J.N. Bhatt, J.
1. A short but substantial question which has come to surface in this first appeal is about the eligibility of the victim of bodily injury due to the alleged negligence of a medical practitioner so as to claim compensation on the basis of tortious liability.
2. The appellant, the original defendant No. 2-insurance company, has questioned the legality and validity of the judgment and decree record by the learned 4th joint Civil Judge (S.D.), Baroda, on February 28, 1995, in Special Civil Suit No. 404 of 1983 by invoking the provisions of section 96 of the Code of Civil Procedure, 1908.
3. Respondent No. 1 is original defendant No. 1 and respondent No. 2 is the original plaintiff. The plaintiff, Leelaben Gordhanbhai, instituted the aforesaid suit for compensation and damages of an amount of Rs. 2 lakhs against the doctor, defendant No. 1, and the insurance company, inter alia, alleging that on account of negligence of the doctor, she sustained an injury to her urinary bladder. The parties are hereafter referred to as they were arraigned in the original proceedings, for the sake of convenience.
4. The plaintiff, inter alia, contended that defendant No. 1, medical practitioner, Dr. Sheth, was negligent during the course of the delivery operation and also in the treatment afforded to her. Defendant No. 1 runs his private hospital under the name and style of Mehul Surgical Hospital, at Karjan. The plaintiff was admitted in the said hospital for the purpose of treatment. According to her case, she was not given treatment expected of a prudent and reasonable medical practitioner. The case of the plaintiff is that she has suffered permanent injury to her urinary bladder in the course of the delivery, treatment and operation. So, on the ground of damage and injury to the urinary bladder allegedly caused on account of the negligence of the doctor, she filed the aforesaid suit.
5. The defendants appeared and resisted the suit. Defendant No. 1, Dr. Sheth, filed his written statement, at exhibit 11 and defendant No. 2, insurance company, adopted the written statement filed by the doctor and additionally raised a dispute about its limited liability. The doctor denied all the allegations made against him. Defendant No. 2, insurance company, raised an additional defence that in the event of any liability of defendant No. 1, doctor, the insurance company will only be liable for payment of an amount of Rs. 1,50,000.
6. In view of the facts and circumstances and the pleadings of the parties, issues came to be framed, at exhibit 12 by the trial court. The plaintiff relied on the evidence of the following three witnesses including herself.
1. Plaintiff, Leelaben, at exhibit 61,
2. Plaintiff's witness, J. N. Raval, at exhibit 89, and
3. Plaintiff's witness, Dr. Maya Hajra, at exhibit 104.
Defendant No. 1, Dr. Sheth, placed reliance only on his evidence at exhibit 113. The parties also placed reliance on the documentary evidence. The important documentary evidence is highlighted as under :
1. Xerox copy of the medical bills, exhibit 94.
2. Original divorce deed between the plaintiff and her husband, exhibit 95.
3. Original certificate issued by Narhari Hospital on March 1, 1982, at exhibit 96.
4. Original case papers of the hospital of defendant No. 1, exhibit 114.
5. Permission-cum-consent obtained by Dr. Sheth for operation of the plaintiff, exhibit 115.
6. Various original case papers of the hospital of Dr. Snehal Patel at exhibit 120, and
7. Original medical discharge certificate of Dr. Snehal Patel, exhibit 121.
Upon examination and analysis of the evidence on record, the trial court decreed the suit only against defendant No. 2-insurance company, whereby the insurance company is directed to pay an amount of Rs. 2 lakhs to the plaintiff along with interest at the rate of 12 per cent. per annum from the date of filing of the suit till its realisation, holding that defendant No. 1, Dr. Sheth, was negligent as such.
7. Being aggrieved by the impugned judgment and decree, the original defendant No. 2, insurance company, has questioned its legality and validity by filing the appeal on hand.
8. After having examined the facts and circumstances and the evidence on record, the trial court reached the conclusion that defendant No. 1, Dr. Sheth, was negligent for the injury to the urinary bladder. However, the trial court has passed the decree only against defendant No. 2, insurance company. Therefore, the insurance company has challenged it.
9. On behalf of the appellant, the insurance company and on behalf of respondent No. 1, the original defendant No. 1, Dr. Sheth, a common contention is raised that the impugned judgment and decree should not have been passed as there was no negligence on the part of defendant No. 1, Doctor Sheth. A contention is also raised on behalf of the insurance company that its liability is restricted to an amount of Rs. 1,50,000 under the policy and, therefore, the decree for an amount of Rs. 2 lakhs should not have been passed even if the doctor is found to have been negligent.
10. On behalf of respondent No. 2, original plaintiff, the impugned judgment and decree is sought to be supported. It is contended that in effect, after holding the medical practitioner, Dr. Sheth, negligent in performing his duties during the course of the treatment of the plaintiff and the resultant permanent harm and injury to her urinary bladder, the trial court has passed the decree against both the defendants. Otherwise also, it was submitted that in the absence of cross-objections, this court can put in proper legal shape the decree as intended by the trial court by resorting to the provisions of Order 41, rule 33 of the Code of Civil Procedure, 1908.
11. The entire action for compensation or damage is based on tort. The trial court has held that defendant No. 1, Dr. Sheth, was negligent and responsible for causing the permanent injury and damage to the urinary bladder. Thus, the point in focus is as to whether or not the plaintiff has been able to prove that the wrong was committed by the doctor and she had suffered the resultant harm or injury.
12. The claim is based on tort and the tort specifies some or any wrong recognisable by law. What is tort The case law clearly goes to show that in order to hold a person responsible for a tortious act, the plaintiff has to show that the doctor was negligent and it has resulted in an injury suffered. Tort is an act or omission which, independent of a contract, is unauthorised by law and results either (i) in infringement of some absolute right to which another is entitled, or (ii) in the infringement of some qualified right of another causing damage, or (iii) in the infringement of some public right resulting in some substantial and particular damage to some person beyond that which is suffered by the public generally.
13. The tort is thus an act or omission which, independent of a contract, is unauthorised by law and results in the infringement or violation of some absolute or qualified right of another person holding such right. The plaintiff is, therefore, obliged to prove that there was some wrong or negligent act of the defendant doctor which has direct nexus with the resultant injury or harm suffered. If the plaintiff shows causation or nexus of the injury with the negligent act, the plaintiff would be entitled to damages.
14. A person who has committed tort is liable criminally as well as under the civil law. Here, we are concerned with the civil liability. One thing we should put on record is that in law, it is always implied that a medical practitioner will show and satisfy the following ingredients and aspects while performing his professional services.
(1) That the doctor would fulfil his express or implied commitment made by him while accepting a case like that, the doctor is presumed to have given guarantee, for good treatment to the patient, but no guarantee to cure.
(2) That he would diagnose, to the best of his ability, the cause of the patient's ailment of illness.
(3) That he possesses the reasonable, requisite professional competence which he will bring to bear on his examination.
(4) That as a reasonable proficient medical practitioner, he would plan out his course of treatment.
(5) That he would administer treatment to the patient if he is dispensing that service, and
(6) He reasonably assures the patient that ordinarily the patient must get over his malady, if no other factors or complications arise and supervene.
It would very well be seen that the aforesaid are the obligations placed on a medical practitioner. However, it must be noted that the doctor is not presumed to have given a guarantee to cure. From the very nature of his service, at times unfathomable or indiscernible complexities of human mechanism, if any one arrogates to himself infallibility and unflinching success, he would obviously be branded as a boaster. He is required to exercise the degree of care and skill expected of a reasonable and prudent medical practitioner. It is a matter of sound common sense that a medical practitioner is not obliged and can never be expected to achieve success in all cases which may equally apply to any profession. His duties like other professionals is to exercise reasonable care, caution and skill. If he is found failing in exercise of such reasonable care, caution and skill obviously then, he is to be visited with legal consequences either under the civil law or under the criminal law.
15. What is reasonable care or skill would also again be a matter depending upon varieties of factors. It must be noted that there is a difference in the degree of care, caution and skill in normal times and in the case of emergency and nobody can expect the same degree and amount of care, caution and skill. The amount of care, skill and caution expected of a reasonable and prudent medical practitioner may not be to the same extent at times in case of emergent situation.
16. Again, it should also be remembered that there are certain inherent problems and difficulties which cannot be traced to the degree and skill of professionals. Even a person who has shown great skill and sound caution may also make an error of judgment. Therefore, what is required to be seen is want of care and caution and not consequence. Even the best surgeon is likely to make an honest error in judgment. Therefore, what is required to be judged is causation, nexus of injury with the action alleged to be negligent. There must be direct relationship between the negligence and the resultant harm. Despite exercising sound judgment, greater skill with use of latest technologies, an error creeps in. Had it not been the situation there may not have been death at all on account of medical treatment or injury.
17. The anxiety or main function of the court is to see not the result but the cause of that result. What was the cause which led to the impugned injury caused That is precisely the point before us in this appeal. In order to succeed or to qualify oneself for compensation or damages, one has to satisfy the court of the link between the cause and the result. If causation is established, the party would be entitled to claim compensation or damages under the law for the tortious act committed by the defendant.
18. The question now, would be, whether in the facts and circumstances, the plaintiff has been able to prove that the injury sustained by her to her urinary bladder is because of the negligent act on the part of the medical practitioner. No doubt, one thing must be borne in mind that the degree of proof required to be shown varies from forum to forum. In a civil liability case, it can be shown with the aid of preponderance of probabilities whereas, in criminal law, it has to be shown beyond doubt. Since there is no dispute about the fact that the victim plaintiff had sustained injury to the urinary bladder, it can be stated that prima facie, the onus on the part of the plaintiff has been discharged. Again, it may be mentioned that we are dealing with a case, wherein an unsophisticated litigant was a patient who would not be able to throw much light because of the prevalent situation and the resultant harm. In order to obviate such a hardship the doctrine of res ipsa loquitur has been evolved since long.
19. The phrase 'doctrine of res ipsa loquitur' means 'thing speaks itself' which is normally applied in vehicular accidents. But the same principle can be extended even in a case of an injury on account of medical treatment. While applying this doctrine, it can very well be seen that initially the onus of proof is discharged by the plaintiff. It is, therefore, necessary for defendant No. 1, the doctor, to show that it is not he who is the author of the injury sustained by the plaintiff. The onus shifts on to him. The question, therefore, would arise as to whether defendant No. 1 has been able to discharge the onus shifted on to him. Unfortunately, the trial court has not, with due respect, examined this important aspect in its proper perspective. It would now, therefore, be necessary for us to deal with this aspect as to whether the defendant, Dr. Sheth, has been able to discharge the onus of showing that he was not at all responsible for the injury sustained by the plaintiff.
20. We have been taken through the entire testimonial collection and the documentary evidence in the course of the marathon submission before us. The plaintiff is examined at exhibit 61. According to the testimony of the plaintiff, she was taken by her sister-in-law in an auto-rickshaw from her village on December 25, 1981, to the hospital of Dr. Sheth for the purpose of treatment as she had a gynaecological problem. According to her evidence, she was admitted in the hospital and she was fully conscious. She had no serious pain or difficulty. After she was admitted in the hospital, she was treated and operated by Dr. Sheth and it is the case of the plaintiff that on account of the negligent act on the part of Dr. Sheth, she has sustained permanent injury on her urinary bladder and as there was no improvement, she was discharged by the doctor on December 29, 1981.
21. It may be noted that the plaintiff was, thereafter, taken to Narhari Hospital. According to the evidence of the plaintiff, despite treatment in Narhari Hospital, her health deteriorated and the problem of frequent urination increased. She was also examined and treated thereafter by Dr. Snehal Patel. It is found from the testimony of the plaintiff that on account of the negligent act, a child was born dead and she had suffered permanent injury. She has further testified that on account of the permanent disability and great physical discomfort, she would not be able to conceive and because of which, she got divorce from her husband. Reliance is also placed on the original divorce deed which was produced in the trial court. In short the evidence of the plaintiff is that she sustained permanent harm and injury due to the negligent act of Dr. Sheth which was committed by him during the course of delivery, operation and treatment.
22. Her evidence is sought to be supported by the evidence of Dr. Maya Hajra who is examined, at exhibit 104. The plaintiff's witness, J. N. Raval is examined, at exhibit 89. Relying on the evidence of the plaintiff and her two witnesses and rejecting the evidence of the defendant, Dr. Sheth, the trial court reached the conclusion that direct link between the injury and the cause is established and, therefore, the trial court has awarded an amount of Rs. 2 lakhs. It is found from the final order of the judgment that the decree is passed only against the insurance company, defendant No. 2 which is also erroneous, which will be dealt with hereafter.
23. The question which, therefore, falls for our consideration is as to whether the ultimate conclusion of the trial court holding defendant No. 1, Dr. Sheth responsible and the author of the injury sustained by the plaintiff is sustainable With a view to appreciate and examine this question, it would be necessary to refer to the evidence of Dr. Sheth and the documents placed on record. He is examined at exhibit 113. According to his evidence, on December 15, 1981, the plaintiff was brought by the relatives to his hospital at Karjan from village Sampa (at 4.30 a.m.) in the early morning for the purpose of delivery operation and medical treatment. After examination of the patient, the doctor had noted the history in the case papers. They are produced at exhibit 114. Dr. Sheth when he examined the plaintiff found that the right hand of the child in the womb of the mother had come out. The plaintiff had been suffering from labour pain for more than 12 hours before he examined her. She had a very low blood pressure. The doctor was informed by the relatives that on account of improper efforts made by a midwife (untrained lady Dayan) who was called to the house of the plaintiff, there was some problem and delivery could not be done by her. She was totally exhausted because of low blood pressure and anaemia and she was shifted to the private hospital of Dr. Sheth after travelling a distance of about 12 kms. from the native place of the plaintiff.
24. After having seen the condition of the plaintiff, Dr. Sheth immediately started administering treatment and medicine and took written consent from one of the relatives Ambalal Zinabhai which is produced at exhibit 115 for the purpose of undertaking emergent and urgent operation. Dr. Sheth was also given the history by the relatives that there was a still born child in the womb of the mother, In view of the physical condition then prevalent, Dr. Sheth was left with no alternative but to immediately undertake the operation for the purpose of delivery of the child. Operation was performed at 6 a.m. Required tests before taking the plaintiff to the operation table were carried out. Medicine was also given. Glucose saline with other required injections had been administered by the doctor.
25. After the operation was performed, the plaintiff was kept as an indoor patient in the hospital. It is also proved from the evidence of Dr. Sheth that he could not successfully do catheter. On the third day of the operation on December 18, 1981, the catheter was also changed and it was noticed by Dr. Sheth on December 21, 1981, that the patient had developed complications. In medical terms, it is known as vesico vaginal fistula (VVF for short). Therefore, the patient and her relatives were explained and were informed about the complications which had started on December 21, 1981. On the 7th and 8th day after the operation, the stitches were removed 50 per cent. The operated wound was found fully healed. However, Dr. Sheth found that there was dripping of urine because of VVF. He found and thought that in view of the complication of VVF, catheter was required for a further period of 3 to 4 weeks so that there may not be sepsis. Medicine was also continued, Ordinarily, in such case, as deposed by Dr. Sheth, the patient is discharged on the next day of removal of stitches. But in the case of the plaintiff, extra care and caution was exercised and she was kept in the hospital for further treatment as an indoor patient with a view to treat the complication because of the VVF.
26. She was kept in the hospital as an indoor patient till December 28, 1981. Thereafter, Dr. Sheth found that further treatment in Baroda Hospital was necessary and, therefore, upon the desire of the relatives of the plaintiff, a reference note was given by him so as to see that proper, further, better treatment could be received by the plaintiff in the Baroda Hospital. It was also specifically mentioned by Dr. Sheth about the said complication of VVF. Bill was also given by him which was paid. It was deposed by Dr. Sheth that thereafter no further treatment was ever taken by the plaintiff from him.
27. It may also be stated that the husband of the plaintiff was serving in Baroda at the relevant time as a teacher and he came to the hospital of Dr. Sheth after the operation was performed who was informed by Dr. Sheth about the seriousness of the health, unfortunate happening of still born child and the course of treatment given by him. It is also testified by him that long thereafter, one relative of the plaintiff, one Gordhanbhai, had come to him who had quarrelled for nothing. Exhibit 97 is the prescription of Dr. Bhupendra C. Patel dated October 16, 1984. According to the evidence of Dr. Sheth, due to VVF, the lady is not rendered barren. In other words, the said complication would not be the cause for non-bearing of a child. It may be clarified that it is very clear from the evidence of Dr. Sheth that VVF would not cause any hindrance or any impediment for conception in future. One more interesting thing which has transpired from his testimony is that not only the plaintiff had one misdelivery prior to the operation performed by him on December 15, 1981, but thereafter also, she had a miscarriage as per the note prepared on the back of the prescription of Dr. B. C. Patel, exhibit 97. Dr. Sheth has categorically denied the pointed and specific suggestion that it was he who wag responsible for the injury sustained by the plaintiff.
28. As we have noticed from the testimony of the plaintiff and Dr. Sheth there are divergent statements. The trial court has accepted the testimony of the plaintiff rejecting the evidence of Dr. Sheth. Unfortunately, without entering into any deep probe, the learned trial judge, with due respect, has wrongly discarded the testimony of Dr. Sheth and erroneously accepted the testimony of the plaintiff at its face value itself unsupported by any material whatsoever on record. We do not find proper discussion of the evidence in the impugned judgment. Not only that, there is no reason as to why the testimony of a medical officer though he may be a party, is discarded which is reinforced by the medical case papers prepared there and then. While throwing into scale the version of the plaintiff and defendant No. 1, Dr. Sheth, this court has no hesitation in finding that the balance tilts in the version of Dr. Sheth which is very much supported by the documentary evidence of not only medical case papers prepared and produced, at exhibit 114, but also by a note prepared by Dr. Bhupendra C. Patel at exhibit 97 and also by the evidence of Dr. Maya Hajra. The trial court has committed a serious error in straightaway accepting the unsupported testimony of the plaintiff and straightaway rejecting the weighty, reliable and trustworthy testimony of Dr. Sheth which has reinforcement of volumes of documents. Therefore, in our view, the onus which was shifted on to defendant No. 1, Dr. Sheth, to show that he was not responsible for causing injury to the plaintiff and that he was not negligent, is fully supportable and acceptable. The conclusion reached by the trial court in this regard is required to be rejected. Even after applying the doctrine of, res ipsa loquitur and shifting of burden on defendant No. 1, it could very well be seen from the testimonial collection of the documentary evidence produced on record that defendant No. 1 is not the author of the resultant injury on account of operation during the course of delivery treatment in the hospital of Dr. Sheth on December 15, 1981.
29. It is true that injury is sustained but what is the cause of the injury The plaintiff has not been able to prove. Not only that, Dr. Sheth has disproved the allegation of the plaintiff by showing that he was not negligent for the harm or injury sustained by the plaintiff during the course of treatment in his hospital.
30. In view of our aforesaid discussion and the documentary evidence on record, we have no hesitation in finding that the views and the ultimate conclusion recorded by the trial court are not only unreasonable and unsupportable, but illogical and perverse. We may also mention here that no reasons are assigned why the testimony of the plaintiff is accepted and why the testimony of Dr. Sheth is rejected. But whatever reasons are assigned are not supportable and acceptable. It was rightly pointed out that the trial court unfortunately went on narrating the rival submissions and came to an abrupt conclusion holding that the court accepts the submissions raised on behalf of the plaintiff. With due respect, in our opinion, in a case like the one on hand when the life of the victim or the career of a medical practitioner is at stake, the court can never afford to become casual or indifferent in appreciating and analysing the testimonies and documents on record. We are at pains to mention that the manner and the mode in which the learned trial judge has dealt with the evidence and has reached the conclusion and also the final order would require and warrant our interference forthwith. How could defendant No. 2, insurance company, straightaway be held for payment by passing a decree against defendant No. 1 This is highlighted to show the casualness exhibited by the trial court while recording the impugned judgment and decree.
31. We may make it clear that a medical practitioner or for that purpose any professional can be held liable for a negligent act and if the court once finds that a professional is found negligent, well, then also the duty of the court is to see that he is directed to pay compensation as far as possible to see that the victim of such negligent act is placed in the same financial position as if he or she would not have been injured.
32. But we have to assess and analyse the evidence so as to award compensation in terms of money which the victim has suffered. There are various heads which are required to be considered under which compensation can be awarded. A mere glance at the impugned judgment would radiate an imprint that the trial court has again adopted a very unusual and casual approach. There is no bifurcation or break up of the figures of compensation under different heads which ought to have been done. Since we find that the plaintiff is not entitled to compensation as defendant No. 1 is not found negligent, though the plaintiff has sustained serious injury, no doubt, it appears that for a long spell, on account of VVF, the plaintiff who is aged 32 had to undergo pain and agony. Howsoever great sympathy we have for the plaintiff, it would not take the place of proof so as to hold defendant No. 1, Dr. Sheth, responsible. In our opinion, he is found not only not negligent but he is found to have exercised due care, skill diligence and had put in all efforts so as to see that the life of the plaintiff is saved. A look at the medical case papers produced at exhibit 114 which were prepared at the relevant time would undoubtedly lead us to an inference that defendant No. 1, Dr. Sheth, had made all efforts so as to save the life of the plaintiff. Unfortunately, the child in the womb had also died. He had to exhibit and exercise care and caution at a time when he had seen the condition of the plaintiff in the early morning of December 15, 1981, who was unconscious, having low blood pressure with full exhaustion having undergone labour pain for a long spell of more than 12 hours before that again, unfortunately, having seen the right hand of the child in the womb of the mother coming out. All precaution, diligence and care which a professional of the medical fraternity should exercise in such a situation is rightly and properly taken in view of the testimony of Dr. Sheth coupled with documentary evidence at exhibit 114, and subsequent documents.
33. We are also at pains to mention the following aspects which have emerged unquestionably :
1. The plaintiff initially claimed an amount of Rs. 15,000 which came to be adequately revised by an amendment to Rs. 80,000 and later on, Rs. 2 lakhs. We must also note that again an attempt was made to raise the claim amount from Rs. 2 lakhs to Rs. 5 lakhs by an amendment which came to be rejected by the trial court.
2. The testimony of the plaintiff is uncreditworthy, tainted with dishonest, unreliable, presumably prompted so that a higher amount of compensation could be extracted, presumably, at the instance of her husband and family members.
3. Could a lady living in village Sampa which is almost 12 to 15 kms. away from Karjan and the environment from which she hailed, go in the early morning to a private hospital for the first time for safe regular and normal delivery The positive answer would be in the negative. It is also clear from the evidence that she had a miscarriage at the residence of her brother in a village. She had also a miscarriage after the questioned operation. The manner and mode in which she has narrated the story in her evidence is clearly unacceptable. Had there been no emergency, there was no reason for her and her relatives to go to a private hospital of Dr. Sheth in the early morning of December 15, 1981. She denied also the clear and naked fact that she had suffered labour pain for a spell of 12 hours before Dr. Sheth examined her. We are surprised to note that she has even denied that the right hand of the still born child was protruding from the wall of the womb. In fact, the impression she has given goes to show the manner and mode in which she came to be admitted in the private hospital of Dr. Sheth on December 15, 1981, as if she was having a pleasure walk and regular consultation with a doctor. We are not prepared to believe her testimony.
4. It must be noted that if the doctor is found negligent, he must be directed to pay compensation under civil action and even he can be punished if found guilty under the criminal action. But there should not be feeling and tendency for windfall which can be made out of calamity or contingency.
5. Again, it would be very shocking to note that there was a divorce deed produced by the plaintiff in the trial court at exhibit 95. After having seen the tenor of the divorce deed, one would be tempted to state that it is not an usual, common, regular divorce deed between the spouses who belong to the very weak strata from which the plaintiff and her husband come from. Ordinarily, in such a class of people, where there is a custom of divorce, there would not be any writing and again, the divorce is taken on a stamp paper on March 15, 1990. In order to justify that there was a divorce deed with all greater details which even otherwise a skilled draftsman may not be able to do so, it is stated that on account of the fact that she was unable to bear a child, the husband sacrificed her and gave her divorce so that her husband can marry second time and can get a child. It may be mentioned that the plaintiff has also testified in her evidence that she would not be able to bear a child because of the injury the, author of which is Dr. Sheth. The same thing is precisely mentioned in the divorce deed which is normally not mentioned in this class of society.
6. Unfortunately, though the lady had sustained an injury, she is not qualified to earn a decree for compensation in view of the aforesaid facts and circumstances. We may also state that presumably in order to strengthen her case for compensation many manoeuvres are done and one of them is this divorce deed, exhibit 95. We are sorry to state so. One cannot resist the temptation by saying that the divorce deed is engineered to extract more money from the doctor and the insurance company. The trial court, unfortunately, has lost sight of these material aspects and important documentary evidence.
7. Though we are not required to know what could have been the cause of the injury having once found that the doctor was not the author of the same and in the absence of any link of cause and injury, but, it will be expedient to state that VVF according to the medical authorities in the field of maternity injury are common at times. Many times, such injuries are common sequel of controlling labour pain. It may also happen that foetus of baby at the stage of urinary bladder because of which injury can be caused, compression may be there on the growth of the baby. No other medical or expert evidence on behalf of the plaintiff is led to show as to what was the situation or position of the baby before she rushed to the hospital of Dr. Sheth on December 15, 1981. No doubt, Dr. Maya Hajra has stated in her evidence that such injury could be caused by clumsy instrumentation and mishandling also. Looking to the urinary bladder in the womb of the lady, there may be compression on the wall of bladder if position of the baby is not normal. It is found by us from the record also that there are certain injuries because of which there may be 'stress incontinence' (inability to control urination) because of such injuries and such injuries are at times caused by a prolonged compression of the structures between the foetal head and the mother's pubes resulting in a localised necrosis of the bladder and vaginal walls.
We may also mention that according to the opinion of C. S. Dawn in his book Text book of Obstetrics in Chapter 20, at page 409, injury to the bladder is also possible on account of prolonged and obstructed labour. There are other clinical features. In his opinion, it can also be caused by clumsy instrumentation. The author has stated that on account of obstructed labour, the injury to the urinary bladder can be caused. Obstructed labour is explained which means 'difficult labour due to insuperable mechanical obstruction in the process of delivery of foetus through the passage'.
34. What we want to emphasize is that injury sustained by the plaintiff could be caused on account of prolonged and obstructed labour which we have seen from the aforesaid discussion that the lady had suffered for a spell of more than 12 hours before Dr. Sheth examined her first.
35. Again, it may be mentioned that 'urinary incontinence' is defined by the said author C. S. Dawn. According to him, this is the inability to control urination. It may be any one of the four forms as follows :
1. True incontinence : Urine flows out continuously day and night and is caused by (a) genito urinary fistula, or (b) development defects - ectopia vesicae, ectopic ureter opening into the vagina.
2. Urge incontinence : Ordinarily, the woman is continent, but she experiences sudden desire to void, bladder escapes inhibition from central nervous system, contracts very strongly overriding normal sphincter mechanism. If she cannot reach toilet promptly, there is urinary leak of which woman is aware. The underlying cause is bladder irritability, cystitis being an important cause.
3. Stress inconstinence : This is urinary leak per urethra on raised intra abdominal (intravesical) pressure.
4. Overflow incontinence : This incontinence occurs as a sequel to prolonged retention of urine and can be explained by compensatory destrusor hypertrophy. It is also mentioned therein that VVF can also be caused by obstructed operation.
In view of the aforesaid discussion and the facts and circumstances emerging from the record, we have no hesitation in holding that the finding and ultimate conclusion recorded by the trial court are required to be quashed. Before we conclude, we may also mention that law recognises damages which are inherent. In surgical operations, mistake may occur on occasions despite exercise of reasonable skill, care and caution. What is actionable is negligence and recognisable actionable negligence of medical professional would entail liability for payment of compensation. There may be honest mistake or bona fide error of judgment which is inherent in surgical operations. Surgeons are also not infalliable. What is required to be shown successfully for getting compensation by the victim is lack of care or want of exercise of due diligence. What we have noticed from the aforesaid discussion is that though the plaintiff unfortunately has sustained a serious injury, he is not found eligible and qualified in earning a decree for compensation and the decree which is already recorded in her favour by the trial court is required to be set aside. Therefore, painfully but dutifully, we quash and set aside the judgment and decree recorded against respondent No. 1, original defendant No. 1, Dr. Sheth while allowing the appeal of the insurance company.
36. What is negligence :
Negligence is a state of mind and is the opposite of intention. An act is clearly one that it is done with special desire or object of producing a particular result. Whereas an act is negligent when it is done with desire to produce a particular result, but actually producing that result by apathy, indifferentness or carelessness. A negligent state of mind is consistent with the intention to exercise at any rate some care as where a motorist is in hurry, drives quickly down a crowded street and collides with a pedestrian. In the circumstances, he does not intend to have accident or to cause injury but has remained consistent in his carelessness or indifferent nature obstructing the pedestrian with the risk of collision because he has no right to subordinate his desire for speed to his desire to drive watchfully. Putting it differently, it can be said that he is guilty of recklessness or negligence.
The use of the word 'negligence' to describe such state of mind, one can say that in strictness, the word, 'accidental' may be employed in contradiction to wilful. Negligence does import that one is acting carelessly and without that design. Negligence is, therefore, even used in the sense of careless conduct without reference to any duty to take care. Use of the term in this sense has introduced some confusion and has intentionally obscured the true meaning of negligence as tort. In the present case, there is duty to take care of the patient. When there is duty to take care, the standard of care as prevailing is that of a reasonable man although it is not always so and consequently failure to take reasonable skill or care or caution would result in negligence. No doubt, the degree of care varies but it can safely be said that it must be of a prudent and reasonable person.
37. Negligence in one meaning is the objective sense and refers to breach of duty to take care imposed by either common or statute law. The ideas of negligence and duty are strictly correlative and there is no such thing as negligence in the instruction. Negligence is simply neglect of some care which one is bound by law to exercise towards the other. Negligence becomes actionable if actual damage could be proved. There cannot be a right for action for trivial or nominal damage. Negligence alone does not give rise to action. Likewise, damage alone does not give cause of action. Both must co-exist for claiming compensation.
38. According to the settled proposition of law, essential component for modern tort of negligence can be highlighted as follows :
Negligence as such has three component elements which can be extracted are 'duty', 'breach' and 'resulting damage', like that -
(i) existence of duty to take care which is owed by the defendant to the plaintiff,
(ii) failure to attain that standard of care prescribed by law whereby committing breach of such duty, and
(iii) damage which has both causal connection with such breach and recognised by law has been occasioned to the plaintiff or victim.
Thus, it can be seen that the modern concept of tort of negligence is which involves a person with breach of duty that is imposed upon a party to take care resulting in damage to the plaintiff or complainant.
39. In the present case, the plaintiff has alleged negligence of the defendant doctor while performing delivery operation. A medical practitioner owes a duty to exercise reasonable care, skill and caution in his dealing with treatment of patient. Where the medical practitioner, lacks skill and experience or qualification to deal with a particular case, he shall decline handling of such a case and refer the matter to consult one who is equipped to deal with a situation. It is not the case of the plaintiff that the defendant doctor is inexperienced or unqualified. The plaintiff's case is, as submitted before the court, that while performing delivery operation, he remained negligent. Therefore, the true test to hold a doctor guilty of negligence is positive finding of such failure on his part as no doctor of an ordinary skill would be guilty of acting with required, general, ordinary care and circumspection.
40. It is not every slip or mistake that imports negligence and in applying duty of lack (sic) to the case of surgeon. It is practically necessary to have regard to the different kinds of circumstances that may present themselves for urgent attention. The emphasis should be on the standard of ordinary care to be taken by a prudent, ordinary and reasonable medical practitioner of his type. What is the definition of prudent, reasonable practitioner It is neither expedient nor feasible to attempt the definition of such term. It is, therefore, necessary for the court to fill and formulate the degree of care to be adopted in a given set of circumstances. It may vary from time to time, from person to person, from situation to situation, from one set of circumstances to another, and so on and so forth. One cannot be oblivious to damages which are inherent in surgical operation. Mistakes will occur on occasions despite exercise of reasonable skill and care. If the medical practitioner follows the general and approved course of action and does as per the then prevailing pattern of diagnosis and treatment, he cannot normally be charged with not calling to bear the general care of prudent and reasonable man.
41. The civil liability of medical practitioners towards their patients is invoked by the plaintiff for compensation. It is very clear that 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 the patient, he owes a duty to the patient to use due caution, circumspection and skill in undertaking the treatment. When the patient submits to his directions and treatment on his accepting responsibility and undertaking treatment, he owes a duty to the patient to use skill and care, vigilance and diligence of a prudent medical practitioner. Even contractual relation is not necessary. It is also not necessary that service should be rendered for reward. Law requires reasonable and just standard of care and competence.
42. Thus, in order to satisfy duty in tort, the standard of care and skill to be attained is that of an ordinary competent medical practitioner who is exercising ordinary degree of professional skill and that a man is not guilty if he has acted in accordance with the practice expected as proper in the circumstances of the case. It must be shown to succeed in a case for compensation based on negligence that there is failure to apply normal practice and that the doctor has not followed the usual and required line of treatment and that the course he undertook was not proper required of a prudent and reasonable professional. A medical man would certainly not be answerable merely because another practitioner may have possibly shown the greater skill and knowledge. He is as such shown to have that degree of skill and caution which in the circumstances of the case was required to be performed. There may be persons who have higher education and greater qualifications and fully established and equipped clinic than the defendant doctor had at the relevant time. The question required to be examined is whether in a given case, the injury was occasioned for want of skill and caution of a prudent, reasonable medical practitioner. The doctor does not become actual insurer. He is only bound to display sufficient skill and knowledge in his profession. The expressions 'ordinary' and 'reasonable' are by themselves subjective, uncertain, vague, ambiguous and partly loose. It would not be possible to define with, certainty the case of intrinsic character. None the less, these expressions being terms of common parlance must be followed. What is ordinary in one set of circumstances may become extraordinary in another set of circumstances. What is ordinary in one case may be extraordinary or unusual in the case of another. Therefore, 'ordinary' and 'reasonable' are expressions required to be seen in the light of set of facts and circumstances.
43. In the existence of the human body, despite diligence, care and caution, consequential risks of individual factors are always closely associated in the clinical practice and more so, in operative treatment. The test is standard of ordinary skill a man exercising and professing to have that special skill. It is well settled law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular work in a given set of circumstances. Therefore, the aspect of standard of skill and care expected of a doctor deserves to be thoroughly borne in mind. A doctor is never presumed to be infallible. He is also not obliged to achieve triumph in every clinical case that he treats. A doctor cannot be held negligent simply because something goes wrong. A doctor can be found guilty only if he falls short of the standard of reasonable skilful medical practice. The true test, therefore, to hold a medical practitioner guilty of negligence is to have a positive finding of such failure on his part as no doctor of ordinary skill would be guilty of acting with reasonable and ordinary care. An honest error of judgment in the facts and circumstances of a case may clear a medical practitioner of the charge of dereliction of duty or performance of negligence. If a medical practitioner acts as per the general prevalent practice regarding diagnosis and treatment, he cannot be held guilty of negligent, and whether the charge of clinical error does or does not amount to negligent must depend upon precise circumstances. For there to be a finding of negligence, such error would have to be one which would not even be made by a reasonably competent professional man who was professing to have both standard and type of skill that the doctor held himself out as having without acting with ordinary care.
44. Keeping in mind the aforesaid settled propositions and analysing the facts and circumstances, we are of the opinion that the defendant doctor was not negligent either in his diagnosis or treatment. Regretfully, it must be mentioned that the plaintiff at the instance of some persons or close relations, has suppressed the material facts and has exaggerated obviously presumably for showing the defendant doctor negligent and claiming an inflated amount of compensation. We would like to highlight the following circumstances emerging from the record of the present case :
1. The plaintiff, though was treated by an untrained midwife (in common parlance addressed and known as Dayan) after the labour pain started has given false evidence.
2. The untrained midwife mishandled and caused much physical pain and damage to the plaintiff as a result of which the hand of the child was protruding from the womb of the plaintiff when she was brought to the clinic of the defendant doctor.
3. The plaintiff had undergone severe labour pain for almost 12 hours before she could be treated by the defendant doctor. The untrained midwife had treated the plaintiff at her native village which is about 12 km. away from the town wherein the clinic of the defendant doctor is situated.
4. The plaintiff was brought by the relatives in a serious condition on account of serious labour pain suffered by her for 12 hours and damage caused by the untrained midwife at her residence.
5. The plaintiff was shifted to the clinic of the defendant doctor in an almost unconscious and serious condition with the right hand of the child protruding from the womb of the plaintiff, by a vehicle and the doctor has started treatment right in earnest in the early morning at about 4 a.m.
6. The defendant doctor, after observing preliminary treatment and required for diabetes, B.P., etc., tests, had performed operation and had taken out a still born child by way of Caesarean operation. The evidence of the defendant doctor is quite satisfactory and justified. It is supported by medical case papers prepared at the relevant time.
7. It is very clearly mentioned in the history given by the relatives of the plaintiff at the time of admission in the clinic of the defendant doctor that the plaintiff was suffering from labour pain and she was not properly handled by the midwife. There is no reason to discard the creditworthy medical evidence and medical case papers produced in support of the evidence of the defendant doctor.
8. The plaintiff's relatives who brought her to the clinic of the defendant doctor had no reason to give a false history.
9. Creation of a written divorce deed on a stamp paper highlighting the medical negligence of the defendant doctor, in a case of the plaintiff who is unsophisticated and illiterate housewife is telling volumes against the conduct of the plaintiff and her relatives. Ordinarily, when divorce is permissible by custom, a written divorce deed with full medical history and failure of the medical practitioner for a class to which the plaintiff belongs can be rated as rarest of rare.
10. Again, it is successfully shown from the record that the divorce is not acted upon. The plaintiff and her husband both spouses are found to have been living together although the explanation of the plaintiff that her husband could not get a child out of the second marriage with one lady, he reverted to the matrimonial relations and started with her, is absolutely concocted and created version presumably by the husband or relatives of the plaintiff.
11. The case of the plaintiff that she sustained permanent disability due to the injury on the bladder is also not found correct. It is found from the evidence that she had an abortion before the operation and she had also conceived after the operation in question. This is clearly borne out from the medical certificate and the medical case papers produced on record.
12. The alleged negligence or want of care on the part of the defendant doctor is not borne out from the record. On the contrary, we are of the clear opinion that in the early morning the defendant had responded well when the plaintiff was brought in an unconscious state of condition with severe labour pain and a still born child in the womb having its right hand protruding outside the womb.
13. What a reasonable and prudent doctor could do in the situation is found to have been done by the defendant doctor.
14. The injury sustained by the plaintiff which is not shown to be permanent resulting in rendering her barren was very much likely because of mishandling or malhandling by the untrained midwife or it may be because of the situation of the child in the womb or it may be because of acute severe labour pain for 12 hours before the operation.
15. It is found from the opinion of experts, as said earlier, that the bladder can be damaged on account of such severe labour pain or malposition of the child in the womb.
16. We make it clear, that if the doctor is found guilty of negligence we would not and we should not hesitate to award compensation against him for his negligence. However, we also make it clear that no compensation could be awarded against a medical practitioner who has not spared any stone unturned for saving the life of a lady. In our opinion, the version of the plaintiff is farthest from the truth and we have no hesitation in finding that the defendant doctor had acted promptly, reasonably, skilfully in treating and operating the plaintiff on the day when she was admitted in his clinic and thereafter. Unfortunately, though the plaintiff had suffered because of injury on the bladder, we are unable to uphold the impugned judgment and decree directing the insurance company to pay the compensation alone (which appears to be a mistake as the decree is passed only against the insurer and not the doctor). The facts and circumstances explicitly go to show that the defendant doctor had not exhibited any want of care or that he was negligent or that he failed to exercise due care and caution expected of a reasonable and prudent doctor. It would be difficult to resist the temptation of saying that the defendant doctor had done a very good job by taking positive, prompt and timely action by taking out the still born child from the womb of the plaintiff so as to save her life. Unfortunately, it appears that at the instance of somebody, the plaintiff creating a false case, raising false story, giving false evidence, filed the suit for compensation on the alleged ground of errors of the doctor who has turned out to be her saviour.
No provision is pointed out which would prompt us to hold that the insurer, the appellant herein, would be disabled to urge on the point of negligence. This is not a case under the Motor Vehicles Act, wherein the defences available to the insurer are statutorily circumscribed. We are dealing with a case of insurance given by the appellant original defendant No. 2 to defendant No. 1, Dr. Sheth, under the general law of contract, viz., Doctor's Indemnity Insurance - I. M. Medical Protection Scheme. Therefore, the insurer cannot be restrained from agitating the grievance against the finding of negligence. Again the decree is passed only against the insurer leaving the insured. This is also wrong and illegal.
45. In the result, the appeal is required to be allowed and the impugned judgment and decree is required to be set aside and quashed.
46. However, at this stage, out of compassion, it has been submitted by the learned advocate, Mr. Patel, for original defendant No. 1, Dr. Sheth that, upon the suggestion of the court, defendant No. 1, Dr. Sheth would be ready to pay an amount of Rs. 15,000 by way of grace in view of the facts and circumstances. So is the case with the appellant. The learned advocate for the appellant, insurance company, original defendant No. 2 has also candidly and fairly stated that the insurance company is also ready to pay an amount of Rs. 15,000 by way of ex-gratia payment to the unfortunate victim of the injury.
47. Taking into account the aforesaid two submissions made at the Bar while dismissing the suit and allowing the appeal, we direct the appellant and respondent No. 1 herein (original defendants Nos. 2 and 1, respectively) to pay Rs. 15,000 each by way of ex-gratia payment to the original plaintiff.
48. Having regard to the special circumstances and events, we do not deem it expedient to award costs while allowing the appeal. Therefore, the appeal is allowed. Suit is dismissed with no order as to costs throughout. Learned advocate for respondent No. 2, Mr. Pandya, requests us to stay the judgment and decree recorded by this court so as to facilitate the plaintiff to pursue the remedy before the Supreme Court. In our opinion, there is no substance in the aforesaid submission which also merits dismissal. It is accordingly rejected.
49. The amounts which we have directed to pay on the basis of the concession as aforesaid shall be deposited by both the parties within a period of four weeks from today before the trial court and the trial court is directed to invest the full amount after deposited by the parties, in FDR in a nationalised bank or any other better Government securities or in any other such secured schemes like Unit Trust of India as per the choice of the plaintiff for a spell of not less than ten years and the plaintiff shall be entitled to interest which shall accrue due thereon periodically. However, we may make it clear that the plaintiff shall not be entitled to create any charge or encumbrances on the said deposits, without prior permission of the trial court. The amount of interest which shall be paid to the plaintiff shall be by an account payee cheque only or as rightly pointed out at this stage the amount of Rs. 3,67,000 deposited by the appellant insurance company in the trial court as per the earlier direction of this court shall be refunded to the insurance company after deducting the aforesaid amount of Rs. 30,000 and the amount of Rs. 15,000 coming to the share of original defendant No. 1, Dr. Sheth, shall be directly paid to the insurance company as per consensus and joint submission.