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High Court Of Madhya Pradesh
M. L. Malik, J.
J.N.SHRIVASTAVA - Appellant
Versus
RAMBIHARILAL - Respondents
First Appeal 123 Of 1973
Decided On : 06/27/1980
We should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point but we must not condemn as negligence that which is only a mis-adventure.
In the case of an accident on the road, there ought not to be any accident if everyone used proper car; and the same applies in a factory; but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and indeed bad law to say that simply because a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community if it were so. (1954) 2 Q.B. 66 and (1954) Times, 2nd July relied on. [Para 13
(2) Tort - negligence - mistaken diagnosis - not necessarily a negligent.
Pain getting localized in the right iliac fosse, was the condition which led the doctor to diagnose the case as one of acute appendicitis. Vomiting and rising temperature and high percentage of ploys in the blood report confirmed his belief that it was most likely a case of appendicitis. It ultimately turned out that the appendix was found normal but the gall bladder funds had descended upto the appendicular region. The clinical symptoms could, therefore, be mistaken one for the other i.e. Cholecystitis for appendicitis. There is absolutely no negligence in the diagnosis. A mistaken diagnosis is not necessarily a negligent diagnosis nor would it imply an absence of reasonable skill and care on the part of the doctor. [Para l9
(3) Tort - negligence - operation without consent of patient or his family member - where does not constitute negligence.
The law on the subject of consent is that a surgeon who performs an operation without the patient's consent commits an assault on him for which be is liable for damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained. (1933) 3 D L R. 260=60 Can, CC 136 relied on [Para 20
In the present case the surgeon found the appendix to be normal but the gall bladder in a highly pathological condition. The patient was under the influence of the anesthetic. The surgeon could not rush out, leaving the patient with the abdomen open, for obtaining consent of the husband. It was not imperative to obtain the husband's consent when the operation was being performed on a lady who was suijuris. The surgeon had to decide for himself whether the intensely inflamed gall bladder with its mucous membrane swollen, containing stones, with incidence of gangrene likely to supervene, needed immediate removal, otherwise the life of the patient was in danger. The surgeon was of the view that the gall bladder needed to be removed forthwith. "A Short Practice of Surgery" 11th Edn. 440 relied on. [Para 21
(4) Tort - negligence - cannot be inferred merely because surgeon adopted different mode of treatment.
Some discretion must, be left to the judgment of the doctor on the spot. He has to bear the whole picture in mind, use his commonsense, his experience and judgment as far as it fitted the particular case. One cannot be guided by what has been written in the text books The statements in text books were no substitute for judgment of the surgeon who has to handle the situation at the spot. Nor can negligence be inferred when a surgeon of higher education, higher experience and higher degree of skill would probably have adopted a different made of treatment. 18 D.L.R. (2nd) 150 relied on. [Para 24
( 1 ) THIS is defendant's first appeal. The defendant is a surgeon who has been held liable to pay damages for negligence in the performance of an abdominal operation resulting in death of the patient. The plaintiffs are husband and children of the deceased patient. Decree has been given for Rs. 4,000/- with corresponding costs and interest at 3% per annum. The claim was laid for Rupees 11,000/ -. The plaintiffs, being dissatisfied with the quantum of damages awarded, have filed a cross-objection for enhancement of the amount.
( 2 ) THE facts may be briefly stated. Respondent 1 Rambeharilal was Collector, Shahdol at the relevant time i. e. in the year 1958. Appellant Dr. J. N. Shrivastava was a medical officer in the employment of the State of Madhya Pradesh, then in charge of the Sohagpur Government Hospital, Shahdol, In the night intervening 27th and 28th Sept. 1958, Shrimati Kanti Devi, wife of Rambeharilal, got an attack of severe abdominal pain with occasional vomiting. Dr. Shrivastava was called for consultation and treatment. He gave her Strepto-Penicillin injections on the following two days along with sedatives. The pain did not abate. Instead, temperature started rising. On 30-9-1958, it was about 100f. Dr. Shrivastava observed extreme tenderness over the right iliac fossa - which had been throughout. He asked Dr. Datta to do the blood differential count which revealed 84% polys. This confirmed the doctor's tentative diagnosis as a case of acute appendicitis. He, therefore, advised surgical operation of appendectomy.
( 3 ) RAMBEHARILAL and his wife were at first hesitant for an operation. They had their consultations with friends- Even the District Medical Officer, Umaria, Dr. Mishra, was consulted on phone. Dr, Mishra was of the opinion that surgical operation was not imminent as 48 hours had passed and the pain had subsided appreciably. He advised conservative line of treatment
( 4 ) DR. Mishra's opinion was communicated to Dr. Shrivastava who, however, was not inclined to agree. He was still of the opinion that prompt appendectomy was advised lest peritoneal infection took place by perforation.
( 5 ) RAMBEHARILAL and his wife ultimately consented to Dr. Shrivastava performing the surgical operation. Shrimati Kanti Shrivastava was brought to the hospital at 1 p. m. She was prepared for the operation after preliminary tests were done. I may record here some relevant extracts from the case sheet of the patient, which I have no reason to believe to have been subsequently fabricated or manipulated. The case sheet appears to be a genuine document. History : Intermittent attack of pain in the right hypochondriac, lumber and iliac region for last four years. Vomiting occasional. Jaundice nil. Occasional temperature in low degrees, Complaint : (i) Pain all over abdomen -- 2 days, (ii) Running menstrual period -- 1 day. Present illness : Patient complained of vague pain all over the abdomen since last two days. Occasionally the pain be- comes exaggerated in the right hypochondriac, right lumber and right iliac region. History of vomiting and eractation : No shoulder pain. History of past illness : patient got similar attacks intermittently since last four years- Those were not accompanied by fever, vomiting or shoulder pain. Family history : Patient is mother of seven children; youngest is four months' old. General Examination : Built -- fat and flabby. Nutrition -- Good. Pulse -- 84 per minute. Volume and tension -- normal. Temperature -99. 4 f- Neck glands -- Not palpable. Jaundice -- Nil. Anaemia -- Nil. Cyanosis -- Nil. System Gastro Intestinal : Tongue --Slightly coated. Teeth and gums --Healthy. Abdomen -- Nothing particular except flabbiness. Liver and spleen --Not palpable. On palpation : Abdomen --- soft. Mec-burneyg point -- extremely tender. Murphy's sign -- + No mass felt except on the right lumber region. Percussion --NAD. Auscaltation -- NAD. Respiratory system -- NAD. Cardiovascular system : Ca
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