1. The two appeals and the cross-objections arise out of the judgment of the learned First Additional District Judge, Guntur In O. S. No.34 of 1969 granting a decree for Rs. 22,000/ - in favour of the plaintiff towards damages for performing tonsil-lectomy operation onthe plaintiff in a careless and negligent manner. The second defendant Dr. P. Narasimha Rao was the E.N.T. Surgeon who performed the tonsillectomy operation upon the plaintiff at the Government General Hospital, Guntur and the third defendant Dr. S. Shankar Rao was the Chief Anaesthetist of the Hospital who administered anaesthetics at the time of the operation. The first defendant is the Government of Andhra Pradesh represented by the District Collector, Guntur who according to the plaintiff is vicariously liable for the damages since the alleged act of negligence was committed by the defendants 2 and 3 in the course of discharging their duties as employees of the State Government.
2. The plaintiff was a brilliant youngster aged 17 years in 1966 when he passed the P.U.C. (Pre-University Course) examination securing 100% in Mathematics and 93.5% in Physical Sciences. He was a State Government merit scholar getting a monthly scholarship of Rs. 100/-. He was offered a seat in B.E. Degree course in four Engineering Colleges both within and outside the State of Andhra Pradesh. He had a minor ailment --chronic nasal discharge -- for which his mother took him to the second defendant Dr. Narasimha Rao for consultation. The plaintiffs father at that time was working as Senior Officer at Nagpur in the service of the Central Government. The second defendant diagonosed the disease as Nasal Allergy and suggested operation for removal of tonsils On 6-7'66 the plaintiff was admitted in the Government General Hospital, Guntur and the operation was performed on the morning of 7-7-66. His father came down to Guntur to be present at the time of the operation. None of the relations of the plaintiff including the father were allowed to be present inside the operation theatre and so what happened in the operation theatre at the time of the operation was within the exclusive knowledge of defendants 2 and 3. About one and half hours after the plaintiff was taken inside the operation theatre, he was brought out in an unconscious state and the doctors informed the plaintiffs father that he would regain consciousness within three or four hours. The plaintiff was kept in the E.N.T. Ward of the Hospital. For the next three days he did not regain consciousness and thereafter for another fifteen days he was not able to speak coherently. The treatment was entrusted to two other doctors of the same hospital Dr. Mallikarjuna Rao, Physician and Dr. Surya-narayana, Psychiatrist. He was discharged from the hospital on 28-8-66 and his condition at the time of the discharge was that he was just able to recognise the persons around and utter a few words. He could not even read or write numericals. He lost all the knowledge and learning acquired by him. Greatly upset by the condition of the plaintiff his father took him to Vellore where he was examined by P.W. 1 Dr. K. V. Mathai, Professor of Neuro Surgery, Christian Medical College Hospital, Vellore. After conducting neurological examination and after studying the case history, on 21-11-66 Dr. Mathai gave a written opinion Ex. A-1 stating that the plaintiff had cerebral damage and his intellectual ability was that of a boy of five years age in relation to calculations, reading and understanding. The plaintiff was then taken to Bangalore where he was examined by Dr. S. A. Ansari, Assistant Professor of Psychiatry at the Indian Institute of Medical Health on 28-11-66. After conducting certain tests and studying the case papers the doctor found the plaintiff to be mentally defective. His I.Q. as against the normal 100 was only 60. There was organic brain damage which was due to cerebral anoxia -- the damage to nerve cells was total and irreversible. The prolonged unconsciousness of the plaintiff was due to cerebral anoxia suffered during the operation. Claiming compensation in a sum of Rs. 50.000/- after serving notice under S. 80 of the C.P.C., it was averred by the plaintiff in the plaint that but for the unfortunate operation which marred permanently his future prospects and rendered him unfit for higher studies, he would have joined the B.E., degree course in any of the four Engineering colleges which offered him admission, successfully completed the same and also gone abroad for higher studies. Being a Government merit scholar in the Pre Unviersity Course he would have easily obtained merit scholarship of Rs. 150/-per month until he completed postgraduate studies and secured easily a Government job fetching a minimum initial salary ofRs. l,000/-. Because of the recklessness and negligence on the pan of the defendants 2 and 3 his bright future was marred permanently and he had to depend upon his parents through out his life. Due to the recklessness and negligence of the defendants 2 and 3 the plaintiff suffered respiratory and cardiac arrest for about three or four minutes during general anaesthesia which led to cerebral anoxia causing irreparable damage to the brain. Knowing fully well that he was not in a fit state to be operated upon, the second defendant negligently proceeded to perform the operation and in fact completed the operation, thereby further aggravating the damage to the brain. The necessary precautions that ought to have been taken before and during the operation were not taken. Tonsillectomy being a minor operation involving no risk at all, the damage done to him speaks itself of the gross negligence and carelessness on the part of the defendants 2 and 3, The Anaesthetist did not even maintain any record of the pre-anaesthetic assessment of the plaintiff. The plaintiff, therefore, sought a decree in a sum of Rs. 50,000/- as damages under all the heads including mental pain, suffering, loss of earning capacity, expenses incurred for medical treatment etc.
3. Opposing the suit the first defendant, the Government of Andhra Pradesh in its written statement denied the allegations levelled by the plaintiff and contended that the plaintiff was quite normal in all respects and prosecuting his studies and the symptoms exhibited by him before and during the operation were due to pure 'mischance' for which no body can be held responsible. It was pleaded that the suit was based on surmises and the damages claimed were excessive. The E.N.T. Surgeon -- the second defendant -- in his written statement pleaded that all the precautions necessary for the safety of the plaintiff were taken. The Chief Anaesthetist, the third defendant Dr. Shankar Rao was in charge of administering anasthetic and was assisted by his senior most assistant, when the operation was about to begin it was found that the plaintiff had respiratory failure and so he was given a special treatment to resuscitate him. After the operation was over, as the plaintiff did not regain consciousness for a period longer than usual, Dr. Malli-karjuna Rao the Physician of the Hospital was called for consultation. During the course . of post-operative treatment, Dr. Surya Rao, Ophtalmologist and Dr. Suryanarayana the Psychiatrist also were consulted. By the date of discharge 28-8-66 'the plaintiff was able to attend to most of his routine functions, take food, answer calls of nature, wear his dress and move normally and talk sensibly..... Whatever had happened to the plaintiff was for reasons beyond the control of the defendants. It was piece of misfortune which rarely happens if at all.' There was no evidence of any complications and the anaesthetist D-3 opined that the patient was fit for operation and, therefore, the operation was gone through. In spite of the best care and caution every operation itself is a risk and no Surgeon can be faulted for that. The third defendant Anesthetist in his written statement pleaded that the general condition of the plaintiff was satisfactory and nothing abnormal was detected. Intravenous Astropine-sulpha 0.6 mg. was given and five minutes thereafter 250 mg. Sodium Thiopentone followed by 100 mg. scoline was given intravenously. His lungs were ventilated with Oxygen through face-mask before Oro-Tracheal intubation was done. Nitrous Oxide and Oxygen in the ratio of 5 : 3 with Ether was adminstered to the plaintiff by artificial respiration. Five minutes thereafter when signs of respiration were returning spontaneously, the tube was removed and the Assistant to the Surgeon put a mouth-gag. The Boyle's apparatus (anaesthetic machine) was moved from head-end to the left side of the patient for connecting the same to the mouth-gag with Nitrous Oxide, Oxygen and Ether flowing in the same ratio as above. As the respiration not being adequate in volume, compression of chest at the sides was done.The Surgeon D-2 also complained of no respiration and, therefore, orotracheal intubation was done. At that time the pulse of the plaintiff could not be felt normally and so he left the reservoir bag to the care of the post-graduate and started to do external compression of the chest. Within a few minutes thereafter the plaintiff became normal. He took over the bag from the postgraduate and found no necessity to do any artificial respiration as the respiration of the plaintiff returned in full volume voluntarily. No symptoms of complication were found and the operation was continued and completed successfully giving 50% Nitrous Oxide and Oxygen by oro-pharyngeal insufflation. The operation was conducted in the normal course with due care and diligence. The plaintiff was kept in the theatre for more than one hour for watching any untoward symptom. As none were found the plaintiff was taken to the ward with a note in the case-sheet to keep record of rectal temperature fourth hourly. He pleaded that he used his judgment to the best of his ability and acted in the best interests of the patient. What happened to the plaintiff was due to reasons beyond his control. An additional written statement was filed by the defendants pleading that necessary and proper pre-anaesthetic examination to assess the fitness of the plaintiff was made and the operation did not result in damage to the brain.
4. On the above pleadings appropriate issues were struck and the evidence adduced by the parties was recorded. Ramalingam the plaintiff's father gave evidence as P.W. 4. Dr. K. V. Mathai of the Christian Medical College, Vellore, Dr. Ansari of the Indian Institute of Mental Health, Bangalore and Dr. Variava a neuro Surgeon were examined on commission as P.Ws. 1, 2 and 7 and they spoke about the mental condition of the plaintiff and the irreversible nature of the damage caused to the brain. C.V.N. Dhan of the Rai Tutorial College, Guntur figured as P.W. 3 he spoke about the miserable per--formance of the plaintiff as a student of the tutorial college where he was admitted long after the operation in the hope that he would improve his mental faculties. The second defendant Dr. Narsimha Rao who performed the operation gave evidence as D.W. 4 and Dr. Shanker Rao, his Anesthetist deposed as D.W. 3. Dr. K. V. Narasimha Chari, an assistant of the second defendant testified as D.W.I. Dr. S. A. Kabir, Dean of Madurai Medical College and a reputed Professor of Anesthesiology was examined on commission as D.W. 5.
5. The learned Judge after considering the evidence on record both oral and documentary rejected the version put forth by the defendants that the mental depression and brain damage suffered by the plaintif was functional psychosis. He greatly relied upon the expert medical witness D.W. 5 who stated that the mental disorder of the plaintiff was due to cerebral anoxia, the result of improper induction of anaesthetics and the failure to take immediate steps to reduce anaesthesis and anoxia. That the plaintiff suffered anoxia, the learned Judge concluded, was established beyond reasonable doubt by the notings in the case sheet Ex.A.25.
6. During the operation the respiratory arrest occurred on account of the third defendant, the Anaesthetist, removing the tube from the month of the plaintiff without giving fresh breaths of oxygen and there was delay on the part of the third defendant in noticing the respiratory arrest and inserting the tube for the second time and in the meanwhile the respiratory arrest led to cardiac arrest which made the third defendant give massage and chest compression to assist circulation of the blood. The faulty method of induction of anaesthetics led to cerebral anoxia and thus permanently damaging the brain, the learned Judge concluded. The avoidable delay in inserting the tube for the second time to administer Oxygen when the respiratory arrest occurred, according to the learned Judge aggravated the cerebral anoxia. From the symptoms exhibited by the plaintiff on the operation table, any prudent doctor, according to the learned Judge, could have easily suspected cerebral anoxia and the anaesthetist did not care to ascertain the reason for the pulse abnormality of the plaintiff nor did he record the levels of blood pressure after the respiratory arrest and rescuscitation nor had he informed the same to the Surgeon. The third defendant, therefore, was clearly negligent according to the learned Judge in discharging his duties towards the patient and, therefore, it is actionable negligence. So far as the Surgeon, the second defendant is concerned, the learned Judge held that although The Surgeon was aware that the plaintiff had respiratory arrest and the anaesthetist did massage and external compression of the chest to revive respiration and the plaintiff had almost reached the point of death, still he carried on the operation merely because the anaesthetist informed him that the patient was fit for operation. No prudent Surgeon would have continued with the operation in the particular circumstances of the case. The second defendant ought to have postponed the operation instead of hurriedly continuing the same without caring for the consequences. The performance of the operation aggravated the damage to the brain and the learned Judge, therefore, concluded that the second defendant is liable for actionable negligence. The learned Judge held that the State Government is vicariously liable since the defendants 2 and 3 are employees of the Hospital owned by the Government. On the question of quantum of damages, the learned Judge awarded Rs. 20,000/- under the head 'general damages' and Rs. 2,000/- under the head 'special damages' although the plaintiff had asked for Rs. 50,000/- towards the damages. The reason for granting the reduced amount appears to be that no similar or comparable cases where damages were awarded were brought to the notice of the learned trial Judge.
7. Against the jdugment and decree of the court below, the second defendant, Dr. Narasimha Rao. the Surgeon preferred A.S.651/79. A.S.710/79 was preferred by the State Government. The plaintiff filed cross-objections contending that the amount of damages awarded by the court below was inadequate. The Anaesthetist (D3) died after his evidence was recorded. An application was filed by the plaintiff to bring on record the legal representatives of the third defendant and the same was dismissed by the learned Judge. A revision petition filed against that order was also dismissed by this Court.
8. The learned Advocate-General appearing for the appellant in A.S. 651/79 and 710/79 could not dispute the fact that the irreversible cerebral anoxia suffered by the plaintiff was due to the operation performed on the plaintiff on 7-7-66. He contended that the plaintiff is not entitled to a sum over and above what has already been granted by the court below.
9. The tragedy that befell the plaintiff is so shocking that any amount of money will not give him what he had lost permanently. He is condemned to a perpetual misery and anguish. He has no present and he has no future. He only had a past before he completed the age of 17. The permanent damage sustained by the plaintiff was due to the operation performed on 7-7-66 is beyond controversy; there is no scintilla of evidence to doubt this. The two important questions that require consideration in these appeals are :
(1) Whether the brain damage sustained by the plaintiff was due to the negligence of defendants 2 and 3?
(2) If the answer to the above is in the affirmative whether the damages awarded by the court below are inadequate in the circumstances?
10. The brain damage sustained by the plaintiff was cerebral anoxia and the medical evidence established this beyond any doubt. The damage suffered by the plaintiff was irreversible is also proved by medical evidence. The damage sustained was not localised to any part but it was over ail damage was also brought out in the medical evidence. Dr. S.A. Kabir (D.W. 5), Professor of Anaesthe-siology and Dean of Madurai Medical College said in his evidence that respiratory arrest and cardiac arrest resulted in cerebral anoxia. The case sheet Ex. A-25 contains the record of the condition of the plaintiff when he was at the Hospital. It does not contain any record that there was any abnormality in the mental health of the plaintiff prior to the operation. Ex. A-25 clearly shows that the brain damage suffered by the plaintiff was due to cerebral anoxia. On this aspect there is no scope for controversy the doctors examined as witnesses in this case, going through the contents of Ex.A-25, were clear in their opinion on this. Respiratory arrest if prolonged would lead to cardiac arrest and in the case of cardiac arrest even a delay of about three minutes would result in permanent brain damage, according to Dr. Variava, Neuro Surgeon of Poone (P. W. 7) who examined the plaintiff and gave his opinion Ex.C-I. The two leading doctors D.W. 5 D'r. Kabir and P.W. 7 Dr. Variava both agreed that if cardiac arrest has occurred, it is better to postpone the operation and that tonsillec-tomy is an 'elective operation'. When a patient is under general anaesthesia, all medical authorities agree the views expressed in this regard by Dr. Artusio have been admitted to be correct by Dr. Kabir D.W. 5 it is the mutual responsibility of the surgeon and the anaesthetist, Dr. Kabir said, and this has not been disputed, that prudence on the part of the surgeon requires him to ascertain from the anesthetist about the state of the patient and that a surgeon should know whether cardiac arrest has followed the respiratory arrest. The preparation of the patient for the operation, according to Dr. Kabir, includes 'administration of anaesthetics and anaesthesia forms part of surgical procedure. The second defendant who performed the operation giving evidence as D.W.4 and Dr. Kabir D.W. 5 both said in their evidence that surgery, anaesthesia and resuscitation are team work of both the surgeon and anaesthetist.
11. What happened in the operation theatre on 7-7-1966? The operation was done under general anaesthesia. The Anaesthetist says in his evidence that he examined the plaintiff at the time of the operation and before inducing anaesthesia he went through the case sheet and told the plaintiff 'how he would be put up to sleep' and have given the necessary pre-medication. The anaesthetics administered by him were 6 mg. of atropine sulphate intravenously, 250 mg. sodium thiopentone and 100 mg. scoline intravenously. He ventilated the patient with oxygen by a mask and thereafter intubated the patient through the mouth into the trachea. Thereafter he connected the tube of Boyle's apara-tus (anaesthetic machine) with oxygen and nitrous oxide flowing in the ratio of 3 litres, 5 litres respectively with ether. He ventilated the patient for about five minutes, removed the tube and thereafter Dr. V. K. Narasimha Chari, a Post Graduate student who was assisting the third defendant at the time of the operation, put the mouth gag. As Dr. Narasimha Chari was putting the mouth gag the third defendant removed the anaesthetic machine and according to him at that stage:
'I find the patient's chest not moving adequately for which I did a compression of the chest on the sides. As I did the compression D-2, the Surgeon who was already ready for the operation looking at the mouth said that the patient was not breathing and simultaneously I too realised that the chest was not moving. Hence orotracheal intubation was done again, connected the Boyle's aparatus with only oxygen flowing. At that time the finger of my hand which was on the patient's facial artery could not feel the pulse normally and hence I did a compression of the chest to augment circulation and respiration during which time a post-gradaute was pressing the rebreathing bag. In a matter of moments the pulse returned normally and the post-graduate left the bag to me from which I found out that there was no more need for respiratory assistance, respiration being come fully normal. I examined the pupils and they were perfectly normal and there was no other untoward symptom shown by the patient. Hence I asked D2 (Surgeon) to proceed with the operation which he completed without any adverse effect on the patient....... Before asking D2 to proceed with the operation I was fully satisfied that the patient was in a fit condition to be operated upon.'
12. The Surgeon Defendant No. 2 Dr. P. Narasimha Rao who performed the operaton said in his evidence:
'The patient was brought to the theatre and D-3 took charge of him. After some time I was informed that the patient was ready for operation. DW-1 put the mouth gag and called me. I sat at the head of the table and looked into the patient's mouth and when I was about to apply the other instruments I noticed that the patient was not breathing. I immediately brought it to the notice of D3.1 moved away from the table and he started resuscitation. In less than three minutes, he informed me that the patient was completely normal and ready for operation. To further assure myself I once again asked D3 whether the condition of the patient was in all respects normal. He assured me that every thing was normal and that I can continue the operation. I myself then looked into the throat and did not find any abnormality in the colour of the mucus membrane or in the breathing. In view of this and the assurance given by D3 I continued the operation and finished it in about two or three minutes.'
The patient was brought out of the operation theatre in an unconscious state and several days after the operation he regained consciousness and his condition till he was discharged on 20-8-1966 was recorded in the case sheet Ex.A.25. One glaring feature of this case clearly suggestive of the recklessness of the Anaesthetist was his failure to maintain any record of either the condition of the patient or the level of anaesthesia and what anaesthetics were administered. The names of drugs reeled out in his evidence and the dosages were all based on his memory. The evidence of the anaesthetist that the pulse returned to normalcy after the resuscitation and, therefore, he asked the Surgeon to proceed with the operation is clearly an after thought. He stated that there are two methods of administering general anaesthesia Oropharyngeal insufflation and tracheal intubation for which some drugs are common and some different He asserted that he followed the intubation method but admitted that 'there is no record to show that I have followed a particular method that I have given certain drugs or their dosages.' The resporatory arrest continued for about three minutes or so. A duty was cast on the anaesthetist while resuscitating the patient, as stated by doctor Artusio in his book 'Practical Anaesthesiplogy':
'The anaesthetist should begin respiratory resuscitation by oxygenating the patient with a mask and bag or by mouth to mouth ventilation before attempting to pass endo tracheal tube.'
Although the Anaesthetist D3 did not dispute the above view of Dr. Artusio, he admitted in the cross-examination that before the second intubation after the respiratory arrest:
'I did not resuscitate by oxygenating the patient with mask or bag or even mouth to mouth.'
It was also elicitated from the Anaesthetist from his cross examination that:
'On two occasions, i.e., after removal of the tube and before putting the mouth gag and from the time the mouth gag was disconnected and the second intubation was done the plaintiff was breathing only room air. Diffusion hypoxia will not occur during the brief periods plaintiff was exposed to room air.'
The way anaesthetics administered and how the Anaesthetist performed his duty in the operation theatre clearly indicate his negligence. The removal of endotracheal tube in the first instance was also a fatal mistake committed by the Anaesthetist. On this aspect the two leading doctors examined for the, plaintiff and the defendants DW 7 and DW 5 agreed that if the endotracheal tube had not been removed in the first instance it is possible that respiratory arrest need not have occured. The Anaesthetist did not feel the pulse of the patient after the second intubation which he admitted in the cross-examination but still he did not bother to go into the details; he did not record the blood pressure and what is more shocking is that:
'I did not inform D-2 about the pulse not being normal.'
If the blood pressure falls significantly below the pre-operative level, it is the view of the medical experts including Dr. Hale as admitted by D.W-5 that:
'it should be considered a sign of severe hypoxia, unless some other factor such as shock, haemorrhage or parasympathetic stimulation, is obviously the cause.'
There is no record in the case sheet Ex. A-25 indicating the presence of any of the above factors. Dr. Kabir's view he is the expert medical witness examined on behalf of the defendants--respiratory arrest may not have occured if on noting shallow respiration the anaesthetic mixture was discontinued and only oxygen was given to the patient. A few breaths of pure oxygen should be administered, according to Dr. Kabir, before removal of endotracheal tube. It was the failure of oxygenating the plaintiff at the time of second intubation that led to the disaster. The pulse rate was abnormal because of the plaintiff not being oxygenated as stated by Dr. Kabir and that was the reason why external compression of the chest was resorted to by the Anaesthetist. The minimum care expected of an ordinary anaesthetist was not taken by the third defendant, although he claimed to be a specialist in anaesthesia and also worked for some time at the University hospitals in Medicine in the State of Wisconsin, U.S.A.
13. The second defendant who has performed the operation upon the plaintiff is an experienced Surgeon; he has been in the field since 1946. He is a post graduate in surgery, a Fellow of the American College of Surgeons and also a Fellow of International College of Surgeons. Tonsillectomy operation is an elective one about which there is unanimity among all the medical witnesses. The Anaesthefist admitted that the pulse of the patient could not be felt. Surgery, anaesthesia and resuscitation being team work of both the surgeon and anaesthetist, it was the surgeon's duty to find out from the anaesthetist the state of the patient. According to Dr. Kabir:
'No surgeon or a member of the team can be indifferent to what has happened to the patient and what resuscitative methods are being adopted and the purpose of those methods.'
It is also his view with which the learned trial judge very rightly agreed :
'If cardiac arrest has occurred, in any case where cardiac arrest is not deliberately produced, then it is better to postpone the operation. Tonsillectomy is in this case an elective operation. In the sequence of the events that occurred in this case, viz., shallow respiration, respiratory arrest, pulse abnormality and immediate external compression of the chest, the inherent probability of cerebral anoxia is present. Prudence may dictate that following the above sequence of events cerebral anoxia be expected by the doctors in charge of the patient.'
When the patient was exposed to room temperature for about three minutes or so while in a state of anaesthesia there is every possibility of diffused hypoxia creeping in. Dr. Kabir says that if the surgeon and anaesthetist:
'suspect brain damage they will stop the operation and take to resuscitation methods like cooling the patient, dehydrating the patient, looking after his fluid intake and fluid output and balancing his daily caloric requirements. It is necessary to record the period of shallow respiration, duration of respiratory arrest and duration of hypotension episode and the time taken for resuscitation.'
P.W-7 Dr. R. D. Variava agrees that the above details have not been recorded. Anaesthesia is detectable, recognisable and preventable and respiratory arrest can be anticipated and corrected in the normal course of events by judging the depth of anaesthesia is the definite view of Dr. Kabir who also stated categorically:
'If the surgeon was observing the anaesthetist from the head end of the patient where he was sitting it is possible for him to see what the anaesthetist was doing.'
The Surgeon was present in the operation theatre since the time of starting general anaesthesia. The Surgeon Dr. Narasimha Rao admitted that he was sitting at the head of the table and looking into the throat of the patient. When he noticed respiratory arrest, that circumstance itself ought to have cautioned him to gather more particulars about the condition of the patient before he ventured to begin the operation. He did not bother to follow the method adopted by the third defendant the Anaesthetist when respiratory arrest was noticed by him. He did not even ask the Anaesthetist as to why the respiratory arrest was occurred and his statement in the cross examination:
'I saw D3 putting his hands on plaintiffs chest, but I do not know for what purpose..... I did not ask D3 why he was putting his hands on plaintiff's chest ......I did not ask anybody to take the B. P. or pulse rate as I was satisfied that everything was normal by the assurance of the anesthetist.....'
is clearly suggestive of his negligence. The minimum care and caution expected of an ordinary surgeon, let alone a specialist in the field, I should say in the particular circumstances of the case, were thrown to winds by the second defendant. He not only did not bother to ascertain from the Anaesthetist the state of the patient but he commenced the operation and completed the same. His indifference to the realities and the reckless manner with which he commenced and completed the operation are clearly acts of negligence. The situation when the Anaesthetist resorted to resuscitation was clearly indicative of the patient being afflicted with anoxia, a circumstance in which the second defendant ought not have commenced the operation. The Surgeon in his evidence says that:
'It is one of my duties as a surgeon to know depending on the circumstances of each case what is happening to the patient and why it is happening and what is being done to the patient and why it is being done.'
Having stated the cardinal duty of a surgeon, he committed breach of it in the fullest measure.
14. Negligence constitutes an independent basis of tort liability. Law imposes a duty on every one to conform to a certain standard of conduct for the protection of others. In the case of persons who undertake work requiring:
'special skill must not only exercisereasonable care but measure up to thestandard of proficiency that can be expectedfrom persons of such profession.' (See JohnG. Flemming's 'The Law of Torts', FifthEdition at p. 109)
Failure to conform to the required standard! of care resulting in material injury is actionable negligence if there is proximate connection between the defendant's conduct and the resultant injury. A surgeon or anaesthetist will be judged by the standard of an average practitioner of class to which he belongs or holds himself out to belong. In the case of specialists a higher degree of skill is called.
15. The civil liability of medical men as held in R. v. Beteman is:
'If a person holds himself out as possessing special 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.'
(Charlesworth and Percy on Negligence 7th Edition, The Common Law Library No. 6 at p. 540)
16. Me Nair J. in Bolam v. Friern Hospital Management Committee (1957) 2 All ER p 118 at 121-122 explained the legal position thus
'.....where you get a situation which involves the use of some special skill or competence, then the test whether there has been negligence or not is not the test of the man on the top of a Clapham Omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill at the risk of being found negligent. It is well-established law that it is sufficient if he exercise the ordinary skill of an ordinary competent man exercising that particular art....... Counsel for the plaintiff put it in this way, that in the case of a medical man negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. That is a perfectly accurate statement, as long as it is remembered that there may be one or more perfectly proper standards; and if a medical man conforms with one of those proper standards then he is not negligent...... A doctor is not 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...... Putting it the other way round, a doctor is not negligent, if he is acting in accordance with such a practice, merely because there is a body of opinion that takes a contrary view. At the same time, that does not mean that a medical man can obstinately and pig-headedly carry on with some old technique if it has been proved to be contrary to what is really substantially the whole of informed medical opinion.'
This statement of law has specifically been upheld by the House of Lords in Whitehouse v. Jordan (1981) 1 WLR 246. Lord Edrnund-Davies, with whom Lord Fraser of Tully-belton and Lord Russel of Killowen agreed, in his speech observed:
'To say that a surgeon committed an error of clinical judgment is wholly ambiguous, for, while some such errors may be completely consistent with the due exercise of professional skill, other acts or omissions in the course of exercising clinical judgment may be so glaringly below proper standards as to make a finding of negligence inevitable.'
After referring to the tests laid down in Bolam v. Friern Hospital Management Committee (1957-2 All ER 118) (supra), the learned law Lord observed:
'If a surgeon fails to measure up to that standard in any respect (clinical judgment or otherwise), he has been negligent and should be so adjudged.'
Demarcating the line between negligence and error of judgment, Lord Fraser of Tullybelton in his speech observed :
'Merely to describe something as an error of judgment tells us nothing about whether it is negligent or not. The true position is that an error of judgment may or may not, be negli-gent; it depends on the nature of the error. If it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant held himself out as having, and acting with ordinary care, then it is negligent. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made, then it is not negligent.'
The law in our country is no different from the English law. Adverting to the duties which a doctor owes to his patient, the Supreme Court in Laxman v. Trimbak : [1969]1SCR206 held:
'The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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 : (ch. Halsbury's Laws of England, 3rd ed. Vol. 26 p. 17).
17. Adjudged in the light of the legal principles referred to above and from the evidence available on record, which has already been discussed by me, it is clear that both the Surgeon and the Anaesthetist have failed to exercise reasonable care. There has been breach of duty on the part of the Anaesthetist by reason of his failure, an act per se negligence in the circumstances, to administer respiratory resuscitation by oxygenating the patient with a mask or bag. He exposed the plaintiff to the room temperature for about three minutes and this coupled with his failure to administer fresh breathes of oxygen before the tube was removed from the mouth of the plaintiff had resulted in respiratory arrest: these are foreseeable factors. There is proximate connection between the Anaesthetist's conduct and the resultant injury -- cerebral anoxia. The learned trial judge very rightly recorded the finding after evaluating the evidence that:
'The endo-tracheal tube that was inserted into the trachea of the plaintiff was removed by the third defendant for no valid reasons and that too without taking the minimum precaution of giving a few breaths of .pure oxygen to the patient before extubation. There was avoidable delay in inserting the tube again for the second time to give oxygen to the plaintiff when the respiratory arrest occurred..... the respiratory arrest that ultimately led to cerebral anoxia was the result of the negligence on the part of the third defendant in adopting faulty techniques of induction and maintenance of anaesthesia.'
18. Dr. Narasimha Rao, the second defendant failed in his duty to conform to the standard of conduct expected of an ordinary surgeon although he is an experienced specialist. Without bothering to verify the state of plaintiff he started and completed the operation despite the fact that tonsillectomy was an elective operation. Had he not proceeded with the operation there was every possibility of the plaintiff being saved from the brain damage sustained by him. Both the defendants 2 and 3 are guilty of negligence. For 45 days the plaintiff was in the Hospital without any proper treatment. As rightly observed by the learned trial judge his ailment was not even diagnosed. The physician visited the plaintiff only on four occasions and subsequent to 14-7-66 did not attend on him. The learned trial judge very justifiably observed that, despite being specialists in their respec-tive fields defendants 2 and 3 have failed to . exercise that much of care and caution which an ordinary practitioner of their standard would have exercised in similar circumstances.
19. It is true that the plaintiff did not figure as witness. As rightly observed by the ' trial judge he was not aware of what happened in the operation theatre. The medical evidence discussed by me already shows his low mental faculties as a result of the permanent damage to the brain. It is not a case where deliberately he did not get into the witness box with any ulterior intention of suppressing the real state of affairs. In the circumstances, there is absolutely no justification to fault the plaintiff in this regard. In fact no serious arguments were advanced on this question.
20. The Government being the owner of the Hospital cannot escape their vicarious liability. This is well established law. In Gold v. Essex County Council (1942) 2 KB 293 it was held:
'A local authority carrying on a public hospital owes to a patient the duty to nurse and treat him properly and is liable for the negligence of its servants even though the negligence arises while a servant is engaged on work which involves the exercise of professional skill on his part.'
The powers of hospital authorities as observed by Lord Greene M. R. include the power of:
'treating patients, and that they are entitled, and, indeed, bound in a proper case, to recover the just expense of doing so. If they exercise that power, the obligation which they undertake is an obligation to treat, and they are liable if the persons employed by them to perform the obligation on their behalf act without due care.'
Lord Denning in Cassidy v. Ministry of Health (1951) 1 KB 343 applying the law laid down in Gold v. Essex County Council (1942-2 KB 293) slated the rule thus:
'In my opinion authorities who run a hospital, be they local authorities, government boards or any other corporation, are in law under the self same duty as the humblest doctor; whenever they accept a patient for treatment, they must use reasonable care and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by themselves : they have no ears to listen through the stethoscope, and no hands to hold the surgeon's knife. They must do it by the staff which they employ; and if their staff are negligent in giving the treatment, they are just as liable for that negligence as is anyone else who employes others to do his duties for him. What possible difference in law, I ask, can there be between hospital authorities who accept a patient for treatment, and railway or shipping authorities who accept a passenger for carriage? None whatever. Once they undertake the task, they come under a duty to use care in the doing of it, and that is so whether they do it for reward or not.
It is no answer for them to say that their staff are professional men and women who do not tolerate any interference by their lay masters in the way they do their work..... The reason why the employers are liable in such cases is not because they can control the way in which the work is done-they often have not sufficient knowledge to do so but because they employ the staff and have chosen them for the task and have in their hands the ultimate sanction for good conduct, the power of dismissal.' (at page 360)
The liability of the hospital authorities for the negligent acts of their employees, therefore, is no longer in doubt.
21. In view of the answer to question No. 1 that the injury suffered by the plaintiff was due to the negligence of defendants 2 and 3 it necessarily follows that the plaintiff is entitled for damages. What should be adequate damages in the circumstances? The plaintiff sought a decree in a sum of Rs. 50,000/- but the learned judge awarded Rs. 20,000/- under the head 'General damages' and Rs. 2,000/- towards 'Special damages' observing that no similar or comparable cases where damages were awarded have been brought to his notice.
22. Damages are awarded for pecuniary loss and non-pecuniary loss. Pecuniary loss, a called 'special damages' must be pleaded and proved. Loss of earnings, expenses incurred for treatment as a result of the accident and future pecuniary loss fall under the head 'special damages'. Damages awarded under the head non-pecuniary loss are also called 'general damages'. Non-pecuniary loss is of three kinds; (1) pain and suffering, (2) loss of amenities of life, and (3) shortened expectation of life.
23. The total sum of Rs. 50,000/ - claimed by the plaintiff was under all the heads 'paitf and suffering, loss of earning, expenses incurred etc.....' Under the head 'loss of earnings' the plaintiff obviously is not entitled to any sum since he was only a student on the date of the operation and so the question of any loss in earning between the date of operation and the date of the judgment does not arise. It is undeniable as is established by the evidence of P.W-4, the father of the plaintiff that the plaintiff was taken to Christian Medical College, Vellore, Indian Institute of Mental Health, Banglore'and Poona for consultation and treatment by experts P.Ws. 1, 2 and 7. The expenses reasonably incurred in this behalf would be at least Rs.2,000/-.
24. Under the head 'special damages' the most important claim relates to future pecuniary loss of the plaintiff. By the date of the operation the plaintiff was a normal healthy youth of 17 years age; except the minor inconvenience of nasal discharge his health was perfectly alright. Ex. A-24 dated 14-6-1966, certificate of physical fitness issued by the Assistant Surgeon, Government Hospital, Vijayawada bears ample testimony to his physical health. Ex. A-11 is the S.S.L.C. register of the plaintiff and it says he was one of the best three students of the school. His rating was that he was a most promising child with a bright future. The marks obtained by him in the P.U.C. examination held in March, 1966 as evidenced by Ex. A-12 further testify his scholastic record he obtained 100% in Mathematics and 93.5% in Physical Sciences. He was a holder of Government scholarship because of his extraordinary brilliant academic career. The monthly scholarship amount paid to him was Rs. 100/- (vide Exs. A-13 and A-14). When he applied for admission to B. E. course, 4 Engineering Colleges including the Regional College of Engineering, Tiruchunapally, Tamil Nadu selected him for admission as can be seen from Exs. A-18 and A-23. As a matter of course he would have got government merit scholarship of Rs. 150/- per month for the entire duration of his Engineering course up to post graduate level with his brilliance and industry he would have effortlessly secured admission into Post Graduate or P.H.D. course in Engineering in any of the reputed colleges in United States if he wanted to pursue higher education, or he would have secured a decent job either in public sector or private sector on a minimum initial salary of Rs. 1,000/- per month in 1971 after completing the B.E. degree course. For about 35 years the plaintiff would have continued in gainful employment and reached higher positions. The permanent brain damage suffered by the plaintiff as a result of the operation disabled him completely from pursuing any lucrative avocation. The plaintiffs father hoping fondly that his mental condition would be improved, put him in Ravi Tutorial College of which P.W-3 is the Principal so that the coaching given by the tutorial college would enable him to secure admission to any of the Engineering Colleges. Even after one year he could not pick up even 20% of the prescribed average. The brain damage because of cerebral anoxia as per the medical evidence was irreversible. P. W-7 Dr. Variava in his opinion Ex. C-l stated that there would be no. appreciable improvement in the mental capacity of the plaintiff and, therefore, the doctor suggested that the plaintiff should not be made to pursue academic studies. He took eight chances for completing his B.Sc., degree obtaining a third class. The small job he got, lower than a clerk in Post and Telegraphs Department, he could not retain because of his brain injury. He was served with memos Exs. A-6 and A-7 for his poor and inefficient work and ultimately his services were terminated by Ex.A-62 dated 5-7-68. With permanent mental deficiency there is no prospect of his getting any gainful employment. For the rest of his life he needs financial support. The permanent mental deficiency of the plaintiff was also established by the evidence of D. W-5 and P.Ws-1 and 2. Taking all these circumstances into consideration, I think, a sum of Rs. 2 lakhs would be reasonable compensation under the head 'future pecuniary loss'.
25. Damages for pain and suffering and loss of amenities are generally given in a single sum. For a grave injury of the nature sustained by the plaintiff no amount of money would be a perfect compensation. Any amount of money cannot restore to him what he had lost permanently. He is condemned to a perpetual life of misery and agony, during the lucid intervals he is haunted by his brilliant past academic record. His bright future prospects are permanently wiped out. The thrill and joy of life deserted him once and for all. Thinking that a partner in life would give peace and comfort, his parents performed his marriage and it appears, that the marriage came to a tragic end his wife had deserted him because of his mental deficiency. The tragedy which struck him at the age of 17 in the form of irreversible cerebral anoxia made his life a permanent nightmare. He has no happiness or pleasure for the rest of his life. He is, therefore, entitled to substantial damages under the head 'loss of amenities' which in the circumstances, I estimate at Rs. 2 lakhs.
26. The facts proved are so glaring that there is no need to have assistance of decisions in comparable cases. The learned trial judge was,' therefore, not right in limiting the damages to Rs. 22,000/- in all towards damages under all the heads. Even so the plaintiff cannot get a decree for more than what he has asked. In the circumstances, the cross appeal is allowed and there will be a decree in favour of the plaintiff in a sum of Rs. 50,000/- with interest at 12% from the date of the suit till realisation. As the suit was instituted in forma pauperis by the plaintiff on the balance of the amount the defendants are directed to pay the court-fee.
27. In the result A.S. 65 and 710 of 1979 are dismissed with costs. The Cross objections preferred by the plaintiff are allowed with costs as indicated above. As the injury sustained by the plaintiff was due to the negligence of defendants 2 and 3 who at the relevant time were the employees of the first defendant, the Government of Andhra Pradesh, the latter is vicariously liable. In view of the death of the third defendant the suit against him had abated. Hence there shall be a decree only against the defendants 1 and 2.
28. Order accordingly.