PETITIONER: LAXMAN BALKRISHNA JOSHI Vs. RESPONDENT: TRIMBAK BAPU GODBOLE AND ANR. DATE OF JUDGMENT: 02/05/1968 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. BACHAWAT, R.S. GROVER, A.N. CITATION: 1969 AIR 128 1969 SCR (1) 206 CITATOR INFO : RF 1989 SC1570 (9) ACT: Tort-Negligence of Surgeon. HEADNOTE: A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action of negligence against him. The medical practitioner has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care according to -the circumstances of each case. [213 C-E] In the present case, on 6th May 1953, the son of the first respondent suffered a fracture of the femur of his left leg. First aid was given by -a local physician though the leg was not fully or properly immobilised, and, on the 9th May be was taken to the appellant's hospital in Poona 200 miles away, in a taxi after a journey of about eleven hours. The appellant directed his assistant to give two injections of morphia but only one injection was given. The patient was then given some treatment in the operation theatre and the first respondent was assured at 5.30 p.m. that everything was all right and that the patient would be out of the effects of morphia by 7 p.m. The first respondent thereupon left for Dhond where he was practising as a medical practitioner. A little later however, the patient's condition deteriorated and at 9 p.m. be died. The 'appellant issued a certificate that the cause of death was fat embolism. The first respondent filed a suit against the appellant for damages for negligence towards his patient. The trial Court, and the High Court in appeal, held that the appellant had performed reduction of the fracture, that in doing so he applied with the help of three of his assistants excessive force, that such reduction was done without giving any anaesthetic but while the patient was under the effect of the morphia injection, that the said treatment resulted in the embolism, or shock, which was the proximate cause of death, that the appellant was guilty of negligence and wrongful acts, and awarded Rs. 3,000 as damages. In appeal to, this Court, it was contended that : (1) The High Court erred in placing reliance on medical works instead of considering the evidence of the expert examined on behalf of the respondents; and (2) the findings though concurrent, should be reopened by this Court, as they were arrived at on a misunderstanding of the evidence and on mere conjectures and surmises. HELD: (1) There was nothing wrong in the High Court emphasising the opinions of authors of well-recognised medical works instead of basing its conclusions on the expert's evidence as, it was a alleged by the appellant that the expert was a professional rival of the appellant and was, therefore, unsympathetic towards him. [216 E-F] 207 (2) The trial court and the High Court were right in holding that the appellant was guilty of negligence and wrongful acts towards the patient and was liable for damages, because, the first respondent's case that what the appellant did was reduction of the fracture without giving anaesthetic, and not mere immobilisation with light traction 'as was the appellant's case, was more acceptable and consistent with the facts and circumstances of the case. [218 C-D] (a) The first respondent himself was a medical practitioner who was present throughout when treatment was being given to his son and understood the treatment [214 A] (b) If reduction of the fracture had been postponed and only immobilisation had been done, the first respondent would not have left for Dhond. It was only because the reduction of fracture had been done and the first respondent was assured that the patients 'condition was satisfactory and that he would come out of the morphia effect in an hour or so, that the first respondent felt that his presence was no longer necessary. [214 F-H; 215 A-B] (c) The patient must have been unconscious due to the effects of morphia and the appellant's version that the patient was cooperating throughout the treatment in the operation theatre could not be true. The second morphia injection was not given as directed, because, the first one had a deeper effect than was anticipated and not because the assistant forgot to give it. [214 C-D; E-F] (d) In spite of the first respondent having made a specific reference to the reduction of the fracture and the use by the appellant of excessive manual force without administering anaesthetic, in his complaint to the Medical Council the appellant in his explanation did not specifically answer it. [215 F-H] (e) If his version as to the treatment given by him to the patient were correct, there was no need for the appellant, in his letter to the first respondent, written two months later, to 'ask forgiveness for any mistake committed by him. [215 E-F] (f) The cause of death was shock resulting from the appellant's treatment. The appellant's theory that death was due to embolism which must have set in from the time the accident occurred was only an afterthought, because : (i) in his apologetic letter he confessed that even then he was not able to gauge the reasons for the death, (ii) symptoms showing embolism were not noticed either by the appellant or the first respondent, and (iii) the appellant having been surgeon of long experience and knowing that two days had elapsed since the accident would surely have looked for the symptoms if he had felt there was a possibility of embolism having set in. [217 G-H; 218 A-C] JUDGMENT:
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 547 of 1965.
Appeal by special leave from the judgment and decree dated
February 25, 27, 1963 of the Bombay High Court in First
Appeal No. 552 of 1968.
Purshottamdas Tricumdas and I. N. Shroff, for the appellant.
Bishan Narain, B. Dutta and J. B. Dadachatnji, for the
respondents.
208
The Judgment of the Court was delivered by
Shelat, J. This appeal by special leave raises the question
of the liability of a surgeon for alleged neglect towards
his patient. It arises from the following facts.
At about sunset on May 6, 1953, Ananda, the son of respon-
dent 1, aged about twenty years, met with an accident on the
sea beach at Palshet, a village in Ratnagiri District, which
resulted in the fracture of the femur of his left leg.
Since the sea beach was at a distance of 14′ miles from the
place where he and his mother lived at the time it took some
time to bring a cot and remove him to the house. Dr.
Risbud, a local physician, was called at about 8-30 or 8-45
P.m. The only treatment he gave was to tie wooden planks on
the boy’s leg with a view to immobilise it and give rest.
Next day, he visited the boy and though he found him in good
condition, he advised his removal to Poona for treatment.
On May 8, 1953, Dr. Risbud procured Mae Intyres splints and
substituted them for the said wooden planks. A taxi was
thereafter called in which the boy Ananda was placed in a
reclining position and he, along with respondent 2 and Dr.
Risbud, started for Poona at about 1 A.m. They reached the
city after a journey of about 200 miles at about 11-30 A.m.
on May 9, 1953. By that time respondent 1 had come to Poona
from Dhond where he was practising as a medical
practitioner. They took the boy first to Tarachand Hospital
where his injured leg was screened. It was found that he
had an overlapping fracture of the femur which required pin-
traction. The respondents thereafter took the boy to the
appellant’s hospital where, in his absence, his assistant,
Dr. Irani, admitted him at 2-15 P.m. Some time thereafter
the appellant arrived and after a preliminary examination
directed Dr. Irani to give two injections of 1/8th grain of
morphia and 1/200th grain of Hyoscine H.B. at an hour’s
interval. Dr. Irani, however, gave only one injection.
Ananda was thereafter removed to the X-ray room on the
ground floor of the hospital where two X-ray photos of the
injured leg were taken. He was then removed to the
operation theatre on the upper floor where the injured leg
was put into plaster splints. The boy was kept in the
operation theatre for a little more than an hour and at
about 5-30 P.m., after the treatment was over, he was
removed to the room assigned to him. On an assurance given
to respondent 1 that Ananda would be out of the effect of
morphia by 7 P.m., respondent 1 left for Dhond. Respondent
2, however, remained with Ananda in the said room. At about
6-30 P.m. she noticed that he was finding difficulty in
breathing and was having cough. Thereupon Dr. Irani called
the appellant who, finding that the boy’s condition was
deteriorating started giving emergency treatment which
continued right until 9 P.m. when the
209
boy expired. The appellant thereupon issued a certificate,
Ext. 138, stating therein that the cause of death was fat
embolism.
The case of the respondents, as stated in para 4 of the
plaint, was that the appellant did not perform the essential
preliminary examination of the boy before starting his
treatment; that without such preliminary examination a
morphia injection was given to him; that the boy soon after
went ‘under morphia’ that while he was ‘under morphia’ the
appellant took him to the X-ray room, took X-ray plates of
the injured leg and removed him to the operation theatre.
Their case further was that
“While putting the leg in plaster the
defendant used manual traction and used
excessive force for this purpose, with the
help of three men although such traction is
never done under morphia alone, but done under
proper general anesthesia. This kind
of rough
manipulation is calculated to cause conditions
favourable for embolism or shock and prove
fatal to the patient. The plaintiff No. 1 was
given to understand that the patient would be
completely out of morphia by 7 p.M. and that
he had nothing to worry about. Plaintiff No.
1 therefore left for Dhond at about 6 P.M. the
same evening.”
In his written statement the appellant denied these
allegations and stated that the boy was only under the
analgesic effect of the morphia injection when he was taken
to the X-ray room and his limb was put in plaster in the
operation theatre. Sometime after the morphia injection the
patient was taken to the X-ray room where X-ray plates were
taken. The boy was cooperating satisfactorily. He was
thereafter removed to the operation theatre and put on the
operation table. The written statement tiler, proceeds to
state :
“Taking into consideration the history of the
patient and his exhausted condition, the
defendant did not find it desirable to give a
general anesthetic. The defendant, therefore,
decided to immobilise the fractured femur by
plaster of Paris bandages. The defendant
accordingly reduced the rotational deformity
and held the limb in proper position with
slight traction and immbilised it in plaster
spica. The hospital staff was in attendance.
The patient was cooperating satisfactorily.
The allegation that the defendant used exces-
sive force with the help of three men for the
purpose of manual traction is altogether false
and mischievous and the defendant does not
admit it.”
The appellant further averred that
210
“the defendant put the patients limb in
plaster as an immediate preliminary treatment
on that day with a view to ameliorate the
patient’s condition.”
His case further was that at about 6-30 P.m. it was found
that the boy’s breathing had become abnormal whereupon the
appellant immediately went to attend on him and found that
his condition had suddenly deteriorated, his temperature had
one high, he was in coma, was having difficulty in breathing
and was showing signs of cerebral embolism and that
notwithstanding the emergency treatment he gave, he died at
about 9 P.M. The parties led considerable evidence, both
oral and documentary,, which included the correspondence
that had ensued between them following the death of Ananda,
the appellant’s letter, dated July 17, 1953 to respondent 1,
the complaint lodged by respondent 1 to the Bombay Medical
Council, the appellant’s explanation thereto and such of the
records of the case as were Produced by the appellant. The
oral testimony consisted of the evidence of the two
respondents, Dr. Gharpure and certain other doctors of Poona
on the one side and of the appellant and his assistant Dr.
Irani, on the other. The nurse who attended on the boy was
not examined. At the time of the arguments the parties used
extensively well-known works on surgery, particularly with
reference to treatment of fractures of long bones such as
the femur.
On this evidence, the trial court came to the following
findings : (a) The accident resulting in the fracture of
femur in the left leg of Ananda occurred at about 7 P.m. on
May 6, 1953 at the sea beach of village Palshet. That place
was about one and a quarter mile away from the place where
he and respondent 2 had put up. Arrangement had to be made
for the cot to remove him and the boy was brought home
between 8-30 and 9 P.m., (b) Dr. Risbud was called within
ten minutes but except for tying three planks to immobilise
the leg he gave no other treatment. This was not enough
because the fracture was in the middle third of the femur
and, therefore, the hip joint and the knee joint ought to
have been immobilised, (c) On May 8, 1953, Dr. Risbud
removed the planks and put the leg in Mac Intyres splints.
There was on that day swelling in the thigh and that part of
the thigh had become red. The Mac Intyres protruded a
little beyond the foot, (d) At about mid-night on 8/9 May
1953, a taxi was brought to Palshet. Ananda was lifted into
it and made to lie down in a reclining position. The party
left at 1 A.M. and reached Poona at about 11-30 A.m. The
journey took nearly eleven hours. The boy was first taken
to Tarachand hospital and from there to the appellant’s
hospital where he was admitted by Dr. Irani at about 2-15
P.m., (e) After the appellant was summoned to the hospital
by Dr. Irani, he first examined his
211
heart and lungs, took temperature, pulse and respiration and
the boy was thereafter taken to the X-ray room where two X-
ray plates were taken. The appellant then directed Dr.
Irani to. give two morphia injections at an hour’s interval
but Dr. Irani gave only one injection instead of two ordered
by the appellant. The trial court found that the appellant
had carried out the preliminary examination before he
started the boy’s treatment. (f) The morphia injection was
given at 3 P.m. The boy was removed to the X-ray room at
about 3-20 P.m. He remained in that room for about 45
minutes and was then removed to the operation theatre at
about 4 P.m. and was there till about 5 P.m. when he was
taken to the room assigned to him. The boy was kept in the
operation theatre for a little over’ an hour. (g) Respondent
1 was all throughout with Ananda and saw the treatment given
to the boy and left the hospital for Dhond at about 6 P.m.
on the assurance given to him that the, boy would come out
of the morphia by about 7 P.m. (h) At about 6-30 P.m.
respondent 2 complained to Dr. Irani that the boy was having
cough and was finding difficulty in breathing. The
appellant, on being called, examined the boy and found his
condition deteriorating and, therefore, gave emergency
treatment from 6-30 P.m. until the boy died at 9 P.m.
On the crucial question of treatment given to Ananda, the
trial Court accepted the eye, witness account given by
respondent 1 and came to the conclusion that notwithstanding
the denial by the appellant, the appellant had performed
reduction of the fracture; that in doing so he applied with
the help of three of his attendants excessive force, that
such reduction was done without giving anesthetic, that the
said treatment resulted in cerebral embolism or shock which
was the proximate cause of the boy’s death. The trial court
disbelieved the appellant’s case that be had decided to
postpone reduction of the fracture or that his treatment
consisted of immobilisation with only light traction with
plaster splints. The trial Judge was of the view that this
defence was an after-thought and was contrary to the
evidence and the circumstances of the case. On these
findings he held the appellant guilty of negligence and
wrongful acts which resulted in the death of Ananda and
awarded general damages in the sum of Rs. 3,000.
In appeal, the High Court came to the conclusion that though
the appellant’s case was that a thorough preliminary
examination was made by him before he started the treatment,
that did not appear to be true. The reason for this
conclusion was that though Dr. Irani swore that the
patient’s temperature, pulse and respiration were taken, the
clinical chart, Ext. 213, showed only two dots, one
indicating that pulse was 90 and the other that respiration
was 24. But the chart did not record the temperature. If
that was taken, it was hardly likely that it would not be
recorded along with pulse and respiration.
212
As regards the appellant’s case that he had decided to delay
the reduction of the fracture and that he would merely
immobilise the patient’s leg for the time being with light
traction, the High Court agreed with the trial court that
case also was not true. The injury was a simple fracture.
The reasons given by the appellant for his decision to delay
the reduction were that (1) there was swelling on the thigh,
(2) that two days had elapsed since the accident, (3) that
there was no urgency for reduction and (4) that the, boy was
exhausted on account of the long journey. The High Court
observed that there could not have been swelling at that
time for neither the clinical notes, Ext. 213, nor the case
paper, Ext. 262 mentioned swelling or any other symptom
which called for delayed reduction. Ext. 262 merely men-
tioned one morphia injection, one X-ray photograph and
putting the leg in plaster of Paris. The reference to one
X-ray photo was obviously incorrect as actually two such
photos were taken. This error crept in because the case
paper, Ext. 262, was prepared by Dr. Irani some days after
the boy’s death after the X-ray plates had been handed over
on demand to respondent 1 and, therefore, were not before
her when she: prepared Ext. 262. Her evidence that she had
prepared that exhibit that very night was held unreliable.
Ext. 262, besides, was a loose sheet which did not even
contain either the name of the appellant or his hospital.
It was impossible that a hospital of that standing would not
have printed forms for clinical diagnosis.
The next conclusion that the High Court reached was that if
the appellant had come to a decision to postpone reduction
of the fracture on account of the reasons given by him in
his evidence, he would have noted in the clinical chart,
Ext. 213, or the clinical paper, Ext. 262, the symptoms
which impelled him to that decision. The High Court agreed
that the medical text books produced before it seemed to
suggest that where time has elapsed since the occurrence of
the fracture and the patient has arrived after a long
journey. deferred reduction is advisable. But the High
Court observed, the question was whether the appellant did
defer the reduction and performed only immobilisation to
give rest to the injured leg. After analysing the evidence,
it came to the conclusion that what the appellant actually
did was to reduce the fracture, that in doing so he did not
care to give annaesthetic to the patient, that he contented
himself with a single morphia injection, that he used
excessive force in going through this treatment, using three
of his attendants. for pulling the injured leg of the
patient that he put that leg in plaster of Paris splints,
that it was this treatment which resulted in shock causing
the patient’s death, and lastly, that the appellant’s case
that the boy died of cerebral embolism was merely a cloak
used for suppressing the real cause of death, viz., shock.
213
These findings being concurrent, this Court, according to
its well-established practice, would not ordinarily
interfere with them. But Mr. Purshottam urged that this was
a case where we should reopen the findings, concurrent
though they were, and reappraise the evidence as. the courts
below have arrived at them on a misunderstanding of the
evidence and on mere conjectures and surmises. In order to
persuade us to do so, he took us through the important parts
of the evidence. Having considered that evidence and the
submissions urged by him, we have come to the conclusion
that no grounds are made out which could call for our
interference with those findings.
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 deciding what treatment to give or a duty of care in
the administration of that treatment. A breach of any of
those, duties gives a right of action for negligence to, the
patient. The practitioner must bring to his task a
reasonable degree of skill and knowledge and must exercise a
reasonable degree of care. Neither the very highest nor a
very low degree of care and competence judged in the light
of the particular circumstances of each case is what the law
require : (cf. Halsbury’s Laws of England 3rd ed. vol. 26
p. 17). The doctor no doubt has a discretion in choosing
treatment which he proposes to give to the patient and such
discretion is relatively ampler in cases of emergency. But
the question is not whether the judgment or discretion in
choosing the treatment be exercised was right or wrong, for,
as Mr. Purshottam rightly agreed, no such question arises in
the present case because if we come to the same conclusion
as the High Court, viz., that what the appellant did was to
reduce the fracture without giving anesthetic to the boy,
there could be no manner of doubt of his being guilty of
negligence and carelessness. He also said that he was not
pressing the question whether in this action filed under the
Fatal Accidents Act (XIII of 1855) the respondents would be
entitled to get damages. The question, therefore, is within
a small compass, namely, whether the concurrent findings of
the trial court and the High Court that what the appellant
did was reduction of the fracture without giving anesthetic
to the boy and not mere immobilisation with light traction
as was his case, is based on evidence or is the result of
mere conjecture or surmises or of misunderstanding of that
evidence.
While considering the rival cases of the parties, it is,
necessary to bear in mind that respondent 1 is a medical
practitioner of considerable standing and though not an
expert in surgery, he is
214
not a layman who would not understand the treatment which
the appellant gave to the boy. It is not in dispute that he
was present all throughout and saw what was being done,
first in the X-ray room and later in the operation theatre.
The trial court and the High Court had before them his
version on the one hand and that of the appellant on the
other and if they both found that his version was more
acceptable and consistent with the fact,-, and circumstances
of the case than that of the appellant, it would scarcely be
legitimate to say that they acted on sheer conjecture or
surmise.
It is not in dispute that the appellant had directed Dr.
Irani to administer two morphia injections. Admittedly only
one was given. Dr. Irani said that it wag not that she
omitted to give the second injection on the appellant’s
instructions but that she, forgot to give the other one.
That part of her evidence hardly inspires condence for, in
such a case as the present it is impossible to believe that
she would forget the appellant’s instructions. The second
one was probably not given because, the one that was given
had a deeper effect on the boy than was anticipated. The
evidence of respondent 1 was that after the boy was brought
from the operation theatre to the room assigned to him, he
was assured by the appellant that the boy was all right and
would come out of the morphia effect by about 7 P.m. and
that thereupon he decided to return to Dhond and did in fact
leave at 6 P.m. Both the courts accepted this part of his
evidence and we see no reason to find any fault with it.
What follows from this part of his evidence, however, is
somewhat important. If respondent 1 was assured that the
boy would come out of the effect of morphia by about 7 P.m.,
it must mean that the appellants version that the boy was
cooperating all throughout in the operation theatre and was
even lifting his hand as directed by him cannot be true.
Though the morphia injection of the quantity said to have
been administered to the boy would ordinarily bring about
drowsiness and relief from pain, the evidence, was that the
boy was unconscious. It seems that it was because of that
fact that Dr. Irani had refrained from giving the second
injection. The second result that follows from this part of
the evidence of respondent 1 is that if the fracture had not
been reduced but that the appellant had only used light
traction for immobilising the injured leg and had postponed
reduction of the fracture, it was hardly likely that he
would not communicate that fact to respondent 1. In that
event, it is not possible that respondent 1 would decide to
leave for Dhond at 6 P.m. There would also be no question of
the appellant in that case giving the assurance that it was
all right with the boy. That such an assurance must have
been given is borne out by the fact that respondent 1 did in
fact leave Poona for Dhond that very evening. That would
not have happened if reduction of the
215
fracture had been postponed and only immobilisation had been
done. The assurance given by the appellant upon which
respondent 1 left Poona for Dhond implies, on the contrary,
that whatever was to be done had been done And that the
presence of respondent 1 was no longer necessary as the
boy’s condition thereafter was satisfactory and he would
come out of the morphia effect in an hour or so. This
conclusion is fortified by the fact that it was never put
to, respondent 1 that the appellant had at any time told him
that he had postponed reduction of the fracture and that the
only thing he had done was immobilisation by way of
preliminary treatment.
The letter of the appellant to respondent 1 dated July 17,
1953, was, in our view, rightly highlighted by both the
courts while considering the rival version of the parties.
In our view, it was not written only to express sympathy
towards respondent 1 for the death of his son but was the
result of remorse on the appellant’s part. If the only
treatment he had given was to immobilise the boy’s leg and
he had postponed putting the fractured ends of the bone
right at a later date, it is impossible that he would write
the letter in the manner in which he did. If he was certain
that fat embolism had set in and the boy’s death was due to
cerebral embolism, it is impossible that he would write in
that letter that it was difficult for him even after one and
a half months to piece together the information which could
explain the reasons why the boy died. If his version as to
the treatment given to the boy were to be correct, there was
hardly any need for him in that letter to ask forgiveness
for any mistake, either of commission or omission, which he
might have committed. It is significant that until he filed
his written statement, he did not at any stage come out in a
forthright manner that what he had done on that day was only
to immobilise the boy’s leg by way only of preliminary
treatment and that he had postponed to perform reduction of
the fracture at a later date. In the complaint which
respondent 1 filed before the Medical Council he had
categorically alleged that while putting the boy’s leg in
plaster splints the appellant had used excessive manual
force for about an hour, that what he, did was reduction of
the fracture without administering anaesthetic and that was
the cause of the boy’s death. It is strange that in his
explanation to the Council, the appellant did not answer
specifically to those allegations and did not come out with
the version that there was no question of his having used
excessive force and that too for about an hour as he had
postponed reduction and had only given rest to the boy’s leg
by immobilising” it in plaster splints.
As we have already stated, both sides used a number of
medical works both at the stage of evidence and the
arguments in the, trial court. Certain passages from these
books were shown to
216
the appellant in cross-examination which pointed out that
plaster casts are used after and not before reduction of the
fracture. The following passage from Hagnuson’s Fractures
(5th ed.) p. 71, was pointed out to him
“It is important to reduce a fracture as
promptly as possible after it occurs before
there is induration, delusion of blood and
distension fascia”.
The appellant disagreed with this view and relied on an
article by Moore, Ext. 295, where the author advocates
delayed reduction. But in that very article the author
further on points out that “if teams which provide well-
trained supervision are available for immediate reduction
“it should be made. ‘The author also states that where
plaster cast is used for immobilisation before reduction a
cylindrical section 3″ to 4” in width at the site of the
fracture should be removed leaving the rest of the cast
intact. The appellant did not follow these instructions
though he placed considerable reliance on the above passage
for his theory of delayed reduction. Counsel for the
appellant complained that the High Court perused several,
medical works, drew inspiration and raised inferences
therefrom instead of relying on Dr. Gharpure’s evidence, an
expert examined by the respondents. We do not see anything
wrong in the High Court relying on medical works and
,deriving assistance from them. His criticism that the High
Court did not consider Dr. Gharpure’s evidence is also not
correct. There was nothing wrong in the High Court
emphasising the opinions of authors of these works instead
of basing its conclusions on Dr. Gharpure’s evidence as it
was alleged that doctor was a professional rival of the
appellant and was, therefore, unsympathetic towards him.
From the elaborate analysis of the evidence by both the
trial court and the High Court, it is impossible to say that
they did not consider the evidence before them or that their
findings were the result of conjectures or surmises or
inferences unwarranted by that evidence. We would not,
therefore, be justified in reopening those concurrent
findings or reappraising the evidence.
As regards the cause of death, the respondents’ case was
that the boy’s condition was satisfactory at the time be was
admitted in the appellant’s hospital, that if fat embolism
was the cause of death, it was due to the heavy traction and
excessive force resorted to by the appellant without
administering anaestbetic to the boy. The appellant’s case,
on the other band, was that fat embolism must have set in
right from the time of the accident or must have been caused
on account of improper or inadequate immobilisation of the
leg, at Palshet and the hazards of the long journey in the
taxi and that the boy died, therefore, of cerebral embolism.
In the death certificate issued by him, the appellant no
doubt had
217
stated that the cause of death was cerebral embolism. It is
true that some medical authors have mentioned that tat
embolism is seldom recognised clinically and is the cause of
death in over twenty per cent of fatal fracture cases. But
these authors have also stated that diagnosis of that
embolism can be made if certain physical signs are
deliberately sought by the doctor. Mental disturbance and
alteration of coma with full consciousness occurring some
hours after a major bone injury should put the surgeon on
guard. Ho should examine the neck and upper trunk for
petechial haemorrhages. He should turn down the lower lid
of the eye to see petechiae; very occasionally there would
be fat in the sputum or in the urine, though these are, not
reliable signs. In British Surgical Practice, Vol 3, (1948
ed.) p. 378, it is stated,
“a fracture of a long bone is the most
important cause of fat embolism, and there is
an interval usually of 12-48 hours between the
injury and onset of symptoms during which the
fat passes from the contused and lacerated
narrow to the lungs in sufficient quantity
to produce effects………………… The
characteristic and bizarre behaviour noted in
association with multiple cerebral fatty
emboli usually begins within 2 or 3 days of
the injury. The preceding pulmonary symptoms
may be overlooked, especially in a seriously
injured patient. The patient is apathetic and
confused, answering simple questions with
difficulty; soon he becomes completely
incoherent. Some hours later delirium sets
in, often alternating with stupor and
progressing to coma. During the delirious
phase the patient may be violent.”
In an article in the Journal of Bone Joint Surgery, by
Newman, (Ext. 291), the author observes that the typical
clinical picture is that of a man in the third or fourth
decade who in consequence of a road accident has sustained
fracture of the femur and is admitted to hospital perhaps
after a long and rough journey with the limp improperly
immobilised, suffering a considerable shock. None of the,
symptoms noted above were found by the appellant. ‘The
appellant is a surgeon of long experience. Knowing that two
days had elapsed since the accident, that the leg of the
patient had not been fully or properly immobilised and that
the patient had journeyed 200 miles in a taxi before coming
to him, if he had felt that there was a possibility of fat
embolism having set in, he would surely have looked for the
signs. At any rate, if he, had thought that there was some
such possibility, lie would Surely have warned respondent 1,
especially as -lie happened to be ‘a doctor also of long
standing. The evidence shows that the symptoms suggested in
the aforesaid passages were not noticed by the
Sup. C. I./68–15
218
appellant or respondent 1. The assurance that the appellant
gave to respondent 1 which induced the latter to return to
Dhond, the appellant’s apologetic letter of July 17, 1953 in
which he confessed that he had even then not been able to
gauge, the reasons for the boy’s death, the fact that while
giving treatment to the boy after 6-30 P.m. he did not look
for the symptoms above mentioned, all go to indicate that in
order to screen the real cause of death, namely, shock
resulting from his treatment, he had hit upon the, theory of
cerebral embolism and tried to bolster it up by stating that
it must have set in right from the time the accident
occurred. The aforesaid letter furnishes a clear indication
that he, was not definite even at that stage that death was
the result of embolism or that even if it was so, it was due
to the reasons which he later put forward.
In our view, there is no reason to think that the High Court
was wrong in its conclusion that death was due to shock
resulting from reduction of the fracture attempted by the
appellant without taking the elementary caution of giving
anaesthetic to the patient. The trial court and the High
Court were, therefore, right in holding that the appellant
was guilty of negligence and wrongful acts towards the
patient and was liable for damages.
The appeal is dismissed with costs.
V.P.S. Appeal dismissed.
219