The present appeal has been filed by the appellants-original plaintiffs being aggrieved with the impugned judgment and order dated 28.3.1991 rendered by the City Civil Court, Ahmedabad, in Civil Suit No. 102/84 dismissing the suit of the plaintiffs on the grounds set out in the memo of appeal, inter alia, that the court below has failed to appreciate the material and evidence on record. The court below has failed to appreciate that there was sufficient evidence on record of the case that reasonable care which a professionally trained mind is bound to take regarding the treatment has not been taken. It is contended that the lower court has failed to appreciate that it was admitted by the doctor that the appellants' son was hale and hearty and the cause of death was negligence. 2. The facts of the case giving rise to the present appeal, briefly stated, are that the plaintiffs are the father and mother of the deceased Abdulkarim Abdulhai Shaikh who was studying in Std. IV and he was advised to undergo the operation of tonsil. Therefore, the deceased son of the plaintiffs was admitted in the V.S. Hospital for operation on 18.11.1982 and it was registered as Case No. 35264 in Ward No. 6. It is the case of the plaintiffs that he was checked by anesthetist Dr. V.J. Bhatt and Dr. Charuben Pandya and was found fit for the operation. The operation was performed at 9 am by Dr. Adenwala and completed by 9.30 am and the patient was removed to the post-operative ward near the operation theatre. Thereafter, the patient became bluish and with passage of time he did not regain consciousness and ultimately died. Therefore, due to the effect of anesthesia, the patient, son of the plaintiffs, could not regain consciousness and the suit has been filed for compensation. The court below, after appreciating the material and evidence, dismissed the suit which led to filing of the present appeal as stated above.
3. Learned counsel Ms. Ketty Mehta for the appellants referred to the evidence of Mohammed Neesa Mohammed Salim Shaikh at exh. 31 who is the aunty of the deceased. She submitted that there was no one present in the post operative ward. She pointedly referred to this evidence and submitted that it shows the attention which was given and it cannot be said that after the operation was performed the deceased was properly attended. She submitted that after the operation the deceased patient was not attended either by the doctor or the nurse and it was only when he started turning bluish the relatives of the patient tried to contact the doctors and nurses and they tried to salvage the situation without any success. Learned counsel Ms. Mehta also referred to the deposition of Dr. Adenwala at exh. 44 and submitted that the doctor who has performed the operation has admittedly stated that she was not present thereafter, meaning thereby she has failed to take proper care. It was submitted that the doctor who performs the operation is required to take pre- operative and post-operative care. She submitted that even the post- mortem report was not asked for and as the post-mortem was not done, nothing has come on record. She has also referred to the deposition at exh. 45 of Dr. Vishaka Bhatt, Anesthetist, and submitted that she is the one who could have thrown light and her evidence is not challenged. Learned counsel Mrs. Mehta also referred to the case papers produced at exh. 26 and emphasized that the dose of scoline administered was much higher than what was required. She submitted that the patient, son of the plaintiffs, was a young boy and according to the case papers he was given the dosage of 50 mg. of scoline whereas the prescribed dose for such young child would be much less. For that purpose she has referred to “A Synopsis of Anesthesia” and has referred to the side-effects, prevention of side effects and also the dosage prescribed at p. 557.
4. She also submitted that in fact the dose of scoline should have been only 25 mg. Instead it was 50-80 mg. of scoline as record in the case papers. She therefore strenuously submitted that the anesthetist has given double dosage of anesthesia resulting in the fact that he never regained consciousness and succumbed to death. Again, she referred to the evidence of Mohammed Neesa Shaikh at exh. 31 and submitted that if there was proper care with regard to dosage of anesthesia it would not have been fatal. She has referred to the case papers referring to anesthetic record and submitted that the case papers which have been made are subsequently prepared. She pointedly referred to these papers and submitted that if he was hale and hearty at the time when he was admitted and if the operation was performed, what could be the reason for such collapse. Therefore, she emphasized that it is only some mistake in administering the medicine like anesthetic dose which could lead to such collapse. She submitted that though a note has been made in the record that he was responding and was painful, in fact even after he was shifted to the other room he has not been conscious and he never regained consciousness as stated by the relatives as well as even the evidence of the nurse. Therefore, the note that he was painful when he was sent to post operative ward at 10 am is false. Similarly, to say that there was no difficulty in breathing is also not correct and it is only the result of such negligence in administering the dose which has led to collapse of the son of the plaintiffs. She therefore submitted that the plaintiffs are entitled to compensation and the impugned judgment and order is erroneous.
5. Learned counsel Mrs. Mehta has also referred to and relied upon the judgment in the case of Savita Garg (Smt) v. Director, National Heart Institute, reported in (2004) 8 SCC 56, regarding non-joinder of parties and submitted that the doctors who have treated and the hospital have been parties and therefore the suit would not fail.
6. Learned counsel Mr. H.S. Munshaw referred to the evidence of Mohammed Neesa Shaikh, exh. 31. He submitted that the patient was sent in the post operative ward after the operation. He emphasised that it is admittedly stated that after he was sent to the post operative ward twice the doctor had visited and checked him. He submitted that therefore the attention has been given and it cannot be said that no one had attended. Similarly, he referred to the evidence of Dr. Adenwala at exh. 44 and submitted that the doctor who has performed the operation was there and it cannot be believed or accepted that the doctor should remain with the patient throughout after the operation is performed. He submitted that as could be seen from the evidence all precautions were taken prior to the operation and even after the operation he was properly attended. Learned counsel Mr. Munshaw submitted that in fact the father of the deceased patient had not even asked for the postmortem and according to him he declined for post mortem which would have otherwise revealed the truth. He has also referred to the evidence of Dr. Vishaka Bhatt, exh. 45, the Anesthetist and submitted that her evidence clearly suggests that she had taken proper care and this aspect has not been challenged and therefore the plaintiffs have failed to establish the aspect of negligence. Therefore, learned counsel Mr. Munshaw submitted that the present appeal may be dismissed as the court below has come to the conclusion on appreciation of evidence and material. He submitted that the impugned judgment cannot be said to be erroneous and the present appeal may not be entertained.
7. In view of rival submissions, it is required to be considered whether the present appeal can be entertained or not.
8. As discussed above, the suit has been filed for claiming damages/compensation in respect of the death of the son of the plaintiffs. The operation of tonsils was sought to be performed for which he was admitted at 9 am on 18.11.1982. Admittedly, he was hale and hearty. There was no complaint when he was admitted for the operation. At the same time, as could be seen from the evidence, after the operation was performed he was shifted to post-operative room near to the operation theatre. According to the evidence of the relatives of the patient, he never regained consciousness and when he started getting bluish, the relatives of the patient rushed to the doctors. It is only at that time the doctors tried to make effort but could not succeed in their effort.
9. In this background it is required to be considered as to what had transpired. The case papers produced on record clearly suggests that the dosage of anesthetic medicines particularly scoline has been more than the dose prescribed for the children. Therefore, it cannot be ruled out that it was the higher dosage of scoline which has made the patient unconscious and the fact that such higher proportion of the drug did not allow the patient to regain consciousness. If the patient was hale and hearty, even according to the doctors, when he was admitted in the hospital and even after the operation when he was kept in the post-operative ward where he had not regained consciousness, explanation must come forward from the medical papers and the evidence of the doctors who had treated. There is no explanation. The operation was a simple operation of tonsil for which there was no complication at all during the operation also.
10. It is in this background, on closer scrutiny of the medical case papers, it would suggest that higher dose of scoline administered may have bearing on his unconsciousness. The doctors have not disputed that. In other words, if higher dose than the prescribed minimum is administered, it is for the doctor to explain. In the facts of the case, there is no such explanation. The doctor has to be careful in such matters where minimum dose is prescribed for being administered to the patient and the doctor has to carefully adhere to the standards prescribed. Even if the case papers prepared afterwards are taken at its face value, the fact remains that after the patient was admitted for operation and when he was taken to the post-operative ward, no complication had occurred except for the dose of anesthesia. Admittedly, he has never regained consciousness after he was shifted to the post-operative ward. Therefore, when there is no specific explanation with regard to the dosage of scoline or the anesthesia given by the doctor and the record itself suggests that higher dose than prescribed has been administered which may have had the effect, the claim regarding compensation would be justified.
11. It is well-accepted that the decree of skill and care required by a medical practitioner is stated in Halsbury's Laws of England, (Fourth Edition, Vol.30, Para 35) which provides as under:
"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, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth and Percy in their celebrated work on Negligence (ibid, para 8.110).”
12. The Hon'ble Apex Court in a judgment on medical negligence in the case of Jacob Mathew v. State of Punjab & anr., reported in AIR 2005 SC 3180, has observed, “Negligence in the context of medical profession necessarily calls for a treatment with a difference..... When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices.”
Thus, it has been observed with regard to the standard of care which is required to be taken.
13. Similar view has been reiterated in a subsequent judgment of the Hon'ble Apex Court in the judgment in the case of State of Punjab v. Shiv Ram & ors., reported in AIR 2005 SC 3280.
14. In the facts of the present case, as discussed above, the dose of scoline has been more than prescribed which could have a bearing and it could have had possible side effects. Therefore, when the dose of scoline administered is higher than the prescribed dose, and there is no explanation, it would reflect the care which has been shown. In such situation, normally, a person/doctor would be careful in administering the dose when it is prescribed and a doctor cannot afford to be indifferent as even a slight variation of the dose may have different consequences for different patients. In other words, if the dose was prescribed, only amount of such dose could have been administered and there is no explanation for administering a higher dose, which suggests negligence in performance of duty or taking proper care.
15. Therefore, what is required to be considered is whether the ordinary skill as expected of a trained doctor in the profession had been taken or not. As discussed above, it cannot be said that sufficient care was taken in administering the dose. There is possible nexus between the amount of dosage and the resultant effect and therefore the submissions made by learned counsel Mrs. Mehta are required to be considered. There is no quarrel with regard to the proposition that normally the court should be slow keeping in mind the observations made by the Hon'ble Apex Court in the case of Jacob Mathew (supra) as it will be difficult for the members of the profession to discharge their duty. At the same time, if a person like the doctor who is dealing with the human beings has failed to show a degree of care expected of him as a member of that profession trained in a particular skill, he would be responsible. In the facts of the present case, it was the duty of the anesthetists, having examined the patient, to adjust the dose. Therefore, the impugned judgment and order dismissing the suit deserves to be quashed and set aside.
16. The next aspect is with regard to the quantum of compensation which is claimed. The son of the plaintiffs was young and therefore he could not have any earning though it is claimed. At the same time, in such cases, as observed by the Hon'ble Apex Court, some guess work is done and the earning prospects of the deceased son of the plaintiffs has to be considered depending on various factors. Therefore, considering all these aspects, it could be safely presumed that he would have earned Rs. 1,000/- per month which he would have continued. Out of the same, deducting 50% towards dependency benefit as per the guidelines laid down by the Hon'ble Apex Court in a judgment reported in (2009) 6 SCC 121, it would come to Rs. 6000/- and a multiplier of 15 can be adopted. Therefore, the plaintiffs would be entitled to claim compensation of Rs. 90,000/- along with interest at the rate of 6% from the date of the judgment and order of the lower court from defendants Nos. 1 & 2 hospitals jointly and severally as the concerned doctors have not been made or joined as parties.
17. In the circumstances, the present appeal deserves to be allowed partly and accordingly stands allowed. The appellants are entitled to compensation of Rs. 90,000/- together with interest at the rate of 6% from the date of the impugned judgment and order from defendants Nos.1 & 2 Hospitals which shall be deposited by the Hospitals before the trial court within a period of eight weeks. There shall be no order as to costs.
(Rajesh H. Shukla, J.) (hn)