Important points:
The principle of res ipsa loquitor as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred

JUDGMENT :

BECHU KURIAN THOMAS, J.

1. An otherwise healthy young man of 29 years, rode his motorbike to a hospital to undergo minor surgery/procedure for the removal of kidney stones. Two days later and half an hour into the surgery, tragedy struck and the operation was aborted. The young man was brought out from the operation theater as a paraplegic and his speech, lost. A suit for damages alleging medical negligence filed by the young man was decreed in part. The hospital and the doctor have preferred this appeal.

2. The counsel for both sides agreed that since the incident occurred in 2005 and the suit was actually of the year 2008, delayed consideration can result in further agony for both sides. We acceded to their request for early consideration of the case, taking note of the situation and the circumstances of the parties. For easier comprehension, the parties are referred to as they were arrayed in the trial court.

3. The events that led to this appeal are briefly narrated as below:-

3.1 Plaintiff developed severe pain in the abdomen and on reference to the 2nd defendant, who is a super-specialist in Urology, the plaintiff was diagnosed as having secondary calculi in the right kidney and was advised to undergo keyhole surgery to remove the calculi. Plaintiff was admitted to the hospital on 25.9.2005 and the operation commenced under general anesthesia on 27.9.2005. Within 30 minutes of commencement of the surgery, the operation was halted and the plaintiff was brought out of the theater with oxygen support and catheter inserted.

3.2 Post operation, plaintiff noticed that he became crippled and unable to move. Subsequently, he was referred to Sree Chithira Tirunal Institute of Medical Sciences, where, spinal subdural clots were detected. He suffered permanent damage to his lower limbs. Plaintiff alleged that illness and disability occurred due to the injury sustained on the spinal cord during the keyhole surgery performed by the 2nd defendant in the most callous, negligent, and irresponsible manner. Plaintiff being in the prime of his youth, the negligent conduct of the 2nd defendant destroyed his future and he claimed compensation to the tune of Rs. 60 lakhs, under different heads.

4. The defendants in their joint written statement, denied the allegations and pointed out that the plaintiff's averments were all cooked up, solely for gaining an undue financial advantage. It was further stated that after carrying out all the required investigations, the plaintiff was diagnosed with multiple secondary calculi with right hydronephrosis with obstruction at the pelvic-ureteric junction. The two options were discussed with the plaintiff and his relatives, who finally opted for the Percutaneous Nephrolithotripsy (PCNL) with Endopyelotomy. The defendants averred that after consulting the Cardiologist and after controlling hypertension, the plaintiff was taken for surgery under general anesthesia. While the track dilation was done with coaxial metal dilators, the plaintiff developed cardiac problems and the procedure had to be abandoned. As advised by the Chief Cardiologist, ECG was taken and the patient was put on ventilators and given proper treatment. Though he was moving both his upper limbs, his lower limbs could not be moved. In short, defendants denied that the disability of the plaintiff was caused due to the injury sustained on the spinal cord. The allegation that the incident occurred due to the negligence of the 2nd defendant was denied and on the other hand, according to the defendants, the problems arose either because of a pre existing aneurysm rupture or because of cardiac arrest, that occurred while the plaintiff was inside the operation theater and in either case, there was no negligence on the part of the 2nd defendant while performing the operation and that the operation was abandoned to treat the unexpected complication that arose to the plaintiff.

5. Plaintiff examined himself as PW-1 through an Advocate Commissioner