PINNAMANENI NARASIMHA RAO Vs. GUNDAVARAPU JAYAPRAKASU

JUDGEMENT

(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 tonsillectomy operation on the 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 plaintiff's 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 plaintiff's 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. Suryanarayana, 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 University 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 of Rs. 1,000/-. Because of the recklessness and negligence on the part 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 anaesthetic 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. Mallikarjuna Rao the Physician of the Hospital was called for consultation. During the course of post-operative treatment, Dr. Surya Rao, Ophthalmologist 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 Anaesthetist in his written statement pleaded that the general condition of the plaintiff was satisfactory and nothing abnormal was detected. Intravenous Atropine-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 administered 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 fourm 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.