Kerala High Court
Moni vs State Of Kerala on 4 February, 2011
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 832 of 2000(G)
1. MONI
... Petitioner
Vs
1. STATE OF KERALA
... Respondent
For Petitioner :SRI.GEORGE THOMAS (MEVADA)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.BHAVADASAN
Dated :04/02/2011
O R D E R
P. BHAVADASAN, J.
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S.A. No. 832 of 2000
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Dated this the 4th day of February, 2011.
JUDGMENT
The courts below found that the first defendant in O.S. 711 of 1996 before the Munsiff's court, Ernakulam to be negligent in treating the plaintiff in the suit, whereby she had to incur heavy damages for further treatment at a different hospital. The aggrieved first defendant has come up in appeal. The parties and facts are hereinafter referred to as they are available before the trial court.
2. It is not in dispute that the plaintiff was admitted in General Hospital, Ernakulam in the early hours of 26.6.1995. On the said day, at about 8.30 a.m. the first defendant is said to have examined her and according to the plaintiff she and her husband were told that a surgery is necessary to cure her illness. The plaintiff speaks about some payments made to the doctor. Several tests were done on 1.7.1995, 4.7.1995 and 8.7.1995. All along, according to the S.A.832/2000. 2 plaintiff, the first defendant reiterated that a surgery was the only option. According to the plaintiff, it so happened that the Minister for Health happened to visit the hospital and the husband of the plaintiff complained about the hospital building. It is also stated that somebody had complained to the Minister about bribes being insisted by the first defendant and that annoyed and irritated him. He thereafter became indifferent and careless in treating the plaintiff and discharged her on 11.7.1995 when she had not recovered from her illness. Thereafter she had to go to Ernakulam Medical Centre and to undergo a surgery. She had incurred heavy expenses and had undergone lot of sufferings. Pointing out that the need for operation arose due to the negligence on the part of the first defendant doctor, the suit was laid for damages.
3. The first defendant resisted the suit. He denied the allegations in the plaint and pointed out that he had done what a doctor would do in the circumstances under which the plaintiff was placed and he had never told either S.A.832/2000. 3 the plaintiff or the husband of the plaintiff that operation was the only remedy. He asserted that he had followed conservative method of treatment and since the patient had responded to the treatment, he felt that surgery was unnecessary. He also pointed out that at the time of discharge the plaintiff was given specific instruction that if there was any discomfort or illness, she should at once come and meet him. But after getting discharged, the plaintiff never turned up and he had no reason to think that the plaintiff was not cured. Denying that he was in any way negligent in treating the plaintiff, he prayed for a dismissal of the suit.
4. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of P.Ws.1 to 8 and marked Exts.A1 to A19 from the side of the plaintiff. The first defendant examined himself as D.W.1. Exts. X1 and X2 series were marked as third party exhibits. The trial court on an examination of the medical records and on the basis of the evidence of the first S.A.832/2000. 4 defendant as D.W.1 came to the conclusion that there was gross negligence on the part of the first defendant and decreed the suit.
5. The first defendant carried the matter in appeal as A.S. 49 of 1998 before the Sub Court, Ernakulam. The lower appellate court after an evaluation of the evidence concurred with the trial court and dismissed the appeal.
6. Notice is seen to have been issued on the following questions of law:
"1) Were not the courts below wrong in awarding damages to the plaintiff in the absence of any proof regarding negligent conduct from the part of the 1st defendant resulting in any injury to the plaintiff?
2) Were not the courts below totally in error in completely ignoring the evidence of P.W.7 and Ext.X2 that the plaintiff had a long previous history of stomach complaints and she had undergone several months of continuous treatment at Ernakulam Medical Centre for discharge of blood through mouth and anus etc even after the surgery in July 1996 and the S.A.832/2000. 5 claimed cure and yet finding the 1st defendant is guilty of negligence in not performing a surgery on the plaintiff?
3. Were not the courts below totally in error in allowing Rs.6,000/- also as compensation to the plaintiff which amount was admittedly expended for the treatments at Ernakulam Medical Centre unconnected with the surgery for intussusception?
4. The Hon'ble Supreme Court of India in AIR 1969 Sc 132 held that a Doctor is entitled to decide the course of treatment in an emergency. Were not the court below wrong in refusing to follow this principle of law laid down by the apex court and finding the first defendant guilty of negligence in not operating on the plaintiff?
5. In as much as there is no proof of any injury being suffered by the plaintiff due to the alleged negligence of the 1st defendant are not the judgments against the dictum laid down in AIR 1936 PC 154?
6. Has not the courts below completely misread the pleadings and evidence in the case and came to absurd conclusions?
7. Is the judgment and decree passed nearly an year after the final hearing valid in law? Is not S.A.832/2000. 6 such judgment invalid and inoperative in view of the mandate under Order 20 of CPC?"
7. In fact the only question that arises for consideration is whether there is sufficient proof to show that the first defendant was negligent in treating the plaintiff.
8. Learned counsel appearing for the appellant pointed out that both the courts below had not properly addressed themselves to the legal principles involved in the case and have mechanically acted on the basis of some records which too had not been properly considered. Learned counsel pointed out that allegation regarding the taking of bribe etc. remains unproved and there is nothing to indicate that the first defendant was negligent in treating the plaintiff. In fact the evidence of the doctors examined by the plaintiff herself would show that the first defendant had resorted to the normal course of treatment which a doctor would adopt in a circumstance under which the plaintiff was placed and there is nothing to show that he S.A.832/2000. 7 had done any negligent act, which aggravated the illness of the plaintiff. Learned counsel very fairly conceded that there may be some inconsistencies in the evidence of D.W.1 and the records maintained in the hospital. But that is insufficient to show that the first defendant was negligent. The test to be applied is whether the first defendant had exercised the skill and expertise required of him and not whether there were slight discrepancies in the evidence. The proper approach is to ascertain whether a person with skill and expertise of the first defendant would have normally resort to the mode of treatment adopted by him in the case of the plaintiff. If the course of treatment chosen by the first defendant is an accepted mode of treatment, then the mere fact that a better method could have been chosen is not a ground to hold that the first defendant was negligent. An appreciation of the evidence in the case, according to learned counsel, would clearly show that the claim of the plaintiff that the first defendant had told her and her husband that surgery was the only option cannot be S.A.832/2000. 8 true. Even going by the evidence adduced by the plaintiff, it is clear that surgery is the last option. It was also pointed out that except for the ipsi dixit of the plaintiff, there is nothing to show that she was not relieved of her illness at the time of discharge from the General Hospital on 11.7.1995. Of course, she was asked to continue taking medicines for a while. According to learned counsel, there is absolute want of evidence to show that the first defendant was in any way negligent in giving treatment to the plaintiff.
9. In reply, learned counsel appearing for the respondents pointed out that both the courts below meticulously analysed the evidence on record and have come to the conclusion that the first defendant was negligent. There is considerable inconsistency between the evidence of D.W.1 and the official records maintained in the hospital and that is sufficient to show that there was absolute want of care and caution on the part of the first defendant in treating the plaintiff. Learned counsel went on to contend that the nature of illness of the plaintiff was such S.A.832/2000. 9 that immediate surgery had to be done and the first defendant, who is a person with expertise in that field of medicine, deliberately abstained from conducting surgery due to extraneous reasons. It is also contended that at the time of discharge, the plaintiff was still suffering from her illness and she had soon thereafter to go to another hospital where she underwent surgery. First defendant was well aware of the fact that surgery was the only remedy for the illness of the plaintiff, but he abstained from performing a surgery due to extraneous considerations. It is also pointed out that both the courts below were concurrently found that the first defendant has been negligent. Being a question of fact, no interference is called for in Second Appeal.
10. Merely because this court is sitting in Second Appeal, it does not mean that this court is precluded from considering the evidence in the case to see that the finding of the courts below suffers from gross illegality and injustice. Learned counsel for the appellant took this court through S.A.832/2000. 10 the entire evidence adduced in the case and contended that the finding of the courts below that the first defendant was negligent cannot be sustained.
11. At the outset itself, it must be said that there is considerable force in the above submission. That the plaintiff was admitted in the General Hospital on 26.6.1995 is a matter not in dispute. It is also not in dispute that the first defendant had attended to her on the same day. The evidence discloses that the plaintiff had intussusception, which means 'the enfolding of one segment of the intestine within another'. Learned counsel appearing for the respondent would contend that in such cases the only remedy is to subject the patient to surgery and the course adopted by the first defendant cannot be appreciated. The above contention does not appear to be correct.
12. One may in this regard refer to the evidence of the doctors examined by the plaintiff herself.
13. P.W.4 was a doctor in the Medical Centre Hospital at the relevant time. He deposed that on S.A.832/2000. 11 18.7.1995 the plaintiff was admitted in the hospital. He said that on examining the X-Ray taken, he did not find any problem with the large intestine. He then speaks about the various modes of investigation adopted in such cases. He finally says that he only examined the patient to ensure the physical fitness of the patient to undergo surgery.
14. P.W.6 was a Gastro intestinal surgeon attached to Medical Centre Hospital. He speaks about the operation conducted on the patient on 19.7.1995. He would say that she was suffering from Jejunial intussusception. It is significant to notice that in chief examination itself this witness had stated that it was only on opening of the abdomen it was diagnosed as Jejunial intussusception. It is also equally important to notice that even if the patient suffers from acute intussusception, it is not necessary that surgery should be immediately conducted. The doctor would specifically depose that surgery is not the only mode of treatment in such cases. The patient can be asked not to take food including water and put the patient on I.V. It is S.A.832/2000. 12 possible that there may be spontaneous reduction. He speaks about other modes of treatment also. In cross examination this witness has stated that Jejunial intussusception is a very rare phenomenon. He would also depose that on conservative treatment if the obstruction in the intestine gets removed, then surgery may not be necessary at all. Even if the patient responds to the conservative method of treatment, the patient will not be discharged immediately and kept under observation for a while.
15. P.W.7 is yet another doctor attached to the Medical Centre Hospital. He is a surgeon. He would depose that at the time of admission of the patient they suspected intestinal intussusception. He also deposed that the patient was having similar symptoms for the last 3 or 4 years. After going through the records of the General Hospital, where the patient had undergone treatment, they were not able to come to a definite conclusion regarding her ailment. He however deposed that in the General Hospital all required S.A.832/2000. 13 tests were done. He would say that immediately the patient was put on conservative treatment. But they found no improvement on the next day and therefore they decided to conduct a laproscopy. When they did that, they detected a fairly large lump in the intestine. When they found it, they could not reduce it though laproscopy, they decided to open the abdomen. Only when they opened the abdomen and investigated they found that the patient was suffering intussusception. After operation, the patient recovered without much complication. Through this witness, the records of the Medical Centre Hospital were marked.
16. What is significant about the evidence of this witness is that in chief examination itself he says that as soon as intestinal intussusception is detected, it is not necessary to go in for a surgery. The usual practice followed is to adopt conservative method of treatment and if the condition of the patient does not improve, then go in for operation. In several cases on conservative treatment the patient's condition improve, otherwise the patient would be S.A.832/2000. 14 subjected to surgery. Even if the patient shows improvement, P.W.7 would say that the patient is kept under observation for a few days.
17. P.W.8 is an independent witness, who speaks about having gone along with P.W.2 to the doctor to give money. His evidence is not of much relevance.
18. D.W.1 is the first defendant, who had attended to the patient when she had gone to the General Hospital. At the relevant time he was functioning as the Surgeon in the General Hospital. He speaks about the treatment given to the patient by him and says that since the patient showed considerable improvement, then put on conservative method of treatment. He discharged the patient on 11.7.1995. He would also depose that at the time of discharge, the patient was cautioned that in case of any illness the patient should at once come and meet him. He would say that after discharge, the patient had never returned to him. The witness would maintain that if on adopting conservative method of treatment, the condition of S.A.832/2000. 15 the patient does not improve, then alone surgery is resorted to. In the case on hand, he would say that the plaintiff responded to the conservative method of treatment and therefore he did not feel it necessary to subject the patient to a surgery.
19. Ext.X1 is the file maintained in the General Hospital and Ext.X2 is the file maintained in the Medical Centre Hospital.
20. Before going into the evidence relating to the negligence on the part of the doctor, it will be useful to refer to the law on the point. The law of negligence regarding professional has undergone considerable change in recent times. The law of which was initially reluctant to attribute negligence to professional men, has now developed will laid principles to judge the standard of care and caution to be exercised by a professional. As far as medical profession is concerned, the law laid down in Bolam v. Froern Hospital Management Committee ((1957) 2 S.A.832/2000. 16 All ER 118) is considered to be the locus classica in the field. In the said decision it was held as follows:
"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; 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 the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent."
The above principle continues to be the law even now.
21. A doctor's liability to patient arises both under tort and in contract. The question often arises as to what is the degree of care and caution that is expected of a doctor. Lord Denning in The Discipline of Law at page 243 states as follows:
S.A.832/2000. 17
"You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure -- for negligence in a medical man is deserving of censure."
It is further stated:
"But so far as the law is concerned, it does not condemn the doctor when he only does that which may a wise and good doctor so placed would do. It only condemns him when he falls short of the accepted standards of a great profession; in short, when he is deserving of censure."
22. Salmond and Heuston on the Law of Torts Eighteenth Edition at page 215 observes thus:
"It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. So a barrister is S.A.832/2000. 18 not expected to be right: it is enough that he exercises reasonable care. So a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of the kind occurs, or because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment. There is no rule that a doctor must tell a patient what is the matter with him."
23. In the decision reported in Antonio Dias v. Frederick Augustus (AIR 1936 PC 154) it was held as follows:
"Where a suit is filed for damages against a 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."
24. In the decision reported in Poonam Verma v. Ashwin Patel (AIR 1996 SC 2111) it was held as follows: S.A.832/2000. 19
"The breach of duty may be occasioned either by not doing something which a reasonable man, under a given set of circumstances would do, or, by doing some act which a reasonable prudent man would not do."
25. According to Halsbury's Laws of England, 4th Edn., Vol.26 pp.17-18, the definition of negligence is as under:
"22. Negligence.- Duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."
S.A.832/2000. 20
26. In the decision reported in Jacob Mathew v. State of Punjab (2005(3) K.L.T. 965(SC), which has considered the matter in detail following the principle laid down in Bolam's case held as follows:
"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 S.A.832/2000. 21 part of a professional, 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 S.A.832/2000. 22 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 S.A.832/2000. 23 as laid down in Bolam's case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India. (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 S. 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 S.A.832/2000. 24 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."
27. In the decision reported in INS. Malhotra (Ms) v. Dr.A.Kriplani ((2009) 4 SCC 705) it was held as follows:
"Negligence in the context of the medical profession necessarily calls for a treatment with a difference. To infer rashness or S.A.832/2000. 25 negligence on the part of a professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medicalrofessional. so long as a doctor follows apractice acceptble 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 orprocedure which the accused followed. The classical statement of law in Bolam case, has been widely accepted as decisive of the sandard of care required both of professional men generally and medical practitioners in particular, and holds good in its applicability in India. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. the fct that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. It is not necessary for every professional to possess the highest level of expertise in that branch which S.A.832/2000. 26 which he practises. Three things are pertinent to be noted. Firstly, the standard of care, when assessing the practce as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Secondly, when the charge of negligence arises out of failure touse some particular equipment, the charge would fail if the equipment was not generally available at that oint of time (that is, the time of the incident) on which it is suggested as should have been used. Thirdly, 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.
In State of Punjab v. Shiv Rama three-Judge Bench of this court while dealing with the case of medical negligence by the doctor in conducting sterilization operations, reiterated and reaffirmed that unless negligence of doctor is established, the primary liability cannot be fastened onthe medical practitioner. In paragraph 6of hejudgment it is S.A.832/2000. 27 stated:
"6. Very recently, this Court has dealth with the issues ofmedical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab. The Court has approved the test as laid downin Bolam v. Friern Hospital Management committee popularly known as Bolam test, in its applicability to India."
28. In the decision reported in Kusum Sharma v. Batra Hospital and Medical Research Centre (AIR 2010 SC 1050) it was held as follows:
"It is a matter of common knowledge that after happening of some unfortunate event, there is a marked tendency to look for a human factor to blame for an untoward event, a tendency which is closely linked with the desire to punish. things have gone wrong and, therefore, somebody must be found to answer forit. A professinal deserves total protection. The Indian Penal Code has taken care to ensure that people who act in good faith S.A.832/2000. 28 should not be punished. Sections 88, 92 and 370 of the Indian Penal code give adequate protection to the professional and particularly medical professionals.
On scrutiny of the leading cases of medical negligence both in our country and other countries especially United Kingdom, some basic principles emerge in dealing with the cases of medical negligence. While deciding whether the medical professional is guilty of medical negligence following well known principles must be kept in view:-
I. Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarly 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 bythe prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.
III. The medical professional is expected to bring a reasonable degree of skill and knowledge S.A.832/2000. 29 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 circumstance of each case is what the law requires.
IV. A medical practitiner 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 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 S.A.832/2000. 30 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 be conclusive to the efficiency ofthe medical profession if no Doctor could administer medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.
X. the medical practioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hositals 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 S.A.832/2000. 31 theinterest of the patients. The interest and welfare of the patients have to be paramount for the medical professinals.:
29. In the decision reported in Malay Kumar Ganguly v. Sukumar Mukherjee (AIR 2010 SC 1162) it was held as follows:
"Charge of professional negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden of proof would be more onerous. A doctor cannot be held negligent only because something has gone wrong. He also cannot be held liable for mischane or misadventure or for an error of judgment in making a choice when two options are available. The mistake of diagnosis is not necessarily a negligent diagnosis is not necessarily a negligent diagnosis.
Even under the law of tort a medical practitioner can only be held liable in respect of an erroneous diagnosis if his error is so palpably wrong as to prove by itself that it was negligently arrived at or it was the product of absence of reasonable skill and care on his part regard being S.A.832/2000. 32 held to the ordinary level of skill in the profession. For fastrning criminal liability very high degree of such negligence is required to be proved.
Death is the ultimate result of all serious ailments and the doctors are there tosave the victims from such ailments. Experience and expertise of a doctor are utilized for the recovery. But it is not expected that in case of all ailments the doctor can give guarantee of cure."
30. In the decision reported in Kusum Sharma v. Batra Hospital and Medical Research Centre (2010) 3 SCC 480) it was held as follows:
"In a celebrated and oft cited judgment in Bolam v. Friern Hospital Management Committee (Queen's Bench Division) McNair ,L.J. observed:
(i) a doctor is not negligent, if he is acting in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art, merelybecause there is a body of such opinion that takes a contrary view.
"The direction that, where there are two different schools of medical practice, both having recognition among practitioners, it is not negligent for a practitioner to follow one in preference to the S.A.832/2000. 33 other accords also with American law. Moreover, it seems that by American law a failure to warn the patient of damages of treatment is not, of itself, negligence."
McNair, L.J. observed:
Before I turn to than, 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 the doing of some act which a reasonable man in the circumstances would do, or the doing of some act which a reasonable man in the circumstances would not do; and if that failure or the 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 ordinaryman. But where you get a situation which involved the use of some special skill or competence, then the test as to whether there has S.A.832/2000. 34 been negligence or not is not the test of the man on the top of a Clapham Omnibus, because he has not got this 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 Chin Keow v. Govt. of Malaysia the Privy Council applied these words of McNair, L.J. in Bolam v. Friern Hospital Management Committee.
".........where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence ornot 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."
(See the decisions reported in Marghesh K. Parikh (minor) v. Dr. Mayur H.Mehta ((2011) 1 SCC 31) and V.N. Shrikhande (Dr.) v. Anita Sena Fernandes ((2011) 1 SCC 53)).
S.A.832/2000. 35
31. A perusal of the above decisions shows that attributing negligence to a medical personnel is indeed a serious affair and as it affects his professional status and reputation. In such cases, according to the various decisions, the burden of proof is very high. Merely because the patient has not been cured or something has gone wrong, the medical officer cannot be held liable in tort. He may make an error in the choice of two options and every error in diagnosis need not be a negligent one. His act has to be such that it is palpably wrong and contrary to the medical standards and procedures usually adopted in such cases. A high degree of negligence is usually insisted in such cases.
32. Before going further into the matter, it will be useful to understand what exactly was the ailment of the plaintiff. At the time of admission in the General Hospital, the first defendant did suspect a lump in the stomach. But the evidence given by the witnesses examined by the S.A.832/2000. 36 plaintiff herself show that it is not easy to detect intussusception. In fact the evidence of one of the surgeons would indicate that they were able to confirm intussusception when they infact opened her abdomen.
33. Intussusception occurs when part of the bowel or intestine is wrapped around itself producing a masslike object on the right side of the abdomen during palpation. The major symptom of intussusception is vomiting and severe abdominal pain. There may be nausea and diarrhea and occasionally the patient may develop fever. Once intussusception is suspected, barium enema is resorted to. It is well accepted in medical field that even when intussusception is detected, it is not necessary to subject the patient to a surgery immediately. The usual procedure that is followed is conservative method of treatment and then the medical officer waits to see if the patient responds to such treatment. If the patient does respond to that treatment, and intussusception gets reduced, then the patient is kept under observation for a few days. The initial S.A.832/2000. 37 methods of treatment adopted are to stop oral feeding and to put the patient on I.V. From the evidence available on record, it is almost clear that surgery is the last option and not the first one. Of course, it also depends upon the intensity of the disease. If intussusception ailment persists, the possibility of intestinal gangrene, shock and death increases.
34. The courts below have mainly been influenced by the inconsistency in the evidence of D.W.1 and the entries in Ext.X1 record. Certainly there are some conspicuous and significant differences and inconsistencies. But the question is whether that by itself is sufficient to fasten liability on the first defendant.
35. Here one has to notice the evidence of the first defendant. His definite stand was that he had suspected intussusception and as the normal procedure he resorted to conservative method of treatment. He would say that the patient responded to the treatment and therefore he postponed the surgery. There is evidence in S.A.832/2000. 38 this case to show that the patient responded to barium enema and also that she had taken oral food few days after the admission. While the plaintiff would maintain that she continued to vomit and had severe abdomen pain, the first defendant would say that she showed marked improvement in her condition. What D.W.1 says can be found to be true from the entries in Ext.X1. Of course there is some incongruity regarding the directions given by the first defendant and the steps taken by the nursing staff. The statement of the first defendant as D.W.1 that he did not care to look into that aspect may not be commendable. But that is far from saying that he was negligent.
36. Learned counsel appearing for the respondents in this appeal stressed that the moment when it was suspected that the patient was having intussusception, she should have been subjected to surgery. The further contention is that if as a matter of fact after admission on 26.6.1995 if the patient responded to the treatment next two or three days, there was no necessity to S.A.832/2000. 39 retain her in the hospital. Emphasis was also laid on the plaintiff undergoing further tests on 1st, 4th and 8th July, 1995. It was very vehemently contended that if what D.W.1 says is true, it was unnecessary to conduct these tests and that shows that the condition had never improved.
37. Learned counsel for the first respondent seems to have omitted to notice the evidence furnished by witnesses from the side of the plaintiff. Before going into that aspect, one fact may be noticed. After discharge from the General Hospital and before going to the Medical Centre Hospital, the plaintiff had met a doctor attached to P.S.Clinic, which is near her house. She was discharged from the General Hospital on 11.7.1995. D.W.1 categorically says that at the time of discharge she was cautioned that if the symptoms return, she would meet him immediately. Nobody has a case that she ever went back to General Hospital. On 13.7.1995 it seems that the plaintiff had gone to the Clinic run by P.W.5. She would say that she had advised the plaintiff to go to a well equipped hospital. P.W.5 S.A.832/2000. 40 says that she gave an injunction to the patient and the patient went back to her house. In cross examination, this witness would say that between 13.7.1995 and 18.7.1995 when the patient came back with the same complaint, according to her, the patient was on normal diet.
38. Both the plaintiff and P.W.3, her husband, have a case that for two reasons the first defendant was negligent in the treatment of the plaintiff. One is that P.W.3, the husband of the plaintiff had complained to the Minister, who had visited the hospital, about the nature of the building and also someone else had complained that the first defendant was insisting bribes for treating the patients. P.Ws. 1 and 3 do say that they had paid amounts to the first defendant, though the first defendant denies the same. However, P.Ws.1 and 3 are gracious enough to say that the first defendant never demanded any amount from them and the payment made by them were voluntary payments.
S.A.832/2000. 41
39. The evidence of P.W.3 shows that even though he says that the condition of her wife did not improve, he does say that his wife was able to attend to her routine affiars during the time while she was in the hospital. It is also seen from his evidence that oral food was taken after a few days under instructions from the medical staff. I am not oblivious of his statement that even at the time of discharge, his wife was suffering from the same illness. One may here also refer to the evidence of P.W.1. P.W.1 says that when she developed pain in the abdomen again on 13.7.1995, she had gone to the Clinic run by P.W.5. She would say that on the first occasion, i.e., on 13.7.1995 when she met P.W.5, she gave her an injunction, but she did not ask P.W.1 to go to a better hospital. This is contrary to the evidence furnished by P.W.5, who categorically says that when the patient came to her on 13.7.1995, she was advised to go and take better treatment in a hospital which has more facilities. P.W.1 says that on 13.7.1995 and 18.7.1995 when she went to P.S. Clinic, she could not take S.A.832/2000. 42 any food due to vomiting. One may here at once refer to the evidence of P.W.5, who says that as per her diagnosis and as per the information gathered from the patient, from 13.7.1995 to 18.7.995 P.W.1 was taking normal food. One may again refer to the evidence of P.W.4. He would say that if acute intussusception is detected in a patient, normally two types of treatments are adopted, they are conservative method and surgical method. He would also depose that normally at first conservative method of treatment is adopted. P.W.6, whose evidence has already been referred to, is a surgeon attended to the Medical Centre Hospital. He has categorically stated in his deposition that the remedy for acute intussusception is not surgery alone. The first mode of treatment is to instruct the patient not to take any food orally including water. The doctor says that, that may bring about spontaneous reduction of intussusception and he also says about the various methods of treatment before surgery is resorted to. His evidence discloses that it is extremely difficult to diagnosis intussusception. It is in S.A.832/2000. 43 this regard the evidence of P.W.7 needs to be appreciated. He also says that on 18.7.1995 the plaintiff came to the hospital with a complaint of vomiting and severe abdominal pain and they had suspected something wrong with the intestine. He would say that the patient was put on conservative method of treatment. Only when they found that she did not respond to that treatment, surgery was decided to conduct upon. It is also significant to note that in chief examination this witness would say that whey they conducted laproscopy, they found a lump in the stomach, but only when they opened and probed into it, it was diagnosed as intussusception.
40. Thus, an analysis of the evidence will clearly show that the mode of treatment adopted by the first defendant initially is an accepted method even going by the evidence furnished by the plaintiff herself. The contention of the learned counsel for the respondent was that on the very same day of admission and on the very next day of admission, patient was put on I.V, that is not the accepted S.A.832/2000. 44 mode of treatment in case acute intussusception is initially diagnosed. The uniform opinion of all the doctors examined is that, first the medical officer concerned resorts to conservative method of treatment and only if the patient does not respond to the same and develop further complications, surgery is resorted to. In other words, surgery is the last option and not the first one as contended by the learned counsel for the first respondent.
41. One need not disbelieve the first defendant when he says that on 11.7.1995 when the plaintiff was discharged, her condition had considerably improved. If as a matter of fact what is claimed by the plaintiff and her husband P.W.3 is correct, certainly, it would have been difficult for her to survive for 2 or more days in General Hospital. It is to be noticed that she had in the General Hospital for 11 days. Therefore most of the submissions made by P.Ws.1 and 3 can be taken only with a pinch of salt.
42. May be that the first defendant was slightly indifferent. But that by itself does not lead to the conclusion S.A.832/2000. 45 that he was negligent. As noticed in several decisions, the standard of proof is very high in case of medical negligence. The evidence does not disclose that the treatment adopted by the first defendant in the case of the plaintiff was not an accepted mode of treatment. In fact the evidence is to the contrary. The initial treatment given to P.W.1, which is known as conservative method of treatment is one usually resorted to in all such case. The evidence is clear to the effect that option of surgery is the last resort when the patient does not show any improvement after receiving conservative method of treatment and begins to develop more and more complications. Applying the above test and principle to the facts of the case on hand, it therefore follows that the plaintiff has miserably failed to establish that the first defendant was negligent in any manner.
43. At the time of hearing of the appeal, this court was given to understand that the decree has been executed and the plaintiff has realised the amount decreed by the trial court and as confirmed by the appellate court. S.A.832/2000. 46 Considering the facts and circumstances, it is directed that in case the plaintiff had realized the amount, it shall not be recovered from the plaintiff. But it is held that the courts below were not justified in holding that the first defendant was negligent in the treatment of the plaintiff.
In the result, this appeal is allowed, the judgments and decrees of the courts below are set aside and the suit stands dismissed. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.