1984 Supreme(MP) 842

High Court Of Madhya Pradesh
C. P. SEN, S. AWASTHY
RAM BIHARI LAL - Appellant
Versus
J.N.SHRIVASTAVA - Respondents
L. P. A. 12 Of 1980
Decided On : 12/14/1984

Headnote:(1) Appeal-duty of appellate Court-judgment of trial Court.

       (2) Civil P. C., 1908-S. 96-first appeal-finding of the trial Court-should be considered.

       Due consideration ought to have been given to the well reasoned findings based on evidence of the District Judge. [Para 23

       (3) Tort-rashness and negligence-operation by Surgeon-duties of consent and necessary precautions not taken-ingredients of deseased gall bladder not exa'1lined -operation amounts to rashness and negligence.

       The patient was to be oprated for inflamed appendicitis. The doctor represented that further delay in operation would endanger the life of the patient. No further examination or confirmatory tests were done. Because of the urgency indicated by the doctor the patient and her husband agreed to the operation. The husband sought advice of District Medical Officer who adviced against operation. The doctor defendant did not agree and insisted on operation. During the operation the appendix was not found enlarged. The defendant made a second incision and removed the gall bladder without obtaining the consent of the plaintiff husband of the patient. The operation took two hours and the deceased patient was kept under chloroform. The doctor represented that the operation was successful and there was no cause of anxiety. Later on it was found that there was no trouble with the gall bladder. The hospital was ill-equipped for surgery treatment or of any major operation. The Anaesthetist was absent. The only anaesthesia available was out dated chloroform. Administration of chloroform was done by a person who was not a trained anaesthetist. No prospective preparations were made for such a major operation.

       The evidence showed that the patient could walk upto the car and from the car to the hospital.

       It was an admitted position that the doctor did not explain to the plaintiff the hazards of chloroform aneasthesia before taking his consent. Some tests were necessary before operation. These were not takel1. The indications of appendicitis were not present. The petient was on restricted diet for three days and was under her menses, during which period there was weakness in the patient.

       Held: There was no case of urgency. It was rash act on the part of the defendant surgeon in proceeding to remove the gall bladder without taking necessary precautions and without preparing the patient for such a major operation. It was not a case of emergency for removal of the gall bladder as neither It was gangrenous nor there was pus formation. Even if there were gall stones, the operation could have been postponed. The defendant wanted to impress the plaintiff, who was a Collector about his ability and so in great haste performed the second operation.

       The doctor is liable when he fell below the standard of a reasonably competent practitioner in his 1ield, so much so that his conduct might be deserving of censure and inexcusable. (1954) 1 WLR 835 referred to.

       The present case was not a case of urgency. Without doing all the necessary tests and preparing the patient, the defend suddenly decided to apply his knife when the condition of the deceased was getting stabilised.

       It has to be held that the deceased died of hopato-renal failure due to rash and negligent act of the defendant. He wrongly diagnosed the ailment to be acute appendicitis without proper investigation and without preparing the patient for the operation. She was in her menses and was on restricted diet for 3 days. She had history of abdominal pain. On doing necessary blood and urine tests it could have been found that ailment was in her kidney, but hastily he proceeded to operate her. It may not be questioned that the defendant possessed the necessary skill and knowledge to undertake the operation but his over confidence and hurry failed him. He paid no heed to the advice of hi& superior that since the patient had stabilized herself, it was not an emergent case. He should have been put on guard when he could not get urine even by cathoterization. Before applying the knife he did not find out Murphy's sign, which would have shown that the ailment was in gall bladder which he removed subsequently. Finding appendix to be normal, he proceeded to remove the gall bladder without further investigation and without preparing the patient for the second operation. He acted rashly in removing the gall-bladder and without caring for the ill-effects of keeping the patient under chloroform for 2 hours especially when her kindey was affected. No preventive steps were taken to counter-act the toxic effects of chloroform on the kidney and liver by giving glucose and vitamins. No consent of the husband, who was present outside, was taken for removal of the gall-bladder. He should not have undertaken such a major operation in a hospital which was lacking in basic facilities. The operation theatre was under repairs, there was no facility for Oxygen and blood transfusion, no anaesthetist was there, even some life saving drugs were not available, pipatte for blood test was broken, the saline apparatus was not in order and there were only two staff nurses for 28 bedded hospital.

       Nothing would have happened if the operation was to be postponed for a day or two. Presence of stones in gall bladder is not a case of emergent operation and it could be postponed for days together. The defendant failed in his duty of care in undertaking the operation and in doing the operation without taking necessary precautions. His act of removing the gall bladder was highly hazardous which resulted in the death of the patient. So the defendant is liable to pay damages for his wrongful acts. [ Paras 23 & 24