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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 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 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 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, 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.

(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 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 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.