Sobha, M. vs Dr. Mrs. Rajakumari Unnithan and Others

S. Krishnan Unni, J.—The Plaintiff in O.S. 229/1989 on the file of the Principal Sub Judge, Ernakulam is the Appellant. Plaintiff filed the suit for damages against the first Defendant Doctor, second Defendant Hospital in which she was working and the third Defendant Insurance Company from, whom the first Defendant has taken a policy to cover the professional risk. Plaintiff Sobha is a lady aged about 35 years and was working as a teacher in the Central School at Coimbatore. She had an 8 years old son and her husband was employed as a Medical Representative. Sometime in June 1988 she decided to have a second child and fir that purpose approached first Defendant who was a reputed Gynaecologist working in the Sree Sudheendra Medical Mission, a renowned Nursing Home in Cochin City. Plaintiff was perfectly healthy at that time. On 17th June 1988 she met the first Defendant in the Hospital. First Defendant advised her to have a Tube Testing. This was intended mainly to clear the obstructions, if any, in the fallopian tube blocking the delivery of ovum into the uterus. The procedure was simple viz., blowing of air through an apparatus into the vagina under a controlled pressure. The procedure lasts only about 5 minutes and is quite safe when applied with average skill and after normal precautions. Plaintiff underwent this test on 18th June 1988 in the morning hours from the Hospital under the supervision of first Defendant. She felt some uneasiness and a sense of vomiting. She was kept in the Hospital for hours and discharged. Sometime in the evening on that day, Plaintiff''s husband met the first Defendant in her house and reported that his wife was not well and was feeling pain and uneasiness. On that night she was taken to the Hospital where first Defendant was working and the Doctor noted the symptoms in Ext. B-1. The patient complained of pain in the abdomen and discomfort. It was noticed that pelvic region was little distended and she was admitted in the Hospital. Medicines and treatment was prescribed. She was discharged on 19th June, 1988 morning. Ext. B-2 is the record kept in the Hospital relating to this patient. The final diagnosis was ''''abdominal distension, relieved". On 22nd June. 1988. Plaintiff developed fever and she met first Defendant Doctor, on 24th June 1988. Then she was referred to a Physician Dr. T.L.P. Prabhu, examined as P.W. 2. Dr. Prabhu noted the clinical history and particularly noted "left tuber patent, right partial block", "slight pulling from left side, temperature above normal" and has also noted P.I.D standing for pelvic inflammatory disease. The Doctor could easily diagnose the inflammatory condition of the pelvic region and in consultation with the first Defendant he prescribed medicines to cure the infection. On 26th''June 1988 first Defendant issued Ext. X-3 certificate to the Plaintiff obviously for the purpose of getting leaver (stating that she is under her treatment for pelvic inflammatory disease) and she has advised rest for a week from 27th June 1988. In spite of the medicines prescribed the infection did not subside and on 29th June 1988 she was admitted as inpatient No. 1174. She was in the second Defendant Hospital till 9th July 1988 under the treatment of. Dr, Prabhu and- Syamala Menon and her condition was described as U.T.I, i.e. urinary tract infection. Ext. A-l is the card granted by the Hospital to the patient which shows the chest X-ray and other tests taken. When she was discharged she was asked to report for a review after, 4 days. Medicines were also prescribed. I may at this- stage state that Dr. Prabhu''s evidence shows that first Defendant was consulted till 28th June 1988 when the Plaintiff''s husband expressed some dissatisfaction and at their, request Dr. Prabhu referred the case to Dr. Asha Saraf, another, reputed Gynaecologist of the city. As I stated, earlier, Plaintiff was discharged from the Hospital on 9th July 1988. According to Dr. Prabhu he did not meet the patient thereafter. But the Plaintiff has produced Ext. A-2 card issued by the Hospital on 3rd August 1988 for consulting Dr. Prabhu which shows two dates viz., 6th August 1988 and 10th August 1988 on the back side. Barring the testimony of P.W. 1, and this card there is nothing to show that Dr. Prabhu attended on her after 9th July 1988. Thereafter at the request of the Plaintiff, Dr. Prabhu referred her to Dr. Sasikala Prabhu, a Gynaecologist examined as P.W. 3. Ext. A-3 is the report signed by Dr. Prabhu on 24th August 1988 in which also it is mentioned that left tube patent and right tube partial block. Though the patient was under treatment in the second Defendant Hospital till 9th July 1988, the entire case sheet was not produced and the patient''s condition from 29th June 1988 to 9th July 1988 is not fully borne out by Ext. B-2. We do not know the directions given by Dr. Asha Saraf under whose consultation she was during that period. The Manager of the Hospital has stated that the said records are not traceable. Thereafter P.W. 3 Dr. Sasikala examined the patient and found a persistent discharge from the vagina and pus was coming through the vagina. Ultra sound scanning was done on 18th August 1988 and the report is marked as Ext. A-4. It shows that uterus was normal by echo appearance, multi-loculated cystic masses were seen on both sides of uterus, both kidneys normal by sonographic appearance and no back pressure effect was noticed. P.W. 3 noticed that the uterus of the patient was normal but the right tube show hydrosulpinx i.e., blockage of tube distended with fluid. The right ovary contained a cyst of 5 cms. in diameter which is adherent to the intestines, cacum and appendix. Left ovary was found enlarged. The ovary, fallopian tube, uterus and the intestines were found infected and there was danger to the life of the patient. She referred the patient for a second opinion to the Professor of Gynaecology, Medical College, Trichur, Dr. Navaneetham who examined the patient and suggested an immediate surgery of laparotomy or hysterotomy at the earliest. Ext. A-5 is the discharge summary issued by P.W. 4. Thereafter P.W. 3 performed the surgery and removed the ovary, tube and uterus of the Plaintiff. Ext. A-6 is the follow up card issued from Dr. Kunhalu''s Nursing Home wherefrom the surgery was done. Thereafter on 21st February 1989 Plaintiff issued Ext. A-8 lawyer notice to Defendants 1 and 2 claiming damages for negligence to which they sent Ext. B-3 reply on 28th February 1989 maintaining that there was no negligence on their part and they were not liable to pay any damages.

Thereafter the suit was filed narrating the above facts and alleging negligence on the part of the first Defendant Doctor and stating that the second Defendant Hospital is vicariously responsible for negligence. Rs. 13,000 was claimed as damages towards expenses for surgery and medicines, Rs. 5,000 towards travelling and other incidental expenses, Rs. 10,000 towards loss of income as she had to be on loss of pay, Rs. 15,000 as damages for mental and physical pain and Rs. 25,000 for the loss of vital organs, making a total claim of Rs. 68,000.

Defendants filed a written statement admitting that the Tube Testing was done on 18th June 1988 on the Plaintiff by the first Defendant, that as the Plaintiff was suffering from fever she consulted the Physician of the same Hospital on 24th June 1988, that she was admitted on 29th June 1988 for the said symptoms and was discharged on 9th July 1988 after fully recovering from the illness and discomfort. Thereafter nothing was heard about her. They alleged that due care, attention and caution was taken and there was no negligence on their part. Third Defendant Insurance Company was impleaded on the contention of the first Defendant that she is insured with them.

On behalf of the Plaintiff 4 witnesses were examined Plaintiff was examined as P.W. 1. She has sworn to her case. Though she attempted to speak about medical and technical aspects, the sum and substance of her evidence is that first Defendant might have been negligent in not being cautious about air pressure while administering the Tube Testing. She had no complaint that she sustained infection due to defective sterilisation of implements. P.W. 2, Dr. Prabhu about whom I have made reference stated that first Defendant treated the Plaintiff from 1,7th June 1988 to 24th June 1988 as evidenced by Ext. B-2. He proved Ext. X-2 report and stated that he treated the patient as inpatient from 29th June 1988 to 9th July 1988. He further stated that the word P.I.D. includes urinary tract infection also. He stated that the Plaintiff''s husband was not satisfied with the treatment of first Defendant and Dr. Asha Saraf was consulted. According to him on 27th June 1988 itself he was satisfied that the Plaintiff''s uterus, fallopian tube and ovaries were infected and that it was a gynecologic case and he referred her to first Defendant. First Defendant agreed with his conclusions after examining the patient on the next day. He has sworn that on 9th July 1988 the Plaintiff was discharged and she went to Dr. Sasikala, P.W. 3 on her own account. His evidence in cross-examination was that such a condition suffered by the Plaintiff is a rare possibility after Tube Testing. If there was a latent infection in the patient, after the Tube Testing it could flare up. He has given evidence that in the Hospital, before Tube Testing, sterilisation is done and there is no possibility of passing on any infection due to want of sterilisation of implements (page 5 of P.W. 2). He further stated that the infection could be due to the carelessness of the patient or other reasons. The Doctor further stated that from 9th July 1988 to 25th August 1988 the Plaintiff or husband has not reported to him that she was suffering from any fever. On the definite question about negligence regarding the Tube Testing P. W. 2 gave a positive answer "Tube Testing "

The next witness examined was P.W. 3, Dr. Sasikala who performed the surgery. I have already referred to her evidence and Ext. A-4 ultra sound scan report. She performed laparotomy on the Plaintiff because she felt that otherwise her life would be in danger. When she was cross-examined she gave evidence that infection can be caused by several reasons, firstly after a delivery or abortion, secondly after surgery to the uterus and thirdly by usage of unhygenic pads after sexual intercourse. P.W. 3 made a very important statement in evidence that the Plaintiff had no complaint that first Defendant was negligent or careless in performing the Tube Testing. She also admitted that in the second Defendant Hospital good care is taken regarding the sterilisation of the implements to prevent infection.

The next witness examined was Dr. Navaneetham, Professor of Gynaecology, Medical College, Trichur about whose testimony I have made some reference. She examined the patient and issued Ext. A-5. She found her condition to be dangerous and suggested either laparotomy or hysterotomy. Her evidence is Tube Testing is an intrauterine manipulation and if any injury is sustained to the organs in the course of it, it could cause infection but that will not lead to the necessity of removing the uterus. She also pointed out that if the normal pressure is not maintained during Tube Testing repture in the uterus can occur and if the said rupture is not treated it could cause infection. In Ext. A-5 issued by P.W. 4 she suspected a malignant ovarian tumour. P.W. 3 who performed the surgery did not say that there was a malignant tumour. She has repeated the same causes for infection as sworn to by P.W. 3. To a specific question P.W. 4 answered that she was unable to arrive at a cause for infection. In re-examination she stated that the cause of infection can be determined after studying the whole history and analysis of the organs removed for pathological examination.

First Defendant was examined as D.W. 1. She has given evidence that on 17th June 1988 when the Plaintiff came to her she was perfectly healthy and was free from infection and she would not have attempted Tube Testing if she was infected. She has spoken about the procedure for Tube Testing and stated that instruments were sterilised. Her opinion is by undergoing Tube Testing cannot develop any infection. She would assert that after 24th June 1988 the patient did not come to her. But this is against the evidence given by Dr. Prabhu, P.W. 2 who stated that till 28th June 1988 the patient was under the joint treatment of himself and D.W. 1. In fact Ext. X-3 certificate issued by first Defendant would show that at least on 27th June 1988 the Plaintiff was under her treatment. In the course of evidence this witness stated that Ext. B-2 case sheet will not show that she has treated the Plaintiff after 24th June 1988. She further admitted that Plaintiff has no grudge against her and she was very cordial to her. Though this witness has stated that on 9th July 1988 when the Plaintiff was discharged, she was fully recovered, we need not attach much value to this statement because she has not seen her after 27th June 1988. It is in the background of the above evidence that the Court is called upon to decide about the negligence of the first Defendant. The lower Court has discussed this evidence and came to the conclusion that negligence on the part of the first Defendant is not established.

The next aspect to be considered is the extent of Doctor''s liability for negligence. We have to consider what is the standard of skill that the Doctor is expected to have in the dignosis and treatment of patients and due care and attention that is required of him failing which the Doctor can be said to be negligent. The matter is not free from difficulties. In strict legal analysis ''"negligence" means more than careless conduct. It connotes (1) duty to take care, (2) breach of the duty and (3) damages thereby suffered by the person to whom the duty was owing. Such a duty may arise from a contract but it can arise independently out of a contract also. That duty of care arising independently out of contract is based upon the fact that the Doctor has undertaken the treatment of the patient. The test is standard of an ordinary skilled'' man exercising and professing to have special skill. Such a man need not possess highest expert skill. It is well established that it is sufficient if he exercises the ordinary skill of an ordinary competent man practising that particular profession. In this connection learned Counsel for the Appellant-Plaintiff referred to the decision reported in Dr. L.B. Joshi v. Dr. T.B. Godbole 1969 (1) S.C.J. 731. The facts of that case very briefly stated for an understanding is as follows. Plaintiff''s son Ananda suffered a fracture of femur of his left leg. First aid was given by a local Doctor and the fractured leg was immobilised with the support of a wooden plank. But the next day it was replaced by Mac Intyres splints. He was later on taken to Poona at Tarachand Hospital where the Orthopaedic Surgeon tried to refix the fractured bones from the operation theatre. The Anaesthetist and his assistant were present and they administered first a morphia injection. The Plaintiff had a case that traction was done not under morphia but under general anaesthesia. It was contended that this kind of rough use of force and manipulation caused conditions for embolism or shock which proved fatal to the patient. However, the Doctors contended that general anaesthesia was given and the boy co-operated and his limb was .put in plaster in the operation theatre. At page 735 their Lordships summed up the position thus:

The duties which a doctor owes to his patient arc 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 requires: (of Halsbury''s Laws of England, 3rd edition, volume 26, page 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 he 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 anaesthetic 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 1858) 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 anaesthetic 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.

In this particular case the cause for the death and exact negligence of the Doctor was pin-pointed by the discussion of evidence.

The decision reported in Dr. Pinnamaneni Narasimha Rao Vs. Gundavarau Jayaprakasu and another, is another case containing an exhaustive discussion of what constitute negligence by the medical men and what is the standard of skill and care and caution expected of them. In that case Plaintiff who was a brilliant youngster aged 17 years passed P.U.C. examination securing 100 per cent in Mathematics and 93 per cent in Physical Sciences and obtained a State Government merit scholarship was offered a seat in the B.E. Degree course in the Engineering College both within and outside A.P. He suffered from a minor ailment-chronic nasal discharge-in connection with which his mother took him to the Doctor for consultation. The Doctor diagnosed the disease as Nasal Allergy and suggested a surgery for removal of tonsils. The boy was admitted in the Government General Hospital, Guntur and the operation was performed on the morning of 7th July 1966. His father came from Nagpur to Guntur for operation. What happened inside the operation theatre was within the exclusive knowledge of the Doctor. After about 11/2 hours the Plaintiff was taken outside the theatre in an unconscious stage and the Doctors informed his father that he would regain consciousness within 3 or 4 hours. The Plaintiff was kept in the E.N.T. Ward for next 3 days and he did not regain consciousness. For another 15 days he was unable to speak coherently. A Physician and a Psychiatrist were called upon to treat the patient and he was discharged on 28ih August 1966, The boy was just able to recognise the persons around and utter few words. He could not even read or write numericals. He lost all the knowledge and learning acquired by him. He was taken to the Christian Medical College Hospital, Vellore where he was examined by Professor of Neuro Surgery. The Neuro Surgeon gave a written opinion that Plaintiff had cerebral damage and his intellectual ability was that of a 5 year aged boy in relation to calculations, reading and understanding. The boy was taken to Bangalore where the Assistant Professor of Psychiatry at the Indian Institute of Medical Health conducted certain tests and found the Plaintiff to be mentally defective. His I.Q. as against the normal 100 was only 60. There was organic brain damage which was due to cerebral anoxia the damage to nerve cells was total and irreversible. The boy claimed a compensation of Rs. 50,000. The case of the Plaintiff was knowing fully well that he was not in a fit state to be operated upon, the second Defendant negligently proceeded to perform the operation and in fact completed the operation, thereby further aggravating the damage to the brain. Plaintiff''s case was that due to the recklessness and negligence of the Defendants 2 and 3 he suffered respiratory and cardiac arrest for about three or four minutes during general anaesthesia which led to cerebral anoxia causing irreparable damage to the brain. The second Defendant E.N.T. Surgeon pleaded that he had taken all precautions necessary for the safety of the Plaintiff. The third Defendant-Chief Anaesthetist who was in charge of administering anaesthesia contended that when the operation was about to begin it was found that the boy had a respiratory failure and so he was given a special treatment to resuscitate him. When after the operation the Plaintiff did not regain consciousness, a Physician was again called for consultation. By the date of discharge the Plaintiff was able to attend to most of his routine functions, take food, answer calls of nature, wear his dress and move normally and talk sensibly. Whatever happened to the Plaintiff was for reasons beyond the control of Doctors. The lower Court held that the boy suffered the brain damage due to cerebral anoxia and it was a result of negligence because even before he was operated upon he has suffered respiratory difficulties and that the Anaesthetist, removed the tube from the mouth of the Plaintiff without giving fresh breaths of oxygen and there was delay on the part of the third Defendant in noticing the respiratory arrest and inserting the tube for the second time and in the meanwhile the respiratory arrest led to cardiac arrest. The faulty method of induction of anaesthetics led to cerebral anoxia and thus permanently damaged the brain. In the above decision His Lordship relied on a passage from The Law of Torts by John G. Flemming which reads as follows:

special skill must not only exercise reasonable care but measure up to the standard of proficiency that can be expected from persons of such profession.

His Lordship has observed thus:

Failure to conform to the required standard of care resulting in material injury is actionable negligence if there is proximate connection between the Defendant''s conduct and the resultant injury. A surgeon or anaesthetist will be judged by the standard of an average practitioner of class to which he belongs or holds himself out to belong. In the case of specialists a higher degree of skill is called.

His Lordship has also relied on the decision reported in Bolam v. Friern Hospital Management Committee (1957) 2 All E.R. 118 which reads as follows:

...where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular article Counsel for the Plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper stanards then he is not negligent. A doctor is not guilty of negligence if he has acting accordance with a practice accepted, as proper by a responsible body of medical men skilled in that particular Article. Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.

The above position was upheld by the House of. Lords in Whitehouse v. Jordan (1981) W.L.R. 246. It was observed:

Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may or may not, be negligent it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the Defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent.

What is held by the English Courts was followed and approved by the Indian Courts also. In Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Another, , the Supreme Court held thus:

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 required: (ch. Halsbury''s Laws of England, 3rd edn. (Vol. 26 p.17).

(emphasis supplied)

In Achutrao Haribhau Khodwa and Others Vs. State of Maharashtra and Others, the Supreme Court had to consider a Gynaecologist''s skill and negligence. One Chandrikabai was admitted in the Civil Hospital, Aurangabad, on 10th July 1963 for delivery of a child. This maternity hospital is attached to the Medical College at Aurangabad where Respondent No. 2 was working in the Department of Obstetrics and Gynaecology as a Doctor. She attended on the patient. Chandrikabai was delivered of a male child on 10th July 1963. As she had got herself admitted to this hospital with a view to undergo a sterilisation operation after the delivery, second Respondent performed the said operation on 13th July 1963. Soon thereafter the patient developed high fever and also had acute pain which was abnormal after such a simple operation. As her condition deteriorated further on 15th July 1963 Appellant No. 1 approached Respondent No. 3 and one Dr. Divan, P.W. 2, a well-known surgeon attached to the Hospital. At the instance of the first Appellant Dr. Divan examined the patient and seeing her condition, suggested that the sterilisation operation which had been performed should be reopened. The suggestion was not accepted and the patient became very serious. On 19th July 1963 Dr. Divan was called again. He reopened the wound of the earlier operation to ascertain the true cause of the seriousness of the ailment and to find out the cause of the worsening condition and found out a mop (towel) had been left inside the body of the patient when the sterilisation operation was performed. There was collection of pus and the same was drained out by Dr. Divan. Thereafter the abdomen was closed. The condition of the patient did not improve and she expired on 24th July 1963. The patient was working as a teacher in the Government School. The Doctor was charged with negligence. The Gynaecologist in her written statement contended that the negligence was on the part of Dr. Divan, the Surgeon. But according to Dr. Divan the death of the patient was due to the complications leaving the mop inside the abdomen. Experts on both sides were examined for opinion. There is an illuminating discussion on the aspect of doctor''s negligence. At page 512 their Lordships quoted a passage from Kanchanmala Vijaysing Shirke''s case describing negligence as follows:

Negligence is the omission to do something which a reasonable man is expected to do or a prudent man is expected to do. Whether is the facts and circumstances of a particular case, the person causing injury to the other was negligent or not has to be examined on the materials produced before the Court.

Their Lordships also relied on Bolam''s case (1957) 2 All E.R. 118 referred already. The Court also relied on Rogers v. Whitaker 1993 109 A.L.R. (sic) where doctor''s negligence was discussed.

the question is not whether the doctor''s conduct accords with the practice of a medical profession or some part of it, but whether it conforms to the standard of reasonable care demanded by the law. That is a question for the Court to decide and the duty of deciding it cannot be delegated to any profession or group in the community.

The Court also relied on the decision reported in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and Another, already referred to in our discussion. A passage from A.S. Mittal and Another Vs. State of U.P. and Others, was relied on:

A mistake by a medical practitioner which no reasonably competent and a careful practitioner would have committed is a negligent one.

In paragraph 14 the Supreme Court observed thus:

The skill, of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

Where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then an action in tort would be maintainable. In the particular case their Lordships held that negligence was writ large on the facts and the doctrine of resipsa loquitur was applied and the Doctors were found to be negligent.

In the decision reported in New India Assurance Co. Ltd. Vs. Kiritkumar S. Sheth and Another, the duty of care expected of a Doctor and the situation in which doctrine of res ipsa loquitur can be applied was considered by the Gujarat High Court. In paragraph 13 their Lordships stated thus:

What is reasonable care or skill would also again be a matter depending upon varieties of factors. It must be noted that there is difference in the degree of care, caution and skill in normal times and in case of emergency nobody can expect the same degree and amount of care, caution and skill. Amount of care, skill and caution expected of a reasonable and prudent medical practitioner may not be to the same extent at times in case of emergent situation.

Again, it should also be remembered that there are certain inherent problems and difficulties which cannot be traced to the degree and skill of professionals. Even a person who has shown great skill and sound caution may also make error of Judgment. Therefore, what is required to be seen is want of care and caution and not consequence. Even a best surgeon is likely to make honest error in Judgment. Therefore, what is required to be judged is causation, nexus of injury with the action alleged to be negligent. There must be direct relationship between the negligence and the resultant harm.

Again it was observed:

The anxiety or main function of the Court is to see not at the result but the cause of that result. What was the cause which led to the impugned injury caused? That is precisely the point before us in this appeal.

The Court also dealt with the doctrine of re ipsa loquitur in paragraph 15 thus:

The phrase doctrine of res ipsa loquitur means thing speaks itself which is normally applied in vehicular accidents. But the same principle can be extended even in case of an injury on account of medical treatment. While applying this doctrine, it can very well be seen that initially the onus of proof is discharged by the Plaintiff. It is, therefore, necessary for Defendant No. 11, doctor to show that it is not he who is the author of the injury sustained by the Plaintiff. The onus shifts on him. The question, therefore, would arise as to whether Defendant No. 1 has been able to discharge the onus shifted on him. Unfortunately, the trial Court has not, with due respect, examined this important aspect in its proper perspective. It would now therefore, be necessary for us to deal with this aspect as to whether Defendant Dr. Sheth has been able to discharge the onus of injury showing that he was not at all responsible for the injury sustained by the Plaintiff.

In paragraph 31 it is observed thus:

A doctor is never presumed to be infallible. He is also not obliged to achieve triumph in every clinical case that he treats. Doctor cannot be held negligent simply because something goes wrong. Doctor can be found guilty only if he falls short of standard of reasonable skilful medical practice. The true test, therefore, to hold a medical practitioner guilty of negligence is to have a positive finding of such failure on his part as no doctor of ordinary skill would be guilty of acting with reasonable and ordinary care.

An exhaustive review of the law on the subject reveals that the Court''s duty is to see the cause of the Plaintiff''s condition and whether it can be traced to negligence on the part of the first Respondent. In doing so we have to follow parameters about doctor''s negligence already referred. I have already discussed at length the evidence, in this case. The main reasoning of the Plaintiff is that she was healthy until she did the Tube Testing on 18th June 1988 and from that day onwards she took ill. She was admitted as inpatient on that day and discharged on the next day. She again consulted first Defendant on 22nd June 1988 and continued to consult her until 24th June 1988 when she was referred to P.W. 2 Dr. Prabhu in connection with fever. Dr. Prabhu concluded that the condition was Pelvic Inflammatory Disease and treated her in consultation with first Defendant till 28th June 1998.

Thereafter, even according to the Plaintiff, she was under the treatment of Dr. Prabhu alone. Learned Counsel for the Appellant-Plaintiff would contend that the above circumstances would show that Plaintiff''s misfortune started with the Tube Testing incident that led to the removal of her organs due to infection. It is true that her misfortune started after T.T. But the question is whether first Defendant''s negligence was the cause for this misfortune. I have already stated about the probable causes for infection while discussing the evidence of the experts. Now let us '' see what precisely was the evidence in this case on this aspect. P.W.1''s opinion is that (page 12-13).

She also says that she has not expressed her doubt to another doctor. P.W.I has no case that the equipments were not sterilised.

P.W. 2 Dr. Prabhu (Page 7) stated thus:

Tube Testing

He has also stated that usually the equipments for Tube Testing are sterilised, before use.

P.W. 3 Dr. Sasikala Prabhu who conducted the surgery has given evidence that if there is a dormant infection in the patient it can flare up after Tube Testing is done. She has stated (page 3) thus:

Dormant infection T.T. flare up

She also stated that the Plaintiff has not complained to her anything against the first Defendant.

P.W. 4 who was consulted stated that such an infection as found in the Plaintiff can happen after delivery, abortion or operation of the uterus. She has stated in page 3 that even without Tube Testing this situation can arise.

When D.W. 1 was asked about it, at page 7 she stated thus:

Could you ascertain the reason for P.I.D. (A) Some dormant infection can flare up after T.T. Cannot say for certain what was the reason.

I have taken pains to cull out from the evidence the opinion of the Plaintiff as well as the experts'' in the field. One of the circumstances that is strongly relied on by the Plaintiff is the fact that the second Defendant did not produce the treatment chart. I.A. 1267/1991 was filed in the Court below by the Plaintiff directing to produce two documents. The Manager of the Hospital filed an affidavit stating that he is in custody of the records of the Hospital, he could not find out the two documents required by the Plaintiff and, therefore, he could not produce the same. It is therefore, argued by the Appellant-Plaintiff''s Counsel that this might invite an adverse inference. Actually one does not know how these papers were missing because the Hospital has produced Exts. B-1 and B-2. This has given rise to the impression that the second Defendant Hospital is suppressing these documents. However, a close analysis would reveal that this part of the reasoning is not entirely correct; The documents produced proves what has been done to the patient by the first Defendant, on which dates she consulted the first Defendant. They reveal treatment being given to her not only by first Defendant but also by Dr. Prabhu, P.W. 2. The evidence also discloses that after 28th June 1988 Plaintiff did not consult first Defendant and she was not under her treatment. What is missing is data about the treatment, if any, continued under the suggestion of Dr. Asha Saraf with which we are not concerned in the present case because Plaintiff has no complaint that she was negligent. Plaintiff does not even complain of negligence against Dr. Prabhu. Her entire complaint is directed against the first Defendant only. In this connection Ext. A-4 scanning report will show that no rupture of the tube, Uterus or ovary was noticed even on 18th August 1988 by the Pathologist. This will rule out possibility of rupture of organ due to excess air pressure during Tube Testing. Therefore, to sum up, it is not established that the first Defendant Doctor did not act with average skill that is expected of her while giving advice or diagnosing or treating the Plaintiff. It is not proved that as a result of the Tube Testing any of her organs were ruptured; nor is there evidence to show that proper sterilisation of the equipment was not done or proper care and caution was not taken. The Doctors who treated the patient subsequently i.e., P.Ws. 2 to 4 have not stated anything to show that first Defendant was negligent in the performance of her duties. The patient herself has not complained about first Defendant even to P.W. 3. Plaintiff''s reproductive system has to be removed because of the infection, to save her life from danger. We are unable to state what was the cause of this infection. The experts have opined that it can happen due to various reasons, after a delivery, after an abortion or a surgery of the uterus. None of the above reasons are applicable to this case. There is no case that the implements used for Tube Testing were not sterilised and evidence on that aspect is in favour of the Doctor. The Doctors have stated that they were unable to find out the reason for infection. It is true that the Plaintiff was very unfortunate. Though she went to first Defendant to have a second child, all her hopes were slammed permanently and that was the tragic irony of the situation. But we cannot impose the liability on the first Defendant who treated her unless we are able to establish the nexus between the Plaintiff''s injury and negligence on the part of the first Defendant. In this case the Plaintiff was unable to establish that her sufferings were due to the want of average skill on the part of the first Defendant or due to her want of care and attention. The plea that the case must be decided on the principle of res ipsa loquitur does not appeal to me. The Plaintiff had to remove organs only because of her infection. Ext. A-4 Pathologist''s report will show that none of the organs were ruptured due to the Tube Testing. That is supported by the evidence of other experts also. The Court will not be justified in invoking the doctrine of res ipsa loquitur in finding that the first Defendant was negligent. In the above circumstances, I do not find any grounds to interfere with the judgment and decree of the Court below.

In the result, appeal is dismissed.