RAM BIHARI LAL Vs. J N SHRIVASTAVA

JUDGEMENT

(1.) This is an appeal by the plaintiffs under Cl.10 of the Letters Patent against the judgment and decree of the single Bench of this Court dismissing their claim by reversing the judgment and decree of the trial court for damages against the defendant for his rash and negligent act in causing death of deceased Kantidevi, by removing her gall bladder during operations.

(2.) At the relevant time in the year 1958 plaintiff No. 1 Ram Bihari Lal was Collector, Shahdol and was aged about 40 years. His wife deceased Kantidevi was aged 32 years. She had given delivery of 7th child 4 1/2 months prior to her death. Plaintiffs 2 to 8 were minors at that time. Defendant Dr. J. N. Shrivastava was posted as Civil Assistant Surgeon Grade-I and was in-charge of the Sohagpur Government Hospital at Shahdol. It was 28 bedded hospital. Although Shahdol was the district headquarters, district hospital was at Umaria and Dr. L. K. Mishra (P. W. 7) was the District Medical Officer. On the night intervening 27th and 28th September 1958 deceased Kantidevi got abdominal pain and the defendant was called to the Collector's bungalow at about 1 a.m. He gave her Streptopenicilin injection and tablet of Largactyl as she was also having some temperature. This treatment continued till the morning of 30-9-1958 when the defendant advised the plaintiff No. 1 that his wife was to be operated for appendicitis because according to him she was not responding to the treatment. Her blood test for differential blood count was taken by Dr. A. K. Dutta (D. W. 1). After some hesitation, the plaintiff No. 1 and his wife agreed for the operation and she was taken to the hospital at Sohagpur. The plaintiff No. 1 contacted D. M. O., Dr. Mishra on phone but he advised against the operation. However, they were persuaded by the defendant to get the deceased operated for appendicitis. The operation was started at about 2 p.m. by the defendant and he was assisted by Dr. A. K. Dutta and Dr. Mrs. Janki (PW. 8) who were also posted in that hospital as Assistant Surgeons and it was completed at 4 p.m. The deceased was put under chloroform anaesthesia. Before the operation, consent of the plaintiff No. 1 was taken for the operation of appendicitis. The defendant made a grid iron incision but found that the appendix was not at all inflammed. He, therefore, made another Kocher's incision and then removed the gall bladder as he found it to be blackish with stones. When the operation was going on, besides the plaintiff No. 1, D. F. O. G. P. Nigam(P. W. 5) Kripashanker (P. W.9), Satish Chandra Sinha (P. W. 10), nephews of the plaintiff No. 1, peon Vasist (P. W. 11), Principal Suryabali Singh (P. W. 13) and Rajendra Bahadur Singh (Lalji) (D. W. 8) were waiting outside in the verandah but no consent of the plaintiff No. 1 was taken for removal of the gall bladder. After the operation was over, the defendant came out and disclosed that he had removed the gall bladder and the operation has been successful. The deceased gained consciousness in the evening but sometime in the night her condition started deteriorating. On the morning of 1-10-1958 Dr. L. K. Mishra reached Shahdol and attended on the deceased. In the evening Dr. K. Y. Shrikhande (P. W. 3) Surgical Specialist accompanied by Dr. J. P. Tiwari Pathologist, (P. W. 6), Technician S. M. Goswami (P. W. 4) all from Gandhi Memorial Hospital, Rewa, and one Dr. Ramkumarsingh rushed to Shahdol. However, her condition further deteriorated. On the morning of 2-10-1958 Dr. Shrikhande noticed icteroid tinge in the conjunctiva of the deceased and he got her urine examined by Goswami. The examination revealed granular casts with sugar traces, albumin. It was found that there was extensive damage to the kidneys of the deceased and the liver was also damaged from the development of jaundice. Dr. Mrs. Ganpathy (P. W. 2), Medical Specialist of the Gandhi Memorial Hospital, Rewa was consulted on phone. Dr. Shrikhande returned to Rewa and sent Dr. Mrs. Ganpathy in the night to attend on the deceased. Despite the treatment given, the deceased expired at 2.20 a.m. on 3-10-1958. Dr. Shrikhande was directed by the Director of Health Services to enquire into the cause of death and he, after necessary enquiry, opined that the death was due to overwhelming toximia consequent upon progressive hepato-renal failure which developed after the operation done under prolonged chloroform anaesthesia which led finally to peripheral circulatory collapse as was seen from the progressive fall in blood pressure, rapid thready pluse and high temperature. The prolonged chloroform anaesthesia on an inadequately prepared patient was probably responsible for the development of hepato-renal failure according to Dr. Shrikhande. The plaintiff No. 1 made a complaint about the treatment given by the defendant to the higher authorities and finally served a notice under S.80, C.P.C. on 31-8-1959 and then filed the present suit claiming damages of Rs. 11,000/- due to the death of his wife because of rash and negligent operation conducted by the defendant. Rs. 5000/- was claimed for the loss of service of the deceased, and Rs. 6000/- for the loss of the estate of the deceased (Rs. 1,000/- being the compensation for pains and suffering of the deceased and Rs. 5000/- being the compensation for loss of expectation of life of the deceased).

(3.) The plaintiff's case is that on the night intervening 27/28 September 1958 the deceased felt abdominal pain and the defendant was called to attend on her at about 1 a.m. on 28-9-1958. She remained under his treatment till her death on 3-10-1958 in the Sohagpur hospital. On 29-9-1958 the pain subsided and the plaintiff No. 1 went on tour and came back in the night but on 30-9-1958 the defendant prevailed upon the plaintiff No, 1 and the deceased that the pain was due to inflammed appendix and needed immediate operation though they were not prepared for such a major operation being undertaken at Sohagpur without having medical facilities. After taking the blood test, the defendant confirmed his diagnosis of appendicitis and represented that any further delay in operation would endanger her life. No further examination or confirmatory tests were done. Accordingly, the plaintiff No. 1 and his wife agreed for the operation. The plaintiff No. 1 then contacted the District Medical Officer Dr. Mishra on phone and he opined that the pain and temperature having subsided appreciably, it was not a case for operation as 48 hours have already passed. This was conveyed to the defendant who was requested not to insist upon the operation but he did not agree saying that he has already given 2 such injections and there was no alternative for the operation. Therefore, they were prevailed upon for the operation. During operation, the appendix was found not enlarged and the defendant's diagnosis was wholly wrong. However, the defendant made further guess work and made a second incision and removed the gall bladder without obtaining the plaintiff No. 1's consent for the second operation. The operation took 2 hours and the deceased was kept under chloroform. After the operation was over, the defendant misrepresented that it was a success and there was no cause for anxiety. It was subsequently found that there was no trouble with the gall bladder and the defendant intermeddled with the same unnecessarily as a result of his guess work. The hospital was ill-equipped for any emergency treatment or for any major operation. Oxygen Cylinders were empty and there was no arrangement for blood transfusion, blood bank was empty and there was no facility for blood grouping and matching, saline apparatus was defective. The only anaesthesia available was the outdated chloroform. The Anaesthetist attached to the hospital was absent. Administration of chloroform was done by Dr. Mrs. Janki who was not a trained Anaesthetist. Nursing arrangements were wholly inadequate and the deceased was left in the charge of an untrained midwife. Without making any preoperative preparation for such a major operation, the defendant removed the gall bladder which was not shown to the plaintiff No. 1 or to anyone thereafter. Urine examination was the pre-requisite for every such major operation which was not done. A team of doctors came from Rewa and examined the deceased but the defendant did not follow the line of treatment suggested by them. The shock received by the deceased due to operation further damaged the kidneys and the liver by the administration of chloroform resulting in hepato-renal, failure and ultimately her death on 3-10-1958 at 2.30 a.m. The death was the direct result of the defendant's rash and negligent act, want of skill and careless handling of the case.