The State Of A.P. vs Bojja Nageshwar Rao
2021 Latest Caselaw 3260 Tel

       THE HONOURABLE SRI JUSTICE M.LAXMAN

                APPEAL SUIT No.2559 of 2000

JUDGMENT:

1. This appeal assails the judgment and decree dated

21.11.1998 in O.S.No.250 of 1988 on the file of Principal

Senior Civil Judge, Warangal, whereunder and whereby the

suit filed by the appellants was partly allowed awarding

damages of Rs.1,25,000/- with interest @ 12% per annum

from the date of the suit till the date of realization for causing

negligence death of Smt.Umadevi.

2. The appellants herein are the defendants and the

respondents herein are the plaintiffs in the said suit. For the

sake of convenience, the arraignment of the parties, as were

referred in the suit, is maintained.

3. The sum and substance of the case of the plaintiffs is

that plaintiff No.1 is the husband and other plaintiffs are the

children of Smt.Umadevi (deceased). On 06.09.1987,

Smt.Umadevi was admitted in M.G.M. Hospital to undergo

tubectomy operation on 07.09.1987. She was taken to the

operation theatre for conducting tubectomy operation and she

died on 08.09.1987. At the time of admission, she was hale

and healthy. The respondents, while conducting the

tubectomy operation, did not conduct any pre-operative care

which is required to conduct before operation. Further, the 2 ML,J A.S_2559_2000

defendants have not furnished the treatment summary of the

deceased to know the cause of death. The plaintiffs made an

application on 15.09.1987 to furnish the details of the

treatment summary, but there was no response from the

defendants. The plaintiffs have caused a legal notice

demanding Rs.2,00,000/- towards damages for causing death

of Smt.Umadevi and also requested to furnish the details of

treatment summary.

4. On 17.11.1987, a reply was given stating that on

07.09.1987 at about 11.00 am., local anesthesia with

xylocaine and the incision of abdomen was done. In the

meanwhile, the patient was found to be in shock.

Consequently, the wound was closed and they attempted for

revival of the health condition of the patient by securing the

presence of Physician, Chief Cardiologist and Chief

Anesthetist. In spite of their best efforts, the patient died on

08.09.1987 at about 8.40 am. In the reply, it is also stated

that the clinical diagnosis made shows that the death was

due to 'xylocaine shock'. Later, post-mortem examination

was also conducted, and as per the post-mortem report, the

death was due to 'pulmonary edema as a result of

anaphylactic shock' leading to the pulmonary edema death.

5. It is the further case of the plaintiffs that the death of

the deceased was on account of negligence of the doctor in 3 ML,J A.S_2559_2000

conducting the surgery for the tubectomy operation. The

deceased was housewife and she was hale and healthy and

was extending her services to the family. On account of her

death, they were deprived of her contribution. The suit was

filed claiming damages of Rs.2,00,000/-.

6. The defendants have filed their written statement. The

contents of the written statement show that the patient was

admitted on 05.09.1987 and she underwent surgery on

07.09.1987 and she died on 08.09.1987. Prior to that,

xylocaine test dose was also given. After incision of abdomen,

the patient was sweating and became pale. Therefore, the

wound was closed and necessary treatment for revival of the

patient was undertaken. In the course of revival treatment,

the services of Chief Anesthetist and Cardiologist were taken,

and according to their advise, the treatment was given. In

giving the treatment, they had acted diligently in discharging

their duties. According to the post-mortem report also, the

xylocaine test marks were also present on the right forearm of

the patient which indicate that prior to the application of local

anesthesia, test dose was conducted. The death was on

account of xylocaine sensitivity and there is no negligence

and the incident occurred for the reason beyond the control of

the doctor.

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                                                      A.S_2559_2000

7. It is further stated in the written statement that

Dr.G.Mohan, M.D., D.G.O., Professor of Obstetrics and

Gynecology, Government Maternity Hospital, Hanamkonda,

was appointed as the Enquiry Officer to go into the cause of

death. He has submitted a report stating that death was due

to 'xylocaine sensitivity'. It is also stated that ex gratia of

Rs.10,000/- was paid and the claim is not sustainable and

prayed to dismiss the suit.

8. The trial Court, on the basis of the above pleadings, has

framed the following issues:

"1. Whether the Doctors who conducted operation on Umadevi were negligent?

2. Whether the plaintiffs are entitled to damages, if so, to what extent?

3. To what relief the parties are entitled?"

9. The plaintiffs, to support their case, examined P.W.1

and relied upon Exs.A-1 to A-5. The defendants, to support

their case, examined D.Ws.1 and 2 and relied upon Exs.B-1

to B-6.

10. The trial Court, after appreciating the evidence on

record, found that the death was on account of xylocaine

sensitivity which was on account of negligence of the doctor

and also awarded damages of Rs.1,25,000/- with interest, as

stated supra. Hence, the present appeal at the instance of

the defendants.

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                                                                A.S_2559_2000

11.       Heard both sides.

12. The points for consideration in this appeal are as

follows:

"1. Whether the plaintiff has established the death of Smt.Umadevi was on account of negligence of the doctors?

2. Whether the compensation awarded requires any modification?

3. To what relief?"

Point No.1:

13. On going through the impugned judgment, the trial

Court in giving the finding on negligence, had shifted the

burden of proof on the defendants, which is contrary to the

rules of evidence. The plaintiffs have to establish negligence

either from their own evidence or from the evidence of the

defendants or both.

14. The learned counsel for the plaintiffs/respondents has

relied upon the decision of Apex Court in Savita Garg v.

National Heart Institute1 to support the view taken by the

trial Court. It is necessary to extract relevant portion of the

said judgment and it reads as under:

" 16.... Similarly, our attention was invited to a decision in the case of Spring Meadows Hospital v. Harjol Ahluwalia reported in (1998) 4 SCC 39. Their Lordships observed as follows:

'Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would

(2004) 8 SCC 56 6 ML,J A.S_2559_2000

tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor.'

Therefore, as a result of our above discussion we are opinion that summary dismissal of the original petition by the Commission on the question of non-joinder of necessary parties was not proper. In case, the complainant fails to substantiate the allegation, then the complaint will fail. But not on the ground of non-joinder of necessary party. But at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that patient died. The hospital/Institute is not going to suffer on account of non-joinder of necessary parties and Commission should have proceeded against hospital Even otherwise also the Institute had to produce the concerned treating physician and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns in not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital. Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities."

15. On close scrutiny of the above ratio shows that in a

medical negligence, bona fide mistake under certain

circumstances may be excusable. However, if the mistake

tantamount to negligence, it cannot be pardoned. This means,

to succeed, the plaintiff has to establish that the negligence

which is attributed was result of mistake which amounts to 7 ML,J A.S_2559_2000

negligence. After establishing such negligence, the burden

shifts to the defendants to prove that they have taken due

care and caution in discharging their duty. Despite that, if

the patient dies, then the defendants would succeed, since no

negligence on their part.

16. In the present case, a close examination of evidence of

the plaintiffs and the defendants, the initial stand of the

defendant is that the death was on account of xylocaine

sensitivity. The evidence also shows that there is

endorsement on Ex.B-1 - case sheet to the effect that

xylocaine test dose was given as a measure of pre-operative

care. Except the said entry, the details of date of conducting

such test was not indicated. As per the evidence of D.Ws.1

and 2, the test dose has to be conducted 24 hours prior to the

application of local anesthesia. Apart from the above entries,

the contents of the written statement show that as per the

enquiry report furnished by Dr.G.Mohan under Ex.B-6, the

death was on account of xylocaine sensitivity. The evidence

of D.W.2 in the cross examination shows that the death was

on account of xylocaine toxicity. The cause of xylocaine

toxicity and sensitivity are different, though the treatment is

same.

17. Sensitivity is a case falls under bona fide mistake i.e.,

beyond the control of the treating doctors and that mistake 8 ML,J A.S_2559_2000

would tantamount to negligence if there is absence of test

dose prior to the application of local anesthesia. The trial

Court went on to say that the death was on account of

xylocaine sensitivity on the premise that there was no

convincible proof to the effect that prior to applying of local

anesthesia, test dose was done before 24 hours as required

under pre-operative care.

18. The learned counsel for the plaintiffs strongly relied

upon certain alterations in Ex.B-2 (a) - case sheet more

particularly with regard to quantum of xylocaine applied in

the local area. Admittedly, there is an alteration in the

percentage and quantity of xylocaine administered in the local

anesthesia. The alteration when we read along with the

cause of death, it shows that the toxicity might be the result

on account of excess application of dose of xylocaine. The

alteration is an attempt to tamper the evidence to show the

administration of less quantity of xylocaine. This alteration

would support the findings of the independent enquiry officer

who has given report stating that the death was due to

xylocaine toxicity.

19. The evidence also shows that the local anesthesia was

given by Dr.K.V.Papi Reddy and he was not specialized in

anesthesia. Prior to the treatment of Dr.K.V.Papi Reddy, the

patient was attended by K.Rama and D.W.2, who is another 9 ML,J A.S_2559_2000

doctor who participated in the operation part. According to

him, K.V.Papi Reddy administered anesthesia and he is not a

specialist in anesthesia. The evidence also shows that there

is a department of anesthesia in the hospital. When there is

a specific department to deal with anesthesia, and when

Dr.K.V.Papi Reddy was not specialized in anesthesia,

resorting to administration of anesthesia indicates some part

of negligence on the part of hospital authorities. In certain

circumstances, the doctor can resort to administer

anesthesia, but when specialized department exists in the

hospital, not taking the services of such expertise tantamount

to negligence. Apart from that, the alterations in the quantity

of vials used for administering the local anesthesia show that

the doctor who administered had no expertise in

administration of local anesthesia. The evidence shows that

the toxicity was the cause for the death. When the toxicity

was the cause, it must have been the excessive

administration of xylocaine.

20. Apart from the above lapses on the part of treating

doctor even after the patient went into shock in the revival

treatment, they claim that they have taken assistance of Chief

Anesthetist and Cardiologist of the hospital. The evidence of

D.W.2 shows that Ex.B-2 - treatment summary could not

indicate the participation of expert doctor in the treatment

process. They claimed that they have given prescription on 10 ML,J A.S_2559_2000

phone. There is nothing to show that such advise was given

on phone. If really the specialized doctor participated in the

revival process, they could have mentioned nature of

treatment given to the patient in need by prescribing the

required treatment summary. Absence of such prescription

in the treatment summary indicates that those doctors have

not participated in the treatment process. This is also one of

the lapses which tantamount to negligence.

21. The evidence also shows that the pulmonary edema was

result of excess storage of water in the air sacs of lungs. To

drain out such water from the sacs, they have injected lasix

injection through IV fluids. On account of injection of such

fluids, the input quantity of water present was 6430 ml., and

output of the water was 2000 ml. The normal fluid required

for any normal person is only 2500 ml. The admission of

D.W.1 shows that input water level must be less than output,

whereas the findings in the treatment summary show that

input water level was highly excessive than input. This shows

that the fluids were excessively administered and this might

also one of the contributing factors to deteriorate the health of

the patient.

22. Further, the evidence of D.W.2 shows that Serum

Electrolyte test was not conducted. This test is an indication

to know whether the patient has hypo or hyperproteinemia.

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                                                    A.S_2559_2000

Had the said test was conducted, the treatment would have

been in the normal process. On account of these lapses, the

patient suffered fatal death. From such evidence, the

plaintiffs could able to make out the mistake committed by

the doctors is not a bona fide mistake and such a mistake

tantamounted to the negligence. Therefore, the plaintiffs

established the negligence on the part of the hospital

authorities. Accordingly, this point is answered in favour of

the plaintiffs.

Point No.2:

23. The evidence shows that the deceased was a housewife

and she was young lady and her services as housewife and

services to the family cannot be measured in money. The

Apex Court in several cases notionally valued the services of a

housewife @ Rs.3,500/- per month depending upon the year

of death. If the multiplier as applicable in the Motor Vehicle

Act is yard stick, the compensation which the trial Court is

awarded is less than that is actually entitled by the plaintiffs.

Since there is no cross appeal from the plaintiffs, this Court

cannot enhance the amount. Therefore, the amount awarded

by the trial Court towards damages is just and reasonable.

Hence, this issue is also answered in favour of the plaintiffs.

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Point No.3:

24. In the result, the Appeal Suit is dismissed with costs.

There shall be no order as to costs. Miscellaneous petitions,

if any, pending, shall stand closed.

_______________ M.LAXMAN, J Date: 09.11.2021 TJMR