Karnataka High Court
U.K. Kini And Anr. vs K. Vasudeva Pai And Ors. on 19 February, 1999
Equivalent citations: II(2000)ACC429, 2001ACJ2141
Author: S.R. Bannurmath
Bench: S.R. Bannurmath
JUDGMENT A.J. Sadashiva, J.
1. Defendant Nos. 1 and 2 in O.S. No. 195 of 1983 on the file of the learned Principal Civil Judge, Mangalore, have filed this appeal against the judgment and decree dated 29.10.1988 passed therein awarding damages in a sum of Rs. 2,00,000 in respect of their alleged medical negligence.
2. Respondent Nos. 1 to 3 are the plaintiff Nos. 1, 3 and 4 in the court below and respondent No. 4 was the defendant No. 3 joined as such at the application of the plaintiffs. Plaintiff No. 2, the victim of the negligence, died on 25.10.1985 during the pendency of the suit. For the sake of convenience, the parties to this appeal are hereinafter referred to with reference to their rank in the trial court.
3. The undisputed facts leading to the judgment and decree under appeal are as follows:
The deceased plaintiff No. 2 was the wife of the plaintiff No. 1 and the mother of plaintiff Nos. 3 and 4. She consulted the defendant No. 1 in respect of certain breathing problems and pain in the neck. The defendant No. 1 on examination found that she had developed non-toxic adenoma of thyroid and requires surgery. He accordingly advised her to undergo surgery. That, in the month of may, 1981 to be precise, she got herself admitted to Ramakrishna Nursing Home belonging to the defendant No. 2 on the evening of 5.8.1981. The defendant No. 2 is an anaesthetist besides being the owner of the nursing home. On 6.8.1981, the defendant No. 1 with the assistance of defendant No. 2 and his staff performed surgery. After surgery, plaintiff No. 2 was shifted to ward No. 15 in an unconscious state. It is not disputed that the plaintiff No. 2 did not regain her consciousness till she died on 25.10.1985. However, she was discharged from the nursing home on 6.12.1981.
4. The plaintiffs filed the suit against defendant Nos. 1 and 2 for damages in a sum of Rs. 2,50,000 but confined it only for a sum of Rs. 2,00,000, alleging medical negligence. It was specifically contended by the plaintiffs that Ramakrishna Nursing Home belonging to defendant No. 2 was suggested by defendant No. 1 with the sole object of helping his friend even though it was not fully equipped. It was their case that even the basic necessities such as oxygen cylinders were not available. They have further contended that 14 types of pre-operative tests required to be done in such type of operations were not conducted. More serious allegations were that the consent of the patient or her husband was not obtained in writing even though it was not a case of emergency. That, on the first incision over the neck of the patient, the defendant found that there was no blood circulation and the B.P. was low and it was only after the lower position of the patient was elevated, palpating the carotid pulse and external cardiac massage, B.P. rose and at that time the defendant ought to have stopped the operation but they have recklessly continued the operation in spite of the fact that they could very well anticipate hypoxia resulting in cardiac arrest in such a condition and thus they have failed to maintain the high standards of professional conduct in dealing with their patient. They have further alleged that the defendants failed to warn the risk involved in the operation to the plaintiff Nos. 1 and 2 and that they have failed to use diligence, care, knowledge, skill and caution in administering the treatment and damage to the brain was caused to the plaintiff No. 2 for want of competent care and skill on the part of the defendants in dealing with the patient so lightly and carelessly. The plaintiffs have further alleged certain ill-treatment by the defendant No. 2 during their stay in the nursing home such as denial of nursing facilities, negligence in treatment, etc.
5. The defendants having entered appearance filed their written statement separately, inter alia, denying the allegations of negligence.
6. In view of the controversy between the parties the trial court framed the issues as follows:
(1) Do plaintiffs prove that defendants were negligent in conducting operation on plaintiff No. 2?
(2) Do plaintiffs prove that damage is caused to the brain of plaintiff No. 2 causing permanent disability to plaintiff No. 2 on account of negligence of defendants in conducting operation?
(3) Do plaintiffs prove that they have sustained damages of Rs. 2,00,000 on account of treatment, permanent disability, loss of company and affection of plaintiff No. 2 to plaintiff No. 1, plaintiff Nos. 3 and 4?
(4) Whether insurance company is a necessary party?
(5) Whether the suit is bad for nonjoinder of necessary party?
(6) What damage plaintiffs are entitled to?
(7) What decree or order?
7. The trial court though held issue Nos. 4 and 5 would not arise for consideration answered all other issues in favour of the plaintiff and accordingly passed a decree for Rs. 2,00,000 apportioning the liability against defendant Nos. 1 and 2 in the ratio of 1:3 and made the defendant No. 3 also liable in respect of the decree against the defendant No. 2 as he was indemnified by the insurance company.
8. Mr. B.L. Acharya, learned counsel appearing for the appellants has contended that the trial court has fallen into an error in passing the decree against defendants in violation of the settled principles of law in respect of burden of proof in an action for negligence. He has contended that in view of the evidence of PWs 2, 5 and 7 and DWs 1, 2 and 3, it is clear that the defendants have acted in a manner with which an ordinary prudent doctor would act in such circumstances. In exercise of reasonable skill and care by doctors, it is not necessary to show that the doctors have exercised the very high degree of skill and expertise and it is sufficient if there is an exercise of reasonable skill and expertise which is expected of an ordinary prudent doctor and the evidence of the doctors examined by the plaintiffs would clearly indicate that defendant Nos. 1 and 2 have acted reasonably and decree against them is, therefore, unsustainable in law. Mr. B.L. Acharya has also contended that in an action of negligence, the degree of proof required in respect of negligence, is the proof beyond reasonable doubt and it shall be proved by the plaintiffs.
9. In support of his contention, Mr. B.L. Acharya has relied on the decisions of the Privy Council in Antonio Dias Caldeira v. Frederick Augustus Gray AIR 1936 PC 154 and Phillips India Limited v. Kunju Punnu 1975 ACJ 311 (Bombay).
The Privy Council has held that, where a suit is filed for damages against doctor, the onus of proof is upon the plaintiff and if he is to succeed he must demonstrate, beyond reasonable doubt, that the defendant was negligent and that his negligence caused the injury of which the plaintiff complains.
In Phillips India, the High Court of Bombay has held that:
In an action for negligence against a doctor, as in any other action for negligence, the plaintiff has to prove: (1) that the defendant was under a duty to take a reasonable care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonable care; (2) that there was a breach of duty on the part of the defendant; and (3) that breach of duty was the real cause of the damage complained of and such damage was reasonably foreseeable.
It was also held that:
A mistaken diagnosis is not necessarily a negligent diagnosis. A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.
A defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degree of skill, since it may never be acquired. Even deviation from the normal professional practice is not necessarily evidence of negligence.
10. The Supreme Court considering the duties which a doctor owes to his patient in Laxman Balkrishna Joshi v. Trimhak Rapu Godbole 1968 ACJ 183 (SC), has held that:
(10) The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires (cf. Hals-bury's Laws of England, 3rd Edn., Vol. 26, p. 17). The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.
11. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, the Queen's Bench Division, considering the care which is expected of medical practitioner has held as follows:
Before I turn to that, I must explain what in law we mean by 'negligence'. In the ordinary case which does not involve any special skill, negligence in law means this: Some failure to do some act which a reasonable man in the circumstances would do, or doing some act which a reasonable man in the circumstances would not do; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? In an ordinary case it is generally said, that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.
In Indian Medical Association v. V.P. Shantha 1996 CCJ 1 (SC), the Supreme Court restated the aforesaid principle with approval.
12. In Achutrao Haribhau Khodwa v. State of Maharashtra , the Supreme Court considering the degree of skill of medical practitioners has held as follows:
(14) The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.
(15) In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman's case 1968 ACJ 183 (SC), by this court, a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor.
(16) In the present case, the facts speak for themselves. Negligence is writ large. The facts as found by both the courts, in a nutshell, are that Chandrikabai was admitted to the Government Hospital where she delivered a child on 10.7.63. She had a sterilisation operation on 13.7.1963. This operation is not known to be serious in nature and in fact was performed under the local anaesthesia. Complications arose thereafter which resulted in a second operation being performed on her on 19.7.1963. She did not survive for long and died on 24.7.1963. Dr. Divan and Dr. Purandare have stated that the cause of death was peritonitis. In a case like this the doctrine of res ipsa loquitur clearly applies.
13. In view of the aforesaid decisions Mr. B.L. Acharya, the learned counsel appearing for the appellant has contended that defendant Nos. 1 and 2 have brought to their task reasonable degree of skill and knowledge and exercised a reasonable degree of care in the performance of operation on the plaintiff No. 2 in respect of the non-toxic adenoma of thyroid. The omission to conduct all the 14 pre-operative tests requires to be conducted in such cases was unnecessary as seen from the evidence of PW 5. The pre-operative tests which are absolutely necessary have been conducted in order to find out the pulse reading, sugar, etc. and as the patient was found to be normal, no further pre-operative tests were required. Even during the operation, defendants took reasonable degree of care to get the heart revived by lowering the body and by applying artificial massage and, in this view of the matter, it cannot be said that the doctors were negligent and they did not discharge their duties. In view of defendant Nos. 1 and 2 having exercised reasonable degree of care as could be expected of a medical practitioner, the suit should have been dismissed.
14. Per contra, Mr. V. Tarakaram, the learned senior counsel appearing for the respondent Nos. 1 to 3 has contended that defendant Nos. 1 and 2 by their own admission have established that they are guilty of breach of their duties. They did not choose to exercise even the minimum degree of reasonable care which is expected of a medical practitioner, let alone that of the specialists in the field. The very fact that they proceeded to perform operation on a patient who had cardiac arrest clearly demonstrates breach of their duty and brings the case within the law laid down by the Apex Court in Achutrao Haribhau .
15. The plaintiffs have examined 3 doctors, PW 25 Dr. Jayadeveppa who was then the part-time Registrar of Karnataka Medical Council, Bangalore, stated that:
Thyroid operation is a major operation. It takes 2-3 hours for thyroid operation. Whether non-toxic adenoma of the thyroid is a complicated operation or non-complicated depends upon the opinion of the doctor who conducted it. Pre-medical investigation such as 2, 3 estimation, PBI estimation, radio uptake studies, B.M.R., sleeping pulse rate, ECG, X-ray chest, detailed haematolo-gical investigations and urinal analysis is required. The opinion of the physician is generally required before conducting thyroid operation.
He has further stated that:
Stopping of functioning of heart, brain and lungs is called cardiac arrest. If the surgeon has noticed cardiac arrest while conducting the operation he has to do external and internal massage of the heart. And then he has to administer oxygen to the patient. Within 3 minutes after cardiac arrest the patient will resuscitate if the scientific treatment is given.
He has also stated that:
After revival from cardiac arrest and after taking the condition of the patient and opinion of the anaesthetist, the surgeon was to take further action when cardiac arrest and revival take place on the operation table. If the cardiac arrest takes place and is severe it causes damage to the brain and vital organs such as lungs and kidney.
In the cross-examination it was elicited from the said witness that:
The pre-medical investigation such as stated by me in the examination-in-chief is required in the case of toxic adenoma of thyroid. The pre-medical investigation is required whether it is non-toxic adenoma according to me.
He also stated in the cross-examination that:
After cardiac arrest of the heart, time-limit for stopping of functioning of brain depends upon the severity of cardiac arrest from 3, minutes to 4 minutes.
PW 5, Professor of Anaesthesiology at Kasthurba Medical College, Mangalore, has stated that:
It is discretion of the surgeon and anaesthesiologist as to whether pre-test like B.M.R., ECG and sleeping pulse rate are required. Cholesterol level in the blood is not required. The urine test R.E. is required. ESR is not required as routine. T.C./D.C. of blood and blood grouping test is required as pre-test.
He has also stated that:
The cardiac arrest means the sudden stoppage of functioning of heart. If the cardiac arrest is not attended it follows the stoppage of functioning of lungs. The cardiac arrest may occur at the time of administration of anaesthesia or at the time of conducting the operation. Normally, the cardiac arrest should be attended within 3 minutes. It depends upon person to person for attending the cardiac arrest beyond 3 minutes. The anaesthesiologist has to keep ready the availability of oxygen and drugs like Adrenaline. The anaesthesiologist has to take precautionary measures by keeping the life saving drugs in the hospital. The anaesthesiologist has to keep watch over the pulse rate, blood pressure and respiratory function of the patient during the operation.
He has further stated that:
After revival of patient from cardiac arrest it is to be decided by the surgeon and anaesthesiologist whether the operation is to be continued or to allow the patient to regain the consciousness. The cardiac arrest may relapse even after revival of the patient from earlier cardiac arrest. The conducting of operation is joint responsibility of surgeon and anaesthesiologist.
In the cross-examination he has stated that:
The cardiac arrest during administration of anaesthesia and surgery is an accepted complication. I cannot say whether the steps taken by the anaesthesiologist stated in Exh. P-66 are proper or correct.
He has also stated in the re-examination that:
The immediate effect of the cardiac arrest affects the whole system of the body. Firstly, the cardiac arrest affects the heart followed by lungs and brain. The turning of the colour of the patient blue after the operation is due to the deficiency of supply of oxygen to the patient.
16. PW 6 Dr. Chikkananjappa, the President of Karnataka Medical Council has deposed that:
(5) The pulse becoming weak and slow can be the symptom of a cardiac arrest. The cerebral oedema is as a result of cardiac arrest and hypoxia. If it is necessary before the starting of operation of thyroid the blood may be infused. After revival of cardiac arrest the blood may be given to patient before continuation of the operation. If the cardiac arrest lasts for the period of 3-4 minutes there will be cerebral death. The cerebral death cannot be revived as the brain has suffered irreversible damage. If the cerebral death is diagnosed during the operation the continuation of the same is not necessary. The cardiac arrest during the operation is a serious crisis.
He has further stated that:
After revival of cardiac arrest caused to plaintiff No. 2 during operation the defendants should not have continued the operation to save plaintiff No. 2 and also it was not an emergency case.
He has further deposed that:
(6) The effects of overdose of anaesthesia are a respiratory depression, hypoxia, cardiac irregularities like fibrillation, asystole. As a result of piercing of sharp end of the fractured ribs into the pleura and to the lungs there was an accumulation of air in the pleura cavity which caused collapse of lungs which is called pneumothorax.
(7) The hypoxia can occur due to the non-supply of sufficient oxygen to the patient.
Except as to the medical facilities available for treatment after operations in England as well as in this country, this witness was not cross-examined in respect of his statement on the material points.
17. DW 1 is the defendant No. 1 and DW 2 is the defendant No. 2 in this case. It is their case that the operation was done with the assistance of one Dr. M.S. Kamath, a senior surgeon and the staff in the Ramakrishna Nursing Home. They have further stated as plaintiff No. 2 did not regain conscious even after four hours, defendant No. 2 required the advice of Dr. K.R. Shetty, a Neuro Physician. For the reasons best known to them they examined neither Dr. Kamath nor Dr. Shetty. It is also in evidence that Mariamma the staff nurse who assisted during the surgery has left the nursing home and her whereabouts are not known. The suggestion made by the plaintiff that Mariamma was dismissed by defendant No. 2 apprehending that she may disclose the truth is no doubt denied. Defendant Nos. 1 and 2 have contended that they have taken all reasonable care and caution which should have been taken in respect of such operations and no negligence can be attributed to them in respect of their duty they owe to plaintiff No. 2. In this context the evidence of DW 1 and DW 2 is material.
18. Before we go to the deposition of DW 1 and DW 2 it is, in our considered view, also material to refer to their defence as pleaded in the written statement. In para 9 of the written statement defendant No. 1 has pleaded that:
As already stated above, this defendant had taken the assistance of a senior surgeon Dr. M.S. Kamath to assist him at the time of operation. After the operation was over, this defendant came out of the operation theatre and the patient was removed to room No. 15 in the nursing home. The fact that there was no complication after the removal of the growth itself is sufficient to show that insofar as operation is concerned, the same was successful and no fault can be laid at the door of this defendant.
He has further contended that:
In fact, the patient was wrapped in cloth and there was no possibility of anybody seeing the colour of the body when the patient was brought out from the operation theatre. Normally, in open major operation, the patients regain consciousness within a couple of hours and if the patient had not regained consciousness, it was not on account of in any way of professional skill or due to any negligence in the conduct of the operation. The fact that somebody is very delicate and human mechanism is intricate cannot be overlooked and one cannot with any concept of external examination or in spite of taking all precautions in that behalf predict the course of event due to internal mechanism of the human body which in spite of due diligence and care cannot be discovered.
19. In para 11 of his written statement dealing with the allegation as to the actual negligence in the operation theatre the defendant No. 1 has stated thus:
When it was discovered that the patient's blood pressure was falling, operation was stopped temporarily as is the practice, head end is lowered which necessarily results in elevation of lower part of the body and such simple exercise which is normally done in all such situations is sought to be highlighted with an ulterior motive. As a result of this exercise, the B.P. was revived to the normal range. However, it is wrong on the part of the plaintiff to allege that at that stage this defendant should have stopped the operation.
At this stage it is material to see that there is no reference to the cardiac arrest and the external massage applied by him. Defendant No. 2 in his written statement has contended that the defendant No. 1 was assisted by Dr. M.S. Kamath who is also a Master of Surgery. The relevant portion reads thus:
The defendant No. 1 infiltrated the line of incision with 20 cc of 0.5% xylocaine and put the incision. At that time this defendant suddenly noticed the pulse of the plaintiff No. 2 becoming weak and slow and this defendant accordingly informed the defendant No. 1. At the same time the defendant No. 1 also had noticed incised tissues not bleeding and felt the carotid pulse which was weak. So immediately the defendant No. 1 started external cardiac massage and this defendant gave her full oxygen cutting off nitrous oxide. Within 172 to 2 minutes the pulse came so strongly with good volume and tension and regular rhythm. The B.P. checked and it was found normal. Once she was stabilised, this defendant asked the defendant No. 1 to proceed with the operation.
It is not in dispute that the nursing home belonging to the defendants did not have the monitoring equipment as the defendant No. 2 has admitted that there was no necessity of providing a monitoring equipment at all for this case as the operation involved was a non-toxic adenoma of thyroid.
20. In view of the aforesaid pleadings it is necessary to look into the evidence of DW 1 and DW 2. In para 10 of his deposition DW 1 has stated that:
(10) Defendant No. 2 told me that the patient is ready for operation after giving anaesthesia to plaintiff No. 2. Then I injected the line of incision with 22 cc of 5% with xylocaine with adrenaline. Thereafter I made incision on the line. After the incision I notified that there is no bleeding from the incision. Immediately I felt that the carotic pulse was weak and slow. Immediately, I started external cardiac massage. At the same time I asked the staff nurse in the theatre to call out every 15 seconds. During this time I saw that defendant No. 2 as an anaesthetist is carrying out his part of the work. After 172 minutes of starting of external massage the heart began to function normally with normal pulse and blood pressure. Thereafter I consulted defendant No. 2 whether patient is fit for continuation of the operation. He told me that the vital functions of plaintiff No. 2 are normal and I may carry on operation. I also thought that the vital organs of plaintiff No. 2 are functioning properly so it is better to continue the operation. Because the total time taken from the beginning to the revival of functioning of the heart was not more than 3 minutes. If the cardiac arrest is less than 3 minutes and revived within 3 minutes the stopping of operation is not necessary. The cardiac arrest in all surgery including minor operation is a hazard which can be expected to by any surgeon. If the cardiac arrest takes place in the operation and revived within 4 minutes the operation need not be abandoned. In the event of the operation on the plaintiff No. 2 there was no complication at all. After the completion of the operation I noticed that there was a fracture of 2-3 ribs of plaintiff No. 2, on account of effective external cardiac massage.
He has further deposed that:
Thereafter Dr. K.R. Shetty told that there is permanent damage to the brain of plaintiff No. 2. She cannot regain consciousness, only further treatment is the nursing care of her. The situation of coma of plaintiff No. 2 was not on account of operation. Myself and the defendant No. 2 are not responsible in any way for the entering into coma by plaintiff No. 2. The immediate cause for unconsciousness of plaintiff No. 2 was on account of anoxia.
21. In the cross-examination, DW 1 has admitted that he did not know whether there was ECG apparatus in the nursing home of defendant No. 2. He also did not know whether there was any apparatus to monitor respiration and functioning of heart and pulse in the nursing home of defendant No. 2. It is no doubt that he has denied the suggestion that there shall be 14 pre-operative examinations of the patient. He has also admitted that, on 5.8.1981 the non-toxic adenoma of plaintiff No. 2 was not a case of emergency for operation. In para 29 of his deposition he has stated that:
On 6.8.1981 I did not examine with regard to pulse rate and B.P. of plaintiff No. 2. Non-coming of blood from the incision of plaintiff No. 2 was an indication of cardiac arrest. The cardiac arrest means stopping of functioning of heart. Later on the cardiac arrest is followed by stopping of respiration. I cannot say whether the cardiac arrest might have occurred 3-4 minutes earlier to incision on plaintiff No. 2. It is not true to suggest that if the cardiac arrest continues for 3-4 minutes there shall be cerebral death. According to authority if the cardiac arrest is more than 4 minutes there will be cerebral death. (Emphasis supplied) He has further stated that:
While I was doing external cardiac massage, defendant No. 2 elevated the lower portion of the body of the plaintiff No. 2 by tilting the table and made the head of the plaintiff No. 2 to lower so as to increase the flow of blood to the brain. After l 1/2 minutes of external cardiac massage by me defendant No. 2 told me that the B.P. and pulse rate of plaintiff No. 2 are normal and heart is functioning normally with normal respiration. I personally did not check the B.P., pulse rate and normal functioning of heart of plaintiff No. 2. (Emphasis supplied) (31) On account of fracture of ribs there may be a change in the B.P. and pulse rate to some extent. The change of pulse rate on account of fracture of ribs may be felt by physical examination of the patient but not the B.P. I do not remember exactly whether the B.P. apparatus was fixed to the arm of plaintiff No. 2 at the time of operation. I cannot say what time has taken for coming of pulse rate and B.P. of plaintiff No. 2 to normalcy after fracture of her ribs. I do not know whether it took 10-15 minutes for the restoration of pulse rate and B.P. of plaintiff No. 2 to normalcy after fracture of ribs.
(32) When the defendant No. 2 told me that the pulse rate and B.P. of plaintiff No. 2 were normal, myself and defendant No. 2 discussed whether to continue the operation or not. After discussing, myself and defendant No. 2 decided to continue the operation of the plaintiff No. 2.
(33) The depth of the incision to reach the thyroid gland is 1/4th to 1/2 inch. I did not wait after the cardiac arrest for regaining of consciousness by the plaintiff No. 2. The cardiac arrest during the operation is a serious crisis. Half minute after the revival of cardiac arrest I continued the operation. Myself and the defendant No. 2 did not feel postponing of operation after the cardiac arrest. (Emphasis supplied) He has also stated that:
I have not noted down the conditions of pulse rate and B.P. of plaintiff No. 2 in the case-sheet at Exh. D-3. When I came out of the operation theatre after completion of operation plaintiff No. 2 was still in the operation theatre. After coming out of operation theatre I went to my clinic. After the operation I did not check whether there was intensive care arrangement for the patient in the Ramakrishna Nursing Home of defendant No. 2. After the operation the intensive care is not required unless there is complication before regaining of consciousness by the patient.
At this stage it is to be noted that the case of plaintiff No. 2 became complicated since she did not regain her consciousness which she had lost on the operation table. Yet, no intensive care arrangements were made. DW 1 has admitted that:
The excess administration of anaesthesia can cause the cardiac arrest and anoxia.
It is also to be noted that:
The witness volunteers that administration of any anaesthesia drugs can cause anoxia, cerebral death and cardiac arrest, even in normal dose.
He has also stated that he cannot say any other reason as to why anoxia was caused to the plaintiff No. 2. He has admitted that once the cerebral death occurs it cannot be cured. He has denied the suggestion that after cardiac arrest there was no emergency to continue the operation of plaintiff No. 2. He pleaded his ignorance as to whether the cerebral death of plaintiff No. 2 was prior to the continuation of operation or after the operation. DW 1 has firstly admitted that thyroid gland has direct action on the heart even though he changed it into indirect action. However, DW 2 has admitted that thyroid gland has got direct action on the heart. He has also stated that he cannot say whether the cardiac arrest occurred to plaintiff No. 2 at the time of administration of anaesthesia or at the time of putting incision.
22. DW 2 owner of Ramakrishna Nursing Home and anaesthesiologist has, in his evidence stated that plaintiff No. 2 became unconscious and continued in the same status for the reasons beyond their control, in spite of reasonable care was taken during the operation. He has contested the necessity of carrying out 14 pre-operative tests as suggested. In paras 8, 9 and 10 of his evidence he has stated as follows:
(8) After putting the plaintiff No. 2 on the operation table I examined the B.P. and pulse rate of plaintiff No. 2.1 found that they were satisfactory. I took the help of my assistant. I started to administer the 5% dextrose intravenous. 5 gm. of pentothal was dissolved in 10 ml of distilled water. I removed 5 c.c. of dissolved pentothal from the syringe and administered it through the drip itself. Constantly watching pulse rate of plaintiff No. 2. It was followed by scoline of 75 mg.
(9) I visualised vocal cords. I passed endotracheal tube and packed the throat of plaintiff No. 2 with ribbon gauze. Then I started administering nitrous oxide to plaintiff No. 2 through Boyle's apparatus. After giving pentothal to the plaintiff No. 2, I had given oxygen. Before giving scoline, I gave proper mixture of oxygen and nitrous oxide through Boyle's apparatus to plaintiff No. 2. Thereafter I found that pulse rate and B.P. of plaintiff No. 2 were normal. I asked defendant No. 1 to proceed with the operation.
(10) The surgeon defendant No. 1 put the skin incision on the neck of plaintiff No. 2. After putting the skin incision we did not notice the bleeding from the skin incision. I found that the pulse rate of plaintiff No. 2 was weak. I informed defendant No. 1 about the pulse rate of plaintiff No. 2. Defendant No. 1 also felt carotid pulse of the plaintiff No. 2. Immediately defendant No. 1 started external cardiac massage. I asked assistant nurse to see the watch and tell time. I cut off the nitrous oxide and gave full oxygen to the plaintiff No. 2. Within 172 minutes of external cardiac massage the pulse rate and B.P. of plaintiff No. 2 came to normal. Plaintiff No. 2 started breathing on her own. I found that the vital organs of plaintiff No. 2 were normal. Myself and defendant No. 1 discussed for half minute whether to continue the operation or stop it. When the vital organs of plaintiff No. 2 were normal, I asked defendant No. 1 to continue the operation.
23. In para 14 of his evidence he has stated that he exercised utmost care in discharging his duty and did not commit any mistake or negligence or rash act in the operation of plaintiff No. 2 as anaesthesi-ologist and the anaesthetic drug usually can cause cardiac arrest to the patient.
In the cross-examination he has admitted that there is no separate laboratory in his nursing home. There is no ECG apparatus; there is no monitoring machine to watch heartbeat and respiratory and there is no assistant doctor working under him in his nursing home. He has also admitted that he has not maintained the register in his hospital to show the stock of oxygen cylinders and nitrous oxide cylinders. He has further admitted that when the patient suffers from cardiac arrest there is no pulse and the cardiac arrest may cause during the administration of anaesthesia drugs. He has also admitted that:
There is a possibility that if the tube is put to the passage of stomach due to inadvertence there may be cardiac arrest for want of oxygen to the lungs. I examined whether the tube entered the windpipe correctly. If the supply of oxygen is less than 25 per cent during administration of anaesthesia there will be hypo-xia, which will cause cardiac arrest.
24. He has also admitted that he did not know whether non-bleeding of skin incision was a result of cardiac arrest. He has further admitted that he did not notice the fracture of ribs during external cardiac massage and he and defendant No. 1 came to the conclusion that the operation of plaintiff No. 2 shall be continued and he did not suggest to defendant No. 1 to stop the operation and according to him if the operation was stopped there was no harm for plaintiff No. 2. He has denied the suggestion that he was desperately trying to contact some other doctors during operation. However, he has admitted that if the colour of the patient is turned to dark blue it is indication of lack of oxygen. However, he denied the suggestion that when the patient was brought from the operation theatre she had turned blue.
25. He has also admitted that at the time of conducting operation of plaintiff No. 2 there was no intensive care ward in his nursing home. He has further admitted that before conducting and taking decision to contact neuro physician the pulse of plaintiff No. 2 was normal and they did not suspect brain damage to plaintiff No. 2. He has also admitted that the notes made by Dr. Shetty are not in Exh. D-3 but he denied the suggestion that they did not contact Dr. Shetty on 6.8.81 but contacted only on 3.8.1981.
26. DW 3 is Dr. L.B. Thakur working as anaesthesiologist in Kasthurba Medical College. He was examined in support of the case of DW 1 and DW 2 that the steps which have not been taken pursuant to cardiac arrest are not necessary in the normal course of business, viz., in the course of operation.
27. As stated supra the defendants did not examine Dr. M.S. Kamath and Dr. K.R. Shetty, the Senior Surgeon and the Neuro Physician respectively in respect of steps taken by them in the operation theatre and outside the operation theatre. It is to be remembered that none of the persons on the side of the plaintiff No. 2 were in the operation theatre to give evidence as to what happened in the operation theatre. It is no doubt true that in a suit for damages against the doctor the negligence of the doctor must be proved by the plaintiff. Mr. B.L. Acharya, learned counsel appearing for the appellants has contended that if the plaintiffs are to succeed they must demonstrate beyond reasonable doubt that the defendants were negligent and their negligence caused injury of which plaintiff No. 2 went in coma and subsequently died.
28. This court in General Manager, K.S.R.T.C. v. Bhavani Bhai, considering the burden of proof in action for negligence has held that the standard of proof is not the proof beyond reasonable doubt. It is on a balance of probabilities. What is to be established is actionable negligence and not culpable negligence or rashness.
29. In Laxman Balkrishna Joshi v. Trimhak Rapu Godbole 1968 ACJ 183 (SC), the Supreme Court has held that the duties which a doctor owes to his patient are clear and a person who holds himself out ready to give medical advice and treatment impliedly undertakes that he was possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties and a breach of any of those duties gives a right of action for negligence to the patient. There is no dispute that defendants owed duty of plaintiff No. 2 in respect of operation undertaken by them but the question is, whether they committed any breach thereof in respect of their duties. In a situation like the one of the present case where the patient to whom the doctors owed duty became dumb on account of her slipping in coma by the time she was removed to the ward, the only alternate for the court is to deduce the probabilities from the admitted facts. It is not in dispute and in fact admitted by DW 2 that plaintiff No. 2 was in good condition before he administered anaesthesia to her. DW 2 has also admitted that when plaintiff No. 2 was put on the operation table she was very hale and healthy and her pulse and blood pressure were normal. It is further admitted that when DW 1 put incision there was no blood from the tissues and there was deterioration in the pulse and the B.P. DW 1 has admitted that the carotid pulse was very weak and there was in fact cardiac arrest which is stated to have been revived by applying external massage resulting in fracture of 2-3 ribs. We find variations between the evidence of DW 1 and DW 2 in respect of the appliance of external massage, tilting the table, lowering the head for proper circulation of the blood from other parts of the body to the head and the performance of certain acts by DW 2. It is most important to note that neither DW 1 nor DW 2 have given any evidence as to the role played by Dr. M.S. Kamath, a Senior Surgeon, who was supposed to have assisted DW 1 in the operation of plaintiff No. 2 nor have they deposed as to whether they had any discussion with Dr. Kamath in respect of continuation of operation. It is true that even the plaintiffs' witnesses have admitted that it is the discretion of the anaesthetist and the surgeon either to continue the operation or to stop the operation after the revival of the cardiac arrest. But in a circumstance like this where the defendants have sought for the assistance of a senior surgeon like Dr. M.S. Kamath, it is strange to notice that they did not say anything as to the role played by the said doctor. The presence of Dr. Kamath cannot be disputed in view of the admission of PW 1 that there was another gentleman along with DW 1 and DW 2. If Dr. Kamath was present in the operation theatre and if he had assisted DWs 1 and 2 why was he not examined? Is he not the best independent witness to find out whether DW 1 and DW 2 have exercised a reasonable degree of care as expected of doctors in reasonable discharge of their duties? DW 1 has admitted that he noticed fracture of 2-3 ribs. He had also admitted that there was no bleeding from the tissues and the cardiac pulse was weak. The B.P. was not stable. Either in his written statement or in his evidence he has not mentioned as to the role played either by Dr. Kamath or DW 2 in respect of tilting the table, lowering the head of plaintiff No. 2. The most glaring situation is lack of proper equipment for performing a surgery of a serious nature like the one in hand. They have admitted that the operation was a serious one even though it was in respect of non-toxic adenoma. We are surprised to notice that a nursing home lacking in basic equipment like the ECG apparatus, monitoring machine and records indicating the storage of oxygen cylinders and nitrous oxide, it is said that even major operations are being conducted. We are unable to comprehend as to how without the assistance of monitoring machine DW 2 was able to find out that the B.P. and the heartbeat were revived particularly where the surgeon did not examine the patient as to pulse rate and blood pressure.
30. In Spring Meadows Hospital v. Harjot Ahluwalia 1998 CCJ 521 (SC), the Supreme Court following the decision in Whitehouse v. Jordan 1982 ACJ 107 (HL, England), had held that:
(9) In the case, in hand, we are dealing with a problem which centres round the medical ethics and as such it may be appropriate to notice the broad responsibilities of such organisations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. The influence exerted by a doctor is unique. The relationship between the doctor and the patient is not always equally balanced. The attitude of a patient is poised between trust in the learning of another and the general distress of one who is in a state of uncertainty and such ambivalence naturally leads to a sense of inferiority and it is, therefore, the function of medical ethics to ensure that the superiority of the doctor is not abused in any manner. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. With the emergence of the Consumer Protection Act no doubt in some cases patients have been able to establish the negligence of the doctors rendering service and in taking compensation thereof but the same are very few in number. In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all these together are responsible for the medical negligence. That apart there has been a growing awareness in the public mind to bring the negligence of such professional doctors to light. Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the reasonable skill of a competent doctor. In the case of Whitehouse v. Jordan 1982 ACJ 107 (HL, England), an obstetrician had pulled too hard in a trial of forceps delivery and had thereby caused the plaintiff's head to become wedged with consequent asphyxia and brain damage. The trial Judge had held the action of the defendant to be negligent but this judgment had been reversed by Lord Denning, in the Court of Appeal, emphasising that an error of judgment would not tantamount to negligence. When the same matter came before the House of Lords, the view of Lord Denning on the error of judgment was rejected and it was held that an error of judgment could be negligence if it is an error which would not have been made by a reasonably competent professional man acting with ordinary care. Lord Fraser pointed out thus:
'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, that it is not negligence.' (10) Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing his duties properly. We have indicated these principles since in the case in hand certain arguments had been advanced in this regard, which will be dealt with while answering the questions posed by us.
31. It was contended before the trial court that the defendants are guilty of negligence on six counts namely:
(1) Non-toxic adenoma of thyroid operation is a major operation; defendants did not explain the consequences of such operation to plaintiff No. 2 nor the consent of the plaintiff No. 2 or her husband was obtained in writing where admittedly thyroid has direct action on the heart and the operation cannot be conducted without administering general anaesthetic drugs; pre-operative investigations have not been conducted to ascertain general conditions of the patient;
(2) Selection of ill-equipped hospital;
(3) Administration of overdose of anaesthetic drug;
(4) Continuation of operation even before the patient regained her consciousness due to cardiac arrest;
(5) Proper treatment was not provided after operation and lastly;
(6) Defendant cut off supply of water and electricity when plaintiff No. 2 was still an inpatient.
32. Learned trial Judge after considering all the material evidence produced by the parties in the light of the observations made in the book titled "Applications in Anaesthesiology relating to Clinical Implications of Cardie Arrest" has found that the defendants were negligent for having failed to exercise the degree of reasonable care in discharge of their duties. He has also recorded a finding that though the defendants are well qualified doctors in their respective subjects have acted negligently without taking proper precautionary measures and without observing conditions of the plaintiff with reasonable degree of care as it was required. The learned trial Judge in view of the observation made by the High Court of Madhya Pradesh in Ram Bihari Lal v. Dr. J.N. Shrivastava 1985 ACJ 424 (MP), that: "operation for removing appendix performed by civil surgeon in an ill-equipped hospital without doing necessary investigation and without preparing patient for operation and without obtaining the consent of the patient or husband, apart from effect of chloroform for two hours, is the negligent act of the surgeon and he is held liable for damages for rash and negligent act", has held that the nursing home belonging to defendant No. 2 was not a well equipped nursing home for conducting major operation and there was no material and important apparatus, such as ECG, monitoring machine, etc., which are absolutely necessary during the operation.
33. In support of his finding in addition to the evidence of defendant Nos. 1 and 2, the learned trial Judge has also relied on certain passages from the aforesaid book by Fredric N. Orkin and Lee M. Coopa-man. The relevant portion reads thus:
The above passage makes it clear that if one does not see the cardiac changes incidental to or because of anaesthesia, he is not looking at all. Further, it makes it clear that during the anaesthesia the ability of the patient to compensate and control circulatory changes is altered and he becomes entirely dependent on the knowledge and skill of the anaes-thesiologist. The anaesthesiologist must be alert and keep a watch constantly on the patient to whom the anaesthetic drug is being administered.
Further it is stated in a passage under the caption 'Diagnosis of cardiac arrest' on page 343 of the same book that continuous close observation and monitoring are mandatory for detecting any changes in vital signs. Further, it is also stated that a pre-cordial of oesophageal stethoscope, ECG, temperature and blood pressure cuff are basic monitoring equipment and should be used routinely for all patients undergoing anaesthesia. Admittedly, all this goes to prove that the anaesthesiologist should continuously keep a watch on the patient to whom he has administered anaesthetic drug or administered the same just to detect the changes in the vital signs of the patient. Further, it is also stated in the same para that the cardiac arrest is usually diagnosed by the absence of a pulse or blood pressure. This goes to prove that defendant No. 2 was not examining constantly the pulse rate and B.P. of plaintiff No. 2 after administering anaesthetic drug to plaintiff No. 2. The very non-coming of blood from the tissues of incision put by defendant No. 1 on the plaintiff No. 2 itself goes to prove that prior to putting skin incision on the neck of plaintiff No. 2 there must have been cardiac arrest more than 4-5 minutes back. If really the cardiac arrest took place within 2-3 minutes prior to putting skin incision, the blood should have been noticed and oozing. When the blood was not oozed from the incision, this goes to prove that the cardiac arrest took place more than 10 minutes back and defendant No. 2 did not keep a watch and observe the pulse rate and B.P. of plaintiff No. 2 and he did not use ECG or blood pressure cuff or apparatus, lowering the temperature of plaintiff No. 2 which are essential at the time of operation. In the earlier para, I have already held that defendant No. 2 must have administered anaesthetic drug at about 3.15 p.m. or prior to 3.20 p.m. after taking plaintiff No. 2 inside the operation theatre and defendant Nos. 1 and 2 noticed the cardiac arrest after putting the skin incision at 3.30 p.m. This goes to prove that defendant No. 2 being an anaesthetist should keep a watch and observe the pulse rate and B.P. of the plaintiff No. 2 of changes in the condition of the patient and he failed to discharge his duties to the patient as an ordinary prudent doctor as he was duty-bound to the patient to use necessary skill and care in discharging the duties to the patient owed by him and he had failed to discharge the same. The defendant No. 1 relied too much on defendant No. 2. Defendant No. 1 being a surgeon should have checked the B.P., pulse rate before putting the skin incision. Normally he is expected to do the same and he failed to do the same. If defendant No. 2 kept a constant watch and observed the condition of plaintiff No. 2 after administering the anaesthetic drug, he should have noticed and felt the cardiac arrest and immediately he should have taken steps to revive the same. Defendant Nos. 1 and 2 have stated that if the cardiac arrest is continued more than 5 minutes, there shall be damage to the brain. PWs 2 and 6 have also stated that if the cardiac arrest is continued and lasted for more than 4 minutes, there shall be brain damage and hypoxia and on account of hypoxia there shall be damage to the brain on account of non-supply of oxygen. The defendant Nos. 1 and 2 and DW 3 have stated and PWs 2, 5 and 6 have also stated that the cardiac arrest is a major crisis in an operation. Further, they have stated that the overdose of administration of anaesthetic drug can cause cardiac arrest. Further, DW 2 has stated that if the cardiac arrest is continued beyond 3-4 minutes the damage caused to the brain cannot be reversed. Further, he has stated the checking of pulse rate and B.P. before administration of anaesthetic drug, after administration of anaesthetic drug, before operation and after skin incision and after revival of cardiac arrest have been noted down in the case-sheet at Exh. D-3. The same are not found in Exh. D-3 anywhere. If really defendant Nos. 1 and 2 were constantly watching the condition of plaintiff No. 2 before skin incision and after administration of anaesthetic drug, they should have felt cardiac arrest and immediately they should have taken steps. They came to know on account of their negligence about the cardiac arrest more than 5-10 minutes after it and as such damage was caused to the brain on account of lasting of cardiac arrest more than 5 minutes. Further, defendant No. 2 stated in para 29 of his deposition that cardiac arrest may be caused during the administration of anaesthetic drug. So the cardiac arrest must have been caused to plaintiff No. 2 at the time of administration of anaesthetic drug by defendant No. 2 and he did not notice the same till putting the skin incision after 10 minutes of administration of anaesthetic drug and if really they used ordinary care and skill in discharging their duties to the patient, they should have come to know of the cardiac arrest and immediately they should have taken steps for revival of the same.
The learned Judge has also held that:
Under the circumstances the plaintiffs were handicapped in making specific allegation on account of no direct evidence on their behalf. The direct evidence like in case of accident cannot be expected in this case on hand as the operation was conducted on plaintiff No. 2 inside the theatre. Except defendant Nos. 1 and 2 and the assisting staff, none were present on the side of the plaintiffs. Only the plaintiffs have to rely on the evidence to prove the negligent act of defendant Nos. 1 and 2 in conducting the operation.
34. In this context it may be material to note Section 106 of the Evidence Act, 1872 which deals with the burden of proving the fact especially within the knowledge of a person concerned. The relevant portion reads thus:
106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him.
35. As stated in the above paras, there were only six persons in the operation theatre during the operation, one of whom had slipped into coma and did not regain her consciousness till her death. The other two staff nurses are stated to have, been dismissed which is no doubt disputed. However, the fact remains that their whereabouts are not known. Another Senior Surgeon who was stated to have assisted the aeration has not been examined. It is itted that there was no bleeding from the incised tissues when the first incision was put. It is also admitted that the pulse and the B.P. were very weak. It is further admitted by defendant No. 2 that when pulse is slow and B.P. is normal it has to be set right by drug and not by external cardiac massage. No evidence is produced by DWs 1 and 2 about the use of any drug to revive the cardiac arrest. On the other hand, DW 1 has admitted that non-coming of blood from the incised tissues of plaintiff No. 2 was an indication of cardiac arrest. In view of the admission of defendant No. 2 that always there is a risk of cardiac arrest in administration of anaesthesia, the cardiac arrest of plaintiff No. 2 must have been after administration of anaesthesia by defendant No. 2. Defendant No. 2 says that it is not possible for him to say exactly at what time he started to give anaesthetic drug and within one or two minutes after starting administering the anaesthetic drug the patient may get unconsciousness. Even though they were very much aware that there is always a risk of cardiac arrest in administering the anaesthetic drug, the defendants did not conduct any pre-operative investigation to ascertain the general conditions of the patient to know whether the plaintiff No. 2 was in a fit condition to undergo surgery. DWs 1 and 2 have admitted that within half a minute from revival of pulse and B.P., they took the decision to continue the surgery. They did not ascertain whether plaintiff No. 2 had regained her consciousness. In view of the seriousness of the situation, the operation should have been discontinued particularly where the operation was not an emergency one. From the evidence and the pleadings it is clear that the defendants have failed to discharge their duty they owed to plaintiff No. 2 and thus they are guilty of negligence.
36. The learned trial Judge has taken into account all the material produced by the parties and examined the same from various angles and came to the correct conclusion. We find no reason to disagree with the findings.
37. It was contended by the learned counsel for the respondents-cross objectors that the plaintiffs are entitled to the compensation in a sum of Rs. 2,50,000 even though they confined their claim to Rs. 2,00,000 in the trial court in view of the principle that it is for the court to decide the just and proper compensation. Where the plaintiffs have abandoned their claim in respect of portion of the relief and continued their prayer to a certain limit, the question of determining the just and proper compensation would not arise in an action for damages. Even the Apex Court has held that the compensation should not exceed the one that was claimed.
38. For the reasons aforesaid, this appeal as well as the cross-objections fail and accordingly, they are dismissed. In the circumstances of the case, there is no order as to costs.