{"id":144707,"date":"2011-02-04T00:00:00","date_gmt":"2011-02-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/moni-vs-state-of-kerala-on-4-february-2011"},"modified":"2015-01-16T15:24:12","modified_gmt":"2015-01-16T09:54:12","slug":"moni-vs-state-of-kerala-on-4-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/moni-vs-state-of-kerala-on-4-february-2011","title":{"rendered":"Moni vs State Of Kerala on 4 February, 2011"},"content":{"rendered":"
Kerala High Court<\/div>\n
Moni vs State Of Kerala on 4 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA.No. 832 of 2000(G)\n\n\n\n1. MONI\n                      ...  Petitioner\n\n                        Vs\n\n1. STATE OF KERALA\n                       ...       Respondent\n\n                For Petitioner  :SRI.GEORGE THOMAS (MEVADA)\n\n                For Respondent  :GOVERNMENT PLEADER\n\nThe Hon'ble MR. Justice P.BHAVADASAN\n\n Dated :04\/02\/2011\n\n O R D E R\n                          P. BHAVADASAN, J.\n               - - - - - - - - - - - - - - - - - - - - - - - - - - -\n                         S.A. No. 832 of 2000\n              - - - - - - - - - - - - - - - - - - - - - - - - - - - - -\n             Dated this the 4th day of February, 2011.\n\n                                 JUDGMENT\n<\/pre>\n
           The courts below found that the first defendant in<\/p>\n
O.S. 711 of 1996 before the Munsiff’s court, Ernakulam to be<\/p>\n
negligent in treating the plaintiff in the suit, whereby she had<\/p>\n
to incur heavy damages for further treatment at a different<\/p>\n
hospital.   The aggrieved first defendant has come up in<\/p>\n
appeal. The parties and facts are hereinafter referred to as<\/p>\n
they are available before the trial court.<\/p>\n
           2. It is not in dispute that the plaintiff was admitted<\/p>\n
in General Hospital, Ernakulam in the early hours of<\/p>\n
26.6.1995.   On the said day, at about 8.30 a.m. the first<\/p>\n
defendant is said to have examined her and according to the<\/p>\n
plaintiff she and her husband were told that a surgery is<\/p>\n
necessary to cure her illness. The plaintiff speaks about some<\/p>\n
payments made to the doctor. Several tests were done on<\/p>\n
1.7.1995, 4.7.1995 and 8.7.1995. All along, according to the<\/p>\n
S.A.832\/2000.                    2<\/span><\/p>\n
plaintiff, the first defendant reiterated that a surgery was<\/p>\n
the only option. According to the plaintiff, it so happened<\/p>\n
that the Minister for Health happened to visit the hospital<\/p>\n
and the husband of the plaintiff complained about the<\/p>\n
hospital building.      It is also stated that somebody had<\/p>\n
complained to the Minister about bribes being insisted by<\/p>\n
the first defendant and that annoyed and irritated him. He<\/p>\n
thereafter became indifferent and careless in treating the<\/p>\n
plaintiff and discharged her on 11.7.1995 when she had not<\/p>\n
recovered from her illness.       Thereafter she had to go to<\/p>\n
Ernakulam Medical Centre and to undergo a surgery. She<\/p>\n
had incurred heavy expenses and had undergone lot of<\/p>\n
sufferings. Pointing out that the need for operation arose<\/p>\n
due to the negligence on the part of the first defendant<\/p>\n
doctor, the suit was laid for damages.\n<\/p>\n
             3. The first defendant resisted the suit. He denied<\/p>\n
the allegations in the plaint and pointed out that     he   had<\/p>\n
done what a doctor would do in the circumstances under<\/p>\n
which the plaintiff was placed and he had never told either<\/p>\n
S.A.832\/2000.                   3<\/span><\/p>\n
the plaintiff or the husband of the plaintiff that operation<\/p>\n
was the only remedy. He asserted that he had followed<\/p>\n
conservative method of treatment and since the patient had<\/p>\n
responded to the treatment, he felt that surgery was<\/p>\n
unnecessary.     He also pointed out that at the time of<\/p>\n
discharge the plaintiff was given specific instruction that if<\/p>\n
there was any discomfort or       illness, she should at once<\/p>\n
come and meet him.        But after getting discharged, the<\/p>\n
plaintiff never turned up and he had no reason to think that<\/p>\n
the plaintiff was not cured. Denying that he was in any way<\/p>\n
negligent in treating the plaintiff, he prayed for a dismissal<\/p>\n
of the suit.\n<\/p>\n
             4. On the above pleadings, necessary issues were<\/p>\n
raised by the trial court.     The evidence consists of the<\/p>\n
testimony of P.Ws.1 to 8 and marked Exts.A1 to A19 from<\/p>\n
the side of the plaintiff.    The first defendant examined<\/p>\n
himself as D.W.1. Exts. X1 and X2 series were marked as<\/p>\n
third party exhibits. The trial court on an examination of the<\/p>\n
medical records and on the basis of the evidence of the first<\/p>\n
S.A.832\/2000.                    4<\/span><\/p>\n
defendant as D.W.1 came to the conclusion that there was<\/p>\n
gross negligence on the part of the first defendant and<\/p>\n
decreed the suit.\n<\/p>\n
             5. The first defendant carried the matter in appeal<\/p>\n
as A.S. 49 of 1998 before the Sub Court, Ernakulam. The<\/p>\n
lower appellate court after an evaluation of the evidence<\/p>\n
concurred with the trial court and dismissed the appeal.<\/p>\n
             6. Notice is seen to have been issued on the<\/p>\n
following questions of law:\n<\/p>\n
             “1)  Were not the courts below wrong in<\/p>\n
      awarding damages to the plaintiff in the absence<\/p>\n
      of any proof regarding negligent conduct from the<\/p>\n
      part of the 1st defendant resulting in any injury to<\/p>\n
      the plaintiff?<\/p>\n
             2) Were not the courts below totally in error<\/p>\n
      in completely ignoring the evidence of P.W.7 and<\/p>\n
      Ext.X2 that the plaintiff had a long previous<\/p>\n
      history of stomach complaints and she had<\/p>\n
      undergone       several   months     of   continuous<\/p>\n
      treatment at Ernakulam Medical Centre for<\/p>\n
      discharge of blood through mouth and anus etc<\/p>\n
      even after the surgery in July 1996 and the<\/p>\n
S.A.832\/2000.                   5<\/span><\/p>\n
      claimed cure and yet finding the 1st defendant is<\/p>\n
      guilty of negligence in not performing a surgery<\/p>\n
      on the plaintiff?\n<\/p><\/blockquote>\n
             3. Were not the courts below totally in error<\/p>\n
      in allowing Rs.6,000\/- also as compensation to the<\/p>\n
      plaintiff which amount was admittedly expended<\/p>\n
      for the treatments at Ernakulam Medical Centre<\/p>\n
      unconnected with the surgery for intussusception?<\/p>\n<\/blockquote>\n
             4. The Hon’ble Supreme Court of India in AIR<\/p>\n
      1969 Sc 132 held that a Doctor is entitled to<\/p>\n
      decide the course of treatment in an emergency.<\/p>\n
      Were not the court below wrong in refusing to<\/p>\n
      follow this principle of law laid down by the apex<\/p>\n
      court and finding the first defendant guilty of<\/p>\n
      negligence in not operating on the plaintiff?<\/p>\n<\/blockquote>\n
             5. In as much as there is no proof of any<\/p>\n
      injury being suffered by the plaintiff due to the<\/p>\n
      alleged negligence of the 1st defendant are not the<\/p>\n
      judgments against the dictum laid down in AIR<\/p>\n
      1936 PC 154?\n<\/p><\/blockquote>\n
             6.  Has not the courts below completely<\/p>\n
      misread the pleadings and evidence in the case<\/p>\n
      and came to absurd conclusions?\n<\/p><\/blockquote>\n
             7. Is the judgment and decree passed nearly<\/p>\n
      an year after the final hearing valid in law? Is not<\/p>\n
S.A.832\/2000.                 6<\/span><\/p>\n
      such judgment invalid and inoperative in view of<\/p>\n
      the mandate under Order 20 of CPC?”<\/p>\n<\/blockquote>\n
             7.  In fact the only question that arises for<\/p>\n
consideration is whether there is sufficient proof to show<\/p>\n
that the first defendant was negligent in treating the<\/p>\n
plaintiff.<\/p><\/blockquote>\n
             8. Learned counsel appearing   for the appellant<\/p>\n
pointed out that both the courts below had not      properly<\/p>\n
addressed themselves to the legal principles involved in the<\/p>\n
case and have mechanically acted on the basis of some<\/p>\n
records which too had not been properly considered.<\/p>\n
Learned counsel pointed out that allegation regarding the<\/p>\n
taking of bribe etc. remains unproved and there is nothing<\/p>\n
to indicate that the first defendant was       negligent   in<\/p>\n
treating the plaintiff. In fact the evidence of the doctors<\/p>\n
examined by the plaintiff herself   would show that the first<\/p>\n
defendant had resorted to the normal course of treatment<\/p>\n
which a doctor would adopt in a circumstance under which<\/p>\n
the plaintiff was placed and there is nothing to show that he<\/p>\n
S.A.832\/2000.                    7<\/span><\/p>\n
had done any negligent act, which aggravated the illness of<\/p>\n
the plaintiff.   Learned counsel very fairly conceded that<\/p>\n
there may be some         inconsistencies in the evidence of<\/p>\n
D.W.1 and the records maintained in the hospital. But that<\/p>\n
is insufficient to show that the first defendant was negligent.<\/p>\n
The test to be applied is whether the first defendant had<\/p>\n
exercised the skill and expertise required of him and not<\/p>\n
whether there were slight discrepancies in the evidence.<\/p>\n
The proper approach is to ascertain whether a person with<\/p>\n
skill and expertise of the first defendant would have<\/p>\n
normally resort to the mode of treatment adopted by him in<\/p>\n
the case of the plaintiff. If the course of treatment chosen by<\/p>\n
the first defendant is an accepted mode of treatment, then<\/p>\n
the mere fact that a better method could have been chosen<\/p>\n
is not a ground to hold that the first defendant was<\/p>\n
negligent.    An appreciation of the evidence in the case,<\/p>\n
according to learned counsel, would clearly show that the<\/p>\n
claim of the plaintiff that the first defendant had told her<\/p>\n
and her husband that surgery was the only option cannot be<\/p>\n
S.A.832\/2000.                  8<\/span><\/p>\n
true. Even going by the evidence adduced by the plaintiff, it<\/p>\n
is clear that surgery is the last option. It was also pointed<\/p>\n
out that except for the ipsi dixit of the plaintiff, there is<\/p>\n
nothing to show that she was not relieved of her illness at<\/p>\n
the time of discharge from the          General Hospital on<\/p>\n
11.7.1995.     Of course, she was asked to continue taking<\/p>\n
medicines for a while.    According to learned counsel, there<\/p>\n
is absolute want of evidence to show that the first defendant<\/p>\n
was in any way negligent in giving treatment to the plaintiff.<\/p>\n
             9. In reply, learned counsel appearing for the<\/p>\n
respondents pointed out that both the courts below<\/p>\n
meticulously analysed the evidence on record and have<\/p>\n
come to the conclusion that the first defendant was<\/p>\n
negligent. There is considerable inconsistency between the<\/p>\n
evidence of D.W.1 and the official records maintained in the<\/p>\n
hospital and that is sufficient to show that there was<\/p>\n
absolute want of care and caution on the part of the first<\/p>\n
defendant in treating the plaintiff. Learned counsel went on<\/p>\n
to contend that the nature of illness of the plaintiff was such<\/p>\n
S.A.832\/2000.                    9<\/span><\/p>\n
that immediate surgery had to be done and the first<\/p>\n
defendant, who is a person with expertise in that field of<\/p>\n
medicine, deliberately abstained from conducting surgery<\/p>\n
due to extraneous reasons. It is also contended that at the<\/p>\n
time of discharge, the plaintiff was still suffering from her<\/p>\n
illness and she had        soon thereafter to go to another<\/p>\n
hospital where she underwent surgery. First defendant was<\/p>\n
well aware of the fact that surgery was the only remedy for<\/p>\n
the illness of the plaintiff, but he abstained from performing<\/p>\n
a surgery due to extraneous considerations.          It is also<\/p>\n
pointed out that both the courts below were concurrently<\/p>\n
found that the first defendant has been negligent. Being a<\/p>\n
question of fact, no interference is called for in Second<\/p>\n
Appeal.\n<\/p>\n
             10. Merely because this court is sitting in Second<\/p>\n
Appeal, it does not mean that this court is precluded from<\/p>\n
considering the evidence in the case to see that the finding<\/p>\n
of the courts below suffers from gross illegality and injustice.<\/p>\n
Learned counsel for the appellant took this court through<\/p>\n
S.A.832\/2000.                    10<\/span><\/p>\n
the entire evidence adduced        in the case and contended<\/p>\n
that the finding of the courts below that the first defendant<\/p>\n
was negligent cannot be sustained.\n<\/p>\n
             11. At the outset itself, it must be said that there<\/p>\n
is considerable force in the above submission.          That the<\/p>\n
plaintiff was admitted in the General Hospital on 26.6.1995<\/p>\n
is a matter not in dispute. It is also not in dispute that the<\/p>\n
first defendant had attended to her on the same day. The<\/p>\n
evidence discloses that the plaintiff had intussusception,<\/p>\n
which means ‘the enfolding of one segment of the intestine<\/p>\n
within    another’.   Learned    counsel    appearing   for   the<\/p>\n
respondent       would contend that in such cases the only<\/p>\n
remedy is to subject the patient to surgery and the course<\/p>\n
adopted by the first defendant cannot be appreciated. The<\/p>\n
above contention does not appear to be correct.<\/p>\n
             12. One may in this regard refer to the evidence<\/p>\n
of the doctors examined by the plaintiff herself.<\/p>\n
             13. P.W.4 was a doctor in the Medical Centre<\/p>\n
Hospital      at the relevant time.       He deposed that on<\/p>\n
S.A.832\/2000.                 11<\/span><\/p>\n
18.7.1995 the plaintiff was admitted in the hospital. He said<\/p>\n
that on examining the X-Ray taken, he did not find any<\/p>\n
problem with the large intestine.   He then speaks about the<\/p>\n
various modes of investigation adopted in such cases. He<\/p>\n
finally says that he only examined the patient to ensure the<\/p>\n
physical fitness of the patient to undergo surgery.<\/p>\n
             14.  P.W.6 was a Gastro intestinal surgeon<\/p>\n
attached to Medical Centre Hospital. He speaks about the<\/p>\n
operation conducted on the patient on 19.7.1995. He would<\/p>\n
say that she was suffering from Jejunial intussusception. It<\/p>\n
is significant to notice that in chief examination itself this<\/p>\n
witness had stated that it was only on opening of the<\/p>\n
abdomen it was diagnosed as Jejunial intussusception. It is<\/p>\n
also equally important to notice that even if the patient<\/p>\n
suffers from acute intussusception, it is not necessary that<\/p>\n
surgery should be immediately conducted.         The doctor<\/p>\n
would specifically depose that surgery is not the only mode<\/p>\n
of treatment in such cases. The patient can be asked not to<\/p>\n
take food including water and put the patient on I.V. It is<\/p>\n
S.A.832\/2000.                 12<\/span><\/p>\n
possible that there may be spontaneous reduction. He<\/p>\n
speaks about other modes of treatment also.         In cross<\/p>\n
examination     this  witness   has   stated   that  Jejunial<\/p>\n
intussusception is a very rare phenomenon. He would also<\/p>\n
depose that on conservative treatment if the obstruction in<\/p>\n
the intestine gets removed, then surgery may not be<\/p>\n
necessary at all. Even if the patient responds to the<\/p>\n
conservative method of treatment, the patient will not be<\/p>\n
discharged immediately and kept under observation for a<\/p>\n
while.\n<\/p>\n
             15. P.W.7 is yet another doctor attached to the<\/p>\n
Medical Centre Hospital. He is a surgeon. He would depose<\/p>\n
that at the time of admission of the patient they suspected<\/p>\n
intestinal intussusception. He also deposed that the patient<\/p>\n
was having similar symptoms for the last 3 or 4 years. After<\/p>\n
going through the records of the General Hospital, where<\/p>\n
the patient had undergone treatment, they were not able to<\/p>\n
come to a definite conclusion regarding her ailment. He<\/p>\n
however deposed that in the General Hospital all required<\/p>\n
S.A.832\/2000.                   13<\/span><\/p>\n
tests were done. He would say that immediately the patient<\/p>\n
was put on conservative treatment.         But they found no<\/p>\n
improvement on the next day and therefore they decided to<\/p>\n
conduct a laproscopy. When they did that, they detected a<\/p>\n
fairly large lump in the intestine. When they found it, they<\/p>\n
could not reduce it though laproscopy, they decided to open<\/p>\n
the abdomen. Only when they opened the abdomen and<\/p>\n
investigated they found that        the patient was suffering<\/p>\n
intussusception.    After operation, the patient recovered<\/p>\n
without much complication.         Through this witness, the<\/p>\n
records of the Medical Centre Hospital were marked.<\/p>\n
             16. What is significant about the evidence of this<\/p>\n
witness is that in chief examination itself he says that as<\/p>\n
soon as intestinal intussusception is detected, it is not<\/p>\n
necessary to go in       for a surgery.    The usual practice<\/p>\n
followed is to adopt conservative method of treatment and if<\/p>\n
the condition of the patient does not improve, then go in for<\/p>\n
operation. In several cases on conservative treatment the<\/p>\n
patient’s condition improve, otherwise the patient would be<\/p>\n
S.A.832\/2000.                  14<\/span><\/p>\n
subjected to surgery.        Even if the patient      shows<\/p>\n
improvement, P.W.7 would say that the patient is kept under<\/p>\n
observation for a few days.\n<\/p>\n
             17. P.W.8 is an independent witness, who speaks<\/p>\n
about having gone along with P.W.2 to the doctor to give<\/p>\n
money. His evidence is not of much relevance.<\/p>\n
             18.   D.W.1 is the first defendant, who had<\/p>\n
attended to the patient when she had gone to the General<\/p>\n
Hospital. At the relevant time he was functioning as the<\/p>\n
Surgeon in the General Hospital.      He speaks about the<\/p>\n
treatment given to the patient by him and says that since<\/p>\n
the patient showed considerable improvement, then put on<\/p>\n
conservative method of treatment.        He discharged the<\/p>\n
patient on 11.7.1995. He would also depose that at the time<\/p>\n
of discharge, the patient was cautioned that in case of any<\/p>\n
illness the patient should at once come and meet him. He<\/p>\n
would say that after discharge, the patient had never<\/p>\n
returned to him.     The witness would maintain that if on<\/p>\n
adopting conservative method of treatment, the condition of<\/p>\n
S.A.832\/2000.                  15<\/span><\/p>\n
the patient does not improve, then alone surgery is resorted<\/p>\n
to.   In the case on hand, he would say that the plaintiff<\/p>\n
responded to the conservative method of treatment and<\/p>\n
therefore he did not feel it necessary to subject the patient<\/p>\n
to a surgery.\n<\/p>\n
             19. Ext.X1 is the file maintained in the General<\/p>\n
Hospital and Ext.X2 is the file maintained in the Medical<\/p>\n
Centre Hospital.\n<\/p>\n
             20. Before going into the evidence relating to<\/p>\n
the negligence on the part of the doctor, it will be useful to<\/p>\n
refer to the law on the      point.  The law of    negligence<\/p>\n
regarding professional has undergone considerable change<\/p>\n
in recent times. The law of which was initially reluctant to<\/p>\n
attribute negligence to         professional men, has now<\/p>\n
developed will laid principles to judge the standard of care<\/p>\n
and caution to be exercised by a professional. As far as<\/p>\n
medical profession is concerned, the law laid down in Bolam<\/p>\n
v. Froern Hospital Management Committee ((1957) 2<\/p>\n
S.A.832\/2000.                    16<\/span><\/p>\n
All ER 118) is considered to be the locus classica in the field.<\/p>\n
In the said decision it was held as follows:<\/p>\n
             “The test is the standard of the ordinary<\/p>\n
      skilled man exercising and professing to have that<\/p>\n
      special skill. a man need not possess the highest<\/p>\n
      expert skill; it is well established law that it is<\/p>\n
      sufficient if he exercises the ordinary skill of an<\/p>\n
      ordinary competent man exercising that particular<\/p>\n
      art.   In the case of a medical man, negligence<\/p>\n
      means failure to act in accordance with the<\/p>\n
      standards of reasonably competent medical men<\/p>\n
      at the time. There may be one or more perfectly<\/p>\n
      proper standards, and if he conforms with one of<\/p>\n
      these proper       standards,       then he is not<\/p>\n
      negligent.”\n<\/p><\/blockquote>\n
<\/blockquote>\n
The above principle continues to be the law even now.<\/p>\n
             21. A doctor’s liability to patient arises both under<\/p>\n
tort and in contract. The question often arises as to what is<\/p>\n
the degree of care and caution that is expected of a doctor.<\/p>\n
Lord Denning in The Discipline of Law at page 243 states as<\/p>\n
follows:\n<\/p>\n
S.A.832\/2000.                   17<\/span><\/p>\n
             “You should only find him guilty of negligence<\/p>\n
      when he falls short of the standard of a reasonably<\/p>\n
      skilful medical man, in short, when he is<\/p>\n
      deserving of censure —        for negligence in a<\/p>\n
      medical man is deserving of censure.”<\/p>\n
      It is further stated:\n<\/p><\/blockquote>\n
\n      “But so far as the law is concerned, it does not<\/p>\n
      condemn the doctor when he only does that which<\/p>\n
      may a wise and good doctor so placed would do.<\/p>\n
      It only condemns him when he falls short of the<\/p>\n
      accepted standards of a great profession; in short,<\/p>\n
      when he is deserving of censure.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
             22.   Salmond and Heuston on the Law of Torts<\/p>\n
Eighteenth Edition at page 215 observes thus:<\/p>\n<\/blockquote>\n
             “It is expected of such a professional man<\/p>\n
      that he should show a fair, reasonable and<\/p>\n
      competent degree of skill; it is not required that<\/p>\n
      he should use the highest degree of skill, for there<\/p>\n
      may be persons who have higher education and<\/p>\n
      greater advantages than he has, nor will he be<\/p>\n
      held to have guaranteed a cure. So a barrister is<\/p>\n
S.A.832\/2000.                    18<\/span><\/p>\n
      not expected to be right:       it is enough that he<\/p>\n
      exercises   reasonable      care.     So  a medical<\/p>\n
      practitioner should not be found negligent simply<\/p>\n
      because one of the risks inherent in an operation<\/p>\n
      of the kind occurs, or because in a matter of<\/p>\n
      opinion he made an error of judgment, or because<\/p>\n
      he has failed to warn the patient of every risk<\/p>\n
      involved in a proposed course of treatment. There<\/p>\n
      is no rule that a doctor must tell a patient what is<\/p>\n
      the matter with him.”\n<\/p><\/blockquote>\n
\n<\/blockquote>\n
             23. In the decision reported in Antonio Dias v.<\/p>\n<\/blockquote>\n
Frederick Augustus (AIR 1936 PC 154) it was held as<\/p>\n
follows:\n<\/p><\/blockquote>\n
             “Where a suit is filed for damages against a<\/p>\n
      doctor, the onus of proof is upon the plaintiff, and<\/p>\n
      if he is to succeed he must demonstrate, beyond<\/p>\n
      reasonable    doubt,    that   the   defendant  was<\/p>\n
      negligent, and that his negligence caused the<\/p>\n
      injury of which the plaintiff complains.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             24. In the decision reported in Poonam Verma<\/p>\n
v. Ashwin Patel (AIR<\/a> 1996 SC 2111) it was held as follows:<\/p>\n
S.A.832\/2000.                  19<\/span><\/p>\n<\/blockquote>\n
             “The breach of duty may be occasioned<\/p>\n
      either by not doing something which a reasonable<\/p>\n
      man, under a given set of circumstances would<\/p>\n
      do, or, by doing some act which a reasonable<\/p>\n
      prudent man would not do.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             25. According to Halsbury’s Laws of England, 4th<\/p>\n
Edn., Vol.26 pp.17-18, the definition of negligence is as<\/p>\n
under:\n<\/p><\/blockquote>\n
             “22. Negligence.- Duties owed to patient. A<\/p>\n
      person who holds himself out as ready to give<\/p>\n
      medical advice or treatment impliedly undertakes<\/p>\n
      that he is possessed of skill and knowledge for the<\/p>\n
      purpose.     Such a person, whether he is a<\/p>\n
      registered   medical practitioner or not, who is<\/p>\n
      consulted by a patient, owes him certain duties,<\/p>\n
      namely, a duty of care in deciding whether to<\/p>\n
      undertake the case; a duty of care in deciding<\/p>\n
      what treatment to give; and a duty of care in his<\/p>\n
      administration of that treatment. A breach of any<\/p>\n
      of these     duties will support an action for<\/p>\n
      negligence by the patient.”\n<\/p><\/blockquote>\n
S.A.832\/2000.                   20<\/span><\/p>\n<\/blockquote>\n
             26. In the decision reported in Jacob Mathew v.<\/p>\n<\/blockquote>\n
State of Punjab (2005(3) K.L.T. 965(SC), which has<\/p>\n
considered the matter in detail following the principle laid<\/p>\n
down in Bolam’s case held as follows:<\/p>\n<\/blockquote>\n
      “We sum up our conclusions as under:-<\/p>\n
      (1) Negligence is the breach of a duty caused by<\/p>\n
      omission to do something which a reasonable man<\/p>\n
      guided by those considerations which ordinarily<\/p>\n
      regulate the conduct of human affairs would do, or<\/p>\n
      doing something which a prudent and reasonable<\/p>\n
      man would not do. The definition of negligence as<\/p>\n
      given in Law of Torts, Ratanlal & Dhirajlal (edited<\/p>\n
      by Justice G.P. Singh), referred to hereinabove,<\/p>\n
      holds good. Negligence becomes actionable on<\/p>\n
      account of injury resulting from the act or<\/p>\n
      omission amounting to negligence attributable to<\/p>\n
      the person sued. The essential components of<\/p>\n
      negligence     are  three:   `duty’, `breach’  and<\/p>\n
      `resulting damage’.\n<\/p><\/blockquote>\n
\n      (2)    Negligence  in   the   context   of medical<\/p>\n
      profession necessarily calls for a treatment with a<\/p>\n
      difference. To infer rashness or negligence on the<\/p>\n
S.A.832\/2000.                  21<\/span><\/p>\n
      part of a professional, in particular a doctor,<\/p>\n
      additional   considerations   apply.   A    case   of<\/p>\n
      occupational negligence is different from one of<\/p>\n
      professional negligence. A simple lack of care, an<\/p>\n
      error of judgment or an accident, is not proof of<\/p>\n
      negligence on the part of a medical professional.<\/p>\n
      So long as a doctor follows a practice acceptable<\/p>\n
      to the medical profession of that day, he cannot<\/p>\n
      be held liable for negligence merely because a<\/p>\n
      better alternative course or method of treatment<\/p>\n
      was also available or simply because a more<\/p>\n
      skilled doctor would not have chosen to follow or<\/p>\n
      resort to that practice or procedure which the<\/p>\n
      accused followed. When it comes to the failure of<\/p>\n
      taking precautions what has to be seen is whether<\/p>\n
      those precautions were taken which the ordinary<\/p>\n
      experience of men has found to be sufficient; a<\/p>\n
      failure to use special or extraordinary precautions<\/p>\n
      which    might  have    prevented   the    particular<\/p>\n
      happening cannot be the standard for judging the<\/p>\n
      alleged negligence. So also, the standard of care,<\/p>\n
      while assessing the practice as adopted, is judged<\/p>\n
      in the light of knowledge available at the time of<\/p>\n
      the incident, and not at the date of trial. Similarly,<\/p>\n
      when the charge of negligence arises out of failure<\/p>\n
S.A.832\/2000.                   22<\/span><\/p>\n
      to use some particular equipment, the charge<\/p>\n
      would fail if the equipment was not generally<\/p>\n
      available at that particular time (that is, the time<\/p>\n
      of the incident) at which it is suggested it should<\/p>\n
      have been used.\n<\/p><\/blockquote>\n
\n      (3) A professional may be held liable for<\/p>\n
      negligence on one of the two findings: either he<\/p>\n
      was not possessed of the requisite skill which he<\/p>\n
      professed to have possessed, or, he did not<\/p>\n
      exercise, with reasonable competence in the<\/p>\n
      given case, the skill which he did possess. The<\/p>\n
      standard to be applied for judging, whether the<\/p>\n
      person charged has been negligent or not, would<\/p>\n
      be    that of  an   ordinary     competent     person<\/p>\n
      exercising ordinary skill in that profession. It is not<\/p>\n
      possible for every professional to possess the<\/p>\n
      highest level of expertise or skills in that branch<\/p>\n
      which he practices. A highly skilled professional<\/p>\n
      may be possessed of better qualities, but that<\/p>\n
      cannot be made the basis or the yardstick for<\/p>\n
      judging the performance of the professional<\/p>\n
      proceeded against on indictment of negligence.<\/p>\n
      (4) The test for determining medical negligence<\/p>\n
S.A.832\/2000.                  23<\/span><\/p>\n
      as laid down in Bolam’s case [1957] 1 W.L.R. 582,<\/p>\n
      586 holds good in its applicability in India.<\/p>\n
      (5) The jurisprudential concept of negligence<\/p>\n
      differs in civil and criminal law. What may be<\/p>\n
      negligence in civil law may not necessarily be<\/p>\n
      negligence in criminal law. For negligence to<\/p>\n
      amount to an offence, the element of mens rea<\/p>\n
      must be shown to exist. For an act to amount to<\/p>\n
      criminal negligence, the degree of negligence<\/p>\n
      should be much higher i.e. gross or of a very high<\/p>\n
      degree. Negligence which is neither gross nor of a<\/p>\n
      higher degree may provide a ground for action in<\/p>\n
      civil law but cannot form the basis for prosecution.<\/p>\n
      (6) The word `gross’ has not been used in S.<\/p>\n
      304A of IPC, yet it is settled that in criminal law<\/p>\n
      negligence or recklessness, to be so held, must be<\/p>\n
      of such a high degree as to be `gross’. The<\/p>\n
      expression `rash or negligent act’ as occurring in<\/p>\n
      Section 304A of the IPC has to be read as qualified<\/p>\n
      by the word `grossly’.\n<\/p><\/blockquote>\n
\n      (7) To prosecute a medical professional for<\/p>\n
      negligence under criminal law it must be shown<\/p>\n
S.A.832\/2000.                   24<\/span><\/p>\n
      that the accused did something or failed to do<\/p>\n
      something    which    in   the   given  facts   and<\/p>\n
      circumstances no medical professional in his<\/p>\n
      ordinary senses and prudence would have done or<\/p>\n
      failed to do. The hazard taken by the accused<\/p>\n
      doctor should be of such a nature that the injury<\/p>\n
      which resulted was most likely imminent.<\/p>\n
      (8 Res ipsa loquitur is only a rule of evidence and<\/p>\n
      operates in the domain of civil law specially in<\/p>\n
      cases of torts and helps in determining the onus of<\/p>\n
      proof in actions relating to negligence. It cannot<\/p>\n
      be pressed in service for determining per se the<\/p>\n
      liability for negligence within the domain of<\/p>\n
      criminal law. Res ipsa loquitur has, if at all, a<\/p>\n
      limited application in trial on a charge of criminal<\/p>\n
      negligence.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             27. In the decision reported in INS. Malhotra<\/p>\n
(Ms) v. Dr.A.Kriplani ((2009) 4 SCC 705) it was held as<\/p>\n
follows:\n<\/p><\/blockquote>\n
                 “Negligence in the context of the<\/p>\n
      medical    profession   necessarily   calls  for  a<\/p>\n
      treatment with a difference. To infer rashness or<\/p>\n
S.A.832\/2000.                  25<\/span><\/p>\n
      negligence    on   the  part   of   a   professional<\/p>\n
      negligence.    A simple lack of care, an error of<\/p>\n
      judgment    or  an   accident,   is  not   proof   of<\/p>\n
      negligence on the part of a medicalrofessional. so<\/p>\n
      long as a doctor follows apractice acceptble to the<\/p>\n
      medical profession of that day, he cannot be held<\/p>\n
      liable for negligence merely because a better<\/p>\n
      alternative course or method of treatment was<\/p>\n
      also available or simply because a more skilled<\/p>\n
      doctor would not have chosen to follow or resort<\/p>\n
      to that practice orprocedure which the accused<\/p>\n
      followed. The classical statement of law in Bolam<\/p>\n
      case, has been widely accepted as decisive of the<\/p>\n
      sandard of care required both of professional men<\/p>\n
      generally and medical practitioners in particular,<\/p>\n
      and holds good in its applicability in India. In tort,<\/p>\n
      it is enough for the defendant to show that the<\/p>\n
      standard of care and the skill attained was that of<\/p>\n
      the    ordinary competent    medical     practitioner<\/p>\n
      exercising an ordinary degree of professional skill.<\/p>\n
      the fct that a defendant charged with negligence<\/p>\n
      acted in accord with the general and approved<\/p>\n
      practice is enough to clear him of the charge. It is<\/p>\n
      not necessary for every professional to possess<\/p>\n
      the highest level of expertise in that branch which<\/p>\n
S.A.832\/2000.                   26<\/span><\/p>\n
      which he practises. Three things are pertinent to<\/p>\n
      be noted.     Firstly, the standard of care, when<\/p>\n
      assessing the practce as adopted, is judged in the<\/p>\n
      light of knowledge available at the time of the<\/p>\n
      incident, and not at the date of trial. Secondly,<\/p>\n
      when the charge of negligence arises out of failure<\/p>\n
      touse some particular equipment, the charge<\/p>\n
      would fail if the equipment was not generally<\/p>\n
      available at that oint of time (that is, the time of<\/p>\n
      the incident) on which it is suggested as should<\/p>\n
      have been used. Thirdly, when it comes to the<\/p>\n
      failure of taking precautions, what has to be seen<\/p>\n
      is whether those precautions were taken which<\/p>\n
      the ordinary experience of men has found to be<\/p>\n
      sufficient; a failure to use special or extraordinary<\/p>\n
      precautions which might have prevented the<\/p>\n
      particular happening cannot be the standard for<\/p>\n
      judging the alleged negligence.\n<\/p><\/blockquote>\n
             In State of Punjab v. Shiv Rama<\/a> three-Judge<\/p>\n
      Bench of this court while dealing with the case of<\/p>\n
      medical negligence by the doctor in conducting<\/p>\n
      sterilization operations, reiterated and reaffirmed<\/p>\n
      that unless negligence of doctor is established, the<\/p>\n
      primary liability cannot be fastened onthe medical<\/p>\n
      practitioner.   In paragraph 6of hejudgment it is<\/p>\n
S.A.832\/2000.                   27<\/span><\/p>\n
      stated:\n<\/p><\/blockquote>\n
             “6. Very recently, this Court has dealth with<\/p>\n
      the issues ofmedical negligence and laid down<\/p>\n
      principles on which the liability of a medical<\/p>\n
      professional is determined generally and in the<\/p>\n
      field of criminal law in particular. Reference may<\/p>\n
      be had to Jacob Mathew v. State of Punjab. The<\/p>\n
      Court<\/a> has approved the test as laid downin Bolam<\/p>\n
      v.    Friern   Hospital  Management      committee<\/p>\n
      popularly known as Bolam test, in its applicability<\/p>\n
      to India.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             28. In the decision reported in Kusum Sharma<\/p>\n
v. Batra Hospital and Medical Research Centre (AIR<\/a><\/p>\n
2010 SC 1050) it was held as follows:<\/p>\n<\/blockquote>\n
             “It is a matter of common knowledge that<\/p>\n
      after happening of some unfortunate event, there<\/p>\n
      is a marked tendency to look for a human factor to<\/p>\n
      blame for an untoward event, a tendency which is<\/p>\n
      closely linked with the desire to punish. things<\/p>\n
      have gone wrong and, therefore, somebody must<\/p>\n
      be found to answer forit. A professinal deserves<\/p>\n
      total protection. The Indian Penal Code has taken<\/p>\n
      care to ensure that people who act in good faith<\/p>\n
S.A.832\/2000.                  28<\/span><\/p>\n
      should not be punished. Sections 88, 92 and 370<\/p>\n
      of the Indian Penal code give adequate protection<\/p>\n
      to the professional      and particularly medical<\/p>\n
      professionals.\n<\/p><\/blockquote>\n
             On scrutiny of the leading cases of medical<\/p>\n
      negligence both in our country and other countries<\/p>\n
      especially United Kingdom, some basic principles<\/p>\n
      emerge in dealing with the cases of medical<\/p>\n
      negligence. While deciding whether the medical<\/p>\n
      professional is guilty of medical negligence<\/p>\n
      following well known principles must be kept in<\/p>\n
      view:-\n<\/p><\/blockquote>\n
             I.   Negligence is the breach of a duty<\/p>\n
      exercised by omission to do something which a<\/p>\n
      reasonable man, guided by those considerations<\/p>\n
      which ordinarly regulate the conduct of human<\/p>\n
      affairs, would do, or doing something which a<\/p>\n
      prudent and reasonable man would not do.<\/p>\n<\/blockquote>\n
             II. Negligence is an essential ingredient of<\/p>\n
      the offence.     The negligence to be established<\/p>\n
      bythe prosecution must be culpable or gross and<\/p>\n
      not the negligence merely based upon an error of<\/p>\n
      judgment.\n<\/p><\/blockquote>\n
             III. The medical professional is expected to<\/p>\n
      bring a reasonable degree of skill and knowledge<\/p>\n
S.A.832\/2000.                  29<\/span><\/p>\n
      and must exercise a reasonable degree of care.<\/p>\n
      Neither the very highest nor a very low degree of<\/p>\n
      care and competence judged in the light        of the<\/p>\n
      particular circumstance of each case is what the<\/p>\n
      law requires.\n<\/p><\/blockquote>\n
             IV. A medical practitiner would be liable only<\/p>\n
      where his conduct fell below that of the standards<\/p>\n
      of a reasonably competent practitioner in his field.<\/p>\n<\/blockquote>\n
             V. In the realm of diagnosis and treatment<\/p>\n
      there is scope for genuine difference of opinion<\/p>\n
      and one       professional doctor is clearly not<\/p>\n
      negligent merely because his conclusion differs<\/p>\n
      from that of other professional doctor.<\/p>\n<\/blockquote>\n
             VI. The medical professional is often called<\/p>\n
      upon to adopt a procedure which involves higher<\/p>\n
      element of risk, but which he honestly believes as<\/p>\n
      providing greater chances of success for the<\/p>\n
      patient rather than a procedure involving lesser<\/p>\n
      risk but higher chances of failure. Just because a<\/p>\n
      professional looking to the gravity of illness has<\/p>\n
      taken higher element of risk to redeem the patient<\/p>\n
      out of his\/her suffering which did not yield the<\/p>\n
      desired result may not amount to negligence.<\/p>\n<\/blockquote>\n
             VII. Negligence cannot be attributed to a<\/p>\n
      doctor so long as he performs        his duties with<\/p>\n
S.A.832\/2000.                   30<\/span><\/p>\n
      reasonable skill and competence. Merely because<\/p>\n
      the doctor chooses one course of action in<\/p>\n
      preference to the other one available, he would<\/p>\n
      not be liable if the course of action chosen by him<\/p>\n
      was acceptable to the medical profession.<\/p>\n<\/blockquote>\n
             VIII.  It would not be conclusive to the<\/p>\n
      efficiency ofthe medical profession if no Doctor<\/p>\n
      could administer medicine without a halter round<\/p>\n
      his neck.\n<\/p><\/blockquote>\n
             IX. It is our bounden duty and obligation of<\/p>\n
      the civil society to ensure that the medical<\/p>\n
      professionals are not unnecessary harassed or<\/p>\n
      humiliated     so that   they can     perform   their<\/p>\n
      professional duties without fear and apprehension.<\/p>\n<\/blockquote>\n
             X. the medical practioners at times also have<\/p>\n
      to be saved from such a class of complainants<\/p>\n
      who use criminal process as a tool for pressurizing<\/p>\n
      the medical professionals\/hospitals particularly<\/p>\n
      private hositals or clinics for extracting uncalled<\/p>\n
      for compensation.      Such malicious proceedings<\/p>\n
      deserve to be discarded against the medical<\/p>\n
      practitioners.\n<\/p><\/blockquote>\n
             XI. The medical professionals are entitled to<\/p>\n
      get protection so long as they perform their duties<\/p>\n
      with reasonable skill and competence and in<\/p>\n
S.A.832\/2000.                  31<\/span><\/p>\n
      theinterest of the patients.     The interest and<\/p>\n
      welfare of the patients have to be paramount for<\/p>\n
      the medical professinals.:<\/p><\/blockquote>\n
\n<\/blockquote>\n
             29. In the decision reported in Malay Kumar<\/p>\n
Ganguly v. Sukumar Mukherjee (AIR<\/a> 2010 SC 1162) it<\/p>\n
was held as follows:\n<\/p><\/blockquote>\n
             “Charge of professional negligence on a<\/p>\n
      medical person is a serious one as it affects his<\/p>\n
      professional status and reputation and as such the<\/p>\n
      burden of proof would be more onerous. A doctor<\/p>\n
      cannot be held negligent only because something<\/p>\n
      has gone wrong. He also cannot be held liable<\/p>\n
      for mischane or misadventure or for an error of<\/p>\n
      judgment in making a choice when two options are<\/p>\n
      available.    The mistake of diagnosis is not<\/p>\n
      necessarily a negligent diagnosis is not necessarily<\/p>\n
      a negligent diagnosis.\n<\/p><\/blockquote>\n
             Even under the law of tort a medical<\/p>\n
      practitioner can only be held liable in respect of an<\/p>\n
      erroneous diagnosis if his error is so palpably<\/p>\n
      wrong as to prove by itself that it was negligently<\/p>\n
      arrived at or it was the product of absence of<\/p>\n
      reasonable skill and care on his part regard being<\/p>\n
S.A.832\/2000.                    32<\/span><\/p>\n
      held to the ordinary level of skill in the profession.<\/p>\n
      For fastrning criminal liability very high degree of<\/p>\n
      such negligence is required to be proved.<\/p>\n<\/blockquote>\n
             Death is the ultimate result of all serious<\/p>\n
      ailments and the doctors are there tosave the<\/p>\n
      victims from such ailments.          Experience and<\/p>\n
      expertise of a doctor are utilized for the recovery.<\/p>\n
      But it is not expected that in case of all ailments<\/p>\n
      the doctor can give guarantee of cure.”<\/p><\/blockquote>\n
\n<\/blockquote>\n
             30. In the decision reported in Kusum Sharma<\/p>\n
v. Batra Hospital and Medical Research Centre<\/a> (2010)<\/p>\n
3 SCC 480) it was held as follows:\n<\/p><\/blockquote>\n
             “In a celebrated and oft cited judgment in<\/p>\n
      Bolam v. Friern Hospital Management Committee<\/p>\n
      (Queen’s Bench Division) McNair ,L.J. observed:<\/p>\n<\/blockquote>\n
             (i) a doctor is not negligent, if he is acting in<\/p>\n
      accordance with a practice accepted as proper by<\/p>\n
      a reasonable body of medical men skilled in that<\/p>\n
      particular art, merelybecause there is a body of<\/p>\n
      such opinion that takes a contrary view.<\/p>\n<\/blockquote>\n
             “The direction that, where there are two<\/p>\n
      different schools of medical practice, both having<\/p>\n
      recognition among practitioners, it is not negligent<\/p>\n
      for a practitioner to follow one in preference to the<\/p>\n
S.A.832\/2000.                   33<\/span><\/p>\n
      other accords also with American law. Moreover,<\/p>\n
      it seems that by American law a failure to warn<\/p>\n
      the patient of damages of treatment is not, of<\/p>\n
      itself, negligence.”\n<\/p><\/blockquote>\n
      McNair, L.J. observed:\n<\/p><\/blockquote>\n
             Before I turn to than, I must explain what in<\/p>\n
      law we mean by ‘negligence’. In the ordinary case<\/p>\n
      which    does    not   involve  any   special  skill,<\/p>\n
      negligence in law means this: some failure to do<\/p>\n
      some act which a reasonable man in the<\/p>\n
      circumstances would do, or the doing of some act<\/p>\n
      which a reasonable man in the circumstances<\/p>\n
      would do, or the doing of some act which a<\/p>\n
      reasonable man in the circumstances would not<\/p>\n
      do; and if that failure or the doing of that act<\/p>\n
      results in injury, then there is a cause of action.<\/p>\n
      How do you test whether this act or failure is<\/p>\n
      negligent? In an ordinary case it is generally said,<\/p>\n
      that you judge that by the action of the man in the<\/p>\n
      street. He is the ordinary man. In one case it has<\/p>\n
      been said that you judge it by the conduct of the<\/p>\n
      man on the top of a clapham Omnibus. He is the<\/p>\n
      ordinaryman. But where you get a situation which<\/p>\n
      involved the use of some special skill or<\/p>\n
      competence, then the test as to whether there has<\/p>\n
S.A.832\/2000.                    34<\/span><\/p>\n
      been negligence or not is not the test of the man<\/p>\n
      on the top of a Clapham Omnibus, because he has<\/p>\n
      not got this man exercising and professing to have<\/p>\n
      that special skill…. A man need not possess the<\/p>\n
      highest expert skill at the risk of being found<\/p>\n
      negligent.     It is well-established law that it is<\/p>\n
      sufficient if he exercises the ordinary skill of an<\/p>\n
      ordinary competent man exercising that particular<\/p>\n
      art.\n<\/p><\/blockquote>\n
             In Chin Keow v. Govt. of Malaysia the Privy<\/p>\n
      Council applied these words of McNair, L.J. in<\/p>\n
      Bolam v. Friern Hospital Management Committee.<\/p>\n<\/blockquote>\n
                 “………where you get a situation which<\/p>\n
      involves the use of some            special  skill or<\/p>\n
      competence, then the test as to whether there has<\/p>\n
      been negligence ornot is not the test of the man<\/p>\n
      on the top of a Clapham Omnibus, because he has<\/p>\n
      not got this special skill. The test is the standard<\/p>\n
      of the ordinary skilled man exercising and<\/p>\n
      professing to have that special skill.”<\/p>\n<\/blockquote>\n<\/blockquote>\n
(See the decisions reported in Marghesh K. Parikh<\/p>\n
(minor) v. Dr. Mayur H.Mehta ((2011) 1 SCC 31) and<\/p>\n
V.N. Shrikhande (Dr.) v. Anita Sena Fernandes<\/a> ((2011)<\/p>\n
1 SCC 53)).<\/p><\/blockquote>\n
S.A.832\/2000.                  35<\/span><\/p>\n
             31. A perusal of the above decisions shows that<\/p>\n
attributing negligence to a medical personnel is indeed a<\/p>\n
serious affair and as it affects his professional status and<\/p>\n
reputation.      In such cases, according to the various<\/p>\n
decisions, the burden of proof is very high. Merely because<\/p>\n
the patient has not been cured or something has gone<\/p>\n
wrong, the medical officer cannot be held liable in tort. He<\/p>\n
may make an error in the choice of two options and every<\/p>\n
error in diagnosis need not be a negligent one. His act has<\/p>\n
to be such that it is palpably wrong and contrary to the<\/p>\n
medical standards and procedures usually adopted in such<\/p>\n
cases. A high degree of negligence is usually insisted in<\/p>\n
such cases.\n<\/p>\n
             32. Before going further into the matter, it will be<\/p>\n
useful to understand what exactly was the ailment of the<\/p>\n
plaintiff. At the time of admission in the General Hospital,<\/p>\n
the first defendant did suspect a lump in the stomach. But<\/p>\n
the evidence given by the witnesses examined by the<\/p>\n
S.A.832\/2000.                  36<\/span><\/p>\n
plaintiff herself show that it is not easy to detect<\/p>\n
intussusception. In fact the evidence of one of the surgeons<\/p>\n
would     indicate   that   they  were   able  to      confirm<\/p>\n
intussusception when they infact opened her abdomen.<\/p>\n
             33. Intussusception occurs when part of the bowel<\/p>\n
or intestine is wrapped around itself producing a masslike<\/p>\n
object on the right side of the abdomen during palpation.<\/p>\n
The major symptom of intussusception is       vomiting    and<\/p>\n
severe abdominal pain. There may be nausea and diarrhea<\/p>\n
and occasionally the patient may develop fever.          Once<\/p>\n
intussusception is suspected, barium enema is resorted to.<\/p>\n
It is well accepted in medical field that even when<\/p>\n
intussusception is detected, it is not necessary to subject<\/p>\n
the patient to a surgery immediately. The usual procedure<\/p>\n
that is followed is conservative method of treatment and<\/p>\n
then the medical officer waits to see if the patient responds<\/p>\n
to such treatment.       If the patient does respond to that<\/p>\n
treatment, and       intussusception gets reduced, then the<\/p>\n
patient is kept under observation for a few days. The initial<\/p>\n
S.A.832\/2000.                    37<\/span><\/p>\n
methods of treatment adopted are to stop oral feeding and<\/p>\n
to put the patient on I.V. From the evidence available on<\/p>\n
record, it is almost clear that surgery is the last option and<\/p>\n
not the first one.     Of course, it also depends upon the<\/p>\n
intensity of the disease. If intussusception ailment persists,<\/p>\n
the possibility of intestinal gangrene, shock and death<\/p>\n
increases.\n<\/p>\n
             34.  The      courts below have mainly been<\/p>\n
influenced by the inconsistency in the evidence of D.W.1<\/p>\n
and the entries in Ext.X1 record. Certainly there are some<\/p>\n
conspicuous and significant differences and inconsistencies.<\/p>\n
But the question is whether that by itself is sufficient to<\/p>\n
fasten liability on the first defendant.\n<\/p>\n
             35. Here one has to notice the evidence of the<\/p>\n
first defendant.      His definite stand was that he had<\/p>\n
suspected intussusception and as the normal procedure he<\/p>\n
resorted to conservative method of treatment. He would<\/p>\n
say that the patient responded to the treatment and<\/p>\n
therefore he postponed the surgery. There is evidence in<\/p>\n
S.A.832\/2000.                 38<\/span><\/p>\n
this case to show that the patient responded to barium<\/p>\n
enema and also that she had taken oral food few days after<\/p>\n
the admission. While the plaintiff would maintain that she<\/p>\n
continued to vomit and had severe abdomen pain, the first<\/p>\n
defendant would say that she showed marked improvement<\/p>\n
in her condition. What D.W.1 says can be found to be true<\/p>\n
from the entries in Ext.X1.       Of course there is some<\/p>\n
incongruity regarding the directions given by the first<\/p>\n
defendant and the steps taken by the nursing staff. The<\/p>\n
statement of the first defendant as D.W.1 that he did not<\/p>\n
care to look into that aspect may not be commendable. But<\/p>\n
that is far from saying that he was negligent.<\/p>\n
             36.   Learned    counsel   appearing for  the<\/p>\n
respondents in this appeal stressed that the moment when<\/p>\n
it   was     suspected   that   the  patient   was  having<\/p>\n
intussusception, she should have been subjected to surgery.<\/p>\n
The further contention is that if as a matter of fact after<\/p>\n
admission on 26.6.1995 if the patient responded to the<\/p>\n
treatment next two or three days, there was no necessity to<\/p>\n
S.A.832\/2000.                  39<\/span><\/p>\n
retain her in the hospital.    Emphasis was also laid on the<\/p>\n
plaintiff undergoing    further tests on 1st, 4th and 8th July,<\/p>\n
1995. It was very vehemently contended that if what D.W.1<\/p>\n
says is true, it was unnecessary to conduct these tests and<\/p>\n
that shows that the condition had never improved.<\/p>\n
             37. Learned counsel for the first respondent<\/p>\n
seems to have omitted to notice the evidence furnished by<\/p>\n
witnesses from the side of the plaintiff. Before going into<\/p>\n
that aspect, one fact may be noticed. After discharge from<\/p>\n
the General Hospital and before going to the Medical Centre<\/p>\n
Hospital, the plaintiff had met a doctor attached to<\/p>\n
P.S.Clinic, which is near her house.      She was discharged<\/p>\n
from the General Hospital on 11.7.1995. D.W.1 categorically<\/p>\n
says that at the time of discharge she was cautioned that if<\/p>\n
the symptoms return, she would meet him immediately.<\/p>\n
Nobody has a case that she ever went back to General<\/p>\n
Hospital. On 13.7.1995 it seems that the plaintiff had gone<\/p>\n
to the Clinic run by P.W.5.     She would say that she had<\/p>\n
advised the plaintiff to go to a well equipped hospital. P.W.5<\/p>\n
S.A.832\/2000.                 40<\/span><\/p>\n
says that she gave an injunction to the patient and the<\/p>\n
patient went back to her house. In cross examination, this<\/p>\n
witness would say that between 13.7.1995 and 18.7.1995<\/p>\n
when the patient came back with the same complaint,<\/p>\n
according to her, the patient was on normal diet.<\/p>\n
             38. Both the plaintiff and P.W.3, her husband,<\/p>\n
have a case that for two reasons the first defendant was<\/p>\n
negligent in the treatment of the plaintiff. One is that P.W.3,<\/p>\n
the husband of the plaintiff had complained to the Minister,<\/p>\n
who had visited the hospital, about the nature of the<\/p>\n
building and also someone else had complained that the<\/p>\n
first    defendant was insisting     bribes for treating the<\/p>\n
patients. P.Ws. 1 and 3 do say that they had paid amounts<\/p>\n
to the first defendant, though the first defendant denies the<\/p>\n
same. However, P.Ws.1 and 3 are gracious enough to say<\/p>\n
that the first defendant never demanded any amount from<\/p>\n
them and the payment made by them were voluntary<\/p>\n
payments.\n<\/p>\n
S.A.832\/2000.                 41<\/span><\/p>\n
             39. The evidence of P.W.3 shows that even<\/p>\n
though he says that the condition of her wife did not<\/p>\n
improve, he does say that his wife was able to attend to her<\/p>\n
routine affiars during the time while she was in the hospital.<\/p>\n
It is also seen from his evidence that oral food was taken<\/p>\n
after a few days under instructions from the medical staff. I<\/p>\n
am not oblivious of his statement that even at the time of<\/p>\n
discharge, his wife was suffering from the same illness. One<\/p>\n
may here also refer to the evidence of P.W.1. P.W.1 says<\/p>\n
that when she developed pain in the abdomen again on<\/p>\n
13.7.1995, she had gone to the Clinic run by P.W.5. She<\/p>\n
would say that on the first occasion, i.e., on 13.7.1995 when<\/p>\n
she met P.W.5, she gave her an injunction, but she did not<\/p>\n
ask P.W.1 to go to a better hospital. This is contrary to the<\/p>\n
evidence furnished by P.W.5, who categorically says that<\/p>\n
when the patient came to her on 13.7.1995, she was<\/p>\n
advised to go and take better treatment in a hospital which<\/p>\n
has more facilities.    P.W.1 says that on 13.7.1995 and<\/p>\n
18.7.1995 when she went to P.S. Clinic, she could not take<\/p>\n
S.A.832\/2000.                 42<\/span><\/p>\n
any food due to vomiting. One may here at once refer to<\/p>\n
the evidence of P.W.5, who says that as per her diagnosis<\/p>\n
and as per the information gathered from the patient, from<\/p>\n
13.7.1995 to 18.7.995 P.W.1 was taking normal food. One<\/p>\n
may again refer to the evidence of P.W.4. He would say that<\/p>\n
if acute intussusception is detected in a patient, normally<\/p>\n
two types of treatments are adopted, they are conservative<\/p>\n
method and surgical method. He would also depose that<\/p>\n
normally at first conservative method of treatment is<\/p>\n
adopted. P.W.6, whose evidence has already been referred<\/p>\n
to, is a surgeon attended to the Medical Centre Hospital.<\/p>\n
He has categorically stated in his deposition that the<\/p>\n
remedy for acute intussusception is not surgery alone. The<\/p>\n
first mode of treatment is to instruct the patient not to take<\/p>\n
any food orally including water. The doctor says that, that<\/p>\n
may bring about spontaneous reduction of intussusception<\/p>\n
and he also says about the various methods of treatment<\/p>\n
before surgery is resorted to. His evidence discloses that it<\/p>\n
is extremely difficult to diagnosis intussusception. It is in<\/p>\n
S.A.832\/2000.                 43<\/span><\/p>\n
this regard the evidence of P.W.7 needs to be appreciated.<\/p>\n
He also says that on 18.7.1995 the plaintiff came to the<\/p>\n
hospital with a complaint of vomiting and severe abdominal<\/p>\n
pain and they had suspected something wrong with the<\/p>\n
intestine. He would say that the        patient was put on<\/p>\n
conservative method of treatment. Only when they found<\/p>\n
that she did not respond to that treatment, surgery was<\/p>\n
decided to conduct upon. It is also significant to note that in<\/p>\n
chief examination this witness would say that whey they<\/p>\n
conducted laproscopy, they found a lump in the stomach,<\/p>\n
but only when they opened and probed into it, it was<\/p>\n
diagnosed as intussusception.\n<\/p>\n
             40. Thus, an analysis of the evidence will clearly<\/p>\n
show that the mode of treatment adopted by the first<\/p>\n
defendant initially is an accepted method even going by the<\/p>\n
evidence furnished by the plaintiff herself. The contention<\/p>\n
of the learned counsel for the respondent was that on the<\/p>\n
very same day of admission and on the very next day of<\/p>\n
admission, patient was put on I.V, that is not the accepted<\/p>\n
S.A.832\/2000.                   44<\/span><\/p>\n
mode of treatment in case acute intussusception is initially<\/p>\n
diagnosed. The uniform opinion of all the doctors examined<\/p>\n
is that, first the medical officer concerned resorts to<\/p>\n
conservative method of treatment and only if the patient<\/p>\n
does not respond to the same and develop further<\/p>\n
complications, surgery is resorted to.        In other words,<\/p>\n
surgery is the last option and not the first one as contended<\/p>\n
by the learned counsel for the first respondent.<\/p>\n
             41. One need not disbelieve the first defendant<\/p>\n
when he says that on 11.7.1995 when the plaintiff was<\/p>\n
discharged, her condition had considerably improved. If as<\/p>\n
a matter of fact what is claimed by the plaintiff and her<\/p>\n
husband P.W.3 is correct, certainly, it would have been<\/p>\n
difficult for her to survive for 2 or more days in General<\/p>\n
Hospital. It is to be noticed that she had in the General<\/p>\n
Hospital for 11 days. Therefore most of the submissions<\/p>\n
made by P.Ws.1 and 3 can be taken only with a pinch of salt.<\/p>\n
             42. May be that the first defendant was slightly<\/p>\n
indifferent. But that by itself does not lead to the conclusion<\/p>\n
S.A.832\/2000.                   45<\/span><\/p>\n
that he was negligent. As noticed in several decisions, the<\/p>\n
standard of proof is very high in case of medical negligence.<\/p>\n
The evidence does not disclose that the treatment adopted<\/p>\n
by the first defendant in the case of the plaintiff was not an<\/p>\n
accepted mode of treatment. In fact the evidence is to the<\/p>\n
contrary.     The initial treatment given to P.W.1, which is<\/p>\n
known as conservative method of treatment is one usually<\/p>\n
resorted to in all such case. The evidence is clear to the<\/p>\n
effect that option of surgery is the last resort when the<\/p>\n
patient does not      show any improvement after receiving<\/p>\n
conservative method of treatment and begins to develop<\/p>\n
more and more complications. Applying the above test and<\/p>\n
principle to the facts of the case on hand, it therefore<\/p>\n
follows that the plaintiff has miserably failed to establish<\/p>\n
that the first defendant was negligent in any manner.<\/p>\n
             43. At the time of hearing of the appeal, this court<\/p>\n
was given to understand that the decree has been executed<\/p>\n
and the plaintiff has realised the amount decreed by the<\/p>\n
trial court and as confirmed by the appellate court.<\/p>\n
S.A.832\/2000.                     46<\/span><\/p>\n
Considering the facts and circumstances, it is directed that<\/p>\n
in case the plaintiff had realized the amount, it shall not be<\/p>\n
recovered from the plaintiff. But it is held that the courts<\/p>\n
below were not justified in holding that the first defendant<\/p>\n
was negligent in the treatment of the plaintiff.<\/p>\n
             In the result, this appeal is allowed, the judgments<\/p>\n
and decrees of the courts below are set aside and the suit<\/p>\n
stands dismissed. There will be no order as to costs.<\/p>\n
                                              P. BHAVADASAN,
\n                                                  JUDGE
\nsb.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Moni vs State Of Kerala on 4 February, 2011 IN THE HIGH COURT OF KERALA AT ERNAKULAM SA.No. 832 of 2000(G) 1. MONI … Petitioner Vs 1. STATE OF KERALA … Respondent For Petitioner :SRI.GEORGE THOMAS (MEVADA) For Respondent :GOVERNMENT PLEADER The Hon’ble MR. Justice P.BHAVADASAN Dated :04\/02\/2011 O R D E […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-144707","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nMoni vs State Of Kerala on 4 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/moni-vs-state-of-kerala-on-4-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Moni vs State Of Kerala on 4 February, 2011 - 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