Andhra HC (Pre-Telangana)
Dr. S.R. Ranganadhan vs Alluri Seetharama Raju on 6 February, 2007
Equivalent citations: 2007(4)ALT743, AIR 2007 (NOC) 1233 (A. P.), 2007 (3) AJHAR (NOC) 1005 (A. P.)
JUDGMENT P.S. Narayana, J.
1. Dr. S.R. Ranganadhan, defendant in O.S. No. 80/87 on the file of Principal Subordinate Judge, Visakhapatnam preferred this Appeal being aggrieved of the decree and judgment dated 3-9-1993 made in the said suit. Likewise Alluri Seetharama Raju, respondent in the Appeal, as plaintiff in the suit, instituted the aforesaid suit claiming damages to a tune of Rs. 3 lakhs towards expenditure incurred for medicines, operation, loss of business, loss of education of children, loss of health, mental suffering and agony, future loss on account of leaving surgical sutures in the plaintiff's abdomen by the appellant/defendant/Doctor who had operated the plaintiff on 14-2-1983 and for recovery of subsequent interest and for costs of the suit. The learned Judge, in the light of the respective pleadings of the parties, having settled the Issues, recorded the evidence of P.W.1 to P.W.4, D.W.1 to D.W.3, marked Exs.A-1 to A-66 and Ex.B-1 and ultimately came to the conclusion that the respondent herein/plaintiff in the suit is entitled to claim damages of Rs. 1694-65 ps. towards medical expenses and also an amount of Rs. 65,000/- and the relief prayed for in relation to the rest of the claims had been negatived. Aggrieved by the same, the defendant preferred the Appeal and the plaintiff also aggrieved by the judgment and decree negativing a portion of the relief, preferred Cross Objections limiting the claim to Rs. 1,13,305/-.
2. Contentions of Sri D.V. Sitharam Murthy: Sri D.V. Sitharam Murthy, the learned Counsel representing the appellant/defendant would maintain that several of the bills relied upon relate to pre-operation period and only a few bills relate to post-operation period. The learned Counsel also pointed out to the oral and documentary evidence available on record and would contend that absolutely no acceptable evidence was placed before the Court relating to the other aspects and hence taking into consideration all the aspects, limited relief was granted. The learned Counsel also would maintain that in the light of the facts and circumstances, the limited relief also could not have been granted since absolutely there was no negligence on the part of the appellant/defendant/Doctor as such. The Counsel had taken this Court through the relevant portion of the evidence available on record and also the findings recorded by the learned Judge. The Counsel also while further elaborating his submissions had pointed out that here is a case where the suit is clearly barred by limitation. The learned Counsel pointed out to the relevant dates and would submit that even if the date is reckoned from the date of either first operation or the second operation, the same is clearly barred by limitation and hence the suit is liable to be dismissed on this ground alone and the Appeal to be allowed. The learned Counsel placed reliance on certain decisions.
3. Contentions of Sri Anand: Sri Anand, the learned Counsel representing the respondent/plaintiff who also filed Cross Objections made the following submissions. The learned Counsel would point out that the fact that some foreign element had been left in the abdomen at the time of operation and the fact that it was due to the negligence of either the appellant/defendant/Doctor or those who had assisted him, these facts are not in serious controversy. The learned Counsel also would submit that while evaluating the damages to be granted, the learned Judge had not adopted the proper approach. The evidence available on record had not been appreciated in proper perspective and hence the Cross Objections may have to be allowed and the amount already granted by the learned Judge to be enhanced as prayed for in the Cross Objections. The Counsel also placed reliance on certain decisions to substantiate his submissions, especially in relation to the medical negligence.
4. Heard both the Counsel.
5. For the purpose of convenience, the parties would be referred to as "plaintiff" and "defendant" as arrayed in the suit.
6. Pleadings of the parties:
Averments made in the plaint by the plaintiff:
The plaintiff had been residing at Visakhapatnam for the last 18 years and having lands and house sites at Visakhapatnam and he started business in stone crushing. The monthly income of the plaintiff is Rs. 2,000/- and he is hale and healthy and had been devoting all his time for his business. The plaintiff suffered severe abdominal pain in the second fortnight of October, 1982 and he consulted Doctors who gave different opinions and ultimately the plaintiff consulted the defendant who opined that it was a neglected case of appendicitis and advised the plaintiff to undergo operation after six weeks prescribing medicines in the meanwhile and the plaintiff used to consult the defendant very often. The defendant suspected the disease to be cancer in the abdomen and even expressed the same to the relatives of the plaintiff. The plaintiff was operated on 11-11-1982 at St. Joseph's Mary Hospital, Visakhapatnam. After the operation it was opined that it was not cancer. The plaintiff was discharged from the Hospital on 23-11-1982 and even after discharge the plaintiff was having severe abdominal pain and when the plaintiff consulted the defendant, the defendant said that it is postoperative effect which would subside in due course of time. The plaintiff suffered for 96 days and he again approached another Doctor K. Krishna Murthy who advised him to take X-Rays on the ground that the pain will not subsist so long after the operation. The X-Rays were taken at the X-Ray clinic of Dr. Subramanyareddy. The X-Rays showed the existence of surgical scissors in the abdomen. The X-Rays were sent to the defendant by Dr. Reddy in stead of giving the same to the plaintiff. On 13-12-1983 the plaintiff met the defendant at 8 p.m. and informed him the existence of surgical scissors being left inside the abdomen and that was the reason for continuous and severe pain. The defendant got very much agitated to begin with, but later the plaintiff was told that he received the X-Rays from Dr. Subramanyareddy and studies them and offered to remove the surgical scissors by an operation if the plaintiff was willing to join M/s. Vizag Nursing Home. As the matter was serious, the plaintiff had no other go except to accept the suggestion of the defendant and the plaintiff was admitted the Vizag Nursing Home at about 10 p.m. on 13-2-1983 and was operated by the defendant at around 4 p.m. on 14-2-1983 and the surgical scissors from the abdomen of the plaintiff was removed. After gaining consciousness, the plaintiff requested the defendant and Dr. Prabhu of Vizag Nursing Home for the X-Rays and the surgical scissors as he would preserve them. But, though they promised to give, subsequently they did not give. The case sheet of the Nursing Home was also asked but it was also not given. The plaintiff was informed that the case sheet was missing from the records. On 15-12-1983 the plaintiff sent a registered notice to Vizag Nursing Home asking for a copy of the case sheet which was received by them on 16-12-1983 but the Nursing Home did not give any reply. It is further stated that the plaintiff believes that he was not provided with either with a copy of the case sheet or X-Rays etc., at the instance of the defendant. At the time of discharge from the Nursing Home Dr. Prabhu refused to accept the bill for the operations and expenses, but subsequently after a few months, collected the bill amount from the plaintiff at the instance of the defendant. Even after removal of the surgical scissors from the abdomen, the plaintiff was suffering from continuous pain of the abdomen and he went to some doctors who had examined him and found that the defendant must have once again forgotten to remove some of the sutures that were put in the second operation and hence pus had formed and the suture line was marked as a line of wounds. On their advise, the plaintiff approached a private Nursing Home on 22-7-1983 and the Superintendent of K.G. Hospital, Visakhapatnam on 23-9-1983 and 11-1-1984 and at other times and got removed the leftover sutures in the abdomen and to that effect certificates had been obtained. As the left-over sutures had been coming out one after another causing continuous oozing of pus, the plaintiff thought of joining in the hospital again, but he did not join any hospital fearing that he may not be treated properly in view of the high influence of the defendant who is a local surgeon. The defendant also suspected that he may sue him for damages for the operations conducted by him. As the suffering continued, the plaintiff had no alternative but to go to some other place and so he went to Hyderabad and got himself examined at Osmania Hospital where one more left-over suture was removed on 13-2-1984. On account of negligence and carelessness of the defendant who was considered to be an eminent surgeon, the plaintiff suffered mentally, physically and also incurred loss of business and was not in a position to do any active work and thus sustained a loss of Rs. 3 lakhs. The plaintiff got issued a legal notice on 28-10-1983 for which a contentious reply was sent by the defendant. The defendant is an eminent surgeon and quite aware that if any foreign material is left in the human body after operation and sutures are not removed and stitched it, it will amount to negligent act. It is much more worse if a surgical scissors was left in the body. The conduct of the defendant after operation amounts to unreasonable conduct which a reasonable surgeon would avoid. The defendant should have taken due care and caution being man of competencies. As such the plaintiff claimed (1) expenditure for operation and medicines - Rs. 25,000/, (2) loss in business -- Rs. 1 lakh, (3) loss of education of children - Rs. 10,000/- and (4) loss of health, mental suffering and agony - Rs. 65,000/- and future loss on account of the present state of health -- Rs. 1 lakh. It is further stated that there is no limitation as the suffering was there till the last operation on 13-4-1984 and the suit had been filed within three years. Hence the suit had been filed for recovery of an amount of Rs. 3 lakhs as damages with subsequent interest and costs from the defendant.
Averments made in the written statement: The defendant filed a written statement with the following averments. The defendant is not aware as to the plaintiff's residence at Visakhapatnam or his business or his income and the plaintiff is put to strict proof of the same. Likewise, the defendant had no knowledge of the plaintiff's earlier suffering except as to what is the matter of record as covered by the previous particulars and what had been stated by the plaintiff. The defendant had only informed that on clinical examination, suspicion of cancer could not be ruled out. The plaintiff was operated on 11-11-1982 and was discharged from the hospital on 23-11-1982. It is further stated that it is true that after discharge also the plaintiff suffered with pain and complained of pain to the defendant and the defendant advised that it could be due to the post operation effect for some time. In the conduct of operation the defendant was assisted by a team of doctors and nurses and the operation was for the removal of ilecascal mass. It is further stated that always a team of persons performs the operation and at the end of the operation after the assisting nurse assures that the instruments and swabs had been accounted for, the abdomen will be closed and in the instance case, after the defendant was assured by the assisting nurse that there were no instruments, swabs or mops within the abdomen, the abdomen was closed. During the operation, the defendant found a structure that resembled a ureter-cut open and so he called one doctor D. Chengal Roy, Urologist who opined that there was no ureter and further confirmed that there was no damage to the ureter. Although as a senior surgeon he was not required to call another expert, yet he did so in the best interests of the patient and it is a clear indication of the care and caution that the defendant took to ensure successful surgery. After discharge from the hospital on 23-11-1982 the plaintiff only came twice and the defendant prescribed some medicines and on the second occasion he advised the plaintiff for further investigation and if necessary take on X-Ray, but unfortunately the plaintiff never came to the defendant and so he was not aware as to the subsequent developments. The plaintiff himself brought an X-Ray and the defendant told about the presence of a foreign body and the same had to be removed. The defendant denied that the X-Ray revealed a surgical scissors. It is further stated that the whole theory had been invented in order to malign the reputation of the defendant and the plaintiff had gone even to the extent of getting a paper publication with false X-Rays in a news paper having wide circulation i.e., Indian Express, dated 21-7-1983 Page-1 and the defendant, on legal advise, did not issue any rejoinder. The X-Rays brought by the plaintiff had been seen by the defendant and he returned the same to the plaintiff. The plaintiff deliberately suppressed the original X-Ray and fabricated false X-Ray and got it published in Indian Express to harm the defendant. The defendant suggested an operation to remove the foreign body (curved Haemostat) and it was the plaintiff who suggested operation to be performed in Vizag Nursing Home and the defendant agreed to do so. Since the X-Rays were with the plaintiff the question of the plaintiff requesting the defendant or Dr. Prabhu for the X-Rays does not arise. The foreign body removed was also given to the plaintiff. The defendant is not aware of the demand made by the plaintiff for the return of X-Rays and the foreign body from Vizag Nursing Home. It is false to suggest that at the instance of the defendant the case sheet and the X-Rays were not given to the plaintiff. It is further stated that in the matter of treatment it is only the doctor's duty as the medical person that would prevail and there is no question of the defendant being influential or his influence being responsible for the plaintiff not joining in any hospital. The defendant is not aware that pus had formed in the stitches of the second operation as the stitches were left-over or the approach of the plaintiff to various doctors. Before the plaintiff was discharged from the Hospital all the stitches had been removed. The plea of suffering mentally and physically by the plaintiff had been denied. The Karate demonstration of the plaintiff before Revenue and Police officials and published in the front page of Eenadu dated 20-9-1983 is proof of his physical fitness. The said fact throws any amount of doubt on the genuineness of O.P. chit dated 23-9-1983. It is further stated that the suit claim is fully unsustainable and highly speculative and is meant to harass the defendant. The total cost of the two operations should not have exceeded Rs.4,000/- and so the allegation of the plaintiff that he incurred a sum of Rs. 25,000/- towards operation and medical expenses in this connection had been denied. The plaintiff's claim for the loss of business is unsustainable and the plaint does not show as to how the business was lost and how the plaintiff arrived at the figure of Rs. 1 lakh. Having regard to the nature of operation, it could not have had any effect on the business of health. The plaintiff had been normally moving about and there was no vestige of truth that his health had been affected. The presence of foreign body could not have affected the health of the plaintiff nor it had caused the mental suffering and agony and the claim of Rs. 65,000/- is wholly exaggerated. The claim for future loss is legally unsustainable and as the plaintiff was operated promptly for the second time by the defendant it could not have resulted in any future loss. The plaintiff had been operated on 11-11-1982 and as such the suit claim is barred by limitation. The allegation of the plaintiff that the plaintiff was operated for the first time on 13-2-1984 had been denied and it is stated that it cannot be the starting point of limitation and hence the suit has to be dismissed with costs.
7. On the strength of the respective pleadings of the parties referred to supra, the following Issues were settled by the trial Court:
(1) Whether the defendant conducted operation on the plaintiff negligently and carelessly on 11-11-1982 leaving surgical scissors inside the abdomen resulting continuous severe pain to the plaintiff even after such operation?
(2) Whether at the suggestions of the defendant, the plaintiff was admitted in M/s. Vizag Nursing Home at about 10 p.m. on 13-2-1983 and the plaintiff was operated on 14-2-1983 and removed the surgical scissors from his abdomen?
(3) Whether the left over sutures in the abdomen were removed by subsequent operations?
(4) Whether on account of the negligence and carelessness of the defendant, the plaintiff suffered mentally, physically and incurred loss of business and not in a position to do any active work and sustained a loss of Rs. 3 lakhs, as shown in the plaint?
(5) Whether the suit claim is barred by limitation?
(6) Whether the plaintiff is entitled to any damages from the defendant and if so, to what amount?
(7) To what relief?
There was recasting of Issue No. 3 as follows:
Whether any sutures are left over in the second operation and if so, they are removed subsequently?
8. Oral and documentary evidence relied on by the parties Witnesses examined for plaintiff:
P.W. 1 17-8-1992 A.S. Rama Raju P.W. 2 - Dr. Prabhu P.W. 3 - Dr. R. Venkataramana P.W.4 - M. Thirumala Ramakrishna Witnesses examined for defendant:
D.W. 1 - Dr. S.R. Ranganadhan
D.W. 2 - Sister Nirmala
D.W.3 - K. Veerabhadrayya
Documents marked for plaintiff:
Ex.A-1/28-10-82 : Opinion of
Dr. S.R. Ranganadhan
Ex.A-2/8-8-83 : Letter addressed to the
plaintiff by Vizag Nursing
Home with operation dates.
Ex.A-3/11-11-83 : Letter addressed to Vizag
Nursing Home, Visakhapatnam.
Ex.A-4/15-2-84 : Letter addressed to the
plaintiff by Indian Posts &
Telegraphs Department along
with the enclosures.
Ex.A-5/ : Certificate issued by Dr. K.
Surya Rao
Ex.A-6/23-9-83 : O.P. Chit issued by K.G. Hospital
Ex.A-7/16-1-84 : -do-
Ex. A-8/13-2-84 : O.P. chit issued by Osmania Hospital,
Hyderabad.
Ex.A-9/28-10-83 : O/c. of Lawyer's notice issued to
the defendant by the plaintiff
along with postal acknowledgement.
Ex.A-10/7-11-83 : Reply to Ex.A-9
Ex.A-11/ : Advice letter by Dr. K. Krishna Murthy
EX.A-12 & A-13/
13-6-83 : Report by Bio-Chemist.
Ex.A-14/21-7-83 : Paper publication in Indian Express daily.
Ex.A-15 to A-26 : Various medical prescriptions
Ex.A-27/28-10-82 : Medical prescription
Ex.A-28/28-10-82 : -do-
Ex. A-29/29-10-82 : -do-
Ex. A-30/16-11-82 : -do-
Ex. A-31/18-11-82 : -do-
Ex.A-32/ : -do-
Ex.A-33/ : -do-
Ex. A-34/10-12-82 : -do-
Ex. A-35/13-1-83 : -do-
Ex.A-36/26-1-83 : -do-
Ex.A-37/14-2-83 : -do-
Ex. A-38/15-2-83 : -do-
Ex.A-39/ : -do-
Ex.A-40/ : -do-
Ex.A-41/22-2-83 : -do-
Ex.A-42 & A-43/
17-2-83 : -do-
Ex.A-44/25-11-82 : Medicial bills
Ex.A-45/23-11-82 : -do-
Ex. A-46/20-11-82 : -do-
Ex.A-47/18-11-82 : -do-
Ex. A-48/17-11-82 : -do-
Ex.A-49/16-11-82 : -do-
Ex.A-50/14-11-82 : -do-
Ex.A-51/14-11-82 : -do-
Ex. A-52/14-11-82 : -do-
Ex.A-53/13-11-82 : -do-
Ex. A-54/12-11-82 : -do-
Ex.A-55/11-11-82 : -do-
Ex.A-56/4-11-82 : -do-
Ex.A-57/18-12-82 : -do-
Ex.A-58/10-12-82 : -do-
Ex.A-59/14-1-83 : -do-
Ex.A-60/14-2-83 : -do-
Ex.A-61/17-2-83 : -do-
Ex.A-62/17-2-83 : -do-
Ex.A-63/28-4-83 : -do-
Ex.A-64/10-5-83 : -do-
Ex.A-65/25-6-83 : -do-
Ex.A-66/15-7-83 : -do-
Documents marked for defendant:
Ex.B-1/20-9-1983 : Paper publication made in Eenadu
daily newspaper dated 20-9-1983.
9. Findings recorded by the learned Judge: The learned Judge while answering Issue No. 5, the question of limitation, came to the conclusion that Ex.A-8 is dated 13-2-1984 and the suit having been filed on 11-2-1987, within the period of three years from the date when the cause of action accrued, is within limitation. While answering Issue No. 1, the learned Judge appreciated the evidence available on record and came to the conclusion that there is sufficient material to infer that the defendant had not taken proper care in finding out whether all the instruments were accounted for or not which can be styled as negligence. Further, while answering Issue Nos.2 to 4, the oral and documentary evidence had been appreciated and findings had been recorded that from Exs.A-5 to A-8 it can safely be presumed that there was some trouble on the suture line resulting in plaintiff undergoing treatment and by this it can be concluded that the sutures were not properly removed by the defendant. Further, while answering Issue No. 6 at paras 29 to 34, the learned Judge recorded reasons in detail and came to the conclusion that the plaintiff would be entitled to claim damages of an amount of Rs. 1694-65 ps. towards medical expenses from the defendant and also another amount of Rs. 65,000/- damages for loss of health, mental agony and suffering and accordingly decreed the suit with proportionate costs while answering Issue No. 7.
10. In the light of the rival contentions advanced by both the Counsel, the following Points arise for consideration in this Appeal:
1. Whether the findings recorded by the learned Judge relating to the medical negligence on the part of the Doctor/appellant/defendant in the suit to be disturbed or to be confirmed in the facts and circumstances of the case?
2. Whether the claim made relating to that portion of the relief which had been negatived by way of Cross-Objections to be allowed or to be negatived in the facts and circumstances of the case?
3. Whether the suit can be said to be within limitation in the facts and circumstances of the case?
4. If so, to what relief the parties would be entitled to?
11. Point No. 3: Since the question of limitation had been argued in elaboration by the Counsel on record, it would be appropriate to deal with this question at the threshold. The plaintiff was operated for the first time for appendicitis on 11-11-1982 and it is not in dispute that some foreign object either it is forceps or scissors, had been left in the abdomen of the plaintiff. Nearly after 96 days i.e., on 14-2-1983, again the plaintiff was operated by the defendant for removal of the said foreign object. It is the stand taken by the plaintiff that even in the second operation, all the sutures were not properly removed by the defendant and there was infection and he was forced to have removed them one after another on different dates like 22-7-1983, 22-9-1983, 16-1-1984 and 13-2-1984 at Visakhapatnam and Hyderabad as shown in Exs.A-5 to A-8. It is stated that the last sutu re was removed on 13-2-1984 as specified in Ex.A-8. The respective pleadings of the parties had been dealt with by the learned Judge in detail. It is not in controversy that Article 113 of the Limitation Act 1963 would be applicable to the facts of the present case. On the aspect of when the right to sue would accrue, reliance was placed on Rukhmabai v. Lala Laxminarayana and Ors. . There cannot be any doubt or controversy that if the period to be reckoned either from the date of first operation or from the second operation, the suit is barred by limitation. But however, Exs.A-5 to A-8 are not in serious controversy and the same had not been specifically denied even. When that being so, the findings recorded by the learned Judge that Ex.A-8 being dated 13-2-1984, the cause of action can be said to have accrued on the said date and the suit was filed within time, the same having been instituted on 11-2-1987. Hence, this Court is of the considered opinion that in the peculiar facts of the case, the suit is within limitation.
12. Point Nos.1 and 2: The evidence available on record already had been referred to supra. P.W.1, the plaintiff in the suit deposed about all the details and the particulars. This witness deposed that he approaches the defendant for treatment of appendicitis who was working in Government Hospital and he was also having private practice opposite Collector's office and he opined it as a neglected case of appendicitis and advised operation after six weeks. P.W.1 also deposed about the prescription of Ex.A-1 and he was operated on 11 -11 -1982 at St. Joseph Hospital, Visakhapatnam. He was operated by the defendant with the assistance of some other Doctors and after that he was discharged from the Hospital on 22-11-1982 after removing the sutures. Even after operation, there was unbearable pain and so he again approached the defendant and for every visit P.W.1 used to pay Rs. 50/- as fees to him and he used to advise him that they were all post operation effects and he will get relieved of the pain after a few days. He suffered from the pain for about 96 days and then he approached Dr. Krishna Murthy who had examined him and at the outset he told P. W. 1 that there was something wrong in the operation. P.W.I further deposed that he approached Dr. Subramanya Reddy's X-Ray clime and had X-Rays taken of his abdomen on 13-2-1983. The X-Ray film shows that there was scissors in the stomach and P.W.1 was shown the wet film and was asked to come half an hour later. However, they were told by Mrs. Reddy that X-Rays were sent to the defendant. P.W.1 met the defendant on the same day and in the beginning he was very much ruffled and said that it was the mistake of the nurse. He also told him that forceps had been left at the time of operation and he would remove them if he so desires and advised P.W.1 to join Vizag Nursing Home and on the same day around 10.30 p.m. P.W.1 joined in Vizag Nursing Home. It was further deposed by P.W.1 that the defendant wanted to operate upon him on the same day but he did not agree on the ground that he needed rest and so on the early hours on the next day at 4 a.m. the defendant operated P.W.1. P.W.1 was given anesthesia and he was told that the instrument was removed. P.W.1 further deposed that he asked the defendant and Dr. Prabhu that he should be given back the forceps and also the X-Rays and though they promised to give at the first instance, later they did not give them and he was old that they were lost. Ex.A-2 is the certificate issued by Dr. Prabhu, Vizag Nursing Home, showing details of the operation done. As they failed to give record and so also the instrument taken out from the abdomen, P.W.1 issued a registered notice, the office copy of which is Ex.A-3. P.W.1 did not receive any acknowledgement and he approached the postal authorities. Ex.A-4 is the certificate issued by Postal Superintendent confirming service of registered notice on Dr. Prabhu. This witness also deposed that he informed him that all the sutures had not been completely removed and further advised him to approach some private Nursing Home for further treatment. It was Dr. Surya Rao of Kancherlapalem that removed one suture and issued Ex.A-5 certificate. After two months, again, there was pus formation in the sutures. Again P.W.1 was operated upon and one suture was removed at K.G.H. Ex.A-6 is the O.P. ticket. P.W.1 further deposed that four or five months later on the suture line, again another wound developed. Ex.A-7 is the O.P. ticket. The Doctor there advised P.W.1 to continue dressing every day and he was not given a certificate for the operation but an entry was made in the O.P. register. Thus in all, five sutures were removed from time to time after the second operation. This witness further deposed that as he felt that the doctors of Vizag were not cooperating with him, he went to Hyderabad for further check up and got himself examined in Osmania Hospital where the remaining sutures were removed and Ex.A-8 certificate was issued. Several other factual details had been narrated in relation to the other documentary evidence which had been placed before the Court. At this juncture itself, it may be stated that while answering Point No. 3, on the question of limitation, Ex.A-8, the last O.P. chit was taken as the basis for reckoning the period of limitation. This witness, P.W.1, further deposed in detail relating to the other documents. Ex.A-9 notice, Ex.A-10 reply to Ex.A-9 and also Ex.A-11 the advise letter given by Dr. Krishna Murthy, Ex.A-12 and Ex.A-13 report of Bio-Chemist, Ex.A-14 paper publication in Indian Express daily, Ex.A-15 to Ex.A-26 various medical prescriptions and also Ex.A-27 to Ex.A-43 different medical prescriptions and Ex.A-44 to Ex.A-66 medical bills. No doubt certain submissions were made by both the Counsel pointing out the dates of these bills on the ground that certain are of post operation bills and certain are pre-operation bills. No doubt, the Counsel representing the respondent/plaintiff submitted that inasmuch as some advise was given by the Doctor to take some precautionary measures, these bills also relate to the same transaction.
13. Apart from the evidence of P.W.1, the other evidence available on behalf of the plaintiff is that of the evidence of P.W.2, the Doctor, who was running Vizag Nursing Home from 1982 to 1991. This witness, P.W.2, deposed that the defendant requested him on phone to admit the plaintiff in the Nursing Home and he was admitted in the Hospital at around 10 p.m. on 13-2-1983. He further deposed that the operation was fixed to be done at 5 a.m. on the next day and he assisted the surgery. Besides P.W.2, the defendant, anesthetist and other staff also were present. This witness no doubt deposed relating to the presence of the foreign body in the abdomen and how the same had been removed. The details relating to the same had been narrated. This witness also deposed in relation to Ex.A-2 and Ex.A-3 as well. In the cross-examination this witness deposed that some times patients come directly and then they will suggest the name of the Doctor and he knows the plaintiff earlier as he is distantly related to him. He deposed that the photo in Ex.A-14 is not the photo of the X-Ray film he had seen and Ex.A-14 shows the position of the forceps in a straight line whereas in the X-Ray brought to him, the position of the forceps was in oblique manner.
14. P.W.3, who worked as Professor of Surgery in Guntur Medical College from November, 1991, had deposed in relation to the movement of the foreign object left in the abdomen and the possibility of damage or injury to the other parts, but stated it would be a rare case. He further deposed that there is a possibility of formation of lining over the foreign object in the body and that would be the nature's protection to the body from a foreign body. Several further factual aspects had been narrated by P.W.3. This witness was cross-examined at length. No doubt, this witness was examined with a view to establish medical negligence.
15. P. W.4 deposed that he had been doing business in supply of construction material to steel plant and the plaintiff used to have stone crusher and he used to supply stone to the plaintiff's crusher. P.W.4 deposed about certain other factual details and had stated that P.W.1 could be getting Rs. 2000/- per month from out of the crusher business. This witness was cross-examined and his evidence was let in most probably to establish the loss of income of P.W.1.
16. As against the evidence on behalf of the plaintiff, on behalf of the defendant, D.W.1/defendant/Doctor was examined who had narrated all the details as pleaded in the written statement. D.W.2 is the staff nurse, D.W.3, who had retired from service and practicing as a Consultant Surgeon, had been examined. D.W.1 deposed about his qualifications and also deposed that he had taken voluntary retirement from Government service in 1983. He also deposed that he used to do an average of 3 to 4 major operations and 4 to 5 minor operations per day in his unit and he had given several particulars and details relating to his experience as a Doctor. This witness also deposed relating to the advise given to the patient and what care to be taken and about his advise that the patient should undergo operation. This witness gave several details as to how the precautionary measures had been taken, how proper advise had been given relating to the post-operation period and how the operation had been conducted. This witness was cross-examined at length and several questions were posed to him to fasten the liability on the ground that he was negligent in performing the operation on P.W.1.
17. D.W.2 had deposed relating to further particulars and she had deposed about the procedure which may be followed normally while carrying out such operations and how as a team they would work. This witness specifically deposed that the sister who lays the table will count the number of each bunch and how the Doctor would be assisted in carrying on with such operations also had been deposed at length. She deposed that she was there through out the operation and during the operation Dr. Chengalroy was called in by the defendant and she does not remember who laid the table on that day but it must be one of the staff nurses. Further particulars had been given by this witness but however this witness deposed that she did not lay the table for this operation and some other staff nurse might have laid the table and hence she was unable to remember the name.
18. D.W.3 deposed about his experience and the other details and further deposed how certain complications may arise during the operation and what are the responsibilities of a nurse assisting a Surgeon in seeing that all the materials used during the operation are removed or taken back with some care and caution. Several details relating to this aspect had been narrated by this witness D.W.3. This witness was cross-examined at length.
19. The learned Judge recorded certain findings and no doubt arrived at a conclusion that leaving of the foreign object or foreign material in the abdomen of the plaintiff would amount to negligence in the facts and circumstances and had fastened the appellant/Doctor/defendant in the suit with some liability and the same is being questioned.
20. At the outset it may be stated that except the evidence of P.W.4 which is also vague evidence, no other acceptable material is placed before the Court relating to the claim of damages on other heads. From the evidence available on record, this Court also is satisfied that as far as other aspects are concerned relating to the taking of the pre-operation care as well as post-operation care, except some problem relating to the removal of sutures in the second operation, no further serious complaint as such had been made. The only other negligence which is being seriously canvassed and which had been in fact commented upon even by the learned Judge while granting a portion of the relief is leaving the foreign material in the abdomen which may constitute negligence on the part of the appellant/Doctor/defendant. Reliance was placed on Achutrao Haribhau Khodwa v. State of Maharashtra wherein the Apex Court at para 14 observed:
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 aliment, it would be difficult to hold the doctor to be guilty of negligence.
Reliance also was placed on the decision of this Court in Dr. Pinnamaneni Narasimha Rao v. Gundavarapu Jayaprakasu and Anr. wherein this Court at paras 14 and 17 observed:
Negligence constitutes an independent basis of tort liability. Law imposes a duty on every one to conform to a certain standard of conduct for the protection of others. In the case of persons who undertake work requiring:
special skill must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from persons of such profession. (See John G. Flemming's "The Law of Torts", Fifth Edition at p. 109).
Failure to conform to the required standard of care resulting in material injury is actionable negligence if there is proximate connection between the defendant's conduct and the resultant injury. A surgeon or anesthetist will be judged by the standard of an average practitioner of class to which he belongs or holds himself out to belong. In the case of specialists a higher degree of skill is called.
Adjudged in the light of the legal principles referred to above and from the evidence available on record, which has already been discussed by me, it is clear that both the Surgeon and the Anesthetist have failed to exercise reasonable care. There has been breach of duty on the part of the Anesthetist by reason of his failure, an act per se negligence in the circumstances, to administer respiratory resuscitation by oxygenating the patient with a mask or bag. He exposed the plaintiff to the room temperature for about three minutes and this coupled with his failure to administer fresh breathes of oxygen before the tube was removed from the mouth of the plaintiff had resulted in respiratory arrest: these are foreseeable factors. There is proximate connection between the Anesthetist's conduct and the resultant injury-cerebral anoxia. The learned trial judge very rightly recorded the finding after evaluating the evidence that:
The endo-tracheal tube that was inserted into the trachea of the plaintiff was removed by the third defendant for no valid reasons and that too without taking the mm precaution of giving a few breaths of pure oxygen to the patient before extubation. There was avoidable delay in inserting the tube again for the second time to give oxygen to the plaintiff when the respiratory arrest occurred.... The respiratory arrest that ultimately led to cerebral anoxia was the result of the negligence on the part of the third defendant in adopting faulty techniques of induction and maintenance of anaesthesia.
On the aspect of medical negligence, strong reliance was placed on Roe v. Ministry of Health and Ors. 1954 (2) All ER 131 wherein the facts are as hereunder:
On October 13, 1947, each of the plaintiffs underwent a surgical operation at the Chesterfield and North Derbyshire Royal Hospital. Before the operation in each case a spinal anaesthetic consisting of Nupercaine, injected by means of a lumbar puncture, was administered to the patient by the second defendant, a specialist anaesthetist. The Nupercaine was contained in glass ampoules which were, prior to use, immersed in a phenol solution. After the operations the plaintiffs developed spastic paraplegia which resulted in permanent paralysis from the waist downwards. In an action for damages for personal injuries against the Ministry of Health, as successor in title to the trustees of the hospital, and the anaesthetist, the Court found that the injuries to the plaintiffs were caused by the Nupercaine becoming contaminated by the phenol which had percolated into the Nupercaine through molecular flaws or invisible cracks in the ampoules, and that at the date of the operation the risk of percolation through molecular flaws in the glass was not appreciated by the competent anaesthetists in general.
In the aforesaid factual background, it was held by the Court of Appeal that having regard to the standard of knowledge to be imputed to competent anesthetists in 1947, the anesthetist could not be found to be guilty of negligence in failing to appreciate the risk of the phenol percolating through molecular flaws in the glass ampoules and, a fortiori, there was no evidence of negligence on the part of any member of the nursing staff.
21. Further strong reliance was placed on Whitehouse v. Jordan and Anr. 1980(1) All E.R. 650 wherein a Court of Appeal of Civil Division while dealing with medical practitioner's negligence and the test of liability held:
The defendant, a senior hospital registrar, was in charge of the delivery of the plaintiff as a baby following a high risk pregnancy. After the mother had been in labourfor22 hours the defendant decided to carry out a test to see whether forceps would be used to assist the delivery. In doing so the defendant followed a suggestion by his head of department, a consultant professor of obstetrics, in his case notes on the mother. The defendant pulled on the baby with forceps five or six times and then fearing for the safety of the mother and child he carried out a Caesarean section quickly and competently. The plaintiff was born with severe brain damage and, acting by his father, brought an action in negligence against the defendant alleging want of professional skill and care by pulling too hard and too long on the forceps and so causing the brain damage. At the trial there was evidence by a junior registrar who was present at the delivery that the defendant's use of the forceps was not violent or untoward. There was also eminent medical opinion that it was a matter of clinical judgment based on experience as to how hard and how many times a doctor should pull on obsteric forceps. The mother gave evidence and although her description of what had happened was not physically possible, the judge interpreted it as meaning that the forceps were applied with such force that she was pulled to the bottom of the delivery bed. There was also in evidence a report prepared by the consultant professor shortly after the birth and after discussion with the defendant, in which the professor stated that the defendant had 'disimpacted' the baby's head prior to the Caesarean section. Although the professor gave evidence that he had used the term 'disimpacted' to denote that only slight force was needed to free the head before head had become wedged or stuck in the birth canal because of the use of the forceps and force was required to move it. Because of his interpretation of the professor's report and the mother's evidence the judge found that the defendant had pulled too hard and too long on the forceps causing the foetus to become wedged in the birth canal, that in unwedging the foetus he had caused asphyxia which in turn had caused cerebral palsy and that in so using the forceps he fell below the high standard of professional competence required by law, and was therefore negligent.
In such circumstances, the Court of Appeal gave the following reasons for allowing the appeal:
(i) An error of clinical judgment by a medical practitioner did not of itself amount to negligence in the legal sense. Accordingly (Donaldson LJ dissenting), even if the finding that the defendant had pulled too hard and too long with the forceps was accepted, that did not constitute a finding of negligence, for the defendant's decision to continue pulling on the forceps was merely an error of clinical judgment or (per Lord Denning MR) was not, on the evidence, improper at all (see pp 658 a to h and p 661 hj, post); dictum of Denning LJ in Roe v. Ministry of Health [1954] 2 All. ER at 139 applied.
(ii) (Donaldson LJ dissenting) In any event the Court was entitled to, and would, reverse the judge's finding that the defendant had pulled too hard and too long with the forceps because that finding was based on an unjustified interpretation of the professor's report and the mother's evidence, especially as the latter contradicted the evidence of the doctors who were present at the delivery and the rest of the mother's evidence had been rejected by the judge and (per Lawton LJ) because, in this particular instance, the appellate Court was entitled to disregard to trial judge's assessment of the reliability of a witness (ss p 657 e to h, p 658h, petitioner 660 de and p 661 e, post); The Honestroom [1927] AC 37 applied.
Reliance also was placed on Philips India Ltd. v. Kunju Punnu and Anr. AIR 1995 Bombay 306 wherein at paras 15, 21 and 26, it was observed:
The Civil liability of medical men towards their patients is perhaps compendiously stated in R. v. Bateman (1925) 94 LJ KB 791, as follows:
If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his discretion and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward .... The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters beyond mentioned. If the patient's death has been caused by the defendant's indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness .... As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare ...." (See Charlesworth on Negligence. Fifth Edn., pages 181 and 182, para 272). The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage and unless it is done with proper care and skill. There is no question of warranty undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. 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 degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence.
Regarding negligence in diagnosis, Lord Nathan has observed at page 43:
The diagnosis of ailments is normally the first matter with which the medical man is concerned; and there can be no doubt that he may find himself held liable in an action for negligence if he makes a wrong diagnosis and thereby causes injury or damage to his patient (as for example where the false diagnosis leads the medical man to apply a wrong treatment or to refrain from applying some treatment which, if it had been applied at once, would have averted or cured the condition complained of). It follows, however, from what has already been said as to the standard of care required from the medical man, that a mistaken diagnosis is not necessarily a negligent diagnosis. It was said forty years ago, and the principle still holds good, though allowance must of course be made in any particular case for subsequent advances in technique, that no human being is infalliable; and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. 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.
It is, therefore, clear 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 the breach of duty was the legal cause of the damage complained of and such damage was reasonably foreseeable.
Reliance also was placed in relation to the admissibility and probative value of the document relied upon on Vedantham Satyavathi v. P. Venkataratnam 1988 (1) ALT 915 and Mohammad Yousuf and Anr. v. D and Anr. .
22. Here is a case where an experienced Doctor had proceeded with the operation, however, the fact remains that a foreign body was left in the abdomen and that was the reason why the second operation was needed. No doubt in relation to the second operation, it is stated that proper care and caution had not been taken and some complication had arisen due to the same and subsequent thereto it is stated by P.W.1 that P.W.1 approached the other hospitals and other Doctors and ultimately got the same rectified. On over all appreciation of the facts and circumstances, negligence of leaving a foreign material in the abdomen during the first operation and the negligence in relation to the removal of sutures during the second operation, these are the two principal questions on the strength of which the plaintiff intends to fasten the liability on this Doctor/appellant/ defendant.
23. As can be seen from the evidence of D.W.1, it is clear that D.W.1 is a well experienced Doctor. There is no serious controversy and there is no serious cross-examination also on this aspect. He appears to be an expert. Be that as it may, due to some misfortune, may be due to the negligence on the part of the staff, some mishap had happened and the foreign object had been left in the abdomen. In the light of the over all facts and circumstances, inasmuch as relating to the other claims no acceptable material had been placed, the learned Judge recorded certain reasons and had negatived such claims. Hence, this Court is of the considered opinion that as far as the enhancement of the amount as claimed by the Cross Objections, the same may have to be negatived and accordingly the Cross Objections are liable to be dismissed. However, inasmuch as the learned Judge recorded reasons in detail and came to the conclusion that it would be just and appropriate to fix the compensation, this Court is not inclined to interfere with the findings recorded by the learned Judge and accordingly the Appeal also is liable to be dismissed.
24. Point No. 4: In the light of the findings recorded above, the Appeal and the Cross Objections are dismissed. However, insomuch as the parties are fighting a litigation on the ground of medical negligence, the parties to the litigation are directed to bear their own cost.