Madras High Court
Dr.N.Fauzia vs S.Balasubramanian on 17 June, 2021
S.A.(MD)No.72 of 2014
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 17.06.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.72 of 2014
Dr.N.Fauzia,
Assistant Professor (O & G),
Raja Mirasdar Government Hospital,
Thanjavur. ... Appellant
Vs.
1.S.Balasubramanian
2.Minor.Kayalvizhi
3.Minor.Tamilselvi
(Minor respondents 2 and 3 are
represented by their father the 1st
respondent)
4.Dr.E.Kalrani,
Assistant Station Medical Officer,
Raja Mirasdar Government Hospital,
Thanjavur.
5.Dr.Meenakshi Sundaram,
Anaesthetist,
Government Medical College Hospital,
Palayamkottai,
Tirunelveli District.
6.The Dean,
Raja Mirasdar Government Hospital,
Thanjavur.
7.Government of Tamilnadu,
Through District Collector,
Thanjavur District. ... Respondents
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S.A.(MD)No.72 of 2014
Prayer : Second Appeal filed under Section 100 of Civil Procedure
Code, against the judgment and decree of the Additional District
Judge (F.T.C.), Thanjavur dated 09.08.2010 in A.S.No.29 of 2007,
partly allowed the judgment and decree passed by the Principal Sub
Judge, Thanjavur dated 12.02.2007 in O.S.No.93 of 2004.
For Appellant : Mr.S.Anand Chandrasekar
For M/s.Sarvabhuman Associates.
For Respondents : Mr.T.Sesubalan Raja for R1 to R3 & R7
Mr.M.Karunanithi for R5
No appearance for R4 to R6
JUDGEMENT
The first defendant in O.S.No.93 of 2004 on the file of the
Principal Sub Court (Fast Track Court), Thanjavur, is the appellant in
this second appeal. The said suit was instituted by the respondents 1
to 3 herein claiming compensation to the tune of Rs.2,00,000/- with
interest for the death of Vetriselvi, wife of the first plaintiff and
mother of plaintiffs 2 and 3. The plaintiffs alleged that Vetriselvi died
on account of negligence on the part of the defendants. Vetriselvi was
admitted for delivery on 23.08.2003 in Raja Mirasdar Government
Hospital, Thanjavur as in-patient. She developed labour pain in the
late evening of 25.08.2003. Since the duty doctor advised performance
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S.A.(MD)No.72 of 2014
of caesarean operation, the first plaintiff/husband of Vetriselvi gave
his consent both for caesarean operation but also for family planning
operation. There is no dispute that during the relevant time
Vetriselvi's condition was normal. On 26.08.2003 at about 11.30 a.m.
Vetriselvi was operated upon and she delivered a baby at about 1.30
p.m. The specific allegation in the plaint is that Vetriselvi had
excessive bleeding. She also had severe pain in the neck and suffered
from fits also later. She also was not able to move freely. Therefore,
she was shifted to Thanjavur Medical College Hosiptal on 02.09.2003.
Vetriselvi passed away on 06.09.2003 at 11.30 P.M. in Thanjavur
Medical College Hospital. The first plaintiff would allege that the
death was entirely due to the negligence on the part of the doctors
and staff at Raja Mirasdar Government Hospital and Thanjavur
Medical College Hospital. Even though he demanded that postmortem
should be done, the authorities declined to do. Contending that the
defendants are bound to compensate the plaintiffs, the suit was
instituted. The appellant herein, who was shown as the first
defendant, was the doctor who had performed caesarean operation on
Vetriselvi. In her written statement, she denied the plaint allegations.
Defendants 2 to 5 also filed their written statements controverting the
stand of the plaintiffs.
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S.A.(MD)No.72 of 2014
2.The first plaintiff examined himself as P.W.1. The sister of
Vetriselvi was examined as P.W.2 and Exs.A1 to A13 were marked.
The appellant herein examined herself as D.W.1. Two other doctors
were examined as D.W.2 and D.W.3 and Exs.B1 to B3 were marked.
3.The learned trial Judge after considering the evidence on
record concluded that the plaintiffs have established that the
defendants were negligent and directed them to pay a sum of Rs.
1,70,000/- with interest at the rate of 6% per annum. Questioning
the said judgment and decree dated 12.02.2007, the defendants filed
A.S.No.29 of 2007 before the Additional District Court (Fast Track
Court), Thanjavur. The first appellate court by judgment and decree
dated 09.08.2010 allowed the appeal as regards the second defendant
and dismissed it as regards the remaining defendants. Challenging
the same, the first defendant alone had filed this second appeal.
4.The second appeal was admitted on the following substantial
questions of law:-
“(i) In cases involving medical negligence, when the
initial burden is upon the plaintiff to prove that the doctor
who performed the surgery is negligent, whether the
approach of the courts below holding the appellant
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S.A.(MD)No.72 of 2014
negligent, without the plaintiffs discharging the onus
placed on them, is correct in law? and
(ii) When the plaintiffs have not established that
there is a direct connection between the surgery
performed by appellant/1st defendant and death of 1st
plaintiff's wife, whether the approach of the courts below
in holding the appellant/1st defendant guilty of
negligence along with other defendants is correct in
law.?”
5.The learned counsel appearing for the appellant reiterated the
contentions set out in the memorandum of grounds of appeal and
took me through the evidence on record. He placed reliance on the
decisions reported in 2010 (2) CTC 710 (The Collector of North
Arcot v. K.Mani) and (2020) 6 SCC 501 (Maharaja Agrasen
Hospital v. Rishabh Sharma). He called upon this Court to answer
the substantial questions of law in favour of the appellant and allow
this second appeal.
6.Per contra, the learned counsel appearing for the respondents
1 to 3/plaintiffs submitted that this is a case in which the medical
negligence of the defendants is apparent. He pointed out that though
consent was given for performing family planning operation also, it
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S.A.(MD)No.72 of 2014
was not done. The reason given by the appellant during cross
examination does not sound convincing. He took me through the
plaint averments. In order to ascertain the true cause of death, the
first plaintiff demanded that postmortem should be performed. The
hospital authorities however had declined to do it. In the written
statements filed by the defendants, this specific allegation had not
been dealt with. That is why the first appellate court had sharply
commented on the failure to conduct post-mortem. The learned
counsel wanted me to draw adverse interference against the
defendants in this regard. He would also state that in a case of this
nature, the plaintiffs cannot be expected to adduce evidence beyond a
point. Vetriselvi was admitted in Raja Mirasdar Government
Hospital, Thanjavur on 23.08.2003 and she was there till 02.09.2003.
She was later shifted to Thanjavur Medical College Hospital where she
breathed her last on 06.09.2003. It is only the defendants who will be
privy to what actually happened. The plaintiffs cannot be saddled
with an impossible burden. He pressed for dismissal of the second
appeal.
7.I carefully considered the rival contentions and went through
the evidence on record. Even though the general principle is that the
burden of proof is on the complainant to establish medical negligence,
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S.A.(MD)No.72 of 2014
in a case of this nature, the onus will shift to the defendants after the
plaintiff discharges the initial burden. The deceased/Vetriselvi was all
along under the care, custody and treatment of the Government
doctors. It is only they who can competently speak as to what
actually had happened. Section 106 of the Indian Evidence Act, 1872
states that when any fact is especially within the knowledge of any
person, the burden of proving that fact is upon him. The plaintiffs
need only to show that Vetriselvi was in a normal condition, when she
was admitted to the hospital for delivery. She came out dead two
weeks later. There was nothing to indicate that she suffered from any
initial complication or that death was a foreseeable possibility. Even
though consent to perform family planning operation was given in
advance, it was not done. When Vetriselvi was brought out from the
operation theatre, she was soaked in blood. She developed severe
pain in the neck and was unable to move. She died on 06.09.2003.
From these circumstances, the first plaintiff was justified in making
an allegation that the death of his wife was due to medical negligence.
The plaintiffs cannot be expected to prove anything more than this.
The onus lay only on the defendants to establish that the deceased did
not die on account of any medical negligence on their part. It is the
hospital management that will have the relevant medical records.
They have to furnish the treatment details and explain the sequence
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of events. After the initial burden is discharged and the onus is
shifted, it is the defendants who have to place materials to absolve
them of blame. The first substantial question of law is therefore
answered against the appellant.
8.The next question that arises for my determination is whether
the defendants have discharged the burden cast on them. Let me deal
with the allegation regarding the failure to conduct autopsy. Though
there is a specific allegation in the plaint in this regard, the same has
not been controverted. When I queried the learned counsel for the
appellant as to why this averment has not been traversed, he
explained that Vetriselvi did not die in Raja Mirasdar Government
Hospital but in Thanjavur Medical College Hospital. The plaintiffs
failed to implead the Dean, Thanjavur Medical College Hospital. It is
not known before whom the demand for conducting autopsy was
made. In the representation dated 06.10.2003 given by the first
plaintiff to the District Collector, Thanjavur, there is no reference to
any such request or its unjustified denial by the authority concerned.
This allegation has been made for the first time only in the plaint.
The first plaintiff has not spelt out the details. Neither the appellant
nor the other defendants can be expected to controvert an allegation
with which they are not concerned.
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9.The entire medical records have been marked as Exs.B1 to B3.
It is not case of the plaintiffs that these records have been fabricated
or cooked up later. No such suggestion has been put to the medical
witnesses examined on the side of the defendants. The learned
counsel for the appellant draws my attention to the entries made in
Ex.B1. The case of the appellant is that the uterus of Vetriselvi did
not contract well and that led to bleeding. Though this was arrested
in due course, due to lapse of time and due to the late cry of the baby,
the family planning operation was not performed. There is a
contemporaneous entry in Ex.B1 in this regard.
10.The major defence of the appellant is that Vetriselvi
developed a medical condition known as cerebral vein thrombosis. It
is submitted that though it is not uncommon during post-delivery, it is
not possible to foresee the same. In the decision reported in 2010 (2)
CTC 710 (The Collector of North Arcot v. K.Mani), it was held that
when there is a possibility of a mother delivering a child to develop
cerebral vein thrombosis, it cannot be stated that the death was due
to medical negligence. In Maharaja Agrasen Hospital v. Rishabh
Sharma (2020) 6 SCC 501, the Hon'ble Apex Court held that the
damage must be sufficiently proximate to the medical practitioner's
breach of duty. It is enough for the doctor to show that the standard
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S.A.(MD)No.72 of 2014
of care and skill exercised by him or her was that of an ordinary
competent medical practitioner exercising an ordinary degree of
professional skill. In the case on hand, the patient had developed a
special medical condition known as cerebral vein thrombosis. It was
that which eventually caused her death. The courts below have
concluded straightaway that since the patient had eventually died, it
must be only due to the negligence of the defendants. But there is no
such causal link. The death was due to the condition mentioned
above and therefore, I have no hesitation to conclude that the finding
of the courts below suffers from perversity. The courts below did not
apply the settled principles of law relating to medical negligence while
giving an adverse finding against the appellant and the hospital
management. Therefore, the 2nd substantial question of law is
answered in favour of the appellant.
11.Even though the appellant has been absolved of all liability
and the impugned judgment and decree is set aside insofar as the
appellant is concerned, the matter cannot rest there. The learned
counsel appearing for the plaintiffs/respondents 1 to 3 placed reliance
on the order dated 01.02.2021 made in W.P.(MD)No.2721 of 2017
(Tamil Selvi Vs. The State of Tamil Nadu and Others in which I
had held that when a patient is admitted in a government hospital for
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S.A.(MD)No.72 of 2014
treatment and he/she suffers any injury or death which is not
anticipated to occur in the normal course of events, even in the
absence of medical negligence, the government is obliged to disburse
ex-gratia to the affected party. My attention is drawn to G.O(Ms)No.
395 dated 04.09.2018 whereby a corpus fund has been created by the
Tamil Nadu Government. It appears that every Government doctor
contributes certain sum of money towards this corpus fund and
whenever compensation is directed to be paid by the courts, amount
will be drawn from this fund and paid. The plaintiffs had asked for a
very nominal sum of Rs.2,00,000/-. In my view, even though the
appellant as well as the hospital authorities cannot be fastened with
medical negligence, it is a clear case in which ex-gratia ought to be
paid to the plaintiffs.
12.The compensation awarded to the plaintiffs will have to be
enhanced to what they actually sought for. The learned counsel on
either side informed the Court that the decreetal amount had already
been deposited and that the same had also been withdrawn. Since
the suit is now decreed as prayed for, the seventh
respondent/Government of Tamilnadu is directed to pay a further
sum of Rs.30,000/- with interest at the rate of 6% p.a from the date
of plaint till the date of payment to the first plaintiff within a period of
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S.A.(MD)No.72 of 2014
six weeks from the date of receipt of a copy of this judgment. Since
the appellant has been absolved of the charge of medical negligence,
the question of recovering the decreetal amount from her does not
arise. With this direction, the second appeal is allowed. No costs.
17.06.2021
Index : Yes / No
Internet : Yes/ No
skm
Note :In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but,
ensuring that the copy of the order that is presented is the correct
copy, shall be the responsibility of the advocate/litigant concerned.
To:
1.The Additional District Judge,
Fast Track Court, Thanjavur.
2.The Principal Sub Judge,
Thanjavur.
3.The District Collector,
Thanjavur District.
Copy to:
The Record Keeper,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
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S.A.(MD)No.72 of 2014
G.R.SWAMINATHAN, J.
skm
S.A.(MD)No.72 of 2014
17.06.2021
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