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2008 Supreme(Bom) 1576
IN THE HIGH COURT OF BOMBAY
ROSHAN DALVI, J.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Ms.Anita Nagindas Parekh & ors. - Plaintiffs
vs.
Dr.Anil C. Pinto - Defendant s
Suit No.510 of 1985
Decided On: 10-11-2008
Mr.K.K. Shah for Plaintiffs.
Mr.R.A. Shaikh for Defendants
Headnote:Torts - Doctrine of ’ Res ipsa loquitur ’ - Medical negligence - Applicability of doctrine - Post-surgery complications - Deceased admitted in hospital for surgery - Transferred belatedly to Hospital having relevant infrastructure - Delay in transferring him - Deceased died of renal failure followed by cardiac arrest - Non-removal of urine throughout time that deceased remained in defendant’s clinic - Over period of entire day - Damaged kidney of deceased - No extraction of urine of deceased in clinic - Defendant’s act falls within ambit of medical negligence - Doctrine of ’ res ipsa loquitur at tracted. - The other aspect which fits into the parameters of this doctrine is the aspect of delay. The delay becomes material even with regard to the extraction of urine, but it extends further. That delay is with regard to the grafting procedure itself which was done in KEM Hospital. The evidence that if the same procedure could have been earlier done the result would have been happier, applies with equal force to have extraction of urine itself for relieving the kidney of the pressure which was put upon it by the distended bladder containing an outlandish amount of accumulated urine. Even with regard to the aspect of delay, the defendant as a specialist Cervical Surgeon, having the qualifications that he does, considering the certificates that he has relied upon and produced, is expected to have the knowledge that embolus in the blood stream requires extreme expedition for its removal. If one method does not work out, the other method which would require better infrastructural facilities would have to be adopted with the greatest dispatch. In that also the defendant faulted. For no explicable reason and after not showing any material effort tried out during that period he did not shift the deceased to a better hospital much sooner than he actually did. The deceased was shifted hours after irreversible damages was done and his condition was beyond redemption. It is impossible to conclude that the surgeon with such special skill would allow himself to ignore the required speed with which to act while the patient was under his care and failed to put him in the care of better infrastructural facilities which alone could have saved the patient. It is impossible to conclude that the defendant could have expected the conditions of the deceased to improve under his treatment after hours of having continuous embolus, one after another.
The plaintiff was under the care, custody, and, therefore, the management of the defendant. In the ordinary course of things, the injury would not have happened. If the defendant had used proper care also the injury would not have happened. The injury that did happen in this case is renal failure. It can be seen that it happened because of want of care. That case is of extraction of urine. There is no explanation by the defendant as to why it happened, what he did to prevent it, or even a denial that it did not happen because of him by showing what reasonable care he had taken in the management and control of the plaintiff after his surgery in his clinic.
The totality of the evidence appreciated upon considering the jurisprudence relating to the tort of negligence, shows that the defendant carried out the procedures of Sympathectomy and Embolectomy as per his discretion, which was in accordance with a section or medical opinion and medical science at that time, after obtaining consent from the deceased. So much of his act constitutes no negligence at all. The negligence is only, as aforesaid, with regard to the delay in shifting him to the KEM Hospital as late as at 11 a.m. and upon being instrumental in irreversibly damaging kidney of the deceased for want of any care by extraction of urine. The negligence on account of these last two factors must clearly be imputed upon the defendant. Hence Issue No. (i) is answered in the negative and Issue No. (ii) is answered in the affirmative.
Torts - Medical negligence - Claim for damages for - Deceased died due to negligence in post-Surgery care - Deceased a young and healthy man in business - Until then not married - Admitted in hospital for minor surgery - Damages claimed 22 years back - Deceased earning Rs. 30,000/- to Rs. 50,000/- per year from his business - Claimants entitled to Rs. 10,00,000/- as damages for medical negligence. - There is nothing extraordinarily excessive about the last tax return. Each of the tax returns are in the same region. The deceased made a net profit between Rs. 30,000/- and Rs. 50,000/- in the last 3 years of his life in his business. It is only based upon these returns that the damages are required to be calculated, aside of course from considering the damages for mental anguish which cannot be brushed aside in case of death of this nature. It must be present to the mind of the Court that this is not a case of death in a road accident. Such death is more likely and expected than a death on a hospital bed of an otherwise healthy person who left home in the morning wishing to return in the evening. The damages to be calculated cannot be under an arithmetical formula in the case of negligence such as this.
The deceased himself was a young man in business. He was expected to prosper. There is nothing to show otherwise. He was until then not married. He did not have unusual expenses. None are shown. The extent of damages for the negligence of the defendant would be required to be computed also upon seeing the kind and the extent of his negligence which is not computable in arithmetical figures. A case of medical; negligence is distinguishable from a case or road accident where the negligence is only by rash driving. Though the actual damages suffered by his family members would have to be computed taking into account their position in life qua the deceased largely upon what the deceased earned and how the contributed to them, that would not be the only factor for consideration.
The claim for damages in this case has been made since 1985 soon after the death of deceased. It is due to legal delays that the plaintiffs have received not damages for 22 years. The grant of damages after so long upon considering the appreciation of money value during the last 2 decades would also have to be appreciated. Taking all these factors into account, a consolidated sum of Rs. 10,00,000/- (Rupees Ten Lakhs only) would be reasonable amount to be paid as damages for negligence of the defendant by the omissions stated hereinabove.
Torts - Res ipsa loquitur - Death caused due to not taking immediate care and proper treatment - Due to extra storage of urine bladder, back pressure in kidney - Hemoglobin detached from muscles and enters blood stream causing toxic effect - Held - Breach of duty enforce negligence - Case covers under doctrine of res ipsa loquitur - No explanation on part of defendant about happening - Negligence proved - Claim made in 1985 but could not be granted due to legal delays - No set formula to grant damages - Rs. 10 lakhs would be reasonable amount of damages along with interest of 6%. - The criminal charge of negligence is ruled out except in the grossest cases perfectly proved by the prosecution. Nevertheless, the Bolam test remains to be considered in case of civil liability for the torts of negligence.
The totality of the evidence appreciated upon considering the jurisprudence relating to the tort of negligence, shows that the defendant carried out the procedures or Sympathectomy and Embolectomy as per his discretion, which was in accordance with a section medical opinion and medical science at that time, after obtaining consent from the deceased. So much of his act constitutes no negligence at all. The negligence is only as aforesaid with regard to the delay in shifting him to the KEM Hospital as late as at 11 p.m. and upon being instrumental in irreversibly damaging kidney of the deceased for want of any care by extraction of urine. The negligence on account of these last two factors must clearly be imputed upon the defendant. The claim for damages in this case has been made since 1985 soon after the death of the deceased. It is due to legal delays that the plaintiffs have received no damages for 22 years. The grant of damages after so long upon considering the appreciation of money value during the last 2 decades would also have to be appreciated. Taking all these factors into account, a consolidated sum of Rs. 10, 00,000/- (Rupees Ten Lakhs only) would be a reasonable amount to be paid as damages for negligence of the defendant by the omissions stated hereinabove. Issue Nos. 3 and 4 are answered accordingly.
Suit is decreed for damages for negligence valued as Rs. 10,00,000/- (Rupees Ten Lakhs only). The defendant shall pay interest at the rate of 6% p.a. from the date of this judgment till payment/realization.
1. The original Plaintiff No.1 and Plaintiff No.2 were the heirs of one Prakash Nagindas Parekh, who expired on 20th February 1984 in KEM Hospital, Mumbai. Plaintiff No.1 expired pending the Suit. Plaintiffs 1(a) to 1(b) are the heirs and legal representatives of the original Plaintiff No.1 along with Plaintiff No.2. The Plaintiffs claim damages from the Defendant upon the tort of negligence.
2. The Defendant is a qualified practising Surgeon. The aforesaid Prakash Nagindas Parekh (the deceased) suffered from a condition called hyperhidrosis (excessive sweating). He was under the treatment of the Defendant who had performed a surgery medically called upper Dorsal or Cervical Sympathectomy which is a surgery to be performed on the hands (upper limbs) to alleviate the said medical condition. Sympathectony is a surgical excision of a part of the nervous system which causes hyperhidrosis. It is the Plaintiffs' case that the Defendant was negligent during course of the surgery as well as the pre and post operative care. The Plaintiffs have claimed damages upon such negligence.
3. The Defendant has denied negligence. He refutes the claim for damages.
4. Based upon the respective cases of the parties, Justice A.S. Oka framed the following issues on 9.7.2007 which are answered as follows:-
(i) Whether the Plaintiffs prove that the Defendant was negligent while performing a surgery upon Mr.Prakash Nagindas Parekh. - No.
(ii) Whether the Plaintiffs prove that the Defendant was negligent and has not taken a proper pre and post operative care. - Yes – to the extent stated in the reasons.
(iii) Whether the Defendant is liable to pay damages to the Plaintiffs. - Yes.
(iv) If answer to the earlier issues is in the affirmative, what is the amount of damages to which the Plaintiffs are entitled to? - As per final order.
(v) What order and decree ? - As per final order.
5. In this Suit, the Plaintiffs have examined Dr.Bhagavant Rajaram Kalke as P.W.1 to prove negligence. He has been cross- examined by the Defendant . The Plaintiffs have also examined Plaintiff No.1(a) on behalf of the Plaintiffs to prove the damages suffered by them as P.W.2 . The Defendant has examined himself to prove the lack of negligence and to refute the claim of damages. He has been cross- examined.
6. The Plaintiffs have sought to rely upon the Defendant's statement made under Section 313 of the Criminal Procedure Code in the criminal trial that arose upon the same incident. The Plaintiffs have relied upon the case papers right from the notes of the Consulting Physician of the deceased who referred the deceased to the Defendant, including the case papers of the Defendant's Clinic, the notes made by the Defendant as well as the case papers of KEM Hospital where the deceased was shifted by the Defendant after the surgery was performed upon the deceased. The aforesaid document s have also been relied upon in the criminal case. Certified copies of these document s have been obtained from the Additional Chief Metropolitan Magistrate, Mumbai and got produced in this Suit. Both the parties have relied upon and sought to interpret this documentary evidence. Of course, the parties have also got produced the complaint filed in the Metropolitan Magistrate's Court at Dadar and the judgment in the aforesaid case passed by the Metropolitan Magistrate's Court at Mazagaon, with which the issues in this Suit are not concerned. The Plaintiffs have further produced income tax returns of the deceased filed by the deceased prior to his death as well as the returns filed by the original Plaintiff No.1 and Plaintiff No.2 after the death of the deceased for the last financial year of his life.
7. The two main aspects of the case to be considered in this Suit based upon the aforesaid oral and documentary evidence are : (1) The factum of negligence, if any, before, during and after the surgery upon the deceased on the part of the Defendant and (2) if negligence is proved, the extent of
