Kerala High Court
State Of Kerala vs Illath Narayanan on 27 January, 2010
Equivalent citations: AIR 2010 (NOC) 652 (KER.), 2010 AIHC (NOC) 889 (KER.)
Author: P. Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 91 of 2003()
1. STATE OF KERALA, REP. BY THE
... Petitioner
Vs
1. ILLATH NARAYANAN, RESIDING AT
... Respondent
2. LEELA (WIFE), RESIDING AT ALONHI
For Petitioner :GOVERNMENT PLEADER
For Respondent :SRI.V.V.ASOKAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :27/01/2010
O R D E R
P. BHAVADASAN, J.
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A.S. No. 91 of 2003
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Dated this the 27th day of January, 2010.
JUDGMENT
The defendant State in O.S. 84 of 1989 before the Sub Court, Vadakara, who has been called upon to pay a sum of Rs.50,000/- as damages to the second plaintiff with future interest at 6% is the appellant. The parties and facts are hereinafter referred to as they were available before the court below.
2. The plaintiffs had three children aged seven years, four and a half years and two and a half years, namely Vipesh, Vipin and Vijila respectively. One of the children had congenital defects. Plaintiffs hail from poor circumstances. They were unable to bring up another child. Therefore they decided to go in for family planning. At that time, it so happened that on 11.10.1985 the respondent State was organising a female sterilization Camp at Thiruvangoor. From the literature distributed with reference to the said Camp, A.S.91/2003. 2 plaintiffs were given to understand that laparoscopic sterilization method is safe and fool proof. They were given to understand that the operation would be done by experienced doctors with the assistance of qualified persons. Lured by the literature and also forced by the circumstances, the second plaintiff underwent laparoscopic sterilization operation. It was done by Dr.Biswas Vydia. However, later she conceived quite contrary to the assurance given by the persons who had conducted the Camp. Pointing out that the pregnancy was due to the negligence in the conduct of operation done by the doctor, she sued the State. The doctor, who had conducted the operation was not alive on the date of the suit.
3. The State resisted the claim. It denied that there was any negligence on the part of the doctor, who had conducted the operation and it was pointed out that the plaintiff had no cause of action. It was contended that they had given no assurance that laproscopic sterilization was the fool proof. The State contended A.S.91/2003. 3 that the operation was in 1985 and the second plaintiff had conceived only in 1988. It is therefore contended that even if the second plaintiff had conceived subsequently, it could not be attributed to any negligence, even assuming there was any, on the part of the doctor, who had conducted the operation. They denied the allegation of inefficiency of staff etc. and pointed out that the plaintiffs are not entitled to any relief.
4. The court framed necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and exhibits marked as Exts.A1 to A14. The defendant chose not to adduce any evidence. Exts.X1 to X3 are third party exhibits. The court below on an appreciation of the evidence came to the conclusion that the plaintiff had succeeded in establishing that laparoscopic sterilization operation was done negligently and therefore granted a decree for a sum of Rs.50,000/- in favour of the plaintiff. The said judgment and decree are assailed in this appeal. A.S.91/2003. 4
5. The question that arises for consideration is whether any interference is called for with the judgment and decree of the court below.
6. The facts fall within a narrow compass. Even though the defendants had initially disputed that the second plaintiff had undergone the operation, that issue no longer survives in view of the categoric finding of the court below that she did undergo the operation on 11.10.1985. The plaintiffs pointed out that they were ignorant of the need of post-operative care, since they received no proper advice etc., and later on the second plaintiff conceived quite contrary to the assurance given by the authorities, who had conducted the Camp, to the dismay of the plaintiffs. According to the plaintiffs, they already have three children and they cannot afford to bring up another child. They contended that the present state of affairs was due to the negligent act on the part of the doctor and the staff, who conducted the operation.
A.S.91/2003. 5
7. The defendant State denied the allegations and pointed out that there was no negligence or want of care on the part of either the doctor, who conducted the operation or the staff who had assisted him. It is also pointed out that the burden is on the plaintiff to establish the allegations.
8. The learned Government Pleader appearing on behalf of the State pointed out that the court below was not justified in decreeing the suit. It was contended that the operation was in 1985 and the second plaintiff had conceived only in 1988. There was absolutely no proof at all of any negligence on the part of the doctor and the staff, who had conducted the operation on the second plaintiff. None of the doctors, who had attended to the second plaintiff was examined to show that there was any negligence or carelessness on the part of the doctor, who had conducted the laparoscopic sterilization operation. It is not possible for the plaintiffs to simply rely on res ipsa loquitur theory without even proving a prima facie case of negligence. Learned A.S.91/2003. 6 Government Pleader pointed out that there may be several circumstances, even assuming that the operation was done in a perfect manner, that the person may conceive later. It was for the second plaintiff to establish that she had conceived due to the negligence on the part of the doctor and it is not a matter of presumption. There is no such proof in this case and therefore, the learned Government Pleader submitted that the plaintiffs ought to have been non-suited.
9. Learned counsel appearing for the respondents on the other hand pointed out that the plaintiffs are illiterate persons and they are not in the know of things. Believing the attractive offers and announcements made by the State, in order to ensure that the second plaintiff does not conceive again, she underwent the operation. Counsel would say that the plaintiffs were given to understand that it is a fool proof method to ward off pregnancy. This is a case where the principle of res ipsa loquitur comes into play. Attention was also drawn to the fact that the defendants have A.S.91/2003. 7 not adduced any evidence in support of their contention and the evidence adduced by the plaintiffs remain unchallenged. Under such circumstances, the learned counsel pointed out that no interference is called for.
10. Negligence usually is omission to do something what a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence is a tort. Law initially was very reluctant to attribute negligence to professional man. It was concerned with the reputation, status and the alarming consequences that would result by attributing negligence to professional men. Law did not remain static. It marched forward. If then evolved principles whereby professional men too were attributed with negligence.
11. A doctor's liability to patient arises both under tort and in contract. The question arises as to what is the degree of care and caution that is expected of a doctor. Lord Denning in The Discipline of Law at page 243 states as follows: A.S.91/2003. 8
"You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure -- for negligence in a medical man is deserving of censure."
It is further stated:
"But so far as the law is concerned, it does not condemn the doctor when he only does that which many a wise and good doctor so placed would do. It only condemns him when he falls short of the accepted standards of a great profession; in short, when he is deserving of censure."
12. Salmond and Heuston on The Law of Torts Eighteenth Edition at page 215 observes thus:
"It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. So a barrister is not expected to be right: it is enough that he A.S.91/2003. 9 exercises reasonable care. So a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of the kind occurs, or because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment. There is no rule that a doctor must tell a patient what is the matter with him."
13. C. Kameshwara Rao's Law of Damages and Compensation 5th Edition in Third Volume at page 2603 it is stated as follows:
"Doctors owe to their patients a duty in tort as well as in contract. It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill, it is not required that he should use the highest degree or skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. Although the standard is a high one, a medical practitioner should not be found negligent simply because one of the risks inherent in an A.S.91/2003. 10 operation of that kind occurs, or because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment. The Civil liability of medical men towards their patients is perhaps compendiously stated in R.V. Bateman, 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 direction 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 above 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 A.S.91/2003. 11 to prove that he has diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness ...... As regards cases where competence 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 treatment and recklessness in the conduct of it. It is not doubt, conceivable that 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 ........."
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 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 A.S.91/2003. 12 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."
14. The question as to what is the degree of care expected from a doctor has come up for consideration in a number of decisions. In the decision reported in (AIR 1996 SC 2377), it was held as follows:
"Before considering whether the respondents in the present case could be held to be negligent, it will be useful to see as to what can be regarded as negligence on the part of a doctor. The test with regard to the negligence of a doctor was laid down in Bolam v. Friern Hospital Management Committee [1957) I WLR 582]. It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medical- men skilled in that particular art. This principle in Bolam's case has been accepted by the House of Lords in England as applicable to diagnosis and treatment. A.S.91/2003. 13 (See Sidaway v. Board of Governors of Bethlem Royal Hospital, (1985) AC 871 at 881). Dealing with the question of negligence, the High Court of Australia in Rogers v. Whitaker, (1993) 109 ALR (sic), 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's case. This Court has had an occasion to go into this question in the case of Dr.Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, AIR 1969 SC 128. 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 patients fracture attempted by the doctor without taking the elementary caution of giving anaesthesia. In this context, with reference to the duties of the doctors to the patient this Court, in appeal, observed as follows:
A.S.91/2003. 14
"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 undertakes 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 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 int he case of A.S. Mittal v. State of U.P. AIR 1989 SC 1570. 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, in that particular case, whether the doctors were negligent, it observed "A mistake by a medical practitioner which no reasonably competent and a A.S.91/2003. 15 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 misttakes 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 wer eused, there is at least evidence of negligence for a jury". The latest case to which reference can be made is that of Indian Medical Association v. V.P.Shantha, (1995) 6 SCC 651: (1995 AIR SCW 4463). 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 cae that medical practitioners were not immune from a claim for damages on the ground of negligence. The Court also approved a passage from Jackson & Powell on Professional Negligence and held that "the approch of the Courts is to require that professonal A.S.91/2003. 16 men should possess a certain minimum degree of competence and that they should exercise reasonable care int he discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercie reasonable care in giving advice for performing service".
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 acition 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."
A.S.91/2003. 17
15. In the decision reported in AIR 2000 SC 1888 it was held as follows:
"Negligence is a 'tort' . Every Doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This what is known as "implied undertaking" by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. In Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118, MC Nair, J. summed up the law as under:
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent." A.S.91/2003. 18
16. One may at this point of time refer to one aspect. The basis for all this decision is Bolam's case. It was held in that case as follows:
"The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent."
In the decision reported in Jacob Mathew v. State of Punjab ((2005) 6 SCC 1), it was held that even after the passage of time the test enunciated in Bolam's case still holds good. It is no doubt true that in the decision reported in Jacob Mathew's Case the Apex Court was considering a case under Section 304 of the Indian Penal Code. But the concept of negligence as understood in A.S.91/2003. 19 law, the degree of proof required and the concept of negligence in civil and criminal cases etc. were considered in detail. In the said decision negligence was defined as follows:
"The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings.
Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person A.S.91/2003. 20 sued. The essential components of negligence, as recognised, are three: "duty", "breach" and "resulting damage", that is to say:
(1) the existence of a duty to take care, which is owed by the defendant to the complainant;
(2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognised by the law, has been suffered by the complainant.
If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence."
The decision also emphasised the difference in considering negligence in the context of medical profession. It is pointed out that a case of occupational negligence is different from one of professional negligence. Simple lack of care, an error of judgment or an accident is not proof of negligence on the part of a medical professional. So long as the a doctor follows a practice acceptable A.S.91/2003. 21 to the medical profession of that day, he cannot be held liable for negligence because another body of doctors thinks otherwise or that a better method could have been adopted. The decision deals exhaustively with various aspects of medical negligence.
17. The issue was again considered in the decision reported in Malay Kumar Ganguly v. Dr. Sukumar Mukherjee ((2009) 9 SCC 221), wherein reference was made to the decision reported in Jacob Mathew's Case. Ultimately, it has been held that it is not necessary for every professional to possess the highest level of expertise in that branch he practices. In the decision reported in Jacob Mathew's Case, which was followed in the latter decision in Malay Kumar Ganguly's case, it was held as follows:
"A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for that purpose. Such a person when consulted by a patient owes him certain duties viz. a duty of care in deciding whether to A.S.91/2003. 22 undertake the case, a duty of care in deciding what treatment to be given 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 doctor no doubt has a discretion in choosing the treatment which he proposed to give to the patient and such discretion is relatively ampler in cases of an emergency."
18. The application of the principle of res ipsa loquitur will be considered a little later.
19. Negligence will fall within the realm of tort. It is for the claimant to establish that he had suffered damages due to the questionable and negligent act committed by the defendant. In the case on hand, it is true that there is evidence to show that P.W.1, the lady had undergone laproscopic sterilization operation. A.S.91/2003. 23 But that was in 1985. It is not in dispute that she had conceived only in 1988. She had produced Exts.A1 to A14 and caused production of Exts.X1 to X3. As far as Exts.X1 to X3 are concerned, they only indicate that she had undergone the operation. Ext.A1 is the prescription. Exts. A2 to A4 are the literature issued from the Family Welfare Department, New Delhi and Ext.A14 is another prescription. Rest are all communications regrading the claim.
20. The documentary evidences produced are of not much assistance in this case except for the fact that one of them shows that subsequently also she has undergone a sterilization operation.
21. Coming to the oral evidence, P.W.1 is the second plaintiff. She speaks about the operation undergone by her. She would depose that she was persuaded to do so by the advice given by the officers of the Family Planning Department. They advised the couple to opt for laparoscopic sterilization method. According A.S.91/2003. 24 to her they impressed upon the couple that, that was the safest and easiest method available and they also gave them the literature about the same. P.W.1 says that she opted for the operation and underwent the same. She would depose that when she reached home, she began to feel uneasy and began to feel pain in the stomach. She consulted Dr.Sreekumary and the doctor referred her to Prof. Rajamma attached to the Medical College Hospital. Ext.A5 prescription was given to her and she was told that she was pregnant. The doctor advised her that she would continue treatment and undergo delivery in the Medical College itself. Due to these developments, she says that her husband had to give up the small scale business he was carrying on. She incurred lot of expenses and all these state of affairs was brought about by the negligence on the part of the doctor and the staff who conducted the operation. A reading of her evidence may indicate that the pregnancy was within a short period of operation. It is not so. A.S.91/2003. 25
22. P.W.2 is none other than the first plaintiff and the husband of the second plaintiff. He too speaks in tune with P.W.1. He would depose that after the operation P.W.1 developed pain in the stomach and she was treated by several doctors. He refers to the treatment given by Dr.Sreekumari. According to P.W.2, she treated his wife for a considerable period and ultimately she was referred to the Medical College Hospital. Rest of the story is the same as that of P.W.1.
23. It could thus be seen that there are records of treatment relating to P.W.1, which have not been produced at all. One cannot omit to note that the operation was in 1985 and the pregnancy was in 1988, that is, three years after the operation.
24. It is understood that usually sterilization operation is done by three methods. The most common form and the safest method is known as Pomeroy tubal ligation method. That is supposed to be an accepted method and it involves the least risk. A.S.91/2003. 26
25. Williams Obstetrics 21st Edition on Page 1557, it is stated as follows:
"Pomeroy Procedure. This is the simplest, reasonably effective method of dividing the tube. It generally has been considered important that plain catgut be used to ligate the knuckle of tube, because the rationale of this procedure is based on prompt absorption of the ligature and subsequent separation of the severed tubal ends."
26. In the case on hand, all that is stated is that laparoscopic sterilization operation was done. As regards the method followed, one is in the dark. There are two other methods, which are known as Erwin Method and Uchuda Method, which involve considerable risk. It is true that the defendants have not produced any document to show the procedure adopted at the time of operation of P.W.1.
A.S.91/2003. 27
27. One may here again refer to a passage in Williams Obstetrics at page 1559 wherein failures in the sterilization methods are seen referred to. It is stated as follows:
"TUBAL STERILIZATION FAILURES. No method of tubal steriliztion is without failure. Either uterine or ectopic pregnancies may result from such failures. INTERVAL TUBAL FAILURE. The reason for interval tubal failures are not always apparent, but some reasons are:
1. Surgical errors likely account for 30 to 50 percent of cases.
2. The patient was already pregnant at the time of the surgery, a so-called luteal phase pregnancy.
3. An occlusion method failure may be due to fistula formation, which may follow electocautery procedures.
Faulty clips may not be occlusive enough, or the fallopian tube may spontaneously undergo reanastomosis.
4. Equipment failure, such as a defective electric current for the electrocautery, also may be a causative factor.
PUERPERAL STERILZATION FAILURE.
A.S.91/2003. 28 Although an increased failure rate for sterilization at the time of cesarean delivery has been reported by some, with the technique for tubal sterilization used at Parkland Hospital (Figs.59-1C and 59-2), we have identified no difference. Two major reasons account for the failure of puerperal sterilzations. These are:
1. Surgical errors, which include transaction of the round ligament instead of the oviduct or partial transaction of the oviduct.
2. Formation of the fisula tract between the severed tubal stumps, or spontaneous reanastomosis.
Soderstrom (1985) concluded that most sterilization failures were not preventable. A similar conclusion was reached by the American College of Obstetricians and Gynaecologists (1996), which stated, "pregnancies after sterilization may occur without any technical errors."
It is stated tht if there were any technical errors, that would normally reflect within one year of the operation. A.S.91/2003. 29
28. Coming to the case on hand, the plaintiffs attribute negligence to the doctor and staff who had conducted the sterilization operation on P.W.1. As already noticed, there are no details and no evidence at all regarding the negligence committed by those persons. Even though the second plaintiff had been treated by several doctors, the plaintiffs were unable to produce any document or evidence to show that there was some negligence in the matter of performing steriliziation operation on the second plaintiff. It is surprising to note that not even one of the doctors, who had treated P.W.1 had been examined. One of them could have spoken about the real state of affairs and of the the operation, which had failed. The best evidence was not availed of by the plaintiffs.
29. The court below rested its decision on the principle of res ipsa loquitur. It is trite that there must be reasonable evidence of negligence. Where a thing is shown to be under the management of the defendant or his servants, and the accident is A.S.91/2003. 30 such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident rose from want of care. Res ipsa loquitur does not have the status of a substantive law or that of a doctrine.
30. In order to attract the principle of res ipsa loquitur three conditions will have to be satisfied. They are: (1) The accident must be of a kind which does not ordinarily occur in the absence of someone's negligence.(2) It must be caused by an agency or instrumentality within the exclusive control of the defendant. (3) It must not have been due to voluntary action or contribution on the part of the plaintiff.
31. The principle has been applied in several cases. It does not mean that the claimant is completely relieved of the burden to show the negligence at all. The claimant must be able to give atleast partial prima facie evidence regarding the negligence A.S.91/2003. 31 and then the principle enables the claimant to draw further inference. The application of the above principle in the case of medical negligence has been considered in a number of decisions.
32. In the decision reported in AIR 1999 Kerala 149 it was held that the principle may not be available in all cases of medical negligence. The same point came up for consideration in the decision reported 2001(3) K.L.T. 332. In the decision reported in ILR 2001(3) Kerala 312 it was observed as follows:
"The burden of proof remain with the plaintiff, but the defendant must adduce evidence to rebut the inference of negligence in order to avoid a finding of liability. The maxim applies where an accident occurs in circumstances in which accidents do not normally happen unless there has been negligence by some one. The fact of the accident itself may give rise to an inference of negligence by the defendant which, in the absence of evidence is rebuttal, would be sufficient to impose liability. There is no magic in the phrase res ipsa loquitur "the thing speaks for itself". It is simply a submission that the facts establish a prima facie case A.S.91/2003. 32 against the defendant. The value of this principle is that it enables a plaintiff who has no knowledge, or insufficient knowledge, about how the accident occurred to rely on the accident itself an the surrounding circumstances as evidenced of negligence, and prevents a defendant who does know what happened from avoiding responsibility simply by choosing not to give any evidence. Thus, we find that here it is a case where if proper care had been taken, damage to the brain could have been avoided. Whether proper care had been taken was not proved. Hence, we are of the view that the court below was correct in holding that there was negligence on the part of the defendants."
33. The matter was again considered in the decision reported in Martin F.D'Souza v. Mohammed Ishfaq (2009(2) K.L.T. SN 57) and Jacob Mathew v. State of Punjab (2005(3) KLT 965(SC)). In the decision reported in Jacob Mathew's case A.S.91/2003. 33 it was held that the rule is applicable only in the case of civil law. In the decision in Martin F.D'Souza's case, it was held as follows:
"A medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves a surgical gauze inside the patient after an operation. The standard of care has to be judged in the light of knowledge available at the time of the incident and not at the date of the trial. Also, where the charge of negligence is of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time. The higher the acuteness in an emergency and the higher the complication, the more are the chances of error of judgment. At times, the professional is confronted with making a choice between the devil and the deep sea and A.S.91/2003. 34 has to choose the lesser evil. The doctor is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as proving greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case but a doctor cannot be penalized if he adopts the former procedure, even if it results in a failure. The usual practice prevalent nowadays is to obtain the consent of the patient or of the person-in- charge of the patient if the patient is not in a position to give consent before adopting a given procedure. There may be a few cases where an exceptionally brilliant doctor performs an operation or prescribes a treatment which has never been tried before to save the life of a patient when no known method of treatment is available. If the patient dies or suffers from serious harm, should the doctor be held liable ? In our opinion he should not. Simply because a patient has not favourably responded to a treatment given by a doctor or a surgery has failed, the doctor cannot be held straightaway liable for medical negligence by applying A.S.91/2003. 35 the doctrine of res ipsa loquitur. No sensible professional would intentionally commit an act or omission which would result in harm or injury to the patient since the professional reputation of the professional would be at stake. A single failure may cost him dear in his lapse. When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions. To fasten liability in criminal proceedings e.g. under S.304 IPC, the degree of negligence has to be higher than the negligence which is enough to fasten liability in civil proceedings. Thus for civil liability, it may be enough for the complainant to prove that the doctor did not exercise reasonable care in accordance with the principles mentioned above, but for convicting a doctor in a criminal case, it must also be proved that this negligence was gross amounting to recklessness." A.S.91/2003. 36
34. In the decision reported in Malay Kumar Ganguly's Case the principle was again recognised. On going through the above decisions, it will be noticed that the principle of res ipsa loquitur is not automatically attracted in every case of medical negligence. In the case on hand there is absolutely nothing to show as of now that sterilization operation held on 11.10.1985 was done negligently or carelessly. At the risk of repetition, one may notice that even though the plaintiffs claim that the second plaintiff had felt uneasiness and fell sick soon after the operation, no records whatsoever are seen produced. None of the doctors, who had treated P.W.1 has been examined to show that there was any negligence in performing the sterilization operation. One cannot simply invoke the principle of res ipsa lquitur and hold that there is a case of medical negligence without any prima facie proof of negligence. One may remember that the principle of res ipsa loquitur does not completely relieve the plaintiff of the burden to prove negligence. It is surprising to note that A.S.91/2003. 37 Dr.Sreekumari and Dr.Rajamma , who had treated P.W.1 for a long time were not sought to be examined. There is nothing in the records produced by the plaintiffs to show that there has been any negligence on the part of the doctor and the staff in conducting the sterilization operation.
35. It is true that he defendants have been very casual in the matter. There was no attempt on the side of the defendant to produce documents to show that the operation has been done properly. It is very surprising to note that the defendant did not feel it necessary to adduce any evidence at all to deny the allegations in the plaint. But that by itself is not a ground to grant decree in favour of the plaintiffs. The burden to prove in such case is on the plaintiffs.
36. Considering the facts and circumstances of the case, it is felt that the plaintiffs should be given an opportunity to adduce further evidence to establish their case. The plaintiffs have A.S.91/2003. 38 to establish that there is lack of care on the part of the doctor and staff, who were involved in the sterilization operation undergone by the second plaintiff. Both sides can adduce evidence.
In the result, this appeal is allowed, the judgment and decree of the court below are set aside and the matter is remanded to the trial court for fresh consideration in the light of what has been stated above. The parties shall appear before the court below on 15.03.2010. Office shall send back the records forthwith.
P. BHAVADASAN, JUDGE sb.
A.S.91/2003. 39 P. BHAVADASAN, J.
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A.S. No. 91 of 2003
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JUDGMENT 27.01.2010