Medical Negligence I- The standard of reasonable care in medical case

Achutrao Haribhau Khodwa vs State of Maharashtra and Ors, 1996 SCC (2) 634

The present case is important in case laws related to medical negligence. This case also cleared out the position of standard of reasonable care which is expected by a medical person in his/her profession.

Facts of the Case

• A woman Chandrikabai delivered a male child on 10th July, 1963 in civil hospital, Aurangabad.

• After the delivery, a sterilization operation was also performed at the hospital.

• But after the operation, Chandrikabai developed high fever and also had acute pain which was abnormal after such a simple operation. Her condition deteriorated further and on 15th July, 1963, her husband approached the doctor dr. Diwan, who was a well-known surgeon and was attached to the hospital, but was not directly connected with the Gynecological department.

• Dr. Divan examined Chandrikabai on 15th July, 1963, and seeing her condition, he is alleged to have suggested that the sterilization operation which had been performed should be re-opened.

• On 19th July, 1963, Dr. Divan, on being called once again, re-opened the wound of the earlier operation in order to ascertain the true cause of the seriousness of the ailment and to find out the cause of the worsening condition of Chandrikabai.

• Dr. Divan, as a result of the second operation, found that a mop (towel) had been left inside the body of Chandrikabai when sterilization operation was performed on her. It was found that there was collection of pus and the same was drained out by Dr. Divan. Thereafter, the abdomen was closed and the second operation completed.

• Even, thereafter the condition of Chandrikabai did not improve and ultimately she expired on 24th July 1963.

• Alleging that Chandrikabai was working as a teacher in a government school and her salary augmented the total income of the family, it was pleaded that the death of Chandrikabai was caused due to the negligence of the doctor, who had performed the sterilization operation on 13th July 1963, as well as the irresponsible behavior of respondent no.3.

• The appellants also alleged that the hospital lacked adequate medical aid and proper care and there was gross dereliction of duty on the part of the officers of the Government Civil Hospital which directly resulted in the death of Chandrikabai and, therefore, the appellants were entitled to recover damages from the Government of Maharashtra (respondent no.1) as well as respondent nos.2 to 4.

• The appellants claimed total damages of Rs.1,75,00O/-.

The Main Questions in the Case

Two questions which arose for consideration before supreme court were

• whether the State of Maharashtra can be held liable for any negligence of its employees and
• secondly whether the respondents or any one of them acted negligently in the discharge of their duties.

Ist Question- The liability of state

In answering of first question, the court said that decisions of this Court leave no scope for arguing that the State cannot be held to be variously liable if it is found that the death of Chandrikabai was caused due to negligence on the part of its employees.

The court referred following decisions-

• State of Rajasthan Vs. Mst. Vidhyawati and Anr. (AIR 1962 SC 933)– In that case a vehicle owned by the State of Rajasthan, which was being driven by its driver, met with an accident which resulted in the death of one person. The death was caused due to the negligence of the driver.

The Court held that “the State should be as much liable for tort in respect of a tortious act committed by its servant within the scope of his employment and functioning as such, as any other employer. “

• Kasturi Lal Ralia Ram Jain Vs. The State of Uttar Pradesh. (AIR 1965 SC 1039)- In Kasturi Lal’s case gold had been seized and the same had been kept in a malkhana. The appellant demanded the return of this gold but the same was not returned. It appeared that the same had been misappropriated by the person in-charge of the malkhana.

While holding that there was negligence on the part of the police officers, supreme Court denied to hold liable state by observing that the powers which were exercised by the police officers could be properly characterized as sovereign powers.

The court also referred two other decisions where the State has been held to be variously liable on account of the negligent acts of its employees are those of N. Nagendra Rao and Company Vs. State of Andhra Pradesh (1994 (6) SCC 205) and State of Maharashtra & Ors. Vs. Kanchanmala Vijay Singh Shrike & Ors. (JT 1995 SC 155).

Decision of the Court

While concluding the question, the court said that,

“Running a hospital is a welfare activity undertaken by the government but it is not an exclusive function or activity of the government so as to be classified as one which could be regarded as being in exercise of its sovereign power.

In Kasturi Lal’s case itself, in the passage which has been quoted hereinabove, this Court noticed that in pursuit of the welfare ideal the government may enter into many commercial and other activities which have no relation to the traditional concept of governmental activity in exercise of sovereign power. Just as running of passenger buses for the benefit of general public is not a sovereign function, similarly the running of a hospital, where the members of the general public can come for treatment, cannot also be regarded as being an activity having a sovereign character.

This being so, the State would be variously liable for the damages which may become payable on account of negligence of its doctors or other employees.”

II Question- The negligence of doctors

Bolam test

While answering the present question, the court referred the ‘bolam test’ Bolam Vs. Friern Hospital Management Committee ([1957] 1 WLR 582), in which the test with regard to the negligence of a doctor, was laid down.

“It was to the effect that a doctor is not guilty of negligence if he acted in accordance with a practice accepted as proper by a responsible body of medicalmen skilled in that particular art.”

This principle in Bolam’s case has been accepted by the House of Lords in England as applicable to diagnosis and treatment.

Court’s opinion on proper care

The court said,

“The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution.

Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession, and the Court finds that he has attended on the patient with due care skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence.

In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.”

Decision of the court on the question

While concluding the question, the court noticed that in the present case the facts speak for themselves. Negligence is writ large. This operation is not known to be serious in nature and in fact was performed under local anaesthesia. Both Dr. Divan and Dr. Purandare have stated that the cause of death was peritonitis. In a case like this the doctrine of res ipso loquitur (things speaks for itself) clearly applies.

Therefore, the court held that respondents were liable for negligence.

Reference

 Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors, 1996 SCC (2) 634, JT 1996 (2) 624