Kerala High Court
Dr.Mathew George vs Rajan on 10 March, 2000
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.CHITAMBARESH
&
THE HONOURABLE MR. JUSTICE SATHISH NINAN
TUESDAY, THE 4TH DAY OF APRIL 2017/14TH CHAITHRA, 1939
AS.NO. 600 OF 2000 (A)
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AGAINST THE JUDGMENT IN O.S. NO.127 OF 1996
OF SUB COURT, THODUPUZHA DATED 10-03-2000
APPELLANT(S)DEFENDANT NO.4:
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DR.MATHEW GEORGE,
S.J. HOSPITAL, MOOLAMATTOM,
IDUKKI DISTRICT.
BY ADVS.SRI.P.JACOB VARGHESE (SR)
SRI.VIVEK VARGHESE P.J.
RESPONDENT(S)/PLAINTIFFS/DEFENDANT NOS.1 TO 3:
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1. RAJAN, S/O. NARAYANAN,
AGED 42 YEARS, RESIDING AT INCHAKKATTIL
(KANJIRAMKUZHIYUL) HOUSE, VAZHITHALA P.O.,
THODUPUZHA TALUK, IDUKKI DISTRICT,
KERALA STATE.
2. CHANDRIKA, W/O.RAJAN,
AGED 42 YEARS, RESIDING AT INCHAKKATTIL
(KANJIRAMKUZHIYUL) HOUSE, VAZHITHALA P.O.,
THODUPUZHA TALUK, IDUKKI DISTRICT,
KERALA STATE.
3. UNION OF INDIA, REPRESENTED BY THE
SECRETARY, MINISTRY OF HUMAN RESOURCES
DEVELOPMENT, CENTRAL SECRETARIAT,
NEW DELHI.
4. THE DIRECTOR NAVODAYA VIDYALAYA SAMITHI
A-39, KAILASH COLONY, NEW DELHI.
5. V.S. JOSEPH, THE PRINCIPAL, JAWAHAR
NAVODAYA VIDYALAYA KULAMAVU, IDUKKI.
R1, R2, BY SENIOR ADVOCATE SHRI K.K.CHANDRAN PILLAI
R3, ADVOCATE SHRI N.NAGARESH, ASG
RR R5 BY ADVOCATE SHRI MILLU DANDAPANI
BY ADVOCATE SHRI ROY THOMAS
THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON
27.03.2017 ALONG WITH A.S. NO.666 OF 2000, THE COURT ON
04.04.2017 DELIVERED THE FOLLOWING:
"C.R."
V. CHITAMBARESH
&
SATHISH NINAN, JJ.
= = = = = = = = = = = = = = = = = =
A.S. Nos.600 & 666 of 2000
= = = = = = = = = = = = = = = = = =
Dated this the 04th day of April, 2017
J U D G M E N T
SATHISH NINAN, J.
Can the concept of in loco parentis be applied to a boarding house in a residential school and if so, to what extent?
2. Bineesh Rajan, aged 12 years, who was a student of the 2nd defendant-school, reached his heavenly abode on 24.07.1990 succumbing to jaundice. He was diagonised with jaundice while he was in the school boarding. The Rules and Regulations of the School mandate that the wards should be housed in the boarding attached to the school.
3. Shorn of details, on 12.07.1990, the child was brought from the school boarding to the 4th defendant Doctor due to fever, headache and cough. He was running A.S. NOS.600 & 666 of 2000 :- 2 :-
a temperature of 103o and was given medicines. The next day, i.e., on 13.07.1990, the child was again taken to the 4th defendant Doctor who found that the fever had come down to 101o. He was administered medicines and was instructed to be brought the next day if the illness does not subside. Thereafter, the child was brought to the 4th defendant Doctor on 16.07.1990 with the temperature at 103o, yellowish tinch in the eyes and also vomiting. The 4th defendant diagnosed the child with jaundice. The school authorities informed the child's parents who took the child back into their custody in the afternoon of 16.07.1990. Though the parents took the child for some ayurvedic treatment, it not having given any positive result, on 19.07.1990 the child was taken to Mercy Hospital at Vazhithala from where the child was referred to Devamatha Hospital, Koothattukulam for specialised treatment. There he was advised to undergo dialysis and as referred to from the said hospital, on 21.07.1990 the child was taken to the Medical College A.S. NOS.600 & 666 of 2000 :- 3 :-
Hospital, Kottayam for dialysis. On 24.07.1990 the child collapsed during dialysis and passed away. Alleging negligence on the part of the school authorities and the 4th defendant Doctor, the suit was filed for damages.
4. On behalf of the plaintiffs, PWs1 to 3 were examined and Exts.A1 to A3 were marked. PW1 is the 1st plaintiff, the father of the child; PW2 is the Doctor attached to Mercy Hosptial, Vazhithala and PW3 is the Pediatrician of Devamatha Hospital, Koothattukulam. The Principal of the School, who is the third defendant gave evidence as DW1. The 4th defendant doctor was examined as DW2. Defendants produced and marked Exts.B1 to B7. The case sheet relating to the child from the Devamatha Hospital, Koothattukulam was marked as Ext.X1. The court below found negligence on the part of the school authorities as well as the Doctor and accordingly granted a decree as prayed for. Challenging the said judgment and decree, A.S. No.666 of 2000 is filed by defendants 1 to 3 and A.S. No.600 of 2000 is filed by A.S. NOS.600 & 666 of 2000 :- 4 :-
the 4th defendant Doctor.
5. Heard Shri Jacob Varghese, learned Senior Counsel for the 4th defendant, Shri K.K. Chandran Pillai, learned Senior Counsel on behalf of the plaintiff, Shri N.Nagaresh, learned counsel for the 1st defendant and Shri Millu Dandapani for defendants 2 and 3.
6. Learned Senior Counsel appearing on behalf of the 4th defendant Doctor would contend that the finding of negligence on the part of the 4th defendant is without any evidence and that on the contrary the materials available would show that due care and expertise as was expected of a Doctor of his qualification had been adopted by the 4th defendant and it could not be found that a totally wrong course of treatment was adopted by the 4th defendant, on proof of which alone it could be held that he was negligent in his conduct. The Learned counsel for the school authorities would challenge the judgment and decree contending that the school authorities had taken all reasonable measures as was A.S. NOS.600 & 666 of 2000 :- 5 :-
expected of them in taking care of the child. As soon as it came to their notice that the child was suffering from fever, he was taken to the 4th defendant Doctor and had followed his advice. The child was taken by his parents from their custody on 16.07.1990 and it is the mismanagement of the disease thereafter that caused the demise of the child. According to the learned counsel, during the period upto 16.07.1990 on which date the child was handed over to the parents, all possible and necessary steps were taken by the school authorities to protect the interests and welfare of the child and hence they cannot be mulcted with any liability.
7. The first question for consideration is as to whether there was any negligence on part of the 4th defendant Doctor in the course of treatment administered by him on the child. Exhibit B5 is the treatment record relating to the child at 4th defendant's hospital. It would show that on 12.07.1990 the child was brought to him with fever, headache, sneezing and cough. The child A.S. NOS.600 & 666 of 2000 :- 6 :-
was running a temperature of 103o. The 4th defendant advised paracetamol and antibiotic. The child was brought to him again on the next day i.e., on 13.07.1990. At that time the temperature had come down to 101o. He gave medicine and directed the child to be brought on the next day if the illness does not subside.
Thereafter the child was brought to him only on 16.07.1990 with a temperature of 103o, with yellowish colour in the eyes and with vomiting. Urine test was conducted and the 4th defendant diagnosed the child with jaundice. It is in evidence that he wanted the parents to be called for. Thereafter on the very same day, the child was taken from the hospital of the 4th defendant. The period during which the child was under
the treatment of the 4th defendant was from 12.07.1990 to 16.07.1990 excluding 14th and 15th. The court below has found fault with the Doctor for having not diagnosed the child with jaundice and having not conducted the necessary tests when the child was brought to him A.S. NOS.600 & 666 of 2000 :- 7 :-
initially. So also the court below referring to the evidence given by PW2 Doctor of Mercy Hospital, Vazhithala, that intake of paracetamol by a patient suffering from jaundice would accelerate the disease, found fault with the Doctor for having administered paracetamol to the child. According to the court below, the 4th defendant should not have administered paracetamol to the child when he was suffering from jaundice. It is to be noticed that on 12.07.1990 when the child was brought to the 4th defendant, he was suffering from fever, headache and cough. There was no indication of jaundice on that day. He treated the patient symptomatically and when the child was brought to him on the next day the fever had come down. No new symptoms were seen to have developed by then. He advised that the child be brought to him the next day if illness does not subside. Therefore, the Doctor could not be found fault with for not having conducted any tests, for having administered paracetamol and not having A.S. NOS.600 & 666 of 2000 :- 8 :-
administered the child with some other medicines. There was no occasion for the Doctor to apprehend that the child was suffering from jaundice or some other disease. In the normal course of events when a patient is brought to a Doctor with fever, headache and cough, it cannot be conceived that the Doctor would straight away suspect a case of jaundice, conduct tests and start treatment accordingly. It is his evidence as DW2 that on 13.07.1990 when the child was brought to him, he had advised that if the child is not relieved of the illness, he be brought back to him on the next day, i.e., 14.07.1990. The said deposition of DW2 (4th defendant) remains unchallenged. It is a fact that the child was brought to him only on 16.07.1990.
Immediately, going by the symptoms, he diagnosed the child with jaundice. It is in evidence that the child was discharged on the same day at the request of the parents. It could not by any stretch of imagination be held that the 4th defendant Doctor was negligent in the A.S. NOS.600 & 666 of 2000 :- 9 :-
treatment administered. He cannot be found fault with in not conducting tests at the very first instance when the child was brought to him with fever, headache and cough, and for having administered paracetamol.
8. Learned Senior Counsel appearing for the 4th defendant would rely on the decisions of the Apex Court in Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others ([2010] 3 SCC 480) and P.B.Desai v. State of Maharashtra and Another ([2013] 15 SCC 481) to contend that in entering a finding as to whether there was negligence on the part of a Doctor in his treatment, what is to be looked into is as to whether he had administered treatment in a manner like any other reasonably competent Doctor of his qualification would have done. Merely because another or better course of action was open does not by itself mean casting negligence on the part of the Doctor concerned.
In Kusum Sharma and Others v. Batra Hospital and Medical Research Centre and Others (supra), the apex A.S. NOS.600 & 666 of 2000 :- 10 :-
court laid down certain principles to be followed while assessing a case of alleged medical negligence. They are:
"I. Negligence is the breach of a duty exercised 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.
II. Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon a error of judgment.
III. The medical professional is expected to bring 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient A.S. NOS.600 & 666 of 2000 :- 11 :-
rather than a procedure involving lesser risk but higher chances of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. 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.
VIII. It would not conducive to the efficiency of the medical profession if no doctor could administer medicine without a hlater round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessarily harassed or humiliated so that then can perform their professional duties without fear and apprehension.
X. The medical practitioners at times also have to be save from such a class of complainants who use criminal process as a tool for pressuring the medical professionals/hospitals, particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.
XI. The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the parties. The interest and welfare of the patients have to be paramount for the medical professionals."
In P.B.Desai v. State of Maharashtra and Another A.S. NOS.600 & 666 of 2000 :- 12 :-
(supra), the apex court referred to certain responsibilities that a doctor has to his patients. It would be relevant to extract them here:
"(a) to continue treat, except under certain circumstances when doctor can abandon his patient;
(b) to take reasonable care of his patient;
(c) to exhibit reasonable skill: The degree of skill a doctor undertakes is the average degree of skill possessed by his professional brethren of the same standing as himself. The best form of treatment may differ when different choices are available. There is an implied contract between the doctor and patient where the patient is told, in effect, "Medicine is not an exact science. I shall use my experience and best judgment and you take the risk I may be wrong. I guarantee nothing."
(d) Not to undertake any procedure beyond his control: This depends on his qualifications, special training and experience. The doctor must always ensure that he is reasonably skilled before undertaking any special procedure/treating a complicated case.
(e) Professional secrets: A doctor is under a moral and legal obligation not to divulge the information/knowledge which he comes to learn in confidence from his patient and such communication is privileged communication."
Therefore, what is to be looked into is, whether the doctor had exhibited reasonable degree of skill; Was the course of action/treatment adopted by the doctor a A.S. NOS.600 & 666 of 2000 :- 13 :-
possible one in the given circumstance. In the present case, as noted supra, he has acted with ordinary prudence and skill like any other doctor of his qualification. The finding of the court below regarding negligence of the doctor is, unsustainable and is liable to be interfered with.
9. The next question that arises for determination is as to whether there was negligence, if any, on the part of the school authorities. It is not in dispute that the school in question is a boarding school. All the children are necessarily to be housed in the school boarding. Parents are allowed to visit their child on every Saturday. There is a nurse in the boarding.
Children are also to be looked after by a House-master. The school re-opened after vacation on 01.07.1990. On 11.07.1990 when the child developed fever, immediately on the next day he was taken to the 4th defendant Doctor. The very next day, i.e., on 13.07.1990 the child was again brought to the 4th defendant who noticed that the A.S. NOS.600 & 666 of 2000 :- 14 :-
temperature had come down from that of the previous day. It is not in dispute that the 4th defendant had instructed to bring the child the next day if he is not relieved of the illness. After 13.07.1990, the child was brought to the 4th defendant by the school authorities only on 16.07.1990. Then it was found that the child was suffering from vomiting with yellowish tinch in the eyes and running a temperature of 103o. The 4th defendant diagnosed the child as infected with jaundice. The teacher who had accompanied the child to the 4th defendant's hospital, left the child there and went to meet the child's parents. When the parents came to the 4th defendant's hospital, the teacher left back to the school. It is not in dispute that the parents took the child for ayurvedic treatment and on finding it to be not fruitful, was taken to Mercy Hospital, Vazhithala and from there he was taken to Devamatha Hospital, Koothattukulam on 19.07.1990. It was noticed that bilirubin level of the child was at 35 mg, when the A.S. NOS.600 & 666 of 2000 :- 15 :-
normal rate is less than 0.8 mg. Though from Devamatha Hospital, the child was referred to Medical College Hospital, Kottayam for dialysis, the child succumbed to the illness during the course of dialysis. Now the question that arises is was there negligence on the part of the school authorities?
10. It is not in dispute that on 13.07.1990, the 4th defendant had instructed that the child be brought back to him on the very next day if the illness does not subside. Admittedly, the child was brought back to the 4th defendant only on 16.07.1990. The case put forward by the school authorities is that on 14.07.1990 and 15.07.1990, the child was well and had even attended the classes on 14.07.1990. It is a fact that on 16.07.1990 when the child was taken to the 4th defendant, he was suffering from vomiting, had a temperature of 103o and his eyes were yellowish. It is difficult to comprehend that all these developments suddenly cropped up on the morning of 16.07.1990 all by itself. Here the crucial A.S. NOS.600 & 666 of 2000 :- 16 :-
aspect is as to what was the situation of the child on 14.07.1990 and 15.07.1990. Curiously, there is total lack of evidence regarding the same. Though according to the school authorities there is a full time nurse attached to the school boarding, she has not been examined to prove that the child was fine on those two days. Further, though every ward is attached to a House-
master and the child is supposed to be under the care of the House-master, he has not been examined. Though the school authorities have a case that the child attended the classes on 14.07.1990, not even the attendance register has been produced to show that the child had attended classes on the said day. On the whole, there is no iota of evidence indicating the stage of health of the child for the said two days. Though the school authorities would claim that the 4th defendant had given medicines for two days on 13.07.1990, the 4th defendant as DW2 has deposed that medicines were given only for the day, 13.07.1990. If either the nurse attached to the A.S. NOS.600 & 666 of 2000 :- 17 :-
school or the House-master had in fact attended the child, they would have been examined. The non- examination of the said persons, coupled with the non- production of the school attendance register, could only lead to an inference that the child was unattended during the said two days. That has necessarily caused the illness to be aggravated to such a high extend by 16.07.1990. It has to be borne in mind that on 13.07.1990, the 4th defendant (DW2) had specifically instructed the child to be brought back to him on 14.07.1990 if the illness had not subsided. The school authorities did not take care to look into the health of the child for the period from 13.07.1990 to 16.07.1990.
It is here that the role of the school authorities assume significance. The child was away from the parents and was under the care and custody of the school authorities. When the child was sick and was on medical treatment and the health condition was to be monitored as directed by the Doctor who was treating the child, it A.S. NOS.600 & 666 of 2000 :- 18 :-
could be nothing but negligence on the part of the school authorities to have omitted to take care of the child and look into his health and interests. It is not in dispute that in spite of the fact that the child was running high temperature from 12.07.1990, the parents of the child were not informed of the same by the school authorities. Even when a ward of the school was lying so sick, it appears that the nurse in the school was given leave. Suffice to say, there was nothing short of negligence on the part of the school authorities which led to the aggravation of the sickness to such a high degree. If the child was monitered and taken to the hospital on 14.07.1990 as instructed by the 4th defendant, appropriate remedial measures would have been taken by the Doctor who had been monitoring the sick child day by day. The school authorities failed in their duty in taking proper care of the child who was entrusted to them by his parents. The school authorities owed a duty to the parents of the child to take proper A.S. NOS.600 & 666 of 2000 :- 19 :-
care and give due attention to the child. Though there may not be a written express contract whereby the school authorities undertake to take care of the child, there is an implied contract which binds the school authorities compelling them to do so when a ward is admitted to the school hostel. Once a child is admitted in the school boarding, he is no longer under the care and protection of the parents; he is under the protection of the school authorities. It is here that the traditional concept of in loco parentis applies at least in so far as the liability of the school authorities to the child is concerned. That even the school teachers to some extent are in the role of in loco parentis cannot be disputed. The relationship stems out of the peculiar situation in which the parties are placed. In loco parentis, essentially means "in the place of a parent". At least in so far as the liabilities are concerned, the school authorities who admits a child in their boarding house take up the A.S. NOS.600 & 666 of 2000 :- 20 :-
responsibilities of a parent or a guardian, to look after the well being and interests of the child. It could not be looked upon as a mere moral obligation but is rather a legal obligation on the authorities who stand in loco parentis in so far as the child is concerned, though may be to a limited extent. Suffice to say that the school authorities while accepting a ward in their boarding house, is required to take all adequate and prudent steps in relation to the welfare of the child. They owe a duty to the child as well as the parents who repose faith in them. The callous attitude on the part of the school authorities in ignoring the child on 14.07.1990 and 15.07.1990, acting even against the directions of the 4th defendant Doctor under whom the child was being treated, has led to the aggravation of the illness to such an extent that it went beyond control. The finding of the court below regarding negligence on the part of the school authorities is justified.
A.S. NOS.600 & 666 of 2000 :- 21 :-
11. Mere negligence by itself does not constitute a cause of action for damages. To constitute a right of action for negligence the necessary elements are (a) duty, (b) the act or omission constituting the negligence, (c) injury and (d) the negligence must have been the causation for the injury. Here, as is evident from the facts and evidence as discussed supra, we have no hesitation to hold that all the elements constituting cause of action for a claim for damages have been proved.
12. It is worthwhile to refer to the fact that on 04.10.1994 a circular has been issued to all the Principals of the schools under the 2nd defendant regarding the duty of care required to be taken in respect of students admitted in the boarding house of the school. It would be relevant to quote one paragraph therefrom:
"It is also seen that there are occasional lacunae in handling on the students who have reported sick. Though it is normal tendency to A.S. NOS.600 & 666 of 2000 :- 22 :-
ignore mild headache, cough and cold, marginal rise in temperature, it could be seen that sometimes these cases can become complicated to the extent of causing anxiety to the school administration. Hence, it should be not that we should not leave anything for chance and taken appropriate action right from the time a student becomes sick. This is a job that should be tended by the House-master/House-mistress, Staff Nurse and the Principal. In fact teachers attached to various houses as associated House- masters and staying in the Campus are also reasonable to attend to such cases. Though the Vidyalaya doctor initially attends to the sick children, it is the duty of the Staff Nurse and the teach indicated as above to keep continuous watch over the recovery of the student. In case, after a day or so the sickness still continues, Staff Nurse assisted by the Principal and with advice of the Vidyalaya doctor, make necessary arrangements to rush the child to the District Hospital, where the child may be admitted if need be, as an inpatient. In case the sickness prevails for one or two days the parents of the child should also be intimated through a messenger. This must be done as a matter of routine."
Therefore, it appears that even the authorities concerned have realised their mistakes and the need for taking adequate care and proper steps in the said regard. The said action, though belatedly adopted, deserves to be recognised. However, that will not A.S. NOS.600 & 666 of 2000 :- 23 :-
mitigate the loss and turmoil caused to a poor uneducated family in the low strata of the society. It is to be noted that the parents of the child are mere daily waged rubber tappers striving to make a living.
13. No arguments are raised regarding the quantum of damages claimed and granted. Here the statements in paragraph 3 of the written statement of the 3rd defendant, the Principal of the school is relevant. It read thus:
"The defendants 1 to 3 are as much aggrieved as the plaintiffs in the loss of a young student, who was brilliant and pleasing. Had the plaintiffs taken him to the Devamatha Hospital, Koothattukulam to which they took their son later or to the Medical College or any other Specialised Hospital when the boy was discharged from the S.H.Hospital, the precious life a young talent student of the Vidyalaya could have been saved. However, while he was examined as DW1 he went to the extent of saying that the child was below average in his studies. The reason for taking a somersault at the stage of evidence is obvious. In the absence of any material it would only be found that the child was A.S. NOS.600 & 666 of 2000 :- 24 :-
brilliant and talented as pleaded by the 3rd defendant- Principal in his written statement. The damages awarded could not in any event be said to be disproportionate when the negligence has resulted in the loss of a life.
In the result:
Appeal Suit No.600 of 2000 is allowed and the suit will stand dismissed against the 4th defendant. Appeal Suit No.666 of 2000 will stand dismissed confirming the judgment and decree passed by the court below.
No costs.
Sd/-
V. CHITAMBARESH, JUDGE.
Sd/-
SATHISH NINAN, JUDGE.
vsv /true copy/ P.S. to Judge