LAXMAN BALKRISHNA JOSHI Vs. TRIMBAK BAPU GODBOLEAND ANOTHER

JUDGEMENT

(1.) This appeal by special leave raises the question of the liability of a surgeon for alleged neglect towards his patient. It arises from the following facts.

(2.) At about sunset on May 6, 1953, Ananda, the son of respondent 1, aged about twenty years, met with an accident on the sea beach at Palshet, a village in Ratnagiri District, which resulted in the fracture of the femur of his left leg. Since the sea beach was at a distance of 1-1/4 miles from the place where he and his mother lived at the time it took some time to bring a cot and remove him to the house. Dr. Risbud, a local physician, was called at about 8.80 or 8.45 p. m. the only treatment he gave was to tie wooden planks on the boy's leg,with a view to immobilise it and give rest. Next day, he visited the boy and though he found him, in good condition, he advised his removal to Poona for treatment. On May 8, 1953, Dr. Risbud procured Mac Intyres splints and substituted them for the said wooden planks. A taxi was thereafter called in which the boy Ananda was placed in a reclining position and he along with respondent 2 and Dr. Risbud, started for Poona at about 1 a. m. They reached the city after a journey of about 200 miles at about 11.30 a. m, on May 9, 1953. By that time respondent 1 had come to Poona from Dhond where he was practising as a medical practitioner.They took the boy first to Tarachand Hospital where his injured leg was screened. It was found that he had an overlapping fracture of the femur which required pin-traction. The respondents thereafter took the boy to the appellant's hospital where, in his absence, his assistant, Dr. Irani, admitted him at 2.15 p. m. Sometime thereafter the appellant arrived and after a preliminary examination directed Dr. Irani to give two injections of 1/8th grain of morphia and 1/200 th grain of Hyoscine H. B. at an hour's interval. Dr. Irani, however, gave only one injection. Ananda was thereafter removed to the x-ray room on the ground floor of the hospital where two x-ray photos of the injured leg were taken. He was then removed to the operation theatre on the upper floor where the injured leg was put into plaster splints. The boy was kept in the operation theatre for a little more than an hour and at about 5.30 p. m., after the treatment was over, he was removed to the room assigned to him. On an assurance given to respondent 1 that Ananda would be out of the effect of morphia by 7 p. m., respondent 1 left for Dhond. Respondent 2 however, remained with Ananda in the said room. At about 6.30 p. m. she noticed that, he was finding difficulty in breathing and was having cough. Thereupon Dr. Irani called the appellant who, finding that the boy's condition was deteriorating, started giving emergency treatment which continued right until 9 p. m. when the boy expired. The appellant thereupon issued a certificate Ext. 138, stating therein that the cause of death was fat embolism.

(3.) The case of the respondents, as stated in para 4 of the plaint, was that the appellant did not perform the essential preliminary examination of the boy before starting his treatment that without such preliminary examination a morphia injection was given to him that the boy soon after went 'under morphia'; that while he was 'under morphia' the appellant took him to the x-ray room, took x-ray plates of the injured leg and removed him to the operation theatre. Their case further was that