Gujarat High Court
Dr.Nagarbhai Jethabhai Karnavat vs Legal Repr.Of Decd. Champaben Amrutlal ... on 20 August, 2025
NEUTRAL CITATION
C/FA/1910/2002 JUDGMENT DATED: 20/08/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1910 of 2002
With
R/FIRST APPEAL NO. 2031 of 2002
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
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Approved for Reporting Yes No
YES
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DR.NAGARBHAI JETHABHAI KARNAVAT
Versus
LEGAL REPR.OF DECD. CHAMPABEN AMRUTLAL MEVADA & ORS.
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Appearance in FA/1910/2002 :
MS SHARANYA GOSAI FOR MS ARCHANA R ACHARYA(2475) for the
Appellant(s) No. 1
MR NIRAJ SHEKHAVAT FOR MR HIMANSU M PADHYA(1611) for the
Defendant(s) No. 1,1.1
Appearance in FA/2031/2002 :
MR VISVAJIT VADHER FOR MS ARCHANA R ACHARYA(2475) for the
Appellant(s) No. 1
MR NIRAJ SHEKHAVAT FOR MR HIMANSU M PADHYA(1611) for the
Defendant(s) No. 1,1.1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 20/08/2025
COMMON ORAL JUDGMENT
1. First Appeal No.1910 of 2002 is filed by the appellant Dr. Nagarbhai Jethabhai Karnavat - original defendant No.1 and First Appeal No.2031 of 2002 is filed by the appellant Dr. Ramlal Govindram Agrawal - original defendant No.2 under Section 96 of the Civil Procedure Code, 1908 against the judgment and decree dated 26.04.2002 passed by the learned Page 1 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined Civil Judge (S.D.), at Palanpur (herein after referred to as "the trial court") in Special Civil Suit No.115 of 1992, whereby the learned Judge has partly allowed the suit filed by the original plaintiffs - respondents herein and directed the defendants - appellants herein to pay compensation to the original plaintiffs to the tune of Rs.2,65,000/- jointly and severally.
2. Since both the appeals arise from the judgment of even date, the facts are similar and are narrated hereunder :
2.1 That, the respondent No. 2 is the husband of respondent No.1 - Champaben Amrutlal Mewada (hereinafter referred to as "the deceased") and were married in the year 1966 and having six children, who are joined as legal heirs of the deceased respondent No.1 in the present proceedings. That, the deceased Champaben was suffering from Uterus trouble and upon advice of her gynecologist, she was referred to the appellant Dr. Nagarbhai Jethabhai Karnavat - original defendant No.1, who was running his own hospital named as Karnavat Surgical Hospital and on examination, he advised certain tests and on receipt of report, he found that there is some malignancy and therefore, operation was required to be performed to remove the uterus. Hence, the respondent No.1 was admitted as an indoor patient in the hospital of appellant Karnavat. That, the appellant Karnavat had operated the respondent No.1 and the uterus of respondent No.1 was removed by operation on dated 12.07.1991. That, the appellant Dr. Ramlal Govindram Agrawal - original defendant No. 2 was an Anesthetic doctor, who was called by the appellant Dr. Karnavat by his own request, therefore, on Page 2 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined 12.07.1991, the appellant Dr. Agrawal was attending the appellant Dr. Karnavat and they had performed the operation and removed the uterus of the deceased respondent No.1.
That, when the respondent No.2 and his relatives were waiting outside of operation theatre, meanwhile the appellant Dr. Agrawal had left to attend the call and he had took 4 to 5 minutes. That, after completion of operation, the deceased did not regain consciousness and therefore, the appellants Dr. Karnavat and Dr. Agrawal had consulted expert doctors but, thereafter, the deceased had went into unconscious condition and remained in coma for atleast 3½ months and ultimately died in same condition, and therefore, the suit was filed by the respondents - original plaintiffs from the appellants - original defendants seeking compensation to the tune of Rs.3,00,000/-, jointly and severally for medical negligence on the part of the appellants.
2.2 That initially, the suit was filed as a pauper and therefore, the same was registered as C.M.A. No. 28/91 and after verifying the facts and after hearing the parties, the trial court vide order dated 23.11.1992 allowed the said C.M.A. and the suit was registered as Special Civil Suit No. 115 of 1992. That, the trial court had issued summons which was served upon the appellants and therefore, their advocates had filed their written statement at Exh.-204 and Exh.-44 respectively and denied all the contentions and averments made in the plaint except which are specifically admitted by them. On perusal of the pleadings, the trial court framed the issues at Exh.-20 referred in para-8 and the same were answered in para-9. The Page 3 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined plaintiffs and the defendants had produced following oral as well as documentary evidence before the trial court :
Oral evidence produced by the plaintiffs :
1. Exh.58 witness No.1 Amratlal Bhikhalal, Original Plaintiff No. 2.
2. Exh.209 witness No.2 (the brother of plaintiff No.2) Tribhovanbhai Bhikhabhai Mewada, Documentary evidence on which the plaintiffs had relied :
1. Exh.72 to 180.
2. Exh. 187 to 197.
Oral evidence lead by the defendants :
1. Exh.228 Dr. Nagarbhai Jethabhai Karmavat, Deft.no.1
2. Exh.254 Dr. Ramlal Govindrao Agrawal, Deft.No.2. Documentary evidence produced by the defendants:
1. Exh.231 to 247, 250.
2.3 After considering the oral as well as documentary evidence led by both the sides and after considering the decisions referred and relied upon by both the sides, the trial court ultimately found that both the defendants were jointly and severally liable to pay compensation towards untimely death of the deceased and therefore, the trial court has partly allowed the suit and passed the decree in favour of the respondents - original plaintiffs and directed the defendants -
appellants herein to pay compensation to the original plaintiffs to the tune of Rs.2,65,000/- jointly and severally vide its judgment and decree dated 26.04.2002.
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3. Being aggrieved and dissatisfied with the aforesaid judgment and decree dated 26.04.2002, the respective appellants have preferred the respective appeals against the common judgment.
4. Heard Ms. Sharanya Gosai, learned counsel appearing on behalf of Ms. Archana Acharya, learned counsel for the appellant - original defendant No.1 - Dr. Karnavat in First Appeal No.1910 of 2002, Mr. Visvajit Vadher learned counsel appearing on behalf of Ms. Archana Acharya, learned counsel for the appellant - original defendant No.2 - Dr. Agrawal in First Appeal No.2031 of 2002 and Mr. Niraj Shekhavat, learned counsel appearing on behalf of Mr. Himanshu Padhya, learned counsel for the respondents - original plaintiffs.
5. Learned counsel for the appellants have submitted that the Judgment & Decree are neither legal nor proper. They have submitted that the trial court has recorded in para-17 of the Judgment in last lines on page 19 that "Expert Evidence is not available upon the record to show that the defendants were negligent in their duties", and hence, finding of negligency is not proper. They have submitted that both the appellants had exercised due care, skill and diligence in treating the deceased and hence, decree of awarding the compensation is bad. They have submitted that none of the appellants had failed to take proper skill and care and caution in the operation and the consequence if led because of failure of heart, which was revived within 3 to 5 minutes, and damage to the nerves had Page 5 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined taken place during that period, the appellants could not be blamed to be negligent. They have submitted that mere allegation of not maintaining and production of record of Blood Pressure and Oxygen consumption would not mean that the same were not watched or recorded and non production of such records would not mean negligency at all and no element of negligency was proved at all by the respondent before the trial court. They have submitted that the trial court has erred in not considering the fact that, in existence of human body, despite diligence care and caution, consequential risks of individual factors are closely associated more in operative treatment and thus, the appellants cannot be held negligent simply because something went wrong. They have submitted that the trial court has recorded that there was no expert evidence on the record to show negligence of any of the defendants and unless there is expert opinion that there was negligency or recklessness, it cannot be said that medical practitioners acted negligently and thus, the burden of establishing negligence was on the respondents and therefore, in absence of production of expert evidence indicating negligence, medical persons cannot be held negligent. They have submitted that thus, the Judgment & decree passed by the trial court is against the evidence on record.
5.1 The learned counsels have further submitted that the trial court failed to appreciate the standards of reasonable medical care and it failed to appreciate that as long as a doctor acts in a manner acceptable to medical profession, i.e. if he acts with reasonable degree of skill, knowledge and care, he Page 6 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined cannot be held negligent. It is submitted that the trial court failed to appreciate (paraphrasing Lord Denning) that when one is ill and goes to a hospital for treatment, there is always some risk no matter what care is used. Every surgical operation involves risks, and it would be wrong and bad in law to say that the doctor is liable because the mishap occurred and because one of the risks inherent in an operation took place, as in the present case the cardiac arrest occurred, during the operations, and even though the patient was revived within 3-4 minutes with the help of intensive care, emergency medicines, 100% oxygen via endotracheal tube in lungs from Boyle's and external cardiac massage the brain got anoxic damage because brain did not receive blood, which contains dissolved oxygen in it for 3-4 minutes, during cardiac arrest (heart stoppage) period before revival. It is submitted that the court ought to have appreciated that medical man is not an insurer and he does not warrant that his treatment will succeed. It is submitted that the trial court has failed to appreciate that the standard of care which the law requires is not insurance against accidental slip, mistake, error of judgment, misadventure, mischance or a deviation from normal practice. A doctor is not required to discharge his duty of care with the highest degree of skill, since they may never be acquired. Some other better skilled and more knowledgeable person may prescribe a different treatment or operate in a different manner. So long as a doctor acts in accordance with one of the normally acceptable practice by reasonable body of medical men skilled in that particular art, he would not be held negligent. It is submitted that in the Page 7 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined instant case, there is no evidence of finding that the doctor failed to act as no doctor of that skill would. It is submitted that the trial court failed to appreciate that a doctor cannot and ought not be held negligent because he failed to make a record of the blood pressure, which he measured any way. As doing so would gravely affect his status, confidence and reputation and therefore, a sense of proportion would require to have regard to the conditions and actual circumstances in which the doctor has to work. It is submitted that in the instant case, there is no evidence, or finding that the appellants failed in performance of their duty and therefore, this burden rests heavily on the respondents, in the background of the experience, and reputation of the appellants. It is submitted that the trial court failed to appreciate that the respondents did not examine any expert to establish negligence by the appellants and it is no longer res integra that unless an expert evidence is led to prove negligence of such nature, the same cannot be found proved, particularly in the background of the facts of the case, the literature of the science supporting the actions of the defending doctors. It is submitted that the trial court failed to appreciate that (paraphrasing Lord Denning) it would be doing a disservice to the community to impose a liability on doctors for everything that happens to go wrong. Doctors would be worried more of their own safety than of the good of their patients. Their initiative would be stifled and confidence shaken. Therefore, while we must insist on due care for the patients at every point we must not condemn that which is only a misadventure. In the case at hand, there is no evidence that the appellants committed any error that no Page 8 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined doctor of reasonable competence would nor by any stretch of imagination his services or acts be terms as below or short of standards of a reasonably competent practitioner or one deserving of censure of inexcusable. It is submitted that the trial court failed to appreciate that due care was taken by the appellants throughout, i.e. during pre-operative and post operative. That, the patient was bleeding profusely and her hemoglobin was 5.86 on the 1st day, on 06.07.1991, she was seen by the Surgeon. Thereafter, tests to confirm diagnosis of cancer was ordered. Four bottles of blood and other necessary medicines were carefully transfused, and again blood and other tests were ordered before operation. It is submitted that on the day of operation on 12-07-1991, her hemoglobin was well over 10 and at the operation theatre all mandatory and necessary instruments, emergency medicines and full supply of oxygen were available. Spinal anesthesia was chosen, and the prescribed procedure of anesthesia was followed. The patient was continuously monitored. Cardiac arrest was detected and the patient had also revived within 3 minutes. It is submitted that when the patient did not regain consciousness, other peer help was requested and patient was discharged and later shifted to Ahmedabad, however, the patient ultimately passed away after a month and half after the operation. It is submitted that the actual damage had occurred possibly due to poor health deliliated condition which might have caused cardiac arrest during the operation. It is also submitted that the documentary and oral evidence speak volumes of due care taken by the appellants. It is submitted that the trial court clearly erred in calculation of compensation, Page 9 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined as at the time of operation the life expectancy of the deceased was about 1-2 weeks and the operation was conducted with a view to extending her life for some more time. It is further submitted that the calculation of life expectancy of 20 years without any basis in the background of the facts of the case is unsustainable and bad-in-law and calculation of income and arriving at compensable loss is also without any basis in evidence or law and patently improper. It is submitted that the trial court clearly erred in holding that the appellants were negligent on the ground that anesthetist had failed to make note of the blood pressure during the operation and emergency of cardiac arrest on operation table. It is submitted that the blood pressure was constantly measured and oxygenation was regularly monitored by colour of the skin, colour of blood and movement of respiration. The question of non making of notes and non-recording of B. P. during cardiac emergency, it is submitted, is misplaced. During an emergency one does not wait to record B. P. even as per medical practice and literature. It is submitted that in the case on hand, the emergency was immediately handled, patient was revived and thus the appellants had exercised due care by any stretch of imagination and even otherwise, so called failure to keep record of the B. P. in any case is of no consequence, and nothing turns on the same and cannot be in any case termed as causa-causance or even a remote cause of failure or damage to brain.
5.2 Both the learned counsels have tried to canvass the issue relating to the findings recorded by the trial court with regard Page 10 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined to the negligence and carelessness on the parts of the appellants holding liable for paying compensation to the plaintiffs respondents herein and submitted that the said findings recorded by the trial court is completely erroneous, illegal and against the facts of the present case and against the evidence came forth on record and therefore, urged that the impugned judgment and decree passed by the trial court be quashed and set aside. It is submitted that the appellant Dr. Karnavat is a renowned doctor in Palanpur at Banaskantha and was running his own hospital namely Karnavat Hospital, which was fully equipped with modern facilities, who had performed the operation and removed the uterus of the deceased. It is submitted that the appellant Dr. Karnavat has been running his hospital in that area since last more than 15 years prior to the date of operation and not a single incident was reported during his career and was having the degree of M.S. (Master of Surgery) and the appellant Dr. Agrawal was also a renowned doctor being M.D. Anesthesiology and was also practicing in Palanpur area at Banaskantha since long and therefore, the observations made by the trial court that the appellants were severely negligent in their professional duty and acted in carelessness manner is completely erroneous, illegal and against the evidence came forth on record. Both the counsels have further submitted that except this alleged incident, no other incident has been reported in the professional career of both the appellants, who are expert doctors and due to this alleged incident, the professional careers of both the appellants have been spoiled and stigma left behind because of this alleged incident and thus, the observations made by the Page 11 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined trial court with regard to the professional misconduct and carelessness on the part of the appellants is required to be expunged and the impugned judgment and decree is required to be quashed and set aside to that extent.
6. As against that, Mr. Shekhavat, learned counsel appearing for the respondents - original plaintiffs, has strongly objected the present appeals and submitted that the hospital run by the appellant Dr. Karnavat was not having sufficient equipments, which were primarily required in the operation theatre viz., heart and pulse monitor, oxygen cylinder, oxymeter and other equipments necessary in critical condition of the patient or in the situation if emergency arise while performing operation, as in the present case the deceased went into Coma because of insufficient supply of oxygen during operation and even they had not maintained the blood pressure and pulse of the deceased and that was the cause for unconsciousness. He has submitted that the expert doctor, who was consulted by the appellant Dr. Karnavat, has also deposed before the trial court, had opined that the deceased might have died due to insufficient supply of oxygen at the time of operation. He has further submitted that the appellants had contended before the trial court that they had taken proper care and caution, which contention was negatived by the trial court and therefore, under such circumstances, the trial court has rightly passed the impugned judgment and decree in favour of the respondents. He has further submitted that so far as the supply of oxygen at the time of operation is concerned, whether it was maintained as per the necessity of Page 12 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined the operation or not, was not proved by the appellants by leading cogent and material evidence before the trial court and therefore, the trial court has rightly held this issue against the appellants and thus, there is neither any infirmity nor any illegality in the impugned judgment and decree passed by the trial court.
6.1 Learned counsel Mr. Shekhavat has referred and relied upon the decision of the Hon'ble Apex Court reported in case of M.S. Grewal & Anr. vs. Deep Chand Sood & Ors., reported in [2001] 8 SCC 151 and emphasized upon the observations made in para-14 "that negligence in common parlance means and implies failure to exercise due care, expected of the reasonable prudent person." Now, what is the standard to expect from the reasonable prudent person it should be required to show by the patient persons it should be established law and herein the present case, there was no sufficient medical equipments available in the hospital at the time of performing such a serious operation, and thus, the trial court, after considering relevant facts and after considering the decision of the Hon'ble Apex Court, has rightly held the appellants responsible for the negligence and passed the impugned judgment and decree in favour of the respondents and the same is required to be confirmed and no interference is required to be called for in the present appeals.
Analysis
7. Whether the trial court has rightly passed the impugned judgment and decree and held the appellants negligent in their Page 13 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined professional conduct and the case required to be taken in case of such a serious operation performed by the appellant Dr. Karnavat and assisted by appellant Dr. Agrawal being an Anesthetist or not ? Whether the trial court has committed any error while deciding the issue of negligence and awarding compensation in favour of the respondents or not ? Whether the trial court has committed any error on facts and on law or not ? Whether the impugned judgment and decree passed by the trial court is in consonance with the settled principles of law or not ? For that, the facts of the case as mentioned herein above vis-a-vis the evidence of the plaintiffs and other witnesses as well as the evidence of the defendants, who had deposed before the trial court and the documentary evidence produced by both the sides are required to be looked into.
8. I have heard the learned advocates appearing for the respective parties and perused the material placed on record. I have also gone through the impugned judgment and decree passed by the trial court. I have also examined the evidence led by both the sides before the trial court and on examination and scrutiny of the documents, prima facie it appears that, prior to the alleged operation, the deceased had consulted to the Gynecologists Dr. P.K. Vaghela at Deesa and Dr. Mukesh Sanghvi at Palanpur for her uterus problems and both had referred the deceased to the appellant Dr. Karnavat, who had performed the operation with the assistance of appellant Dr. Agrawal, being an Anesthetist. It also appears that after operation, when the deceased was not regaining consciousness, the appellant Dr. Karnavat had further Page 14 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined consulted to Dr. J.J. Burhanpuri on third day after operation i.e. on 15.07.1991 with regard to unconsciousness and thereafter, upto 30.07.1991, the deceased did not regain consciousness and therefore, the appellant Dr. Karnavat had further referred the deceased to Dr. Ranjit Acharya, who was a Neuro Physician at Ahmedabad and after examining the deceased, the said Dr. Acharya had transferred the deceased to the hospital of the appellant Dr. Karnavat and as per the instructions of Dr. Acharya, the deceased was treated as indoor patient and all these facts were stated by the appellant Dr. Karnavat before the trial court at Exh.-228. In his cross-examination from para- 14 onwards, the appellant Dr. Karnavat has admitted that because of excessive drugs used by the Anesthetist, her condition was critical and therefore, during the course of operation her heart had stopped functioning and after giving massage and pumping, again her heart started functioning and therefore, under such circumstances, the trial court has not committed any error while passing the impugned judgment and decree in favour of the respondents.
8.1 At this juncture, it would be appropriate to refer to the decision of the Hon'ble Apex Court rendered in case of Jacob Mathew vs. State of Punjab and Another, reported in [2005] 6 SCC 1, wherein, in case of medical negligence, to ascertain how liability of doctors can be considered and how doctors can be held liable for the treatment, the Hon'ble Apex Court has suggested a test that special treatment of doctors rational for, it must be shown that the accused doctor did something or failed to do something which in the given facts Page 15 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent. So far as the existence of principles culled out from treatise and case law laid down, the liability of the doctor towards patient explained that adopting higher risk procedure, if the doctor has reasonable degree of skill and knowledge, he must also exercise care of a reasonable degree, neither very highest nor very low in light of the particular circumstances of the case.
8.2 In case of Kusum Sharma and Others vs. Batra Hospital and Medical Research Centre and Others, reported in [2010] 3 SCC 480, the Hon'ble Apex Court, referring and relying upon the earlier decision of the Apex Court, has enunciated that very test which is even referred and relied in the judgment rendered in case of C.P. Shreekumar (Dr.) MS (Ortho) vs. S. Ramanujam, reported in [2009] 7 SCC 130 and in another recent decision of the Hon'ble Apex Court rendered in case of Kalyani Rajan vs. Indraprastha Apollo Hospital and Others, reported in [2024] 3 SCC 37, the Apex Court has considered the situation in the given case but, herein the present case, it is an admitted fact that because of the over-dose of the drugs given by the Anesthetist, which had affected the brain of the deceased and due to that, the nervous system of the deceased collapsed and she had gone into condition of Coma and remained unconscious for 3½ months, for which the husband of the deceased had to incur huge loss and children had lost their Page 16 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined mother at the tender age and thus, under such condition, the trial court has rightly passed the impugned judgment and decree and awarded compensation in favour of the respondents and hence, I am of the opinion that the appeals deserve to be dismissed.
8.3 In case of Martin F. D'Souza vs. Mohd. Ishfaq, reported in [2009] 3 SCC 1, the Hon'ble Apex Court has discussed about the broad general principles of medical negligence which have been laid down in the Supreme Court Judgment in case of Jacob Mathew vs. State of Punjab and Anr. (supra) and held in para-41 as under :
Head Note B: Medical Practice and Practitioners - Medical negligence - Precautions required for protection from from liability for - Detailed instructions regarding to be followed by doctors/hospitals/nursing homes laid down - Observing that law is a watchdog, not a bloodhound, held, doctors doing duty with reasonable care would not incur liability even if their treatment failed - However, doctors advised to follow Code of Medical Ethics - Indian Medical Council Act, 1956 - Ss. 20-A & 3(m) - Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002 "41. 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 vide Achutrao Haribhau Khodwa & others vs. State of Maharashtra & others, AIR 1996 SC 2377 or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade."
8.4 At this juncture, it would also be fruitful to refer to the recent decision of the Hon'ble Apex Court rendered in case of Jyoti Devi vs. Suket Hospital and Others, reported in Page 17 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined [2024] 8 SCC 655, wherein, the Hon'ble Apex Court, after considering all the earlier decisions of the Hon'ble Apex Court, has enhanced the amount of compensation awarded by the trial court referring to the observations made by the Hon'ble Apex Court in a well known decision in case of Jacob Mathew (Supra) and observed and held in para-12 as under :
"12.2 The Law on Medical Negligence 12.2.1 Three factors required to prove medical negligence, as recently observed by this Court in M.A Biviji v. Sunita & Ors.8, following the landmark pronouncement in Jacob Matthew v. State of Punjab, are :-
"36. As can be culled out from above, the three essential ingredients in determining an act of medical negligence are : (1.) a duty of care extended to the complainant, (2.) breach of that duty of care, and (3.) resulting damage, injury or harm caused to the complainant attributable to the said breach of duty. However, a medical practitioner will be held liable for negligence only in circumstances when their conduct falls below the standards of a reasonably competent practitioner."
12.2.2 To hold a doctor liable, this Court in Dr. Mrs. Chanda Rani Akhouri v. Dr. M.A. Methusethupati observed: -
".... a medical practitioner is not to be held liable 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. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field." (Emphasis supplied) 12.2.3 Observations in Harish Kumar Khurana v. Joginder Singh are also instructive. Bopanna J., writing for the Court held:
"...It is necessary that the hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in unfortunate cases, though death may occur and if it is alleged to be due to medical negligence and a claim in that regard is made, it is necessary Page 18 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined that sufficient material or medical evidence should be available before the adjudicating authority to arrive at a conclusion." (emphasis supplied) These observations, although made in the context of a patient having passed away in the course of, or as a result of treatment, nonetheless are essential even in cases where the claimant has suffered an injury.
12.3 Determination of the Quantum of Compensation 12.3.1 This Court has held that in determining compensation in cases of medical negligence, a balance has to be struck between the demands of the person claiming compensation, as also the interests of those being made liable to pay. It was observed in Nizam's Institute of Medical Sciences v. Prasanth S. Dhananka -
"88. We must emphasise that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned.
89. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as the hiccups that invariably come about cannot be visualised. Life it is said is akin to a ride on a roller- coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard." In the very same judgment, it was further observed, particularly in cases of the person being injured:-
"90. At the same time we often find that a person injured in an accident leaves his family in greater distress vis-à-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution enures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only on the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity."
12.3.2 It would also be instructive to refer to the concept of 'just Page 19 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined compensation'. The idea of compensation is based on restitutio in integrum, which means, make good the loss suffered, so far as money is able to do so, or, in other words, take the receiver of such compensation, back to a position, as if the loss/injury suffered by them hadn't occurred. In Sarla Verma v. DTC this Court observed that compensation doesn't acquire the quality of being just simply because the Tribunal awarding it believes it to be so. For it to be so, it must be, (i) adequate; (ii) fair; and (iii) equitable, in the facts and circumstances of each case. This understanding was reiterated in Balram Prasad v. Kunal Saha and Ors14, V. Krishnakumar v. State of Tamil Nadu & Ors, 15 and Nand Kishore Prasad v. Mohib Hamidi and Ors.
12.3.3 What qualifies as just compensation, as noticed above, has to be considered in the facts of each case. In Balram Prasad (supra) it has been observed that this court has been 'skeptical about using a straightjacket multiplier method for determining the quantum of compensation in medical negligence claims'."
8.5 It is also pertinent to refer to the cross-examination of the appellant Dr. Karnavat, who has admitted in his cross- examination before the trial court that because of excessive drugs used by the Anesthetist, condition of the deceased had become critical and therefore, during the course of operation her heart had stopped functioning and after giving massage and pumping, again her heart started functioning, the same is reproduced hereunder :
"(10) I have a Master's Degree in Surgery. As a Specialist in MS for female patients, I cannot make a mistake. It is true that Specialists for female patients come under the Gynecology Department. After an MBBS, a degree in Gynecology is obtained after three years. A doctor with a degree in Gynecology is capable of performing operations. I am General Surgeon. In general surgery, we have knowledge of the fundamental principles of surgery. It is true that M.B. Gynecologist has more knowledge of female patients.
(11) When the patient was brought to me, she had a cancerous tumor on the cervix of her uterus. I had a biopsy for a cancerous tumor and there was bleeding. I also had checked her hemoglobin on the same day I performed the biopsy. At that time, her hemoglobin level was 6.86. In a woman, a normal hemoglobin level is 13.5 to 14.5. The patient was anemic. It is not necessary to have a cardiogram done if the patient has an anemic condition. If a patient is anemic, in normal circumstances, a cardiogram would be Page 20 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined needed if the clinical situation required it. I had checked the deceased to see whether she had any heart problems. In my examination, I checked her blood pressure, pulse rate, and heart sounds, etc. These facts seemed normal during my examination.
Therefore, I did not feel that there was a need to perform a cardiogram. I do not agree that it is mandatory to take a cardiogram for a pre-operative assessment before an operation. It is true that the patient's heart stopped during the operation. I cannot state the exact time after the operation started when her heart stopped. The immediate need for the patient's operation means it should be done as soon as possible, within days. In my opinion, it should be done within two to three days at the latest. I had advised the patient to go to MP Shah Cancer Hospital before the operation. I gave this advice on the same day. It is not true that this is the first time I stated that I advised them to go to MP Shah Cancer Hospital. The primary preparation before an operation involves monitoring the patient's blood pressure, administering appropriate antibiotics etc. When I took the patient to the operation table for performing operation, her hemoglobin was approximately 10.7.
(12) It is not true that the patient's condition was not good when I took her on the operating table. It is not true that the patient's hemoglobin was lower than required and her heart was weak before the operation. It is not true that there was a possibility of other complications due to cancer. It is not true that for a serious disease like uterine cancer, a gynecologist is a more competent specialist doctor and a general surgeon cannot be considered an ideal surgeon for it.
(13) I am the owner of the said Nursing Home. I perform the operations myself in my Nursing Home. During an operation, my Assistants carry out their procedures under my instructions and supervision. This operation required anesthesia. I had taken the services of Dr. R.J. Agrawal from Palanpur for anesthesia; he is a specialist in anesthesia. I do not have knowledge on the level of an anesthesiology expert. Mr. Agrawal gave the patient an injection in the back. But I do not know what was the level of oxygen. Before the injection was given, I did not have a discussion with Mr. Agrawal regarding how and where the injection would be given. It is not my job to determine the dose of anesthesia. It is not true that the patient's heart stopped functioning five to ten minutes after the anesthesia was given. I want to state that the heart had stopped half an hour after the anesthesia was given. The reason why the heart stopped functioning during the operation could not be determined at that time. I do not agree that the heart stopped due to an insufficient amount of oxygen reaching there. The reason for my opinion is that one can estimate whether the oxygen is reaching to the heart from the colour of the patient's blood. The colour of the blood can be observed with the naked eye. The colour of the blood is not noted during the operation. At that time, there was no device to measure the amount of oxygen in the blood. I cannot say due to Page 21 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined which other reasons the patient's heart had stopped functioning. It is true that the patient's heart condition was good during the operation means there was no possibility of the heart stopping. It is true that it could not be known at the relevant time if the patient's brain was affected due to a lack of oxygen reaching it before the heart stopped. The time was taken when the heart stopped and then restart with a massage was three to five minutes. I did not come to know as to what damage might have been caused to the patient's brain during the time period of four to five minutes that were passed in resuscitating after the heart had stopped. When the heart stops, blood cannot reach the brain, which can cause brain damage. The time limit for improving the damage condition of the patient's brain sustained in this case is not set. The patient's brain damage could not be recovered and the patient may have remained permanently unconscious which could have been the cause of death. I do not agree that the brain could not get sufficient oxygen and due to that brain had damaged. In this patient's case, brain damage could have been caused by a lack of oxygen, and that lack of oxygen could have been caused of heart stopping. I have oxygen cylinders. An oximeter on the oxygen cylinder can determine the amount and pressure of the oxygen. The oximeter readings are not recorded during the operation; I do not keep them. The anesthesiologist usually keeps it. During such operation, blood pressure monitor is attached to the patient, which can be used to determine blood pressure. The anesthesiologist records the patient's blood pressure during the operation. The blood pressure of the patient was not noted when the heart stopped. When the patient's operation began, her blood pressure was measured and noted. I noted it in the case papers. It is not true that there was a phone call from the Sir during the operation. It is not true that during such operation, Dr. Agrawal went outside the Operation Theater to attend a phone call. It is not true that during the operation, Dr. Agrawal went outside the Operation theater to attend a phone call. It is not true that when Dr. Agrawal went outside to make a call and was talking on the phone, the patient's relatives went near the phone. It is not true that during this time, the patient was deprived of the services of Dr. Agrawal.
(14) It is true that the patient's husband and her relatives were present at the hospital during the operation. It is not true that she was deprived of service of Dr. Agrawal when the anesthetist went out for a telephone call and returned. I cannot state certainly whether the patient's heart stopped as the blood pressure decreased during the operation. A tube had been inserted into the nose for the operation. During the operation, I concentrated on performing the operation. It was Dr. Agrawal's job to ensure that the oxygen was flowing through the tube. I cannot state whether the blood pressure deceased within twenty minutes of the operation starting. If the heart had stopped functioning due to a drop in blood pressure, it can be assumed that the body was receiving less oxygen. This is my opinion as an expert. A device called a "Boyles Page 22 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined trolley" was kept to administer oxygen. It is true that there was no device to measure oxygen except the Boyles trolley. When the anesthesia injection is given in the lower back, the amount of the anesthesia's effect on the upper part of the body depends on the quantity administered. I do not know how much anesthesia was administered to the deceased via injection. It is possible that if the upper part of the back is affected, it could affect the heart, which could cause the heart to function. It is true that there is a possibility of a problem if the patient's breathing is not monitored. It is true that the amount of oxygen going into the body after anesthesia should be monitored and a device for that should be present. The Boyles trolley can show how much oxygen is going into the patient's body, but it cannot determine the level in the blood. The device for measuring oxygen in the blood is a pulse oximeter. I did not have one at the time. It is true that if the oxygen level remains low for a long time, there is a possibility of a drop in blood pressure. If there had been a device called a pulse oximeter, the amount of oxygen in the blood could have been known. I do not know if "Capnograph" is a new device for measuring the amount of oxygen entering the blood through anesthesia. The above-mentioned devices, if possible, should be kept for monitoring the oxygen level during anesthesia for an operation. I cannot state certainly whether this case occurred due to the lack of these monitoring instruments.
(15) Dr. Agrawal was called during the operation after consulting with the patient's relatives. I had not taken consent for any specific doctor by name. Separate consent was not taken to call any doctor. Anesthesia is required for the patient during the operation. As we cannot give it, a specialist has to be called. It is true that the process of sedating the patient is a part of the operation. It is true that I had called Dr. Agrawal. I had called Dr. Agrawal only to administer anesthesia to the patient. It is not true that the responsibility for the anesthesia procedure is mine. It is not true that I pay for the anesthesia charges from my bill.
(16) It is not true that in this case, due to an inadequate supply of oxygen to the patient's lungs by anesthesia and the lack of monitoring equipment, the patient's blood pressure dropped, and as a result, her heart stopped after about twenty minutes. It is not true that due to an excessive amount of anesthesia, the upper part of the back was overly affected, which reached the heart and caused damage, and as a result, the amount of oxygen received decreased, causing the heart to stop.
(17) I finished the operation around 10-11 hrs. It is not possible to know immediately after the operation whether the deceased's brain was affected. In my opinion, it takes a maximum two hours for a patient to regain consciousness after being given anesthesia. Champaben did not regain full consciousness. After the patient was taken from the operating theater to the ward, I examined her. After some time, the patient's relatives informed me that she had not Page 23 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined regained consciousness. Therefore, I called Dr. Agrawal because I did not see it as a surgical problem but rather something related to anesthesia and therefore I called him. At that time, Dr. Agrawal examined the patient and told me that the brain damage sustained when the heart had stopped and therefore there is no reason to engage here. Therefore, I called other physicians and anesthesiologists. These doctors also gave the same opinion. It is not true that I told the patient's relatives that the treatment was ongoing and that she would regain consciousness during the day. After the operation, the patient was an inpatient at my clinic, and her relatives were with her. The patient's relatives might believe that the lack of sufficient oxygen was the reason for what happened. The patient stayed with me for about a month.
(18) I had recommended the patient to Dr. Ranjit Acharya for further examination. I am shown Mark 35/23, which is a photocopy of the note at Exhibit-250 I recommended for Dr. Ranjit Acharya. We had given the patient treatment with this note. Two prescriptions--a note and two reference papers--were also sent with this note, Exhibit- 250/A and 250/B are assigned. Dr. Acharya has given an opinion starting vide 196. Champaben's brain condition remained the same as it was during the operation for as long as she stayed in my clinic.
(19) It is true that when a patient is in an unconscious state, he/she cannot perform any actions on his/her own and require the assistance of another person. It is true that if a patient remains in the same position, pressure ulcers can develop on his/her back. To keep the patient healthy, food and medicines are necessary. It is true that such patients require the services of a nurse. It is true that Champaben had died slowly as she did not recover from her unconscious state. There is a possibility of death due to a lack of proper nutrition. It is not true that due to Champaben's death, her husband, children, and heirs were deprived of the services she provided and had to bear financial losses. It is not true that there was a huge financial loss on medicines and the operation after Champaben died following the operation. It is not true that the heirs are entitled to receive Rs. 3 lakhs from me as compensation. It is not true that as the head of this clinic, it is my responsibility since the patient was admitted to my clinic. It is not true that due to my and Dr. Agrawal's negligence and the lack of necessary equipment, Champaben did not receive enough oxygen, her blood pressure dropped, and she slipped into a coma."
9. In view of above facts of the case, we accept that the appellants had not taken proper care after the deceased was sent to her home and she was not provided any treatment till she died. Considering the facts and considering the law laid Page 24 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025 NEUTRAL CITATION C/FA/1910/2002 JUDGMENT DATED: 20/08/2025 undefined down by the Hon'ble Apex Court as aforesaid, I am of the opinion that the trial court has not committed any error while passing the impugned judgment and decree in favour of the respondents and thus, the present appeals deserve to be dismissed.
10. In the result, both the appeals are hereby dismissed. No order as to costs. Record & Proceedings, if any, be sent back to the concerned Court forthwith.
10.1 So far as the adverse observation made by the trial court with regard to the negligence and carelessness on the part of the appellants - doctors is concerned, in my opinion, the same is required to be removed and the same is hereby expunged from the impugned judgment and decree.
10.2 So far as the liability to pay compensation as awarded by the trial court is concerned, the same is hereby confirmed. The amount deposited by the appellants - original defendant Nos.1 and 2, lying in the Fixed Deposit of the concerned trial court, the same shall be disbursed in favour of the respondents - original plaintiffs alongwith interest accrued on it, in equal proportion, after proper verification and after following due procedure through RTGS/NEFT.
(HEMANT M. PRACHCHHAK,J) Dolly Page 25 of 25 Uploaded by DOLLY CHETAN VADUKAR(HC01392) on Tue Sep 09 2025 Downloaded on : Fri Sep 12 23:26:23 IST 2025