff to establish first that there had been a want of competent care and skill on the part of the respondents to such an extent so as to lead to a bad result. There must be direct nexus between the injury and the negligent act. The necessary connection between the negligence of the defendants and the ultimate injury caused to the patient had to be established. It seems to me that it is not enough to saddle the defendants with the liability on the supposition that some medical man of far greater experience might have used greater degree of skill or some greater degree of care. The real test is whether there has been a want of competent care and skill to such an extent as to lead to a bad result.
15. It must not be lost sight of that care is a matter of degree, but it is difficult to define the precise legal standard of care required in all cases of negligence. The standard of care then is a question of fact depending upon the circumstances of Page 11 of 21 C/FA/944/2017 JUDGMENT each case. In determining this standard what has to be considered is as to how a reasonable and prudent man would behave under given circumstances. Negligence is the omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs will do or doing something which a prudent and reasonable man would not do. In the realm of negligence rigid rules give right to avoidable injustice. The degree of competent care and skill therefore by which the respondents are to be judged has to be such as may be reasonably expected from an average person in his profession and from any person specially gifted or qualified. The burden of proving negligence rests upon the person who asserts it. In medical negligence cases it is for the patient to establish his case against the medical man and not for the medical man to prove that he acted with sufficient care and skill. In all cases the facts proved must be sufficiently compelling to give rise to an inference of negligence. A mere conjecture will be insufficient. No human being is infallible and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of the disease condition. A case of serious fault where the diagnosis of the disease was palpably wrong has to lead to an irresistible conclusion about negligence being committed. That is to say if the mistake is of such nature that has to imply absence of reasonable skill and care regard having had to the ordinary level of skill in the profession, a medical man may be guilty of negligence if he fails to attend to his patient with regularity and promptitude which his patient's condition demands, but he can only be held liable if his lack of attention leads to an avoidable deterioration of the patient's condition.
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16. In the facts and circumstances of the present case, as indicated hereinabove, it was for the plaintiff to establish first that there had been a want of competent care and skill on the part of the defendants to such an extent as to lead to damage to the 7th nerve in the ear.. The necessary connection between the negligence of the defendants and the alleged injury to the plaintiff had to be established. The plaintiff had further to establish that a duty stood cast on the defendants, the breach of which was a legal cause of the damage complained of. It is easy to become wise after the fault and to condemn as negligence which may only be a misadventure or a vis-major.
17. Even if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff again fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition; 'Ei qui affirmat non ei qui negat incumbit probatio' which indicates that if the evidence establishes only that the accident was possibly due to the negligence to which the plaintiff seek to assign it, his case is not proved. To justify the verdict which he wish to obtain the evidence must be such that the attribution of the negligence to that cause may reasonably be inferred. If a case such as this is left in the position that nothing has been proved to render more probable any one of two or more theories of the incident, then the plaintiff has to be taken to have failed to discharge the burden of proof stood cast upon him. In such a situation, it is obvious that he leaves the case in equilibrium, and the Court is not entitled to incline the balance one way or the other.
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18. Sentiments is a dangerous will of the Wisp. The Court should not be carried away by any sympathy for the party in such cases as yielding to instinct will tend to ignore the cold logic of law. It should be remembered that the law is the embodiment of all wisdom. Disregardful of law, however, hard, the case may be it should not be done.
19. It may further be noticed that the plaintiff has come up with a very grave charge of negligence against the defendants in regard to non-providing of medical care attributing the injury to such a negligence. With the best will in the world, sometimes things go amiss in medical treatment. A doctor cannot be held negligent simply because something went wrong. He cannot be held liable for mischance or misadventure or for an error of judgment. The liability can be fastened in case medical care provided is proved to fall below the standard of reasonable competent medical practitioner in his field so much so that his conduct might be deserving censor or is inexcusable. It was for the plaintiff to give evidence of fact on which he based his claim for the relief in regard to the compensation. It had to be established that on the balance of probability the most likely cause of the injury was the negligence on the part of the defendant No.2 and not the negligence of any other person. Further, the facts proved must be sufficiently compelling to give rise to an inference of negligence; a mere conjecture will be insufficient. In the circumstances, therefore, even if on the balance of probabilities it can be indicated that there was a breach of duty on the part of the defendant No.2, the plaintiff would not succeed. If, on the other hand, the facts proved only bring out a position of the plaintiff being able to say no more than that 'a Page 14 of 21 C/FA/944/2017 JUDGMENT possible explanation is that the defendant failed in his duty' but the materials brought on record do not indicate that it was a more probable cause of the misbeing than any other in that event also the negligence cannot be taken to have been established as the case cannot be deemed to have passed from the realm of conjecture to that of legal inference.
20. The law on the subject has been elaborately discussed by the Supreme Court in the case of Jacob Mathew vs. State of Punjab, (2005) 6 SCC page 1. I may quote the relevant observations made in the said judgment by the Supreme Court;
"44. In Achutrao Haribhau Khodwa and Ors. v. State of Maharashtra and Ors. (1996) 2 SCC 634 the Court noticed that in the very nature of medical profession, skills differs from doctor to doctor and more than one alternative course of treatment are available, all admissible. Negligence cannot be attributed to a doctor so long as he is performing his duties to the best of his ability and with due care and caution. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession. It was a case where a mop was left inside the lady patient's abdomen during an operation. Peritonitis developed which led to a second surgery being performed on her, but she could not survive. Liability for negligence was fastened on the surgeon because no valid explanation was forthcoming for the mop having been left inside the abdomen of the lady. The doctrine of res ipsa loquitur was held applicable 'in a case like this'.
45. M/s Spring Meadows Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwalia and Anr. (1998) 4 SCC 39 is again a case of liability for negligence by a medical professional in civil law. It was held that an error of judgment is not necessarily negligence. The Court referred to the decision in Whitehouse & Jorden, [1981] 1 Page 15 of 21 C/FA/944/2017 JUDGMENT ALL ER 267, and cited with approval the following statement of law contained in the opinion of Lord Fraser determining when an error of judgment can be termed as negligence:-
"The true position is that an error of judgment may, or may not, be negligent, it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligence."
46. In State of Haryana and Ors. v. Smt. Santra, (2000) 5 SCC 182 also Bolam's test has been approved. This case too refers to liability for compensation under civil law for failure of sterilisation operation performed by a surgeon. We are not dealing with that situation in the case before us and, therefore, leave it to be dealt within an appropriate case.
47. Before we embark upon summing up our conclusions on the several issues of law which we have dealt with hereinabove, we are inclined to quote some of the conclusions arrived at by the learned authors of "Errors, Medicine and the Law" (pp. 241-248), (recorded at the end of the book in the chapter titled 'Conclusion') highlighting the link between moral fault, blame and justice in reference to medical profession and negligence. These are of significance and relevant to the issues before us. Hence we quote :-
(i) The social efficacy of blame and related sanctions in particular cases of deliberate wrongdoings may be a matter of dispute, but their necessity in principle from a moral point of view, has been accepted. Distasteful as punishment may be, the social, and possibly moral, need to punish people for wrongdoing, occasionally in a severe fashion, cannot be escaped. A society in which blame is overemphasized may become paralysed. This is not only because such a society will inevitably be backward-
looking, but also because fear of blame inhibits the uncluttered exercise of judgment in relations between persons. If we are constantly concerned about whether our actions will be the subject of complaint, and that Page 16 of 21 C/FA/944/2017 JUDGMENT such complaint is likely to lead to legal action or disciplinary proceedings, a relationship of suspicious formality between persons is inevitable. (ibid, pp. 242-
243)
(ii) Culpability may attach to the consequence of an error in circumstances where substandard antecedent conduct has been deliberate, and has contributed to the generation of the error or to its outcome. In case of errors, the only failure is a failure defined in terms of the normative standard of what should have been done. There is a tendency to confuse the reasonable person with the error-free person. While nobody can avoid errors on the basis of simply choosing not to make them, people can choose not to commit violations. A violation is culpable. (ibid, p. 245).
(iii) Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake : the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. (ibid, p.246). A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled. The effect of this on the doctor-patient relationship is distorting and will not be to the benefit of the patient in the long run. It is also unjustified to impose on those engaged in medical treatment an undue degree of additional stress and anxiety in the conduct of their profession. Equally, it would be wrong to impose such stress and anxiety on any other person performing a demanding function in society. (ibid, p.247). While expectations from the professionals must be realistic and the expected standards attainable, this implies recognition of the nature of ordinary human error and human limitations in the performance of complex tasks. (ibid, p. 247).
(iv) Conviction for any substantial criminal offence requires that the accused person should have acted with a morally blameworthy state of mind. Recklessness and Page 17 of 21 C/FA/944/2017 JUDGMENT deliberate wrongdoing, are morally blameworthy, but any conduct falling short of that should not be the subject of criminal liability. Common-law systems have traditionally only made negligence the subject of criminal sanction when the level of negligence has been high a standard traditionally described as gross negligence. In fact, negligence at that level is likely to be indistinguishable from recklessness. (ibid, p.248).
(v) Blame is a powerful weapon. Its inappropriate use distorts tolerant and constructive relations between people. Distinguishing between (a) accidents which are life's misfortune for which nobody is morally responsible,
(b) wrongs amounting to culpable conduct and constituting grounds for compensation, and (c) those (i.e. wrongs) calling for punishment on account of being gross or of a very high degree requires and calls for careful, morally sensitive and scientifically informed analysis; else there would be injustice to the larger interest of the society. (ibid, p. 248).
Indiscriminate prosecution of medical professionals for criminal negligence is counter-productive and does no service or good to the society.
Conclusions summed up
48. We sum up our conclusions as under:-
(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 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 sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, Page 18 of 21 C/FA/944/2017 JUDGMENT in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. 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 precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.
(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.
(4) The test for determining medical negligence as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.
Page 19 of 21C/FA/944/2017 JUDGMENT (5) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree. Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.
(6) The word 'gross' has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be 'gross'. The expression 'rash or negligent act' as occurring in Section 304A of the IPC has to be read as qualified by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.
21. The plaintiff has pleaded for 'presuming negligence' on the part of the opposite party. Negligence has to be established and cannot be presumed.
22. I inquired with Mr. Patel, the learned counsel appearing for the appellant whether his client, later, took any medical treatment from any other doctor in this regard. Mr. Patel Page 20 of 21 C/FA/944/2017 JUDGMENT submitted that no such treatment was taken from any other doctor. If any such treatment would have been taken from any other doctor, then, probably, something would have surfaced as to what had exactly gone wrong after the surgery. The fact remains that there was ailment in the left ear of the patient and for that the plaintiff had to be admitted in the hospital.
23. For the foregoing reasons, this appeal fails and is hereby dismissed.
(J.B.PARDIWALA, J) Vahid Page 21 of 21