Madras High Court
The Joint Director Of Health Services ... vs Sonai And Ors. on 20 March, 2000
Equivalent citations: 2002ACJ1203, AIR2000MAD305, (2000)IIMLJ414, AIR 2000 MADRAS 305, (2002) 2 ACJ 1203, (2000) 2 MAD LJ 414, (2003) 1 TAC 466
JUDGMENT S.S. Subramani, J.
1. Defendants 3 and 4 in O.S. No. 46 of 1993, on the file of Sub Court, Sivagangai, are the appellants herein.
2. Parties hereinafter will be referred to according to their rank in the suit.
3. Material facts which are necessary for proper disposal of the second appeal could be summarised thus :--
First plaintiff is the husband, and plaintiffs 2 to 4 are the children of late Panchavarnam, who died on 3-1-1990. Plaintiffs allege that late Panchavamam gave birth to the fourth plaintiff on 4-12-1989. Second defendant in the suit, who is a motivator to encourage birth control operations, persuaded Panchavamam to have family planning operation, and she was admitted at Paganeri Government Hospital. On 14-12-1989, i.e. ten days after the delivery, Panchavamam was operated. Plaintiffs allege that on the same day, she was discharged from the hospital without being given any instructions regarding the follow-up action, and within two days, Panchavamam felt some pain in her abdomen. She was taken to the nearby Primary Health Centre. After two days, she was asked to leave the hospital. Again, when she went back to the house, she complained of pain, and at that time, the second defendant, who is not qualified even as a Nurse, removed the stitches in the house, even without taking any Preliminary precautions. Thereafter also, the pain did not subside, and, therefore, she was taken to the hospital, and finally, on the advice of the first defendant, she was taken to the Madurai District Hospital on 22-12-1989. Eventhough good treatment was given, she died on 3-1-1990. According to plaintiffs, the death of Panchavamam was caused due to medical negligence. First defendant who operated Panchavamam was not careful enough to give necessary Instructions to the patient, and she also allowed the second defendant to remove the stitches. Panchavamam was not given proper care. Only due to the negligence of the defendants 1 and 2. Panchavamam died.
4. All the defendants disputed the claim of plaintiff, and contended that they have exercised the skill expected of them, and there was no negligence on their part.
5. Trial Court took elaborate evidence. Exx. A-1 to A-10 were marked on the side of plaintiffs, and first plaintiff was examined as P.W. 1. On the side of defendants, Exx. B-1 to B-12 were marked. D.Ws. 1 to 4 were examined on their side.
6. Trial Court, mainly relying on the evidence of D.W. 3, another medical practitioner, held that much care was not taken on Panchavamam. as was expected from a medical practitioner, and the post-operation treatment was also not proper. It found that there was negligence on the part of defendants 1 and 2. The appellants herein were also made liable on the principle of vicarious liability. All the defendants were made liable jointly and severally. It held that the plaintiffs are entitled to get a compensation of Rs. 40,000/-. Costs were also allowed.
7. Against the said judgment, two appeals were preferred before the lower appellate Court. Defendants 1 and 2 filed an appeal as A.S. 1 of 1997 and defendants 3 and 4 separately filed an appeal as A.S. No. 14 of 1997. The lower appellate Court dismissed both the Appeals with costs.
8. This Second Appeal is filed only by defendants 3 and 4, who were found liable on the principle of vicarious liability. The other defendants have not preferred any appeal.
9. Notice of motion was ordered, and respondents (plaintiffs) entered appearance through Counsel.
10. I heard both sides, and the concerned records were also called for.
11. The following substantial questions of law have been raised in the memorandum of grounds :--
" 1) Whether the Courts below are correct in holding that the death occurred due to the negligence in carrying out the operation?
and
2) Whether the plaintiffs are entitled for the relief claimed in the suit?"
12. According to me, appellants are not entitled to challenge the finding regarding negligence when defendants 1 and 2 have not preferred any second appeal. As against them, the judgment has become final. Appellants herein are made liable only on the principle of vicarious liability.
13. Even though I hold that the appellants herein are not entitled to challenge the finding regarding negligence, in view of the fact that both parties advanced arguments on that point, I am bound to enter a finding on that question also.
14. It is admitted that on 14-12-1989 Panchavarnam got admitted in the hospital through the second defendant. It is also admitted that the first defendant operated the deceased. On the same day, five more operations were also done by first defendant. Though plaintiffs allege that Panchavarnam was discharged on the same day, it is admitted in the written statement itself in paragraph 4 that she was discharged from the Government Hospital at Pagaceri on 15-12-1989 as per routine practice, and thereafter she was kept in the Health Sub Centre at Melappasalai for two more days for follow-up treatment. D.W.3, who is also a qualified doctor, has said that under normal circumstances, after an operation is conducted, the patient will be asked to remain in the hospital for seven days, and on the seventh day, it is the duty of the doctor to remove the stitches. Even the stitches have to be removed only in the hospital, and not in any other place. In this case, why the deceased was sent out of the hospital on the next day itself is not explained, except merely stating that it is a routine practice. In fact, this statement in the written statement has been given a go-by during evidence, and it is stated that Panchavarnam left the hospital voluntarily. But the files show that no objection was not taken by any of the doctors for the deceased leaving the hospital voluntarily, nor was any warning given to her by the doctor. But I do not want to further probe into the matter in view of the statement in the written statement itself.
15. Admittedly, evidence as to what was the treatment given and what was the advice given to the patient, is lacking. It is also admitted in the written statement itself that stitches were removed on 20-12-1989 at the residence of the patient, and that too by second defendant. Second defendant is only a Motivator, and she is not qualified for doing such things. The patient was also complaining of pains. If it is the duty of the first defendant to remove the stitches, and in fact, the same was done by second defendant, under normal circumstances, it could be only under instructions from the first defendant, she having delegated that function to the second defendant. I do not want to further discuss the evidence in this case since both the Courts below have concurrently held that there was negligence on the part of both the defendants 1 and 2, and they did not show proper care on the patient for post-operation treatment; the first defendant did not even give any advice to the patient, in this connection, it may also be noted that the deceased Panchavarnam and all the plaintiffs are illiterates, and they are financially very poor. Moreover, they are residing in a remote village. From their residence, the hospital where the operation was done is situated fifty miles away. Even it is admitted that in between this distance of fifty miles, there were other hospitals also, where this operation could have been done. I am stating this fact only for the purpose of finding that Panchavarnam who was introduced by 2nd defendant, completely relied on the professional skill of first defendant for undergoing the operation. If a representa tion is made by a medical practitioner, that an operation could be done, law expects that the doctors must discharge their duties making use of their skills to the best of their ability. In this case, I find that defendants 1 and 2 were negligent and they have filed in discharging their duties. Naturally, the question arises as to what is meant by 'negligence'.
16. In , (Achutrao Haribhau Khodwa v. State of Maharashtra), in paragraphs 12 to 15 of the judgment. Their Lordships have held thus :--
".....The test with regard to the negligence of a doctor was laid down in Bolam v. Friern Hospital Management Committee, (1957 (2) All ER 118). It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper bv a responsible body of medical men, skilled in that particular art. The principle in Bolam case has been accepted by the House of Lords in England as applicable to diagnosis and treatment. (See Sideaway v. Board of Governors of Bethlem Royal Hospital, (1985) AC 871 at p. 881. Dealing with the question of negligence, the High Court of Australia in Rogers v. Whitaker has held that the question is not whether the doctor's conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the Court to decide and the duty of deciding it cannot be delegated to any profession or group in the community. It would, therefore, appear that the Australian High Court has taken a somewhat different view than the principle enunciated in Bolam case. This Court has had an occasion to go into this question in the case of Laxman Balkrishna Joshi (Dr.) v. Dr. Trimbak Bapu Godbole, . In that case the High Court had held that the death of the son of the claimant was due to the shock resulting from reduction of the patient's fracture attempted by the doctor without taking the elementary caution of giving anaesthetic. In this context, with reference to the duties of the doctors to this patient, this Court in appeal observed as follows :
The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertake that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.' The above principle was again applied by this Court in the case of A.S. Mittal v. State of U.P., . In that case irreparable damage had been done to the eyes of some of the patients who were operated upon at an eye camp. Though this Court refrained from deciding, it that particular case whether the doctors were negligent, it observed (SCC p. 230-31 para 91) : (at p. 1574 of AIR, para 8) 'A mistake by a medical practitioner, which no reasonably competent and a careful practitioner would have committed is a negligent one'.
The Court also took note that the law recognises the dangers which are inherent in surgical operations and that mistakes will occur, on occasions, despite the exercise of reasonable skill and care. The Court further quoted Street on Torts (1983) (7th Edn.) wherein it was stated that the doctrine of res ipsa loquitur was attracted :
'..... Where an unexplained accident occurs from a thing under the control of the defendant, and medical or other expert evidence shows that such accidents would not happen if proper care were used, there is atleast evidence of negligence 'for a jury'.
The latest case to which reference can be made is that of Indian Medical Assn. v. V.P. Shantha, . The question which arose in this case was whether the Consumer Protection Act, 1986, applied to medical practitioners, hospitals and nursing homes. It was held in this case that medical practitioners were not immune from a claim for damages on the ground of negligence. The Court also approved a passage from Jackson and Powell on Professional Negligence and held that :
The approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.' 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 treatinga patient. Courts would indeed be glow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment. it would be difficult to hold the doctor to be guilty of negligence.
In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman case, by this Court, a medical practitioner has various duties towards his patient and he must act with, a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor,"
17. In (Spring Meadows Hospital v. Harjol Ahuluwalia through K. Section Ahuluwalia), in paragraph 10 of the judgment. Their Lordships have held that 'even delegation of a responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties property'.
18. In 'Law of Medical Negligence and Compensation' by R.K. Bag (1996 Edition), at page 32, the learned Author has said thus :--
"The test of reasonable care in medical profession is to be judged by the standard of ordinary skilled man exercising and professing to have that special skill at that time. The view adopted by the Canadian Court is that the work of a specialised nature calls for a higher standard of care. The English law does not demand higher standard of care and skill for highly specialised kind of work within a particular profession. It is sufficient if the professional exercises the ordinary skill of an ordinary competent man exercising that particular art. The English law contemplates medical negligence as the failure to act in accordance with the standards of reasonably competent medical man of the time.
The High Court of Australia is of the view that the law Imposes on a medical practitioner a duty to exercise reasonable care and skill in the provision of professional advice and treatment. That duty is a single comprehensive duty covering all the ways in which a doctor is called upon to exercise his skill and judgment, it extends to the examination, diagnosis and treatment of the patient and the provision of information in an appropriate case."
At page 34, the learned Author has further said thus :--
"The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care. 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. The standard of skill and competence expected from a medical man is illustrated by Mc. Nair. J. as follows :--
'In one 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; and if that failure or doing of that act results in injury, then there is a cause of action. How do you test whether this act or failure is negligent? in an ordinary case it is generally said that you judge that by the action of the man in the street. He is the ordinary man. In one case it has been said that you judge it by the conduct of the man on the top of a Clapham omnibus. He is the ordinary man. But where you get a situation which involves the use of special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill, The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if, he exercises the ordinary skill of an ordinary competent man exercising that particular art. A doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion."
19. Taking into consideration the law declared by the Hon'ble Supreme Court and also the passages extracted from the Textbook on Medical Negligence and Compensation, it is clear that the defendants 1 and 2 did not act as was expected of them under law.
20. The only question that requires consideration is, whether the appellants herein could be made liable on the principle of vicarious liability.
21. Similar question came for consideration in the decision , (Sohan Lal Passi v. P. Sesh Reddy). In para 7 of the judgment, Their Lordships have held thus :--
"In Salmond's Law of Torts (Twentieth Edn.) at p. 458, it has been said :
'On the other hand, it has been held that a servant who is authorised to drive a motor vehicle, and who permits an unauthorised person to drive it in his place, may yet be acting within the scope of his employment. The act of permitting another to drive may be a mode, albeit an improper one, of doing the authorised work. The master may even be responsible if the servant impliedly, and not expressly, permits an unauthorised person to drive the vehicle, as where he leaves it unattended in such a manner that it is reasonably foreseeable that the third party will attempt to drive it, atleast if the driver retains notional control of the vehicle'.
It has been said in Halsbury's Laws of England. Fourth Edn. Vol. 16 para 739 :
'Where the act which the employee is expressly authorised to do is lawful, the employer is nevertheless responsible for the manner in which the employee executes his authority. If. therefore, the employee does the act in such a manner as to occasion injury to a third person, the employer cannot escape liability on the ground that he did not actually authorise the particular manner in which the act was done, or even on the ground that the employee was acting on his own behalf and not on that of his employer.' In that connection reference can be made to the cases of London County Council v. Cottermoles (Garages) Ltd., (1953 (2) All ER 582); Ilkiw v. Samuels, (1963 (2) All ER 879); Staveley Iron and Chemical Co. Ltd. v. Jones, (1956 (1) All ER 403) and the case of Pushpabai Purshottam Udeshi v. Ranjit Ginning and Pressing Co. (P) Ltd., . The crucial test is whether the Initial act of the employee was expressly authorised and lawful. Then the employer shall nevertheless be responsible for the manner in which the employees that is, the driver and Respondent 4 executed the authority. This is necessary to ensure so that the Injured third parties who are not directly involved or concerned with the nature of authority vested by the master to his servant are not deprived from getting compensation. If the dispute revolves around the mode and or manner of execution of the authority of the master by the servant, the master cannot escape the liability so far third parties are concerned on the ground that he had not actually authorised the particular manner in which the act was done. ...."
22. In Achutrao's case, (supra), the question raised was, how far the State is liable for the negligence of its employees. Paragraphs 9 to 11 of the Judgment answer the question, and they read thus :--
"Decisions of this Court now leave no scope for arguing that the State cannot be held to be vicariously liable if it is found that the death of Chandrikabal was caused due to negligence on the part of its employees.
In State of Rajasthan v. VidhyawatI, , the question arose with re gard to the vicarious liability of the State of Rajasthan. In that case a vehicle owned by the State of Rajasthan, which was being driven by its driver, met with an accident which resulted in the death of one person. The death was caused due to the negligence of the driver. The two contentions of the State of Rajasthan were that under Article 300 of the Constitution, the State would not be liable, as the corresponding Indian State would not have been liable if the case had arisen before the Constitution came into force. Secondly, it was contended that the jeep which was driven rashly and negligently was being maintained by the State in exercise of its sovereign powers and was not a part of any commercial activity of the State. Rejecting the said contention the Court held that "the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer". This question again came up for consideration in Kasturi Lal Ralia Ram Jain v. State of U.P., and which has been referred to by the High Court in the present case while coming to the conclusion that the State of Maharashtra cannot be held to be vicariously liable. In Kasturi Lal case gold had been seized and the same had been kept in a malkhana. The appellant demanded the return of this gold but the same was not returned. It appeared that the same had been misappropriated by the person in charge of the malkhana. The respondents therein claimed that it was not a case of negligence by the police officers and even if negligence was proved the State could not be held to be liable for the said loss. While holding that there was negligence on the part of the police officers, this Court denied relief by observing that the powers which were exercised by the police officers could be properly characterised as sovereign powers and, therefore, the claim could not be sustained. This Court distinguished the decision in Vidhyawati case by observing :
'In dealing with such cases, it must be borne in mind that when the State pleads immunity against claims for damages resulting from Injury caused by negligent acts of its servants, the area of employment referable to sovereign powers must be strictly determined. Before such a plea is upheld, the Court must always find that the impugned act was committed in the course of an undertaking or employment which is referable to the exercise of sovereign power, or to the exercise of delegated sovereign power. ........' Explaining the distinction between the two types of cases, it was also observed as follows :--
'It is not difficult to realise the significance and importance of making such a distinction particularly at the present time when, in pursuit of their welfare ideal, the Government of the States as well as the Government of India naturally and legitimately enter into many commercial and other undertakings and activities which have no relation with the traditional concept of government activities in which the exercise of sovereign power is involved. It is necessary to limit the area of these affairs of the State in relation to the exercise of sovereign power, so that if acts are committed by Government employees in relation to other activities which may be conveniently described as non-governmental or non-sovereign citizens who have a cause of action for damages should not be precluded from making their claim against the State. That is the basis on which the area of the State immunity against such claims must be limited; and this is exactly what has been done by this Court in its decision in the case of State of Rajasthan, .
Two recent decisions where the State has been held to be vicariously liable on account of the negligent act of its employees are those of N. Nagendra Rao and Co. v. State of A.P., and State of Maharashtra v. Kanchanmala Vijaysing Shirke, . In Nagendra Rao case some goods had been confiscated pursuant to an order passed under Section 6A of the Essential Commodities Act, 1955. The said order was annulled but due to the negligence of the officers concerned goods were not found to be of the same quality and quantity which were there at the time of its confiscation. The owners of the goods refused to take delivery and filed a suit claiming value of the goods by way of compensation. The High Court of Andhra Pradesh held that the State was not vicariously liable for negligence of its officers in charge of their statutory duties. Negativing this, this Court while allowing the appeal observed as follows (SCC pp. 235-36 para 25) : (at p. 2683 of AIR, para 24) :
In Welfare State, functions of the State are not only defence of the country or a administration of justice or maintaining law and order but it extends to regulating and controlling the activities of people in almost every sphere, educational, commercial, social, economic, political and even marital. The demarcating line between sovereign and non-sovereign powers for which np rational basis survives has largely disappeared. Therefore, barring functions such as administration of justice, maintenance of law and order and repression of crime, etc. which are among the primary and inalienable functions of a constitutional Government, the State cannot claim any immunity. The determination of vicarious liability of the State being linked with negligence of its officers, if they can be used personal for which there is no dearth of authority and the law of misfeasance in discharge of public duty having marched ahead, there is no rationale for the proposition that even if the officer is liable, the State cannot be sued. The liability of the officer personally was not doubted even in Viscount Canterbury. But the Crown was held immune on the doctrine of sovereign immunity. Since the doctrine has become outdated and sovereignty now vests in the people, the State cannot claim any immunity and if a suit is maintainable against the officer personally, then there is no reason to hold that it would not be maintainable against the State.'.
A similar view has been taken in Kanchanmala Vijaysing case where, dealing with a claim for compensation arising as a result of an accident with a jeep belonging to the State, it was observed as follows (SCC pp. 664-65 para 9) [at p. 2501 of AIR) :
Traditionally, before the Court directed payment of tort compensation, the claimant had to establish the fault of the person causing injury or damage, Butoflate, itshall appear from different judicial pronouncements that the fault is being read as because of someone's negligence or carelessness. Same is the approach and attitude of the Courts while judging the vicarious liability of the employer for negligence of the employee. Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do. Whether in the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the Court. It is the rule that an employer, though guilty of no fault himself, is liable for the damage done by the fault or negligence of his servant acting in the course of his employment. In some case, it can be found that an employee was doing an authorised act in an unauthorised but not a prohibited way. The employer shall be liable for such act, because such employee was acting within the scope of his employment and in so acting did something negligent or wrongful. A master is liable even for acts which he has not authorised provided they are so connected with acts which he has been so authorised. On the other hand, if the act of the servant is not even remotely connected within the scope of the employment and is an Independent act, the master shall not be responsible because the servant is not acting in the course of his employment but has gone outside'.
The High Court observed that the Government cannot be held liable in tort for tortious acts committed in a hospital maintained by it because it considered that maintaining and running a hospital was an exercise of the State's sovereign power. We do not think that this conclusion is correct. Running hospital is a welfare activity undertaken by the Government but it is not an exclusive function or activity of the Government go as to be classified as one which could be regarded as being in exercise of its sovereign power. In Kasturi Lal case itself, in the passage which has been quoted hereinabove. this Court noticed that in pursuit of the welfare ideal the Government may enter into many commercial and, other activities which have no relation to the traditional concept of Governmental activity in exercise of sovereign power. Just as running of passenger buses for the benefit of general public is not a sovereign function, similarly the running of a hospital, where the members of the general public can come for treatment, cannot also be regarded as being an activity having a sovereign character. This being so. the State would be vicariously liable for the damages which may become payable on account of negligence of its doctors or other employees."
23. It is not the case of the appellants that the first defendant was not authorised to perform the operation. She was duty bound to do the operation and she has performed the operation. Regarding the post-operation treatment, the manner in which it was done was not proper. She unauthorisedly delegated the function to the second defendant, who removed the stitches in the house of the patient without taking any precautions. Other circumstances which caused the death of Panchavarnam have been detailed by the Courts below. On the principle declared by the Honourable Supreme Court, it has to be held that the Slate is also liable for damages caused by the death of late Panchavarnam.
24. In the result, both the questions of law are found against the appellants, and the second Appeal is dismissed with costs. C.M.P. Nos. 1509 and 5302 of 1999 are also dismissed.