Delhi High Court
Govt.Of Nct Of Delhi & Ors. vs Maharaj Kishan & Anr. on 25 October, 2013
Author: Rajiv Sahai Endlaw
Bench: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 25th October, 2013
+ RFA 774/2002
GOVT.OF NCT OF DELHI & ORS. ..... Appellants
Through: Mrs. Avnish Ahlawat & Ms. Tania
Ahlawat, Advs.
Versus
MAHARAJ KISHAN & ANR. .....Respondents
Through: Mr. Rajan Joshi & Mr. J.S. Rawat,
Adv. for R-1.
Mr. Sushil Dutt Salwan with Ms.
Latika Dutta, Advs. for R-2.
AND
+ RFA 100/2003
SUSHIL ADHAR ..... Appellant
Through: Mr. Sushil Dutt Salwan with Ms.
Latika Dutta, Advs.
Versus
MAHARAJ KISHAN & ORS. ..... Respondents
Through: Mr. Rajan Joshi & Mr. J.S. Rawat,
Adv. for R-1.
Mrs. Avnish Ahlawat & Ms. Tania
Ahlawat, Advs. for R-2.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RFAs No.774/2002 & 100/2003 Page 1 of 40
RAJIV SAHAI ENDLAW, J
1. Both appeals impugn the same judgment and decree dated 6 th
September, 2002 (of the Court of the Addl. District Judge, Delhi in Suit
No.15/2000 filed by the respondent no.1 in each appeal against the three
appellants in RFA No.774/2002 and the appellant in RFA No.100/2003) of
recovery of compensation in the sum of Rs.4 lacs jointly and severally from
the appellants, along with costs and pendente lite and future interest at 12%
per annum.
2. Notice of RFA No.774/2002 was issued on 3 rd December, 2002 and
vide ex parte order of that date, subject to the deposit of the decretal amount
in this Court, execution of the impugned judgment and decree was stayed;
50% of the amount so deposited was ordered to be released to the respondent
no.1/plaintiff on his furnishing personal security. In compliance therewith, a
sum of Rs.4 lacs and a further sum of Rs.1,20,000/- was deposited. Vide
order dated 13th August, 2003, release of 50% of deposited amount to
respondent No.1/plaintiff was made subject to furnishing security to
satisfaction of Registrar. Upon filing of RFA No.100/2003, notice thereof
also was issued and delay in filing the same condoned. Both appeals were
admitted for hearing on 9th December, 2003 and the Trial Court record
RFAs No.774/2002 & 100/2003 Page 2 of 40
requisitioned. It however appears that the respondent No.1/plaintiff did not
furnish security and thus no part of the decretal amount deposited has been
released to him. During the hearing of arguments on 9 th February, 2011 the
counsel for the respondent no.1/plaintiff as well as the counsels for the
appellants agreed that expert opinion of some independent Medical Board be
taken as to whether any negligence was committed by the doctors or the
hospital and also whether the proper pre-operative and post-operative
procedures were fully complied with by the attending doctors. Accordingly
the Director of All India Institute of Medical Sciences (AIIMS) was directed
to constitute a Medical Board of three eminent doctors specialized in the
field, to give their expert opinion with special emphasis on the following:-
"(i). Whether proper pre-operative and post-operative
procedures were fully complied with by the
attending Doctors considering the prior medical
history of the patient?
(ii). Whether any Junior/Trainee Doctor/s, not fully
competent to conduct the cataract operation of the
respondent-patient started the procedure without
the active involvement of the Surgeon expert in the
field?
(iii). Whether Dr. Sushil Adhar was fully competent to
handle the complications developed during the
course of the said cataract operation?
RFAs No.774/2002 & 100/2003 Page 3 of 40
(iv). Whether the left eye of the patent could have been
saved had Dr. B. Ghosh conducted the surgery
himself?"
and the all medical papers filed by the respective parties were directed
to be sent to AIIMS.
3. Vide subsequent order dated 11 th March, 2011, the earlier order dated
9th February, 2011 was modified to the extent that the direction aforesaid
was issued to the Chief/Medical Superintendent of Dr. Rajendra Prasad
Centre for Ophthalmic Sciences instead of AIIMS. A report dated 15th June,
2011 was received in pursuance thereto. However vide order dated 10th
January, 2012 the following additional question was referred to the same
Medical Board:-
"a reference to the questions which have been answered
by the report dated 15.6.2011 shows that no question was
referred to the Board as to whether on the basis of
medical record of the respondent No.1/plaintiff as
existing on the date of operation i.e. 6.10.1998, whether
the respondent No.1/plaintiff should at all have been
operated on his left eye for cataract. Para 7 of the plaint
specifically averred that since the respondent
No.1/plaintiff was suffering from thyroid, diabetes etc.,
he should not have been operated on his left eye."
It was further directed that it will be open to the Medical Board to
examine whether the papers revealed that there was no absolute
RFAs No.774/2002 & 100/2003 Page 4 of 40
bar/disentitlement for the surgery conducted on the respondent no.1/plaintiff.
A further report dated 29th March, 2012 has been received from the Medical
Superintendent of Dr. Rajendra Prasad Centre for Ophthalmic Sciences. The
counsels have been heard.
4. The respondent no.1/plaintiff had instituted the suit from which these
appeals arise, for recovery of damages and compensation of Rs.4 lacs jointly
and severally from the appellants in the two sets of appeals, pleading:-
(a). that the appellant Government of National Capital Territory of
Delhi (GNCTD) has set up various hospitals in Delhi including
the appellant Guru Nanak Eye Centre (GNEC) for providing
eye healthcare and treatment of eyes to the public; that GNCTD
was responsible for the acts and affairs of the said GNEC; that
the salary of doctors and employees of the GNEC was paid
from the funds of GNCTD collected from taxpayers; that the
appellant Dr. Sushil Adhar and the appellant Dr. B. Ghosh were
the employees of the said GNEC; as such the appellants are
jointly and severally liable for all the acts of negligence,
omission, commission and carelessness;
RFAs No.774/2002 & 100/2003 Page 5 of 40
(b). that the respondent no.1/plaintiff had some problem in his left
eye and for its treatment visited the appellant GNEC where he
was found to be suffering from cataract and the appellants Dr.
Sushil Adhar and Dr. B. Ghosh recommended admission for
operation of the respondent no.1/plaintiff;
(c). that the respondent no.1/plaintiff was admitted to the appellant
GNEC on 19th September, 1998 and was referred to the Lok
Nayak Jai Prakash Narain (LNJP) Hospital for getting a report
regarding his fitness for operation for removal of cataract;
(d). that various tests/investigations of the respondent no.1/plaintiff
were conducted and sent to the appellant GNEC indicating that
the respondent no.1/plaintiff was suffering from thyroid,
diabetes etc. and the operation should not be performed unless
the diseases found in the tests are treated and brought under
control;
(e). that on 6th October, 1998 the respondent no.1/plaintiff was
informed that his operation was to be performed on that day;
though the respondent no.1/plaintiff informed about his test
RFAs No.774/2002 & 100/2003 Page 6 of 40
report but was brought to the operation theatre inspite of his
protest and without paying any heed to the test reports;
(f). that trainee doctors conducted and performed the operation of
the left eye of the respondent no.1/plaintiff; though the
appellant Dr. Sushil Adhar was to conduct the operation and the
appellant Dr. B. Ghosh was the doctor Unit in charge of the
operation and it was his duty to perform the operation of the
respondent no.1/plaintiff but they, in utter disregard and
dereliction of duty left the operation of the eye of the
respondent no.1/plaintiff in the hands of trainee doctors,
without any supervision;
(g). that the appellant Dr. B. Ghosh remained seated in his office
and did not turn up at the operation theatre though as the doctor
in charge, the operation ought to have been performed by him;
(h). that the operation was spoiled and only then the trainee doctors
performing the operation immediately went to the office of the
appellants Dr. Sushil Adhar and Dr. B. Ghosh for help, who
then came to the operation theatre;
RFAs No.774/2002 & 100/2003 Page 7 of 40
(i). that the appellant Dr. B. Ghosh on seeing the condition of the
respondent no.1/plaintiff and the reports of the LNJP Hospital
exclaimed that the respondent no.1/plaintiff should not have
been operated upon;
(j). that thereafter the operation of the respondent no.1/plaintiff was
performed by the appellant Dr. B. Ghosh and his team who
extracted the left eye of the respondent no.1/plaintiff;
(k). thus the respondent no.1/plaintiff was deprived of his left eye
and has been left with only a right eye which also is not
functioning properly;
(l). that thereafter the respondent no.1/plaintiff‟s son was called
upon by the appellant Dr. B. Ghosh to sign certain papers
representing that the same were in the interest of the respondent
no.1/plaintiff and the son of the respondent no.1/plaintiff under
the influence of the appellant doctors was made to sign the
papers;
(m). that the respondent no.1/plaintiff subsequently learnt that the
said signatures had been used to obtain the consent of the son of
RFAs No.774/2002 & 100/2003 Page 8 of 40
the respondent no.1/plaintiff for removal of the eye of the
respondent no.1/plaintiff;
(n). that the operation of the respondent no.1/plaintiff was
performed negligently, carelessly and in utter disregard of the
medical advice of the LNJP Hospital;
(o). that the respondent no.1/plaintiff‟s eye was taken out with
ulterior motive, with a view to implant the same into another
person and earn monetary gains; the eye removed was not
delivered to the respondent no.1/plaintiff;
(p). that the respondent no.1/plaintiff had retired as a Water Meter
Mechanic Reader in the Delhi Water Supply & Sewage
Disposal Undertaking;
(q). that though the respondent no.1/plaintiff had intended to, post
surgery take up private employment on monthly emoluments of
Rs.6,000/-, but could not do so; and,
(r). accordingly damages/compensation of Rs.2 lacs towards loss of
salary, of Rs.1 lac towards demoralization due to loss of one
RFAs No.774/2002 & 100/2003 Page 9 of 40
eye and physical appearance and Rs.1 lac towards discomfort
occasioned, together with interest was claimed.
5. The three appellants in RFA No.774/2002 contested the suit by filing
a common written statement on the grounds:-
(i). that the suit was bad for mis-joinder of the appellant Dr. B.
Ghosh;
(ii). denying that the appellant Dr. B. Ghosh had recommended the
respondent no.1/plaintiff for admission and it was pleaded that
the respondent no.1/plaintiff was recommended for admission
by other doctors of the Unit of the appellant Dr. B. Ghosh;
(iii). that the respondent no.1/plaintiff was operated upon after his
blood pressure and blood sugar were found to be within normal
limits and report of no history suggestive of hypo/hyper-
thyroidism; it was for this reason only that the respondent
no.1/plaintiff though was admitted on 19th September, 1998 was
operated upon only on 6 th October, 1998 and after a proper
written consent of the respondent no.1/plaintiff;
RFAs No.774/2002 & 100/2003 Page 10 of 40
(iv). denying that the respondent no.1/plaintiff had protested against
his surgery;
(v). that the tentative list of surgeries scheduled is prepared a day
before and the patients are informed and instructed on that date;
cataract surgery in adults is done under local anesthesia, with
the patients walking up to the operation theater in their full
senses; that there was thus no truth in the respondent
no.1/plaintiff being forcefully operated upon against his wishes;
(vi). denying that the surgery was conducted by trainee doctors;
(vii). denying that it was the duty of the appellant Dr. B. Ghosh to
operate upon the respondent no.1/plaintiff;
(viii). that the surgery had to be performed by the appellant Dr. Sushil
Adhar and was performed by him; that the appellant Dr. Sushil
Adhar was qualified and competent to perform the surgery;
(ix). that the appellant Dr. B. Ghosh was very much present in the
operation theatre when the surgery on the respondent
RFAs No.774/2002 & 100/2003 Page 11 of 40
no.1/plaintiff was being performed by the appellant Dr. Sushil
Adhar, performing other serious operations;
(x). denying that the appellant Dr. B. Ghosh had exclaimed that the
respondent no.1/plaintiff was not to be operated upon; denying
that the appellant Dr. B. Ghosh had subsequently operated upon
the respondent no.1/plaintiff;
(xi). that the coat of the left eye is still in the respondent
no.1/plaintiff; his intra ocular contents had to be scooped out to
prevent excessive blood loss, with no chance of retaining any
vision;
(xii). denying that the son of the respondent no.1/plaintiff was made
to sign any papers;
(xiii). that the subsequent surgical steps which had to be taken were
first explained to the respondent no.1/plaintiff who was in his
full senses and who had given his consent to the same; that the
son of the respondent no.1/plaintiff was also contacted and the
situation explained to him and only after obtaining his consent
RFAs No.774/2002 & 100/2003 Page 12 of 40
also was the subsequent surgical procedure of evisceration
carried out;
(xiv). denying that the signatures of the son of the respondent
no.1/plaintiff were taken after the surgery or have been misused
as pleaded by the respondent no.1/plaintiff;
(xv). denying that the eye of the respondent no.1/plaintiff was taken
out with the motive alleged and pleading that since the internal
eye contents and not the eyeball were eviscerated, the question
of using the same on any other patient for monetary gains did
not arise; and,
(xvi). denying that there was any medical negligence and pleading
that it was a sheer unavoidable operative complication; denying
any negligence, carelessness etc.
6. The appellant Dr. Sushil Adhar also contested the suit by filing a
separate written statement on the grounds:-
(A). that during routine work-up of the respondent no.1/plaintiff, the
respondent no.1/plaintiff was found to be a known diabetic,
RFAs No.774/2002 & 100/2003 Page 13 of 40
hypertensive who had undergone subtotal thyroidectomy two
years ago;
(B). that on 21st September, 1998 and again on 24 th September, 1998
the respondent no.1/plaintiff was referred to the Department of
Medicine, LNJP Hospital to obtain their opinion regarding
medical fitness for operative interference;
(C). that the respondent no.1/plaintiff was sent on leave w.e.f. 26 th
September, 1998 and was asked to bring a daily blood pressure
record for a week, to assess his hypertensive status;
(D). the respondent no.1/plaintiff was re-admitted on 3rd October,
1998; he had brought the blood pressure report prepared by a
local private practitioner during the leave period, which was
within the normal limits;
(E). a third referral of the respondent no.1/plaintiff was made to the
Department of Medicine, LNJP Hospital on 5 th October, 1998
which opined that "no urgent medical intervention was
necessary" and had given the OK report for operation of the
respondent no.1/plaintiff;
RFAs No.774/2002 & 100/2003 Page 14 of 40
(F). that all pre-operative tests of the respondent no.1/plaintiff were
done in a careful manner;
(G). after obtaining the pre-operative test, the appellant Dr. B.
Ghosh had taken a decision to post the respondent no.1/plaintiff
for surgery on 6th October, 1998;
(H). that the appellant Dr. Sushil Adhar is a qualified Ophthalmic
Surgeon with a Master of Surgery (Ophthalmology) from Delhi
University and having more than 1000 cataract operations to his
credit;
(I). that the respondent no.1/plaintiff and his son had given consent
for surgery voluntarily, without any pressure, coercion or undue
influence and all the consequences of the operation were
explained to them;
(J). that the son of the respondent no.1/plaintiff is an educated
person and a Government employee in U.P. Jal Nigam;
(K). that evisceration of the eye of the respondent no.1/plaintiff was
undertaken as the respondent no.1/plaintiff had suffered sudden
RFAs No.774/2002 & 100/2003 Page 15 of 40
Expulsive Choroidal Hemorrhage which is a known
complication of cataract surgery in a patient with a chequered
history of hypertension and diabetes mellitus, as the respondent
no.1/plaintiff had;
(L). that all reasonable pre-operative, operative and post operative
steps were taken for conducting the operation of the respondent
no.1/plaintiff; and,
(M). that the appellant Dr. Sushil Adhar had taken all reasonable
steps, care and precaution expected from a man of ordinary
prudence and by a man practicing similar profession in
conducting the operation.
7. The respondent no.1/plaintiff filed replications reiterating his case.
8. On the pleadings aforesaid of the parties, the following issues were
framed in the suit on 5th December, 2000:-
"1) Whether the plaintiff has got no legal right to file
the present suit? OPD-3
2) Whether the plaintiff is guilty of suppressing
material facts from the court? OPD-3
RFAs No.774/2002 & 100/2003 Page 16 of 40
3) Whether there is no cause of action in filing of
present suit? OPD1,2&4
4) Whether suit of plaintiff is bad for misjoinder of
necessary parties? OPD 1,2&4
5) Whether plaintiff is entitled to the amount
claimed? OPP
6) Relief."
9. The respondent no.1/plaintiff, besides examining himself examined a
witness from the office where he was offered employment and which offer
was subsequently withdrawn, and another witness.
10. The appellants Dr. B.Ghosh and Dr. Sushil Adhar besides examining
themselves, also examined another doctor.
11. The learned Addl. District Judge, vide the impugned judgment, has
decreed the suit of the respondent no.1/plaintiff, finding/observing/holding:-
(I). that when a person is bleeding from his eye, he will not be in a
position to give free consent for removal of his eye; thus the
consent taken of the respondent No.1/plaintiff on the operation
table, while he was bleeding from his eye, without explaining
all the facts to him, cannot be said to be free consent, given
without undue influence;
RFAs No.774/2002 & 100/2003 Page 17 of 40
(II). that the written statement of the appellant Dr. Sushil Adhar
admits a chequered history of hypertension and diabetes
mellitus of the respondent no.1/plaintiff; inspite of that the
appellant Dr. B. Ghosh assigned the operation to junior doctors
without taking any special steps to ensure that no complications
arose;
(III). merely because the respondent no.1/plaintiff had consented to
being operated upon by any doctor, did not absolve the doctors
operating upon him from the duty of taking special care
required under the circumstances;
(IV). the very fact that upon complication having arisen, the appellant
Dr. B. Ghosh was called, shows that the appellant Dr. Sushil
Adhar was not competent to perform a surgery with likely
complications as was the case of the respondent no.1/plaintiff;
(V). that the appellants were thus clearly negligent and careless in
not giving the special care required under the facts and
circumstances of the case and in omitting to take special care in
a known case of chequered history of hypertension and diabetic
RFAs No.774/2002 & 100/2003 Page 18 of 40
mellitus which could result in a known complication of sudden
Expulsive Choroidal Hemorrhage;
(VI). even though such a complication was stated to arise only in 1%
of cases but it still called for special care on the part of the
appellants; and,
(VII). that considering that the respondent no.1/plaintiff had lost an
opportunity of employment and loss of physical appearance and
loss of vision, the damages claimed of Rs.4 lacs were on the
lower side only.
12. The counsels for the parties during the hearing of this appeal having
consented to reference to a independent Medical Board, it is deemed
appropriate to, before considering the contentions of the counsels, refer to
the report of the said Medical Board.
13. The Medical Board in its report dated 15 th June, 2011 answered the
four questions addressed to it as under:-
"Qua query No.1
The provided records indicate that proper
procedures were followed preoperatively, notable
amongst which were blood pressure control, medical
RFAs No.774/2002 & 100/2003 Page 19 of 40
referrals and clearances, consents, and preoperative
precautions. Of the records of postoperative follow up
provided, the management for the eviscerated eye seems
proper, under the circumstances.
Qua query No.2
The exact designation and period of training of Dr.
Sushil Adhar at the time of his conducting the surgery is
not clearly provided; therefore, his competence cannot
be commented upon, unless he was a qualified Senior
Resident in the Department.
Qua query No.3
The exact designation and period of training of Dr.
Sushil Adhar at the time of conducting the surgery is not
clearly provided; therefore, his competence cannot be
commented upon, unless he was a fully qualified Senior
Resident in the Department.
Qua query No.4
Expulsive hemorrhage is a rare, but very serious
complication of cataract surgery, which can lead to
complete expulsion of ocular contents so very quickly
and dramatically that it may need urgent evisceration as
was required in this case. Though rare, it could have
occurred in the same circumstances had the surgery been
conducted by Dr. Ghosh himself, or by any other very
experienced and well qualified eye surgeon.
In summary, it appears that all the attending
doctors followed standard medical protocols according
to the patient's condition. However, most unfortunately,
the patient had an unfavourable outcome in spite of
referrals and aggressive therapy instituted timely. As the
records made available suggest, there is no evidence of
any willful negligence on the part of the doctors or any
medical negligence, but a known though rare
RFAs No.774/2002 & 100/2003 Page 20 of 40
complication in such a situation. Though we emphathize
with the usual expectations of the patient [as any other]
about the excellent outcomes of the operation, such a
complication is well documented in such procedures [as
in the medical literature also supplied and enclosed] and
should not amount in any way to culpable negligence".
14. The Medical Board in its further report dated 29th March, 2012 has
qua the additional query addressed to it opined as under:-
"This patient was a known mild diabetic [with no
evidence however of diabetic retinopathy in his operated
RE or glaucoma as recorded on admission in Sep 1998],
on dietary control alone (in fact, his medical consultation
states that there is no need for anti-diabetic medication).
Nowadays, a number of patients are operated upon with
a far worse diabetic status. His intraocular pressures
were normal. He was a known mid hypertensive on oral
medication, with enough time post-admission to ensure
adequate control with the revised regimen in hospital as
recorded - his BP (and Blood & Urine Sugars) were
within normal limits on 6.10.98 and thereafter
postoperatively also. He had had a subtotal
thyroidectomy a year ago (for multinodular goiter) for
which he was on maintenance dose of Eltroxin, with no
current clinical or investigative data suggestive of hyper-
or hypo-thyroidism as per records. There was thus no
medical bar at all and nothing per se then against an
elective surgery for his LE on admission in Sep 1998.
Even then, at least 2 medical referral and their
specialized opinions were sought and obtained after his
admission, and he was finally posted for surgery LE on
6.10.98, for which he was taken up after due
preoperative care and precautions as recorded.
RFAs No.774/2002 & 100/2003 Page 21 of 40
Maybe no surgery for any part of the body can be
deemed absolutely necessary, vital, indispensable, and
definitely and positively essential, unquestionably and
indubitably. The patient may choose to continue suffering
his/her problems in spite of medical advice. Here the
patient himself reported to a doctor at a Govt. Eye
Centre for his poor vision of hand movements in LE close
to face, discussed with them, agreed to the treatment for
his poor vision of hand movements in LE close to face,
discussed with them, agreed to the treatment for his
advanced immature senile cataract LE, was admitted to
GNEC under Prof. Ghosh on 19.9.98, signed his full
consent, (in fact as the hospital inpatient records state,
the patient was adamant and pestering to get operated at
the earliest in view of visual disability) and after detailed
investigations as an inpatient, accordingly underwent his
surgery LE on 6.10.98 more than 2 weeks after his
admission and mostly remaining in the wards, fully
aware of the outcomes good or bad. He had already
undergone surgery in his RE earlier in 1996 with
postoperative complications from which he reasonable
recovered. All these had already been summarized and
pointed out in this Board's earlier report of 15 June
2011.
Within the realms of medical science and parlance, such
a surgery as this considering all the background, should
be classed as required for best patient management, and
done as a timely elective procedure with proper consent
and under patient's willful volition. If cataracts are not
intervened in time, there are well-known complications
recorded in literature - if these had occurred, then the
question could well have been "why was surgery not
done earlier in today's era for an advanced IMSC, with
the patient's urban setting and facilities available?"
RFAs No.774/2002 & 100/2003 Page 22 of 40
15. Of course, the counsels for the appellants have opened their
arguments by contending that in view of the reports aforesaid of the
independent Medical Board to which reference was made with the consent
of the parties, all charges of the respondent no.1/plaintiff of medical
negligence against the appellants are baseless and the said reports absolve
the appellants thereof. They further:
(a). invited attention to the cross examination of Dr. Anju Arora,
then of the LNJP Hospital who had examined the respondent
no.1/plaintiff (and who was examined by the respondent
no.1/plaintiff as his witness) who had deposed that the
respondent no.1/plaintiff was Euthyroid i.e. with no features of
either hypo or hyper thyroidism;
(b). contented that the learned Addl. District Judge has decided the
matter not on the basis of evidence but on the basis of
allegations;
(c). contended that it was not the case of the respondent
no.1/plaintiff that the appellant Dr. Sushil Adhar was not
RFAs No.774/2002 & 100/2003 Page 23 of 40
qualified or not competent to perform the surgery, but the case
was that juniors had performed the surgery;
(d). that the appellant Dr. Sushil Adhar was proved to be then
working as a senior resident;
(e). that had the appellants not scooped out the left eye of the
respondent no.1/plaintiff it would have rotted and would have
affected the other eye also;
(f). that the occasion for this Court to refer the matter to an
independent Medical Board arose because though the
respondent no.1/plaintiff had failed to prove his case, the Court
did not want him to, if was a victim of medical negligence, to
go uncompensated; however now that the said Board has
absolved the appellants, the impugned judgment and decree has
to be set aside;
(g). attention is invited to the record of the daily blood pressure
reading produced by the respondent no.1/plaintiff before
surgery, showing the blood pressure to be normal for a week
before surgery;
RFAs No.774/2002 & 100/2003 Page 24 of 40
(h). attention is invited to:-
(i). Kusum Sharma Vs. Batra Hospital & Medical Research
Centre 2000 CPJ 18 (NCDRC);
(ii) Sukumari Sahu Vs. Tata Memorial Hospital 3 (2006)
CPJ 293;
(iii) Philips India Ltd. Vs. Kunju Punnu AIR 1997 BOM
306;
(iv) Achutrao Haribhau Khodwa Vs. State of Maharashtra
(1996) 2 SCC 634; and,
(v) Jacob Mathew Vs. State of Punjab 2005 (6) SCC 1.
on the aspect of medical negligence.
16. Per contra the counsel for the respondent no.1/plaintiff has argued:-
(i). that PW3 Dr. Anju Arora of the LNJP Hospital had opined and
had also deposed that "no urgent medical intervention was
required" on the respondent no.1/plaintiff, meaning that he was
not fit for surgery;
RFAs No.774/2002 & 100/2003 Page 25 of 40
(ii). that the appellant Dr. B. Ghosh in his cross examination, though
had admitted that before operation the possibility of high blood
pressure, diabetes, chronic lung disease, or thyroid, if
significant, was ruled out but the appellants have not proved
having got any thyroid test done; the same shows negligence;
(iii). that the appellants have not produced any document to show
who actually conducted the surgery; such record ought to be in
the custody of the appellants; there is nothing to show that the
appellant Dr. Sushil Adhar had conducted the surgery;
(iv). that the onus to prove having taken due care and caution in the
conduct of the surgery was on the appellants, which they have
failed to discharge;
(v). reliance in this regard is placed on Section 106 of the Indian
Evidence Act, 1872, contending that the caution and care taken
were in the exclusive knowledge of the appellants but no
document / record in this regard had been produced;
RFAs No.774/2002 & 100/2003 Page 26 of 40
(vi). the doctrine of res ipsa loquitur is invoked, contending that the
loss of eye and vision and consequent damage to the respondent
no.1/plaintiff is not in dispute;
(vii). reliance is placed on Smt. Savita Garg Vs. Director, National
Heart Institute (2004) 8 SCC 56 laying down that the burden of
proof that all due care and caution was taken and despite that
the patient died is on the hospital and on The Union of India
Vs. The Delhi Cloth and General Mills Co. Ltd. AIR 1964
Punjab 147 laying down that where the facts as to how the
damage and loss had occurred was within the special
knowledge of the defendant, the onus is on the defendant and
an adverse presumption has to be drawn from non-production
of such evidence; and,
(viii). with respect to the report of the independent Medical Board, to
which reference was made during the pendency of this appeal,
it is contended that they have failed to answer the question
addressed to them and have given vague and general
observations and not addressed the aspect of thyroidism and
RFAs No.774/2002 & 100/2003 Page 27 of 40
have erroneously proceeded on the premise that the
complication was on account of blood pressure.
17. The counsels for the appellants in rejoinder have argued:-
(A). that the respondent no.1/plaintiff had not pleaded, that the
complication arose owing to test of thyroid having not been
conducted;
(B) that the appellants Dr. B. Ghose and Dr. Sushil Adhar have
deposed of the surgery having been conducted by Dr. Sushil
Adhar; that the admission and discharge records of the
respondent no.1/plaintiff bear the signatures of Dr. Sushil
Adhar as a senior resident; that the operation theatre notes on
the Trial Court record also show the surgery to have been
conducted by Dr. Sushil Adhar; that the discharge summary of
the respondent no.1/plaintiff in the Trial Court record also
shows the surgery to have been done by Dr. Sushil Adhar/Dr.
B. Ghose;
RFAs No.774/2002 & 100/2003 Page 28 of 40
(C). that Smt. Savita Garg supra relied upon by the respondent
no.1/plaintiff was concerned only with non-impleadment of the
hospital and not with determination of negligence;
(D). that the doctrine of res ipsa loquitur does not apply;
(E). that the case with which the respondent no.1/plaintiff had filed
the suit was of negligence by getting the surgery done from the
trainee doctors and not of the requisite thyroid test having not
been done before the surgery; that the respondent no.1/plaintiff
without pleading and proving that the same was the cause of the
complication, cannot take the said argument in this appeal; that
there is no evidence that the thyroid levels/parameters of the
respondent no.1/plaintiff on the date of surgery were not within
the prescribed limits; and,
(F). that the test evolved in the judgments supra relied upon by the
appellants is that an error of judgment on the part of the
doctor/medical practitioner is not negligence if the
doctor/medical practitioner acted to the best of his judgment.
RFAs No.774/2002 & 100/2003 Page 29 of 40
18. The counsel for the respondent no.1/plaintiff in sur-rejoinder has
contended that the respondent no.1/plaintiff had pleaded thyroidism.
19. As the aforesaid narrative would show, after the receipt of the report
of the Medical Board, to which the matter was referred during the pendency
of this appeal, the controversy is narrowed down to (i) whether Dr. Anju
Arora of the LNJP Hospital had advised against the respondent no.1/plaintiff
being operated upon and he was operated upon inspite thereof and if so to
what effect; (ii) who had conducted the surgery, whether the appellant Dr.
Sushil Aadhar or his juniors; and, (iii) whether there was any negligence in
not getting the thyroid test done before the surgery.
20. I have perused the plaint and the evidence in the aforesaid perspective.
I find that though the respondent no.1/plaintiff to have in para 7 of the plaint
pleaded that LNJP Hospital had reported that the respondent no.1/plaintiff
was suffering from thyroid, diabetes etc. and he should not be operated upon
unless the same are treated and brought under control and in para 12 to have
further pleaded that the appellant Dr. B. Ghosh had exclaimed that the
respondent no.1/plaintiff should not have been operated upon in view of the
said report and to have in para 15 also pleaded that the
RFAs No.774/2002 & 100/2003 Page 30 of 40
surgery was performed in disregard of the said medical advice. It is thus
cannot be said that there are no pleadings on the aforesaid aspect.
21. The admission, treatment and discharge record of the respondent
no.1/plaintiff on the Trial Court record also shows the respondent
no.1/plaintiff to have, at the time of his first visit itself to the appellant
GNEC on 5th September, 1998, informed that he had undergone thyroid
surgery one year back and was on eltroxin medicine for keeping the thyroid
level under control and records his thyroid test readings and does not record
anything to indicate that the readings mentioned were not normal.
22. PW3 Dr. Anju Arora then of the LNJP Hospital examined by the
respondent no.1/plaintiff has also deposed that clinically there was no
evidence on 21st September, 1998 of the respondent no.1/plaintiff suffering
from hyperthyroidism or hypothyroidism and that she had advised thyroid
function test. She has further deposed having examined the respondent
no.1/plaintiff again on 24 th September, 1998 with thyroid report of the test
done in October, 1997 which was normal and having advised the respondent
no.1/plaintiff to continue with the medicine Eltroxin for hypothyroidism.
She has further deposed that the respondent no.1/plaintiff was again referred
RFAs No.774/2002 & 100/2003 Page 31 of 40
to her for evaluation of blood pressure and thyroid status on 5 th October,
1998 and having found his blood pressure to be within normal limits and the
thyroid function report done in October, 1997 to be also within normal limits
and the respondent no.1/plaintiff to be clinically Euthyroid i.e. neither hypo
nor hyper thyroid and having asked for a fresh report. She further clarified
that she had advised for a fresh thyroid test despite finding the respondent
no.1/plaintiff to be Euthyroid, because the respondent no.1/plaintiff had
undergone the test one year back and to confirm the clinical evaluation. In
cross examination, she deposed that the report of thyroid function is
normally taken to be correct for a period of one year unless there are reasons
for hyperthyroidism.
23. The respondent no.1/plaintiff in his evidence deposed that though he
was on 5th October, 1998 sent to PW3 Dr. Anju Arora for thyroid
examination but she had refused to conduct the same in the absence of the
report; that on 6th October, 1998 he was sent to the operation theatre though
had told the doctor that the report was not ready. In cross examination, he
stated that he at the relevant time was not suffering any other disease except
cataract; that his blood sugar was normal; that his blood pressure and blood
RFAs No.774/2002 & 100/2003 Page 32 of 40
sugar was found normal for the purpose of operation; that he had signed the
consent letter for getting the eye operated.
24. I have also perused the cross examination by the respondent
no.1/plaintiff of Dr. B. Ghosh; he denied the suggestion that in the file of the
respondent no.1/plaintiff it was mentioned that he was having thyroid
problem and deposed that the medical examination of the respondent
no.1/plaintiff got done on three occasions had reported that the respondent
no.1/plaintiff was normal and there was no history of hyper or hypo
thyroidism and that his thyroid function was normal. He further denied the
suggestion that on the date of operation the respondent no.1/plaintiff was
suffering from thyroid and despite that the operation was carried out and
failed for the said reason.
25. The appellant Dr. Sushil Adhar in his examination-in-chief deposed,
(i) that the complication which occurred during the surgery of the respondent
no.1/plaintiff was a known complication of routine cataract surgery and
more so especially in high risk patients with systemic disorder of diabetes
mellitus, hypertension and thyroid dysfunction, as was the case with the
respondent no.1/plaintiff; (ii) that the respondent no.1/plaintiff was suffering
RFAs No.774/2002 & 100/2003 Page 33 of 40
from all these disorders and was not compliant with the treatment prior to his
reporting to the GNEC; and, (iii) that the respondent no.1/plaintiff had no
previous medical records regarding any form of treatment he might have
been undertaking by any specialized doctor. In cross examination he
deposed, having done lab investigations including Blood Sugar
Fasting and PP, Urine, Ablumin, Sugar, Blood Pressure Charting in the
Ward.
26. The admission/treatment/discharge record on the Trial Court record
contains the report of the tests done on 6th October, 1998 and which includes
a thyroid test also.
27. I am therefore unable to accept the contention of the appellants that
the respondent no.1/plaintiff has not pleaded or proved negligence by non-
conduct of the thyroid test before surgery.
28. I am nevertheless on the basis of the evidence on record unable to find
any case of negligence on the said account. It is not as if the appellants,
especially the appellant Dr. Sushil Adhar, was not conscious of the
requirement of checking the parameters of thyroid before surgery. The said
parameter appears to have been checked. The only ambiguity is whether the
RFAs No.774/2002 & 100/2003 Page 34 of 40
thyroid test was actually done on 6th October, 1998 or the readings
mentioned are on the basis of the previous report of the respondent
no.1/plaintiff which was a year old. The said doubt arises because the
thyroid parameters mentioned on 6 th October, 1998 are identical to those of
5th September, 1998. It is quite possible that the appellants, instead of
carrying out a fresh test, relied on the thyroid test report which was of
October, 1997 in the light of the clinical examination of the respondent
no.1/plaintiff not showing any sign of hypo or hyper thyroidism. However
that, in my opinion, would not amount to medical negligence in the absence
of any plea or proof of the respondent no.1/plaintiff at any time after the
surgery showing sign of hypo or hyper thyroidism and in the absence of any
case having built by the respondent no.1/plaintiff of his thyroid level being
beyond the prescribed parameters at the time of surgery or thereafter. The
counsel for the respondent no.1/plaintiff also has not shown that a thyroid
test on the day of the surgery is essential. On the contrary Dr. Anju Arora
witness of respondent No.1/plaintiff has deposed that a thyroid report is
good for a year. The Supreme Court in Jacob Mathew supra has held that
so long as a doctor follows a practice acceptable to the medical profession of
that date, he cannot be held liable for negligence merely because a better
RFAs No.774/2002 & 100/2003 Page 35 of 40
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 charged doctor followed. It was further
held that a failure to use special or extraordinary precautions which might
have prevented the particular happenings cannot be the standard for judging
the alleged negligence. The Supreme Court further held that it is not possible
for every professional to possess the highest level of expertise or skills in the
branch which he practices and merely because there may be another with
better qualities cannot be made the basis of the yardstick for judging the
performance of the professional. It is also the settled principle of law that a
doctor is not to be held negligent simply because something went wrong or
for an error of judgment and is to be held liable only when he failed to
follow the standard of a reasonable competent practitioner so much so that
his conduct might be inexcusable or worthy of censure.
29. As far as the opinion dated 5th October, 1998 of Dr. Anju Arora is
concerned, the respondent no.1/plaintiff was referred to her as he was
scheduled for surgery the next day and her opinion was sought as to his
fitness for surgery. Though she in her opinion used the expression "no
urgent medical intervention" but the same has to be understood in
RFAs No.774/2002 & 100/2003 Page 36 of 40
consonance with her remaining opinion where she reported that his blood
pressure was normal and there was no sign of hypo/hyper thyroidism. Not
only so, she further appended a note to her opinion "kindly do not send
routine referrals in emergency in future" again indicating that there was no
urgency qua the respondent no.1/plaintiff and that his referral was „a routine
one‟. Of course qua thyroid, she indicated that the test had been done in
October, 1997 and that fresh test report be sent. I am unable to decipher
from the opinion of Dr. Anju Arora, that the respondent no.1/plaintiff was
not fit for surgery.
30. It cannot also be lost sight of that the admission, treatment and
discharge records of the respondent no.1/plaintiff on the Trial Court record
which have been perused by the undersigned, were also sent to the
Independent Medical Board to which reference was made during the
pendency of this appeal. What has been recorded by me hereinabove is quite
evident therefrom. The Medical Board has reported that proper pre-
operational procedures were followed and have not found any fault in the
thyroid test having not been done on 6th October, 1998 or the surgery having
been done on the basis of the thyroid test done in October, 1997. In the
second report dated 29th March, 2012, „a year old report of thyroid test‟ and
RFAs No.774/2002 & 100/2003 Page 37 of 40
no current clinical or investigative data suggestive of hyper or hypo
thyroidism was specifically noted and it was still opined that there was no
bar against an elective surgery.
31. I see no reason to take a different view.
32. As far as the allegation of the respondent no.1/plaintiff, of the surgery
having not been conducted by the appellant Dr. Sushil Adhar also and
having been conducted by his juniors is concerned, it is now no longer in
controversy that Dr. Sushil Adhar as a senior resident was competent to
conduct the surgery. The entire records produced are indicative of the
surgery having been conducted by the appellant Dr. Sushil Aadhar. In light
thereof, the deposition of the respondent no.1/plaintiff, of the surgery having
not been conducted by Dr. Sushil Adhar but by juniors, cannot be accepted.
Though the respondent no.1/plaintiff was conscious at the time of surgery
but his statement is pitted against that of appellants Dr. Sushil Adhar and Dr.
B. Ghose and which is duly supported by the records. It is not the case of the
appellants also that the surgery was performed by Dr. Sushil Adhar alone.
They admit involvement of junior resident and other junior doctors also.
However as long as Dr. Sushil Adhar was in charge of the
RFAs No.774/2002 & 100/2003 Page 38 of 40
surgery, merely because some part of it may have been conducted/performed
by his juniors, cannot be deductive of Dr. Sushil Adhar having not
conducted surgery. Surgeries today are a team effort. It has also to be
remembered that in most professions juniors gain experience by initially
watching and then performing, first, bit parts and later major parts of surgery
under supervision of their seniors. If the same is not permitted and it were to
be held that the juniors cannot be allowed to even touch the patient, they
would never become competent themselves to take the responsibility.
33. Unfortunately the learned Addl. District Judge, as rightly contended
by the counsels for the appellants, rendered the impugned judgment de hors
the evidence on record and without analyzing the same.
34. The impugned judgment thus cannot be sustained. No case of any
negligence on the part of any of the appellants, so as to make the respondent
no.1/plaintiff entitled to any compensation or damages from them, is made
out. The appeals accordingly succeed and are allowed. Resultantly the suit of
the respondent no.1/plaintiff is dismissed.
35. Before parting with the case, I would like to record that the
sympathies of this Court are with the respondent no.1/plaintiff and it is not
RFAs No.774/2002 & 100/2003 Page 39 of 40
as if this Court does not feel or appreciate the agony and pain of the
respondent no.1/plaintiff; at the same time, it cannot be forgotten that grant
of any compensation or damage to the respondent no.1/plaintiff cannot be on
sympathy alone and without a finding of any negligence on the part of the
appellants Dr. B. Ghose and Dr. Sushil Adhar, and which finding can mar
their career as medical practitioners and shake their confidence to
successfully conduct similar surgeries/procedures in future. A charge of
professional negligence against a medical man is serious, having far more
consequences than mere monetary. Thus, the injury, though suffered by the
respondent no.1/plaintiff, being not attributable to any of the appellants, does
not call for grant of any relief. The concept of res-ipsa-loquitur does not
apply to such cases, where inspite of best efforts of the attending doctors, the
patient may suffer.
36. In the circumstances no costs.
Decree sheet be drawn up.
RAJIV SAHAI ENDLAW, J.
OCTOBER 25, 2013 pp..
RFAs No.774/2002 & 100/2003 Page 40 of 40