This group of First Appeals arise out of the impugned judgment and order passed by the City Civil Court, Ahmedabad, Court No. 13, in Civil Suit No. 1048 of 1981, by which the suit filed by the plaintiff has been decreed for recovering the amount of compensation for the negligence from defendants Nos. 1, 2, 3 & 4 jointly and severally of Rs. 1,25,000/- along with interest at the rate of 6 per cent from the date of the suit till the date of the judgment and at the rate of 9% from the date of the judgment till realisation together with costs. 2. The facts of the case briefly stated are that the plaintiff- respondent in the present group of appeals was an employee of New Textile Mills, Ahmedabad, and was working as a Machine-man. The plaintiff, as an industrial worker, has been covered under the provisions of Employees' State Insurance Scheme for which necessary identity card has been issued to him as provided under the E.S.I. Act, 1948. The plaintiff had developed cataract in his left eye for which he approached the Civil Hospital after he had visited the ESI Clinic. He was advised to come after three weeks for the operation stating that the cataract has not matured in the left eye. Thereafter, again he visited the Civil Hospital and was examined by defendant No. 3-Dr. Bhikubhai Patel. The plaintiff was admitted as an indoor patient and on 26.7.1979 defendant No. 3 Dr. Bhikubhai Patel performed the operation of the left eye for the cataract. It is also stated that on 31.7.1979 defendant No. 4, who was administering the medicines, had not exercised proper care while pouring drops of medicine in the eye there was a dash on the eye with the instrument which resulted in the injury. Thereafter the dressing was made and the plaintiff was advised rest. However, he had pain and in fact blood had clotted in the eye as a result of which another operation was performed after defendant No.3 examined the left eye of the plaintiff. The plaintiff had informed defendant No. 3 as to what had transpired and another operation was performed and he was treated as indoor patient for 36 days. It is averred that during this time the left eye had sepsis because of infection and the doctors were giving injunctions on the left eye and were administering the medicines for about 10 days. However, the condition did not improve in spite of such medicines and defendant. 3 again examined the plaintiff and he was discharged from the hospital with advice to take rest and visit the hospital every week. Thereafter, again, the plaintiff visited the Civil Hospital and was treated there by defendant No. 3. However, in spite of persistent query from the plaintiff he was not guided properly or conveyed as to what has happened and therefore the plaintiff had consulted Dr. Jagannath Patel who in turn informed that his left eye had become useless and it will have to be removed immediately. The infection had also spread in the right eye and therefore the plaintiff along with one co-worker Nanalal Vyas met defendant No. 3 with the said note of Dr. Jagannath Patel and in spite of that defendant No. 3 did not take any steps and asked the plaintiff to come to the Civil Hospital on 6.11.1979. Therefore, the plaintiff consulted defendant No. 5-Dr. Jagdishbhai G. Shah, got himself admitted in his private clinic on the same day and in the evening on that very day defendant No. 5 performed the operation on the left eye and removed the eyeball. However, the infection had spread to the right eye also and the plaintiff was having pain in the right eye. Thereafter on the 4th day defendant No. 5-Dr. Jagdishbhai Shah performed the operation on the right eye for the cataract and treated him in his private clinic as an indoor patient. Thereafter, as the operation was not successful and the condition of the right eye also had deteriorated and as the plaintiff was having some difficulty in breathing, defendant No. 5 Dr. Jagdishbhai Shah took the plaintiff to the L.G. Hospital in his car, got him admitted there and the plaintiff was treated there for some time. Thereafter under the advise of defendant No. 5, on 22.11.1979, the plaintiff got admitted as an indoor patient in Nagri Hospital and was informed that the vision of his right eye could not be restored but the treatment for infection was given and he was treated till 11.12.1979.
3. Thus, it is contended that the plaintiff has lost the vision of both the eyes because of the negligence and carelessness in the treatment given by defendant No.3 Dr. Bhikubhai Patel at the Civil Hospital which led to deterioration of the left eye and when he consulted another doctor, the treatment was given by defendant No. 5-Dr. Jagdishbhai Shah and he performed operation on the right eye which also has spoiled the vision of the right eye and therefore the suit has been filed by the plaintiff for claiming compensation for such negligence in the treatment on various grounds and also for other amounts as stated in detail in the plaint.
4. Defendants Nos. 1 & 3 have filed joint written statement at exh. 24 and raised contentions about the maintainability of the suit and also it was contended that the plaintiff was treated with complete care and caution and he was properly treated in the hospital. It is denied that there was any negligence in the treatment given to the plaintiff by the employees of the Civil Hospital including defendant No. 3. Defendant No. 4, vide purshis exh. 125, adopted the written statement filed by defendants Nos. 1 and 3. Defendant No. 2 filed written statement, exh. 19 (ESI Corpn.) and admitted that the plaintiff is an industrial worker covered under the E.S.I. Scheme. However, it is contended that defendant No. 1 State of Gujarat is running the Civil Hospital and Dispensaries under the ESI Scheme and it has denied the liability and stated that it is not vicariously liable for negligence of any doctors of the Civil Hospital. Defendant No. 5 also filed the written statement at exh. 47 contending, inter alia, that the plaintiff had conveyed that his left eye was operated for cataract and he lost or affected his vision in the left eye and it was found that there was complication with anterior uveitis and was thereafter treated by him. It is contended that there was mature nuclear cataract on his right eye and after removing the left eye on 2.11.1979 another operation was performed on 6.11.1979 for cataract on the right eye. It is contended that there was no complication in the right eye except the cataract and therefore it was not his negligence as the patient was fit for the operation and the operation on the right eye was successful. It is contended that as the plaintiff was suffering from breathlessness and cough, with a view to provide him treatment he was left at the L.G. Hospital and thereafter he was removed to Nagri Hospital. It is denied that the operation performed by defendant No. 5 on the right eye had failed due to which the plaintiff lost the vision of the right eye.
5. In view of these pleadings, the issues were framed at exh.
43 which were recast and the learned Judge, City Civil Court, Court No. 13, on appreciation of evidence and after considering the rival submissions with regard to negligence and other aspects, allowed the suit and passed the decree which is assailed in the present appeals by the appellants who are defendants, that is, Dr. Jagdishbhai Shah, defendant No. 5 (appellant of First Appeal No. 1338/85), ESI Corporation, defendant No. 2 (appellant in First Appeal No. 1418/85) and the State of Gujarat, defendant No. 1 (appellant in First Appeal No. 1391/85 raising contentions that there was no negligence in performance of the duty and the plaintiff is not entitled to claim any damages. Detailed contentions have been raised in First Appeal No. 1338/85 with regard to medical aspects of the matter referring to various authorities, particularly the book 'Parsons' Diseases of the Eye', 16th Edn., by Dr. Stephen J.H. Miller which have been produced on record.
6. It is also contended in First Appeal No. 1338/85 filed by defendant No. 5 that the court below has failed to appreciate the oral as well as documentary evidence and it is also contended that the court below has failed to appreciate that the infection in the right eye was because of endogenous infection in some other parts of the body and the medicines which were administered were anti-inflammatory and for intra- ocular tension. It is therefore contended that the court below has erred in arriving at the conclusion that the infection had developed which led to further complication even in the right eye. It is contended that the court below has erred in holding that the appellants were negligent in not trying to find out the infection in the left eye and there was a routine treatment given which was the cause of deterioration of the left eye. There is no deliberate negligence or lack of care in performance of the operation. It is also contended that there was no sympathetic ophthalmitis in the right eye and it could not have developed because there was a sympathetic ophthalmitis in the left eye which would not allow the sepsis. Therefore, it has been contended, referring to the authorities on Modern Opthalmology by authors like Dr. Miller that there was no negligence. It is contended that vision in the right eye was affected as the plaintiff had Koch's disease.
7. Defendant No. 2-ESI Corporation in its First Appeal No.1418/85 has raised technical contentions about the liability or vicarious liability referring to sec. 58 of the ESI Act. It has been contended that sec. 58 of the ESI Act clearly provides that the State Government shall provide for the insured person and the benefit is extended to the employee and the family for medical, surgical and other treatment. It is therefore contended that the court below has erred in appreciating that the statutory obligation of providing for such medical and ophthalmological treatment was purely cast upon the State Government and not the ESI Corporation and ESI Corporation could not have been held liable vicariously. It is contended that it was not the obligation of the ESI Corporation to provide any such medical treatment and in any case the treatment was given by the Civil Hospital run by the State Government and therefore the principles of vicarious liability cannot apply to the appellant-ESI Corporation as it has no power of selection of the doctors in the hospitals run by the State Government.
8. Learned advocate Mr. R.P. Desai for learned Sr. Counsel Mr. P.G. Desai appearing for the appellant in First Appeal No. 1338/85 has submitted that there is no specific allegation in the plaint against the present appellant-original defendant No.
5 about the negligence for which he pointedly referred to the case papers and the evidence. He also submitted that the burden of proof is upon the plaintiff, and if that burden of proof regarding negligence is not discharged by the plaintiff, appellant-original defendant No. 5 cannot be held liable for negligence. In support of his submission, he has referred to and relied upon the judgment in the case of Nizam Institute of Medical Sciences v. Prasanth S. Dhananka and ors., reported in (2009) 2 GLH 385 (para 20, 22 and 32). He also referred to and relied upon the judgment in the case of State of Punjab v. Shiv Ram and ors., reported in (2005) 7 SCC 1 (para 6, 7, 23, 32 & 33) to emphasise about the standard/degree of care expected of a person in the profession to support his submission that reasonable care expected of a person in the medical profession was taken. He emphasised that there may be some error or failure in performance of the operation for which no negligence can be attributed without any cogent evidence.
9. He has also referred to the deposition by Dr. Bhikubhai Patel, defendant No. 3, and his cross-examination in para 20. He emphasised that admittedly there was sepsis in the left eye of the plaintiff which has led to sympathetic ophthalmitis which had been transmitted to the right eye. Therefore, it was strenuously submitted that the appellant, defendant No. 5, cannot be held responsible. He pointedly referred to the deposition of Dr. Bhikubhai Patel, defendant No.3, and the deposition of the appellant, original defendant No. 5, and strenuously submitted that the deposition of defendant No. 5 at exh. 135 clearly states that the precautions which were required had been taken and all precautions expected of a skilled person in the profession were taken. Again, he referred to other papers and submitted that there was no negligence on the part of appellant-defendant No. 5. He also referred to the deposition of Dr. Jagannath Patel at exh. 110 and submitted that there is specific averment against the findings against defendants Nos. 1 & 3 with regard to treatment or precaution taken while giving the treatment for the left eye. He therefore submitted that it was only on 30.10.79 the plaintiff had consulted appellant-defendant No. 5, and after preliminary check-up and other precautions, the operation was performed on 2.11.1979 for removal of the left eye-ball and thereafter again pre-operative care was taken before the operation was performed for the cataract of the right eye.
10. Therefore, learned advocate Mr. Desai has submitted that the court below has failed to appreciate this aspect and has come to the conclusion which is not supported by the evidence on record. He submitted that the court below has failed to appreciate that the infection in the right eye was due to endogenous infection in any other part of the body. For that purpose he referred to the impugned judgment and various paras to establish that there was no negligence on the part of the appellant-original defendant No. 5. In support of his submission he has referred to and relied upon the judgment reported in Nizam Institute of Medical Sciences (supra) and emphasised the observations made therein with regard to the aspect of negligence. He has also referred to the judgment reported in Punjab v. Shiv Ram and ors (supra) and submitted that the standard of skill expected of a person in the profession was sufficiently discharged and after taking all precautions including pre-operative care, the operation was performed.
11. Learned advocate Mr. Hemant Shah for the ESI Corporation, the appellant in First Appeal No. 1418/85, submitted that the court below has failed to appreciate that the entire treatment was taken by the plaintiff workman at the Civil Hospital or at the private hospital of defendant No. 5. The ESI hospital/clinic has never given any treatment, nor the doctor appointed by it under the scheme has given any treatment and the entire treatment has been given at the Civil Hospital by the doctors appointed by the State Government. He emphasised referring to sec. 58 of the ESI Act that there is no control or say of the Corporation with regard to the appointment of doctors at the Civil Hospital, and if there is any negligence on the part of any doctor appointed by the Government at the Civil Hospital, there cannot be any vicarious liability of the ESI Corporation.
12. Learned advocate Mr. Hemant Shah also referred to exh.
19 which is a written statement filed by the ESI Corporation and submitted that there is no control or supervision over the doctors appointed at the Civil Hospital and therefore there is no question of any vicarious liability. He referred to the issues and submitted that Dr. Bhikubhai Patel in his evidence at exh. 118 has admitted that he was not an employee of the ESI Corporation and therefore there is no question of any liability or vicarious liability of the appellant-Corporation.
13. Learned AGP Mr. Ronak Raval for the appellant-State in First Appeal No. 1391/85 has also supported the submissions made by both the learned advocates and has submitted that at the Government hospital when the patient is treated, all precautions as expected in the medical profession have been taken and merely because there is failure or there is defect in the eye would not be a ground for the alleged negligence.
14. Learned advocate Mr. Sandip Shah appearing for respondent No. 1-original plaintiff in all the appeals referred to the documentary evidences as well as the pleadings in detail and submitted that the operations were performed on the left eye by defendant No. 3 and thereafter the operation was performed for removal of the left eye-ball by defendant No. 5 and again for cataract in the right eye the operation was performed by defendant No. 5. He submitted that if the chronology of events and the dates are considered, it is evident that there was sepsis in his left eye when the operation was performed. He submitted that with the same condition the operation could not have been performed. The submission with regard to endogenous infection in some other part of the body is misconceived as the pathological reports clearly state that the plaintiff was normal. He submitted that, thus, at the time of treating the patient when there was an an injury and the blood had clotted, both defendants Nos. 3 and 4 tried to hush up, played mischief keeping the respondent-plaintiff in the dark which led to deterioration in not only the left eye but also affected his right eye. Learned advocate Mr. Sandip Shah therefore submitted that if the pleadings in the form of written statement as well as the depositions are considered, it clearly suggests negligence in performance of the duty by all concerned including defendants Nos. 3 and 5. The Civil Hospital would be liable vicariously for the act of negligence by defendant No. 3.
15. He, therefore, submitted that when the person has lost vision of both the eyes because of any such carelessness or negligence, it cannot be a ground for further scrutiny on any technical grounds raised on the medical opinion. He submitted that the evidence on record as discussed at length in the impugned judgment clearly suggests that there was negligence on the part of original defendant No. 3-Dr. Bhikubhai Patel as well as defendant No. 5-Dr. Jagdishbhai Shah and both the doctors have failed in discharge of their duty exhibiting reasonable care and standard expected of a person in the medical profession. He therefore submitted that the appeals may be dismissed.
16. In view of the rival submissions, it is required to be considered whether the present group of First Appeals can be entertained or not.
17. As it is evident from the impugned judgment and order passed by the learned Judge, Court No. 13, City Civil Court, Ahmedabad, there is threadbare discussion on the aspect of not only the sequence of events but also the role or lapses by the two doctors, that is, Dr. Bhikubhai Patel, defendant No.3 as well as Dr. Jagdishbhai Shah, defendant No. 5 (appellant in First Appeal No. 1338/85).
18. From the facts as narrated and discussed hereinabove, it is evident that the plaintiff was an employee of a mill covered under the ESI Scheme and he was referred by the ESI Hospital to the Civil Hospital for the purpose of treatment. It is not in dispute that the plaintiff was treated at the Civil Hospital by Dr. Bhikubhai Patel, original defendant No. 3. As it is evident from the discussion and on appreciation of evidence, the plaintiff was admitted as an indoor patient and Dr. Bhikubhai Patel, defendant No. 3 performed the operation for cataract in the left eye. At the time of dressing some incident has occurred where it is alleged that the original defendant No. 4 did not exercise proper care while dropping medicine in the eye. From the details of the notes as well as the case papers which have been reflected in detail in the impugned judgment, it is evident that the patient (plaintiff) had blood clots as a result of such injury and Dr. Kaminiben Audichya who examined him has supported this and the plaintiff was again taken to the operation theatre the next day. This has led to some infection. It is required to be mentioned that in spite of this, the plaintiff was discharged and was advised to take complete rest and come to the hospital every week. Further, even thereafter also when the plaintiff visited the hospital and repeatedly requested he was not properly guided and he was given solace that he would be alright.
19. It is in this background the plaintiff had visited Dr.
Jagannath Patel on 30.10.1979 and he had advised that the infection has spread in the right eye also. Thereafter, along with Shri Nanalal Vyas, a worker of Majoor Mahajan Sangh, the plaintiff visited defendant No. 3 with the note about the diagnosis made by Dr. Jagannath Patel. Even at that stage defendant No. 3 did not take any immediate steps and only advised the plaintiff to come to the hospital on 6.11.1979, that is, about a week after. It is in these circumstances, again, the plaintiff was compelled to consult another doctor, Dr.
Jagdishbhai Shah, defendant No. 5, and got himself admitted in his private clinic. Defendant No. 5 removed the eye ball in the left eye. It is required to be mentioned that defendant No.
5 also cannot justify the lack of minimum precaution or care expected to be taken before surgery. It is evident from the material and evidence which has been discussed that the plaintiff had constant complaint. In spite of that, he was discharged from the Civil Hospital by defendant No. 3 with an advice to come for consultation every week. Again, Dr. Jagannath Patel 5 had specifically advised that he has infection which is likely to spread in the right eye, meaning thereby, there was already infection caused due to that incident which had taken place while dropping the medicine in the left eye. It seems that all these things have been hushed up to shirk or avoid any responsibility. It reflects that even minimum care expected of a doctor who is a member of the medical profession has been not only overlooked but has been cleverly exploited in the guise of sending the plaintiff with the solace that he will get alright.
20. Further, when he approached Dr. Jagdishbhai Shah, defendant No. 5, he was already having infection and still he performed the operation. The operation on the right eye which was also affected by the infection in the left eye could never have been performed. The consistent excuse which has been taken with regard to infection is belied in light of their own documentary evidence in the form of the Note, exh. 59, which has been discussed at length in the impugned judgment. In the impugned judgment, in para 15, reference is made to exh. 59 that the patient was prepared for “iris prolapse repair under general anesthesia”. There is also a note dated 2.8.1979 which has been quoted as under:
“Blood clots removed from eye. After knife section iris out entangled with clot.”
21. If the the deposition of defendant No. 4 at exh. 124 and that of Dr. Kaminiben Audichya is considered, it is evident that after the cataract operation on 26.7.1979 there was blood clotted behind the cornea of the left eye and therefore he was kept under observation, but as the blood clotting was not cleared, again, an operation was performed on 1.8.1979 and some part of iris was out. This has to be read in context of the note, exh. 59, which is written by defendant No. 3 himself. Defendant No. 3 in his deposition has admittedly stated that once the infection sets in, it is dangerous. He has also admitted that on 7.8.1979 he had himself put a note, exh. 59, that there was severe infection. This would clearly suggest that if there was infection on 1.8.1979 how the operation was performed again for blood clotting on 2.8.79. Admittedly, the operation was performed on 1.8.79 by defendant No. 3 for iris prolapse repair under general anesthesia of the left eye. The case papers would show this aspect and defendant No. 3 in his evidence has stated about hyphaemia that the patient was having the same till 31.7.79. This is stated by defendant No.3 in his evidence, but it is not to be found either in the case papers or found in his own note, exh. 59. It clearly suggests that it is an excuse for the purpose of saving one's own skin. It is also required to be mentioned that, as rightly reflected in the impugned judgment, defendant No.3 in his evidence, exh. 118, has not stated as to what was the cause of iris prolapse repair. If the cataract operation performed on the left eye on 26.7.79 was successful, what made the second surgery necessary and what has led to the blood clotting. Assuming that due to some reason some patient may have such difficulty, there has to be a specific record in the form of case papers or note that these things have developed after the operation. On the contrary, Dr. Kaminiben Audichya has stated that defendant No.4 while he was dropping the medicine had caused injury in the left eye leading to blood clotting which was operated. This was sought to be hushed up for which defendant No.3 tried to cover it up and then when it did not subside, again an operation was performed on 1.8.79 for iris prolapse repair under general anesthesia. There is no reference to hyphaemia and for the first time in the cross-examination he has resorted to hyphaemia by way of an excuse for the lapses. It is nobody's case that there was any kind of lapse or non-fulfillment with any of the instructions by the patient (plaintiff). It is not even pleaded or stated that according to medical science there is any kind of possibility of such reaction or consequence. It has not been stated by defendant No.3 in his evidence with support of any medical authority.
22. The court below has, while discussing on this aspect, clearly observed referring to hyphaemia and the evidence of defendant No.3 as under:
“Defendant No.3 in his cross-examination, para 17, said that this diagram and the words hyphaemia have been written by him but that it was not written on 26th of July 1970....... There is no note to that effect in exhibit 59. This witness has further said in the same paragraph that when he performed operation of Cataract and out the iris, there was no bleeding...... Further, in the same para he has said that hyphaemia is always caused to some extent after every operation of cataract and that the blood absorbs naturally within four to five days....... So this defendant himself has ruled out the possibility of any sepsis focus being developing as a result of any hyphaemia caused as a consequence of cataract operation ”
23. Further, as discussed elaborately, defendant No.3 has admitted that such an injury could be caused because of something hitting the eye. Further, he has admitted that in case papers, exh. 59, he has not mentioned whether the infection was dangerous or not. This only reflects the care or precaution which is taken or the casual approach adopted. It is required to be mentioned that as rightly emphasised by the court below, referring to the evidence of defendant No.3, as to how he has put the remark note and then he does not bother. It is observed, “..Very surprisingly on that day this defendant has stated in para 28 page 16 that even though he himself had put a note about there being severe infection, in fact, there was no such severity and that he had put a note to obtain required medicines from the Hospital store. This type of deposition is really very shocking and much more it is coming from the mouth of a very senior and experienced Doctor ”
24. Another argument is that some endogenous infection could be there in any other part of the body which might affect the sepsis in the eye. Now, admittedly, the pathological tests were made which have also bee discussed in the judgment in detail and it is clearly observed and admitted by defendant No.
3 in his cross-examination that all the results were normal. (emphasis supplied). Therefore, if there is any sepsis focus inside the eye or if there was any blood clot, the pathological reports would indicate the same. It is in these circumstances, the court below has come to the conclusion that
(a) the infection had been caused in the eye of the plaintiff
(b) no sepsis focus was found anywhere in the body on 26.7.79.
25. Further, even in the note, exh. 59 or anywhere else, there is no mention about any such infection or endogenous infection. Therefore, there is no explanation for the need for iris prolapse repair and in fact only with a view to cover up the mistake or the negligence again the operation was performed on 1.8.79. Even at that time nowhere it is mentioned about hyphaemia and for the first time a reference to hyphaemia is made in his deposition. It is in these circumstances when the court below has come to the conclusion that there was a severe infection which could have been caused by an injury, a positive case has been made out for covering up the negligence or lapses.
26. Again, it is required to be mentioned that if the theory which has been suggested that there was endogenous infection in other part of the body of the patient, then defendant No. 3's own argument will stare in the face that operation on the left eye was performed without proper investigation. That would also amount to negligence. Therefore, if the argument is to be accepted that there was endogenous infection, the operation could not have been performed. If there was no such infection till the operation was performed, then what has happened due to injury on the left eye leading to further infection on the right eye would reveal about negligence and also the manner in which it is sought to be covered up instead of taking extra care or precaution. It may be noted that had it been an accident, it should have been accepted and instead of consoling the patient proper care and treatment should have been given. In the facts of the present case, on the contrary, to save the skin he was discharged with an advice to come after a week so that excuse can be made and he was given discharge. However, the fact reveals that the patient had continued problems and he had come with the note of Dr. Jagannath Patel and in spite of that, defendant No.3 did not take proper care but only advised him to come after a week. Therefore, if the cause for the infection is found, treatment could not have been followed and operation could not have been performed. If the tests were normal and precaution was taken before the operation was performed, then, what has gone wrong has to be explained at least. There is no explanation which itself suggests that there was negligence which was sought to be covered up and defendant No.3 failed to discharge his professional duty exercising reasonable care and diligence expected of a member of the medical profession.
27. The same aspect has to be considered qua defendant No.
5, who treated the patient in his private hospital. As discussed in the impugned judgment referring to the evidence, the case papers of the private hospital of defendant No. 5 at exh. 137 has been reflected wherein he has written “En left on 2.11.” If he has performed evisceration operation, he does not say whether any attempt was made to find out the cause of infection. Therefore, unless the cause of infection is found out, the nature or gravity of the infection is properly examined, diagnosis and the treatment could not have been made including the opinion for removal of the left eyeball. There is no explanation as to on what basis such an opinion was formed by defendant No. 5. It is required to be mentioned that defendant No. 5 has stated in his evidence that there was no incaration in the left eye when he examined the patient on 8.10.79. This will also challenge the version stated by defendant No. 3 by way of excuse. He has also stated that he must have inquired about the cause of infection on the left eye, but admittedly he has not made any note for the same for which there is a detailed discussion in the impugned judgment. In fact, defendant No. 5 when he performed the operation of the left eye for removal of the eyeball was not sure about any infection in the left eye. In other words, he did not care to find out the infection, the level of infection, the cause of infection and proceeded with the operation for removal of the left eyeball. The evidence of defendant No. 5 which has been quoted and referred is worth noting for the purpose of reflecting about the manner of negligence exhibited suggesting that he also not only failed to take proper care expected of a doctor, but in fact he ignored and proceeded further without following necessary protocol or requirements as per the medical sciences. It has been quoted, referring to his evidence, “I for one would always think it necessary to have pathological examination of the left eyeball before operating right eye. I agree that it is my duty to have pathological examination of the left eyeball before deciding to operate the right eye. It is true that I had operated upon the right eye of the patient before obtaining pathological report of the left eyeball.”
28. This reflects not only negligence but clear breach of the procedure and the protocol of the medical profession and medical sciences which are required to be adhered to. This only reflects the carelessness and negligence which led to the suffering of the plaintiff. It may be noted that defendant No. 5 has tried to raise an excuse that the cause of infection was some sepsis focus in some other part of the body. However, it could not have been and defendant No. 5 has failed to explain it in any logical manner. In any case, it was the duty of defendant No. 5 to first find out whether there was any infection or existence of such sepsis focus and not only clinical but pathological tests are necessary before performing the surgery. Admittedly, defendant No. 5 has operated upon the left eye and thereafter only within a short period of four days he operated the right eye for cataract. It is required to be mentioned that in response to the court's query as to what was the need for such successive operation, defendant No. 5 has stated that if the patient had some vision of at least half a meter, then the operation could be performed after 2-3 months. It is required to be mentioned that if the patient had any kind of infection or at least when the plaintiff visited defendant No.5 he was aware about some complication in the left eye and he could have postponed the operation of the right eye to rule out the possibility of any further complication. There is no explanation as to what was the need for such hurry for the second operation.
29. This leads to the moot question whether defendants Nos.
3 & 5 and also the State (appellant in First Appeal No. 1391/85) could be held responsible vicariously like ESI Corporation (appellant in First Appeal No. 1418/85) for the aspect of negligence. Reliance has been placed by the learned advocates referring to the judgment in the case of Kusum Sharma and ors. v. Batra Hospital and Medical Research Centre and ors., reported AIR 2010 SC 1050 to support the submission that if the procedure adopted by the doctor performing the surgery is supported by the expert opinion, negligence cannot be attributed. Much emphasis is given that medical professionals are not to be unnecessarily harassed is required to be considered in background of the facts and circumstances in each case. In this judgment reference has been made to Jacob Mathew's case [(2005) 6 SCC1 = AIR 2005 SC 3180] to support the submission that medical professional is called upon to adopt a procedure which involves an element of risk and so long as it an be found that the procedure which was in fact adopted was acceptable to medical sciences, medical practitioner cannot be held liable for negligence. However, this aspect has to be considered in light of the settled legal position that under the Law of Torts, 'negligence' has been defined to read:
“Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do.”
Therefore, the failure to discharge a duty which is cast upon or owed would amount to negligence.
30. Black's Law Dictionary defines 'negligence' as under:
negligence : The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm....
31. Therefore, the test which is required to be applied has been well-settled that a doctor as a member of the medical profession having a special skill is expected to discharge his duty with due care and diligence expected of a member of that profession who is trained in that particular skill. Therefore, the degree of care and diligence exercised has to match with the standard of care expected of that professional who specially skilled and trained in that field.
32. The Hon'ble Apex Court in the case of Kusum Sharma (supra) has referred to the degree of negligence, and referring to the earlier judgment in the case of Indian Medical Association v. V.P. Shantha & Ors. [(1995) 6 SCC 651] has quoted in para 87 as under:
“22. In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services..”
33. Further, in this very judgment principles have been laid down referring to the basic principles which have emerged in U.K. A bare look at these guidelines will clearly show in light of the material and evidence on record and on appreciation of evidence and discussion that there is a total breach or violation of principles III, IV, and V.
“III. The medical professional is expected to bring 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.
IV. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.”
34. The discussion made hereinabove clearly reveals that the operation has been performed without proper care. If the operation was performed with proper care by defendant No. 3 initially on the left eye, there is no explanation as to the blood clotting and the need for iris prolapse repair. Again, even thereafter if he had continued problems what was the need for giving him discharge? No doctor who is expected to discharge a reasonable care and who owes duty to the patient would say that a patient should be discharged even when he has continued complaints. Again, the explanation which is given at the time of making his deposition is not to be found initially in the noting or in exh. 59, which clearly suggest that it is an after-thought to find out an excuse or convenient reply to escape the liability. Similarly, defendant No. 5, as discussed above, has not even bothered to find out about the infection, the degree of infection and does not wait for the successive operation on the right eye. There is no explanation or any compelling reason for such a hurry in performing the operation.
35. It is in background of these facts, the test which has been laid down by the Hon'ble Apex Court in this judgment and also the observations made by the Hon'ble Apex Court in the judgment in the case of State of Punjab v. Shiv Ram and ors. (supra) are required to be considered. In this judgment the Hon'ble Apex Court has made the observations with regard to the medical ethics and adherence to minimum standards. While making these observations, the court has also considered the observations made in Jacob Mathew's case. While considering this very aspect with regard to liability in case of negligence, observations have been made that “the basis of liability of a professional in tort is negligence” and it has been made clear that a doctor may be obliged to explain his conduct depending on the evidence and the position does not change merely because of the caution advocated in Jacob Mathew's case for the purpose of negligence. In the case of Jacob Mathew there is a specific reference as to what would constitute negligence and the term negligence is used for the purpose of liability and it has been discussed referring to the degree of care. It has been observed, “...... a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which is professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 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 necessary for every professional to possess the highest level of expertise in that branch which he practices ”
36. Therefore, it has been clearly held that error of judgment on the part of a professional may not be negligence, but he is under an obligation to take reasonable care and diligence expected of a professional trained in that particular profession. In para 29 of this judgment referring to the book, “Errors, Medicine and the Law”, it is quoted, “Before the court faced with deciding the cases of professional negligence there are two sets of interests which are at stake : the interests of the plaintiff and the interests of the defendant. A correct balance of these two sets of interests should ensure that tort liability is restricted to those cases where there is a real failure to behave as a reasonably competent practitioner would have behaved. An inappropriate raising of the standard of care threatens this balance. A consequence of encouraging litigation for loss is to persuade the public that all loss encountered in a medical context is the result of the failure of somebody in the system to provide the level of care to which the patient is entitled. The effect of this on the doctor-patient relationship is distorting and will not be to the benefit of the patient in the long run ”
and while summing up it has been observed that negligence in context of medical profession calls for a closer scrutiny of the evidence to find out whether the precaution and the care expected of a person in the profession has been discharged or not.
37. Therefore, in spite of a word of caution as stated above, and having a closer look at the evidence, it cannot be said that the impugned judgment is erroneous in coming to the conclusion about the negligence on the part of defendants Nos. 3 & 5 and vicarious liability on the part of the State (appellant in First Appeal No. 1391/85) and ESI Corporation (appellant in First Appeal No. 1418/85.
38. In the result, the appeals deserve to be dismissed and accordingly stand dismissed. There shall be no order as to costs.
(Rajesh H. Shukla, J.) (hn)