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Philips India Ltd v. Kunju Punnu and another

Philips India Ltd
v.
Kunju Punnu and another

(High Court Of Judicature At Bombay)

First Appeal No. 377 Of 1965 (With F. Appeal No. 155 Of 1966) | 06-09-1974


G. N. Vaidya, J.

1. The above first appeals raise an important question of the liability of a medical consultant of a company in tort. They are directed against the judgment and decree passed by the Joint Civil Judge, Senior Division, Poona, on April 30, 1965, ordering defendant No. 1, Philips India Ltd., and defendant No. 2, Dr. Shaikh Suleman, a medical practitioner of Poona, to pay to the plaintiff-respondent No. 1, Kunju Punnu, the mother of the deceased employee of defendant No. 1, Rs. 18,000 together with costs of the suit and future interest on that amount at the rate of 6 per cent, per annum till satisfaction.

2. The allegations made in the plaint presented in forma pauperis by Kunju Punnu on July 11, 1962 and registered as Special Civil Suit No. 31 of 1963, can be briefly summarised as under:-

3. The plaintiffs son, V. K. Gopal, was an employee of defendant No. 1 company on a monthly salary of Rs. 105 as a machine operator. Defendant No. 2 is the Medical Officer and Adviser of defendant No. 1 company. Defendant No. 2, as the Medical Officer of the company, had to treat the patients of defendant No. 1 company free of charge. On December 20, 1961, the plaintiffs son, Gopal, fell ill suddenly, while he was working in defendant No. 1s factory at Loni Kalbhor. Defendant No. 2 treated and advised him to take leave for two days without making a proper diagnosis of the disease from which Gopal was suffering. It was alleged that although the deceased Gopal was suffering from smallpox, defendant No. 2 carelessly treated him as a patient suffering from venereal disease, notwithstanding that Shankar, the brother of the deceased, told defendant No. 2 that Gopal was not suffering from any venereal disease. Shankar, who was the driver in the service of the General Manager of the company, told the General Manager about this and although the General Manager assured that he would tell defendant No. 2 to give proper treatment, he failed to tell defendant No. 2 anything of that kind. It is further alleged that as a result of this wrong and negligent treatment by defendant No. 2, Gopal began to get high temperature and cold. Even then, he was asked by defendant No. 2 to work in the factory and he worked on December 22, 1961. As his temperature increased, he could not continue working. He went to defendant No. 2 and asked his advice. Defendant No. 2 advised him to take another two days leave and Gopal continued to be under the treatment of defendant No. 2, though Gopal was not suffering from venereal disease. Defendant No. 2 gave very strong treatment and this made the patient worse. Then, defendant No. 2 got him admitted in his dispensary on December 25, 1961 at about 11.30 a.m., kept him there for about 24 hours, but continued to treat him very negligently and carelessly on the basis that Gopal was suffering from venereal disease. Gopal became serious. Defendant No. 2 sent him to Dr. Grants Nursing Home. It was, however, too late and Dr. Grant, finding that it was a case of smallpox, sent Gopal to the infectious disease hospital, where Gopal died on December 31, 1961. It was, therefore, submitted by the plaintiff that her son Gopal died on account of gross and culpable negligence and wrong treatment given by defendant No. 2 and thereby the plaintiff was required to suffer a heavy loss amounting to Rs. 25,000, which defendant No. 1 was liable to pay as the employer of defendant No. 2. The plaintiff further claimed damages, in addition to Rs. 25,000, of Rs. 795, the amount which the plaintiff was required to pay to Dr. Grant and his Nursing Home, and Rs. 222.51 p., the amount which she had to spend for purchasing medicines and injections, and remitting Rs. 17.51 p., she claimed in the suit Rs. 26,000.

4. The suit was resisted by both the defendants. In its written statement, Exh. 12, defendant No. 1 company denied its liability to pay any compensation and denied all the allegations made against defendant No. 1 company and defendant No. 2, and, in particular, the allegation that defendant No. 2 was an employee of defendant No. 1. In his written statement Exh. 15, defendant No. 2 admitted that he was a permanent Adviser and Consultant in the employment of defendant No. 1 on part-time basis, but denied that the deceased Gopal died of smallpox or that he was under his treatment at the time of the death. According to him, the deceased was not treated by him with gross negligence or carelessness, nor was he treated as V. D. patient. He contended that as soon as he found that there was rash on the body of the deceased Gopal, he immediately consulted Dr. Grant, who was also the Medical Consultant of defendant No. 1, and Dr. Grant advised Gopals brother to get Gopal admitted in Sassoon Hospital and it was the deceased Gopals brother, Shankar, who desired to get Gopal admitted in the Nursing Home of Dr. Grant, who, in fact, carried out all pathological and other investigations and gave him the best available treatment in Poona. Thereafter, defendant No. 2 was watching the progress of the case. There were signs of improvement, when the patient was removed by his brother and taken to the Nayadu infectious diseases hospital and from there to the Cantonment General Hospital, where, ultimately, he died on December 31, 1961. Defendant No. 2 contended that the deceased Gopal was treated by him as an employee of defendant No. 1 company in accordance with the rules of defendant No. 1 with all due diligence and care and as such, neither defendant No. 2 nor defendant No. 1 company was liable to pay any damages to the plaintiff.

5. In view of these contentions, the learned civil Judge framed fifteen issues, but the important issue to be decided was whether the plaintiff proved that defendant No. 2 treated the deceased with gross negligence and carelessness.

6. On behalf of the plaintiff, Gopals brother, Shankar, was examined. The plaintiff also examined Dr. Gupchup, a doctor working in the Cantonment General Hospital, where the deceased Gopal was taken on December 29, 1961 at 6.30 p. m. in a serious condition as a smallpox patient and where he died at 3.45 p.m. on December 31, 1961; one Calut Fernandes, who had taken the photos of Gopal at the Cantonment General Hospital on December 30, 1961, while Gopal was alive, and Dr. Dongare, Superintendent of another hospital in Poona, known as Nayadu Hospital, where Gopal was taken at 12.10 p. m. in December 1961 and from where he was removed to the Cantonment General Hospital at 6 p.m. But as the case papers were in the handwriting of one Dr. Kulkarni, who had left the hospital, he merely stated that the case papers were not signed by Dr. Kulkarni, who had left the Nayadu Hospital and joined railway service.

7. Defendant No. 2 examined himself and Dr. K. B. Grant, M.D.F.C.P.S., of Ruby Hall Nursing Home, Poona. The parties also led the documentary evidence of correspondence and papers relating to the service of the deceased and case papers. Exhibit 94 is the letter of appointment of Dr. Suleman Shaikh, setting out the conditions of his contract entered into by defendant No. 1 company with him to implement the medical scheme for the benefit of their employees in their factory Loni Kalbhor, for which purpose they appointed him as their physician and consultant on a part-time basis. The relevant conditions so far as the scheme is concerned were conditions Nos. 3, 4, 5, 8 and 9. Condition No. 3 said that he should attend to the staff for medical advice and treatment at the factory at Loni, Poona, twice a week as per the agreement between them. Condition No. 4 provided that the employees would be free to seek medical advice from him at his clinics and that he should render the same without any extra fees. Condition No. 5 laid down that in case it was necessary to prescribe costly medicines and drugs, tonics, injections, etc., costing more than Rs. 4, he should obtain necessary approval from Dr. Grant. Condition No. 9 provided that if necessary according to his professional discretion, he would visit an employee in need of medical advice at his place for the first time in a spell of sickness and that he would be paid for such a visit separately at the rate of Rs. 3 per visit. Condition No. 9 provided that he should advise on and arrange for hospitalisation and specialist treatment whenever it was necessary.

8. Exhibit 95 is another letter under which defendant No. 2 was appointed as the permanent physician and consultant on a part-time basis and it reiterated the conditions in the earlier letter. Under these conditions, defendant No. 2 was to draw a monthly honorarium of Rs. 200 and he was not entitled to any other benefit to which the employees of the company of permanent categories were entitled. In 1959, by a letter dated May 11, 1959, Exh. 96, the honorarium was described as salary and it was raised to Rs. 300 p. m., subject to the other terms and conditions of the appointment.

9. The learned civil Judge, by his aforesaid judgment, held that the suit was maintainable in the present form against both the defendants, that defendant No. 2 was an employee of defendant No. 1 company on or about the time of the illness and death of the deceased Gopal and that the plaintiff proved that defendant No. 2 treated the deceased with gross negligence and carelessness. He came to this conclusion, because he was of the view that defendant No. 2 gave a wrong treatment to the deceased which deteriorated the health of the deceased. He further held that the deceased was not removed to Dr. Grants Nursing Home at his own request and the defendants failed to prove that the deceased voluntarily and of his own accord discontinued the treatment of defendant No. 2 and Dr. Grant. He was of the view that defendant No. 2 failed to prove that he treated the deceased with such skill, knowledge, competence or diligence as was required or expected from him, and hence he passed the decree on the basis of the normal life of the plaintiff as 80 years.

10. The said decree is challenged by Philips India Ltd., defendant No. 1, in First Appeal No. 377 of 1965 and by Dr. Shaikh Suleman in First Appeal No. 155 of 1966.

11. Mr. Singhvi, the learned counsel for the company, defendant No. 1 submitted that, in the facts and circumstances of the case, the learned civil Judge erred in holding that defendant No. 2 had a duty to treat the deceased Gopal with more care and skill than he did; that there was no breach of duty on the part of Dr. Shaikh Suleman as a professional man, and he had shown a fair, reasonable and competent degree of skill and that as soon as he found complications, he referred the deceased to Dr. Grant, who was a well-known doctor in Poona and who was also the medical officer of defendant No. 1 company and hence in law defendant No. 2 was not liable for culpable negligence. He also contended that, in any event, the death of Gopal in the Cantonment General Hospital was not proved to be the result of any negligence on the part of defendant No. 2 and hence Mr. Singhvi submitted that the decree passed against defendants Nos. 1 and 2 must be set aside. In support of his argument, Mr. Singhvi relied on the evidence of Dr. Gupchup, the plaintiffs witness, who stated that the type of smallpox from which Gopal suffered was called haemorrhage smallpox, because there was haemorrhage of membranes and some bleeding, and such smallpox cases are mostly fatal and generally their treatment did not help in improving the patients. Mr. Singhvi submitted that the very fact that even Dr. Grant, who was a very renowned doctor in Poona, was unable to diagnose the disease of Gopal as smallpox and advised his removal to Sassoon Hospital, showed that Dr. Shaikh Suleman could not be blamed for not treating the deceased as a smallpox patient. He relied on the finding of the learned civil Judge that Dr. Shaikh Suleman could not be held negligent as far as diagnosis was concerned, and submitted that defendant No. 2s duty to treat the patient ended when he sent him to Dr. Grant and Dr. Grant, due to the inability of the patient to pay the bills of the hospital, advised his removal to Sassoon Hospital, which was a General Hospital. Mr. Singhvi relied on the terms of appointment of Dr. Shaikh Suleman and contended that the terms did not impose a duty on the doctor to look after the patient wherever he was removed or to watch his progress wherever he was Treated, as appears to have been assumed by the learned civil Judge .He submitted that having regard to the admissions of Shankar and the case papers, it was clear that on December 12, 1961, Gopal went to Dr. Shaikh Suleman with a complaint of indigestion and eight days later on December 20, 1961, with a complaint of fever and cold. Gopal did not go to him on December 22, 23 and 24, 1961. When he went to him on December 25, 1961, Dr. Shaikh Suleman found that he had high fever and he was also having constipation and, therefore, gave a glycerine syringe and allowed him to lie down in the dispensary till 6.45 p. m., when he examined Gopal again and he found red pigmentation on his body. He, therefore, told Gopal that he should be pathologically tested and for this purpose, it was necessary to consult Dr. Grant. Shankar, who was also in the dispensary at that time, agreed. Then, Dr. Shaikh Suleman gave the full history of the case to Dr. Grant and asked Dr. Grant to examine Gopal. Dr. Grant wanted the patient to be admitted to his Nursing Home. Gopal was accordingly admitted on December 26, 1961 at 10.45 a. m. Dr. Grant examined him and approved of the treatment which was given by Dr. Shaikh Suleman.

12. Dr. Grant, in his evidence, stated that on examination, he found that Gopal was suffering from bacteraemia. Dr. Grant got several pathological tests made in the case. He found that there was rash and red pigmentation on the body of Gopal. In his opinion, the rash could have been due to several conditions, such as bacteraemia, Stevens-Johnson syndrome, viraemia and many other causes. Gopal was in the Nursing Home of Dr. Grant from December 26 to December 28, 1961, as seen by the evidence of dr. Grant and the case papers produced by him. As the relatives of Gopal were unable to pay the charges of Dr. Grants Nursing Home, Dr. Grant discharged him on December 29, 1961 with a note for being given to the authorities in the Sassoon Hospital, where Dr. Grant was an honorary physician and cardiologist since 1947. He gave the note to remove the patient to the ward assigned to him as the honorary of the hospital and of the B. J. Medical College. According to Dr. Grant, the patient was improving when he was in his Nursing Home and nobody suggested to him that the patient was suffering from smallpox and there was no epidemic of smallpox prevailing in Poona at that time. After Gopals removal from his Nursing Home, Dr. Grant never received information or intimation from any hospital that the patient had an attack of smallpox.

13. We are of the opinion, having regard to the evidence of Dr. Grant that Dr. Shaikh Suleman had done all that he could do for Gopal and there was no responsibility on him to look after the patient after he was removed to the Sassoon Hospital.

14. The concept of negligence as a tort is expressed in the well-known definition of Alderson B. in Blyth v. Birmingham Waterworks Company (1856)11 Exch. 781 as under (P-784):

"... Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do."

Lord Wright in Lochgelly Iron and Coal Co. v. M. Mullan 1934 A C 1 said (p. 25):

". . . In strict legal analysis, negligence means more than heedless or careless conduct, whether in omission or commission; it properly connotes the complex concept of duty, breach, and damage thereby suffered by the person to whom the duty was owing."

Doctors owe to their patients a duty in tort as well as in contract. It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. Although the standard is a high one, a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of that kind occurs, or because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment. (See Salmond on the Law of Torts, 16th Edn., page 232).

15. The civil liability of medical men towards their patients is perhaps compendiously stated in Rex v. Bateman (1925) 94 LJKB 791, as follows (p. 794):

"If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward. ... The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patients death has been caused by the defendants indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and unskilfulness, ... As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare." (See Charlesworth on Negligence, fifth edn., pp. 181 and 182, para. 272).

The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill. There is no question of warranty, undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. A defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence.

16. Lord Denning M. R. rightly pointed out in Hucks v. Cole (1968) 118 N L J 469 : 112 S J 483, at p. 484, as follows:

"A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure or inexcusable."

17. At page 580 of Charlesworth on Negligence, the law regarding the burden of proof on the plaintiff in an action for negligence is stated as follows generally:

"In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it. Hence it is for the plaintiff to give evidence of the facts on which he bases his claim to the redress which he seeks from the Court. His evidence may consist of facts proved or admitted, and after it is concluded two questions arise, 0) Whether on that evidence negligence may be reasonably inferred, and (2) whether, assuming it may be reasonably inferred, it is in fact inferred."

At page 581, it is stated that there is evidence of negligence if the facts proved and the inferences to be drawn from them are more consistent with negligence on the part of the defendant than with other causes. At page 583, it is stated that the plaintiffs evidence also must show that on the balance of probabilities the most likely cause of the damage was the defendants negligence and not the negligence of any other person.

18. In Halsburys Laws of England, Vol. 26, at p. 17, the law is stated as under:

"22. Negligence: duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.

23. Degree of skill and care required. 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; 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, although a body of adverse opinion also existed among medical men."

The principles so stated by Halsbury were affirmed by the Supreme Court in Dr. Laxman v. Dr. Trimbak (1968) 71 Bom. L R 236, SC at p. 240

19. Taylors Principles and Practice of Medical Jurisprudence, 12th edn. Vol. I, at p. 55 states:

"Doctors must be profoundly indebted to Lord Justice Denning for his summing-up in the case of Hatcher v. Black (1954) The Times. June 29th. 30th. July 1st. and 2nd. The details of the negligence alleged are of no importance to the principles involve d, but the generalization made in the Judges summing-up speech was vital to a fair and just appraisal of doctors responsibilities. He said, In a hospital, when a person was ill and came in for treatment, no matter what care was used, there was-always a risk; and it would be wrong and bad law to say that simply because a mishap-occurred the hospital and doctors were liable... . The jury must not, therefore, find him negligent simply because on of the risks inherent in an operation actually took place, or because in a matter of opinion he made an error of judgment. They should find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure."

It is also necessary to bear in mind the following warning given to Courts by Goddard L. J., as he then was in, in Mahon v. Obsorne (1939) 2 K B 14 (P. 47):

"... I would not for a moment attempt to define in vacuo the extent of a surgeons duty in an operation beyond saying that he must use reasonable care, nor can I imagine anything more disastrous to the community than to leave it to a jury or to a Judge, if sitting alone, to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject."

Moreover, it is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of bis act. To demand more of him is too harsh a rule. In the law of negligence, the test whether the consequences were reasonably foreseeable is a criterion alike of culpability and of compensation as held by the Privy Council in Overseas Tankship etc. v. Moris Dock etc. (1961) 1 All. E R 404.

20. In Lord Nathans Medical Negligence, 1957 edn., the following observation of Lord President Clyde in Hunter v. Hartley (1955) S L T 213 is relied upon (p. 21):

"The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with reasonable care."

At page 22 of the Book, it is stated:

"The medical man must therefore exercise reasonable skill and care, measured by the standard of what is reasonably to be expected from the ordinarily competent practitioner of his class. If he does so he will have discharged his duty and cannot be held answerable even if the treatment has untoward results. For the medical man is not an insurer; he does not warrant that his treatment will succeed or that he will perform a cure. Naturally he will not be liable if, by reason of some peculiarity in the frame or constitution of a patient which was not reasonably to be anticipated, a treatment which in ordinary circumstances would be sound has unforeseen results. But he will not even be liable for every slip or accident.

The standard of care which the law requires is not insurance against accidental slips. It is such a degree of care as a normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case in question. It is not every slip or mistake which imports negligence.

Thus in order to decide whether negligence is established in any particular case the act or omission or course of conduct complained of must be Judged, not by ideal standards nor in the abstract, but against the background of the circumstances in which the treatment in question was given. This is not to say that the standard of skill and care required varies with the circumstances of each case; the standard is always the same, namely the conduct of the ordinarily competent and careful practitioner, but the degree of care required to comply with that standard is conditioned by the actual circumstances of the case. It is the degree of care which varies, not the standard."

At page 104 of the Book, Lord Nathan has observed :

"The burden of proving negligence rests upon the person who asserts it. In medical negligence cases therefore it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill.

It is by means of evidence of course that the patient will seek to, and indeed must, establish his claim; but the evidence he adduces may take several different forms. The most important form, ordinarily, is oral evidence, which may consist both of the sworn testimony of the patient himself and other persons upon matters of fact such as what was done and what was said upon the relevant occasions, and of the sworn testimony of experts upon matters of opinion, such as the correct mode of treatment for a specific condition. But the patient is not confined to oral evidence; he may also rely upon documentary evidence ir order to establish the facts upon which he bases his claim of negligence."

At page 107 of the Book, it is observed:

"In all cases, however, the facts proved must be sufficiently compelling to give rise to an inference of negligence; a mere conjecture will be insufficient. Thus if the facts are such that the Judge or jury feel able to say We are satisfied that on the balance of probabilities there was a breach of duty on the part of the defendant, the plaintiff is entitled to succeed. If, on the other hand, the facts proved leave the Judge or jury in the position of being able to say no more than that a possible explanation is that the defendant failed in his duty but the materials before us do not enable us to say that this was a more probable cause of the mishap than any other, then negligence has not been established; the case has not passed from the realm of conjecture to that of legal inference."

21. Regarding negligence in diagnosis, Lord Nathan has observed at (p. 43):

"The diagnosis of ailments is normally the first matter with which the medical man is concerned; and there can be no doubt that he may find himself held liable in an action for negligence if he makes a wrong diagnosis and thereby causes injury or damage to his patient (as for example where the false diagnosis leads the medical man to apply a wrong treatment or to refrain from applying some treatment which, if it had been applied at once, would have averted or cured the condition complained of). If follows, however, from what has already been said as to the standard of care required from the medical man, that a mistaken diagnosis is not necessarily a negligent diagnosis. It was said forty years ago, and the principle still holds good, though allowance must of course be made in any particular case for subsequent advances in technique, that

no human being is infallible ;and in the present state of science even the most eminent specialist may be at fault in detecting the true nature of a diseased condition. A Practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say, if his mistake is of such a nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession."

22. Regarding attendance to the patient, the Book states at p. 41 as follows :

"A medical man may be guilty of negligence if he fails to attend to his patient with the regularity or promptitude which his patients condition demands; but he can only be held liable civilly if his lack of attention leads to an avoidable deterioration of the patients condition. Whether the medical man has complied with his duty to be reasonably diligent in attendance can only be decided after the fullest consideration of the circumstances of the particular case; for it is only in the light of those circumstances that it is possible to measure the extent of the duty. He may well be guilty of negligence, however, if for example ,as seems to have happened in a Scottish case, he goes on holiday without informing his locum of the existence or condition of one of his patients with the result that the latters finger remains poulticed for an excessive time, eventually necessitating amputation.

23. In an unreported judgment in Amelia Flounders v. Dr. Clement Perreira (1947) O.C.J. Appeal No. 27 of 1947, decided by Chagla A.C.J. and Bhagwati J., on September 29, 1947 (Unrep.) Chagla Ag. C. J. and Bhagwati J. observed:

"The law on the subject is really not in dispute. The plaintiff has to establish first that there had been a want of competent care and skill on the part of the defendant to such an extent as to lead to a bad result. The Plaintiff has also to establish the necessary connection between the negligence of the defendant and the ultimate death of the plaintiffs son."

In that case, a large number of experts were examined in regard to the treatment given by the doctor and it was held that the doctor was not negligent and the appeal Court confirmed the original judgment in the case by Tendolkar J. dated March 5, 1947, which is also unreported judgment but in which Tendolkar J. observed :

"...Actions for negligence in India are to be determined according to the principles of English Common law and those principles have been set out in an action for negligence against a medical man by Erie C. J. in Rich v. Pierpont (1862) 3 F&F 36 = 176 ER 16, at p. 19 in these words:

It was not enough to make the defendant liable that some medical men, of far greater experience or ability, might have used a greater degree of skill, nor that even he might possibly have used some greater degree of care. The question was whether there had been a want of competent care and skill to such an extent as to lead to the bad result ..considering how much the treatment of a case depended upon its varying phases, which changed as quickly as the shifting hues of the heavens, it was hard for one medical man to come forward and condemn the treatment of a brother in the profession, and say that he would have done this or that, when, probably, had he been in a position to judge the case from the first, he would have done no better. It is clear therefore that the degree of competent care and skill by which the defendant is to be judged is such as may be reasonably expected from an average person in his profession and not from any person specially gifted or qualified. The defendant in this case is a general practitioner and is to be judged by the average standard of a general practitioner and not even of a consultant, much less of a surgeon, who cures diseases by operation and not by medical treatment. Moreover, in order to succeed, it is not sufficient for the plaintiff to establish the negligence of the defendant; it is necessary further to establish the necessary connection between such negligence and ultimate death."

24. It is also useful in this connection to refer to the decision of the Privy Council in Vancouver General Hospital v. McDaniel (1934) W N 171 in which the Privy Council had to deal with a smallpox case. The appellants were a statutory corporation which administered a hospital at Vancouver for smallpox and other infectious diseases. The respondent Annabelle McDaniel (an infant) had been a paying patient in the hospital suffering from diphtheria. About nine days after she had been cured and discharged, she developed smallpox. By the judgment appealed from, she recovered against the appellants £ 5,000 damages for disfigurement to her caused thereby ; she alleged that she had contracted smallpox owing to the negligence of the appellants; the respondent, her father, recovered £ 545 for medical expenses incurred by him. The Negligence alleged was that while in the hospital she had been placed in a room on the same floor as patients suffering from smallpox, and had been attended by nurses who also attended those patients. The appellants denied negligence, and pleaded that the technique adopted in the hospital for the prevention of infection was adopted under competent medical advice, and was in accordance with approved modern practice, though the appellants conceded that the infant respondent had contracted smallpox by what was described as cross-infection, while in the hospital and in the circumstances alleged. The Privy Council held (p. 172):

"...The question was whether the respondents had discharged the onus which was upon them. The substantive evidence adduced by them was meagre in the extreme, and was consistent with evidence adduced by the appellants that in modern practice the system adopted was in vogue throughout Canada, also in the United States. The defence that the system had been adopted upon competent medical advice was not definitely established, but the appellants technique, in material particulars, was endorsed by every medical witness called by them. Dr. McEachern, associate director of the American College of Surgeons, who was responsible for an annual survey of 3464 hospitals in the United States and Canada, had affirmed that the appellants technique, of which he had knowledge, was in accord with the most approved hospital practice, and that it was the best system known to medical science to-day. He stated that the proximity of smallpox patients to other patients in an infectious diseases hospital was quite an accepted procedure in the modern method of hand¬ling infectious disease. As regarded a common nursing staff, he described that as also accepted procedure in all modern systems."

In their Lordships opinion the appellants showed that they had acted in accordance with general and approved practice, and accordingly were entitled upon the evidence to succeed, though their Lordships made it clear that they were offering no opinion of their own as to the relative merits of what was termed the unit system, in contradistinction to the isolation system, for the treatment of smallpox.

25. Dr. H. S. Mehta in his Medical Law and Ethics in India, 1963 edn., at p. 209 observes :

The value of expert evidence is obvious in a case where negligence is alleged against a medical man or a medical institution. It may be remembered that the cardinal test for determining the question of medical negligence is: whether a reasonably competent medical man would have acted in more or less the same manner in which the medical man against whom negligence is alleged had acted. It is, therefore, natural that Courts of law appreciate the assistance of expert medical evidence to ascertain this point."

26. It is, therefore, clear that in an action for negligence against a doctor, as in any other action for negligence, the plaintiff has to prove : (1) that the defendant was under a duty to take a reasonable care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonable care; (2) that there was a breach of duty on the part of the defendant and (3) that the breach of duty was the real cause of the damage complained of and such damage was reasonably foreseeable.

27. It is in the light of the above settled principles governing medical men that we have to decide whether defendant No. 2, in the facts and circumstances of the present case, was negligent. The evidence referred to above of Dr. Gupchup and Dr. Grant and the conditions of employment of defendant No. 2 are most relevant in this connection. The learned Civil Judge disbelieved the uncorroborated allegations made by the plaintiff and her son Shankar that the deceased Gopal was treated by defendant No. 2 as a V. D. patient. The case papers are before the Court. Dr. Grant is one of the renowned doctors in Poona, who has been running a busy Nursing Home and who is an Honorary to B. J. Medical College and Sassoon Hospital. Even he could not arrive at a clinical finding with regard to the disease from which Gopal was suffering without a detailed pathological test of Gopal. The learned Civil Judge appears to have come to the conclusion that Dr. Shaikh Suleman was negligent, because he did not take proper care to examine Gopal or to find out the real cause of the ailment or to give proper treatment, on the basis of the case paper of Gopal, which is at Exh. 81, and the note book maintained by defendant No. 2, which is at Exh. 87, without due regard to the above principles governing the law of negligence and the proof of such negligence.

28. In the plaint, the mother of the deceased, who is the plaintiff and who did not have any personal knowledge, in effect submitted that defendant No. 2 treated Gopal with gross negligence and carelessness, inasmuch as he failed to diagnose the disease of Gopal as smallpox and went on to treat him as if he was suffering from V. D. Shankar, the brother of the deceased, who gave evidence, also supported this allegation, although he appears to have had no personal knowledge in regard to what happened between defendant No. 2 and the deceased Gopal till December 25, 1961. It is not in dispute that the deceased Gopal was unmarried and was staying separately from Shankar. The deceased was staying in his own room in East Street in Poona Cantonment. Shankar was residing in the compound of the bungalow occupied by the General Manager of defendant No. 1 company, as he was working as the driver of the General Managers car from 1956 till September 13, 1963, when he was dismissed. Defendant No. 2, Dr. Shaikh Suleman, at the material time, was practising as a general medical practitioner in Poona. He had practice for about thirty-two years and he had passed the L. C. P. S. examination. He was also employed as a medical officer with defendant No. 1 company and was treating and advising the employees of defendant No. 1 company under the medical scheme which the company had adopted for the benefit of its employees.

29. According to Dr. Shaikh Suleman, the deceased approached him for the first time on December 12, 1961 with a complaint for digestive trouble. He gave him medicine and a pill on that day. Thereafter, Gopal went on December 20, 1961 to him complaining that he had fever, cold and headache. He treated him for the symptoms he gave by giving medicine and a pill. He also gave him a medical certificate to enable him to get leave for a day or two. Gopal went to him also on December 21, 1961, but he did not go to him on December 22, 23 and 24, 1961. What happened on the most important date, so far as he was concerned, namely, December 25, 1961, is described by him as under:

"On 25th December 1961 he was brought to me by his elder brother Shankar at about 11.30 a.m., in a riksha. He gave ms history to the effect that Gopal had got constipation for four days and fever. I examined him and found that he had 104 dg. temperature and constipation. I put him in the room and gave him a surmige glycerine. After about an hour, I wrote down the prescription and gave him that injection of dicrysticin. Before injecting him I gave him a test dose, waited for 20 minutes and found that there was no reaction of allergy and then only I gave him full dose. Then I wrote down the prescription and asked Shankar to purchase the medicine of Subamycin from the chemist. He said to me that he had no money to purchase the medicine, I should purchase it for him and that he would pay the cost afterwards. Accordingly I sent for purchasing those capsules and instructed Shankar to give one capsule every four hours. Gopal was kept there only at the request of his brother and I left for my office. I returned to the clinic at about 6 p. m. and examined him. His brother came to me at about 6.45 p.m. when I examined Gopal and found red pigmentation on his body. So I told Gopal that I would like to have pathological test about the cause of the red pigmentation. I also told them I would like to consult Dr. Grant about the same and Shankar said then I should do so. Then I instructed Dr Grant after giving him the full history of the case and the treatment given by me. Dr. Grant told me that investigation will have to be made in that case and so 1 should take Gopal either to his Nursing Home or to the Sassoon Hospital. I came to my clinic and told Shankar as well as Gopal what Dr. Grant said to me. Both of them told me that as defendant No. 1 used to pay Rs. 75 for the patient Gopal should be taken to the Nursing Home of Dr. Grant and not to the Sassoon Hospital. Then he was admitted to Dr. Giants Nursing Home on the 26th December with my letter.

What Dr. Shaikh Suleman stated is fully supported by the case paper and the note book produced by him at Exhs. 81 and 87.

30. The plaintiff has led no expert evidence of any doctor to show that anything that Dr. Shaikh Suleman did till this time amounted to the breach of any duty which he owed as a doctor to his patient Gopal. We do not think that the duty cast on the companys doctor in respect to the companys employees is any higher or lower than the duty of an average doctor towards his patient. There is nothing in the case papers or in the evidence of Dr. Shaikh Suleman to show that he treated Gopal as a V. D. patient. No question was asked even to Dr. Gupehup, who was the plaintiffs witness as to whether any treatment given by Dr. Shaikh Suleman would have led to deterioration of the condition of Gopal, or had anything to do with the subsequent diagnosis of the disease as smallpox. There is some dispute as to whether Gopal had visited Dr. Shaikh Suleman on December 22, 23 and 24, 1961 and as to whether Shankar was right when he said that Gopal had gone to the doctor on December 22, 1961 or December 23, 1961. December 24 was a Sunday and it is common ground that Gopal had not gone to the doctor on that day. The case papers do not support the statement of Shankar. We do not find any reason to disbelieve Dr. Shaikh Suleman when he said that Gopal had not come to him on December 22, December 23 and December 24, 1961.

31. There is also a dispute as to whether Shankar was attending Gopal and as to whether Dr. Shaikh Suleman told him that Gopal was suffering from syphilis as stated by Shankar. Here again, we are not inclined to believe Shankars evidence with regard to the oral discussion which he had with Dr. Shaikh Suleman having regard to the treatment which Dr. Shaikh Suleman gave to Gopal, as shown by the case papers and his subsequent conduct in taking him to Dr. Grants Nursing Home, where he was treated from December 26, 1961 to December 29, 1961 by Dr. Grant after pathological test for bacteraemia. We do not find anything negligent on the part of Dr. Shaikh Suleman in advising his hospitalisation. According to Dr. Shaikh Suleman, Shankar suggested that the deceased should be taken to Dr. Grant, assuring that he would meet the expenses. According to Dr. Shaikh Suleman, it was he who suggested that the deceased should be taken to Dr. Grants Nursing Home. Here again, we do not see any reason to disbelieve Dr. Shaikh Suleman and, in any event, we do not see how by advising Shankar to take Gopal to Dr. Grant, Dr. Shaikh Suleman can be held to be negligent.

32. It is common ground that Gopal was removed from Dr. Grants Nursing Home to the knowledge of Dr. Shaikh Suleman, but it seems that Shankar took him to Sassoon Hospital, where he was asked to go to Nayadus Infectious Diseases Hospital, as someone there suspected that the deceased was suffering from an infectious disease, and accordingly Gopal was taken to Nayadus Infectious Diseases Hospital on December 29, 1961, where he was treated till evening and he was removed from there to the Cantonment General Hospital, as Shankar and Gopal were told that Gopal was suffering from smallpox and that Nayadus Infectious Diseases Hospital did not treat smallpox cases coming from Cantonment area. It is also undisputed that from December 29, 7.30 p. m., till the death of Gopal, Gopal was treated as a smallpox patient in the Cantonment General Hospital for haemorrhage smallpox. Gopal died due to haemorrhage smallpox.

33. There is nothing to show that Shankar or anyone else informed Dr. Shaikh Suleman as to where Gopal was being treated after he was removed from Dr. Grants Nursing Home. We do not think that even a company doctor can beheld responsible to a patient if he and his relatives do not care to contact him for advice. It must be, therefore, held that Dr. Shikh Suleman was not responsible as to what happened to Gopal after he was removed from Dr. Grants Nursing Home. It is also impossible to hold that Dr. Shaikh Suleman could be responsible for anything that happened to the deceased while he was under the treatment of Dr. Grant in his Nursing Home from December 26 to December 29, 1961, when he was discharged. In fact, Dr. Grant has categorically stated that he did not allow any outside doctor to see even the case papers of the patient or to interfere with his treatment.

34. We thus find no evidence whatsoever to show that from December 12, 1961, When Gopal saw Dr. Shaikh Suleman, according to Dr. Shaikh Suleman, till Gopals death, anything has been established against Dr. Shaikh Suleman which can be said to be unreasonable or incompetent conduct on his part in the diagnosis and treatment and care of Gopal. The very fact that Dr. Grant, who is an M.D.F.C.P.S. with twenty years experience and an Honorary to Sassoon Hospital and B.J. Medical College as the Honorary Physician and Cardiologist since 1947, was not able to diagnose the disease of Gopal as smallpox, shows that Dr. Shaikh Suleman, who is a general practitioner and a company doctor, cannot be blamed for the error, if any, in his diagnosis of the disease of Gopal.

35. Moreover, the plaintiff has not led any expert evidence to show that on or before December 25, 1961, any doctor of ordinary skill and competence could have diagnosed the disease of Gopal as smallpox or treated him for smallpox. On the contrary, the evidence given by Dr. Gupchup, on the basis of the record relating to Gopal, shows that the type of smallpox which unfortunately killed Gopal was haemorrhage smallpox which, according to Dr. Gupchup, who had experience for some years of the infectious diseases, is fatal. He even admitted that any treatment that was given in respect of such smallpox patients did not improve the patients. He also admitted that he had not applied any pathological test for confirming his diagnosis, because the pathological test was not within easy reach for him. He agreed with the view expressed in Dickson on smallpox, 1962 edition, that in some patients the fulminating or haemorrhage smallpox was so overwhelming that it may occur within 24 to 36 hours with no outward manifestations at all and that appearances are very indefinite with no findings on which to base a certain diagnosis. There was admittedly no epidemic of smallpox in December 1961 in Poona. It is, therefore, quite possible that neither Dr. Shaikh Suleman nor Dr. Grant could suspect that Gopal, who had already some previous vaccinations, could be suffering from smallpox because Gopal was in fact not suffering from smallpox. It may be that the fulminating suddenly appeared on December 29. 1961 after the discharge of Gopal from Dr. Grants Nursing Home. In any event, it can never be said that any defect or any error in the treatment or diagnosis of Dr. Shaikh Suleman had led to any deterioration of the health of Gopal or to the appearance of the fulminating smallpox which killed him. We do not think that, in the absence of some expert evidence to show that there was something wrong in the treatment given by Dr. Shaikh Suleman on December 25, 1961 and earlier, it is open to the Court to hold that he was guilty of negligence in examining, diagnosing or treating Gopal as long as Gopal was under his care. The plaintiff has also not proved by any evidence on record that the death of Gopal was caused by anything that was done or omitted to be done by Dr. Shaikh Suleman. In the absence of such proof, even assuming that there was some negligence, the plaintiff cannot succeed. [The rest of the judgment is not material to this report.)

Advocates List

For Petitioner : K. K. Singhvi with C. J. Sawant instructed by Crawford BayleyCo.For Respondent : K. J. Abhyankar,

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE JUSTICE G.N. VAIDYA

HON'BLE JUSTICE B.M. SAPRE, JJ.

Eq Citation