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Philips India Ltd. Vs. Kunju Punnu and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai High Court
Decided On
Case NumberA.F.O.D. No. 377 of 1965 with F.A. No. 155 of 1966
Judge
Reported inAIR1975Bom306; (1975)77BOMLR337; 1975MhLJ792
AppellantPhilips India Ltd.
RespondentKunju Punnu and anr.
Advocates:K.K. Singhvi and ;C.J. Sawant, Advs., i/b., Crawford Bayley & Co., Attorneys and ;S.R. Chitnis, Adv. in A.F.O.D. No. 377 of 1965 and ;K.K. Singhvi and ;C.J. Sawant, Advs., i/b., Crawford Bayley &
Excerpt:
the case debated on the liability of a medical consultant of a company in tort - the son of the plaintiff was an employee of the defendant who was working as a machine operator - the son fell ill suddenly - the company doctor had advised him to take leave without making a proper diagnosis of the disease - it was alleged that although the deceased was suffering from smallpox, but the doctor had treated him carelessly as a patient suffering from venereal disease - it was held on the basis of facts and evidence that the plaintiff had failed to prove the actionable negligence of the company doctor in wrongly treating the deceased, who was the employee of the company - therefore, neither the doctor not the company was liable - - 2 to give proper treatment, he failed to tell defendant no. 2.....vaidya, j. 1. the above first appeals raise an important question of the liability of a medical consultant of company in tort. they are directed against the judgment and decree passed by the joint civil judge, senior division, poona on april 30, 1965 ordering defendant no.1 philips india ltd,, and defendant no.2, dr. shaikh suleman, a medical practitioner of poona, to pay to the plaintiff-respondent no.1 kunju punnu the mother of the deceased employee of defendant no.1 rs. 18,000/- together with costs of the suit and future interest on that amount at the rate of 6 percent, per annum till satisfaction. 2. the allegations made in the plaint presented in forma pauperis by kunju punnu on july 11, 1962 and registered as special civil suit no. 31 of 1963. can be briefly summarised as under:- 3......
Judgment:

Vaidya, J.

1. The above first appeals raise an important question of the liability of a medical consultant of company in tort. They are directed against the Judgment and decree passed by the Joint Civil Judge, Senior Division, Poona on April 30, 1965 ordering defendant No.1 Philips India Ltd,, and defendant No.2, Dr. Shaikh Suleman, a medical practitioner of Poona, to pay to the plaintiff-respondent No.1 Kunju Punnu the mother of the deceased employee of defendant No.1 Rs. 18,000/- together with costs of the suit and future interest on that amount at the rate of 6 percent, per annum till satisfaction.

2. The allegations made in the plaint presented in forma pauperis by Kunju Punnu on July 11, 1962 and registered as Special Civil Suit No. 31 of 1963. can be briefly summarised as under:-

3. The plaintiff's son, V.K. Gopal was an employee of defendant No.1 company on a monthly salary of Rs.105/- as a machine operator. Defendant No.2 is the Medical Officer and Adviser of defendant No.1 company. Defendant No.2 as the Medical Officer and Adviser of defendant No.1 company. Defendant No.2 as the Medical Officer of the Company had to treat the patients of defendant No.1 company free of charge. On December 20, 1961 the plaintiffs son, Gopal fell ill suddenly, while he was working in defendant No.1's factory at Loni kalbhor. Defendant No.2 treated and advised him to take leave for two days without making a proper diagnosis of the disease from which Gopal was suffering. It was alleged that although the deceased Gopal was suffering from smallpox, defendant No.2 carelessly treated him as a patient suffering from venereal disease, notwithstanding that Shankar, the brother of the deceased, told defendant No.2 that Gopal was not suffering from venereal disease, notwithstanding that Shankar, the brother of the deceased, told defendant No.2 that Gopal was not suffering from any venereal disease. Shankar, who was the driver in the service of the General Manager of the company, told the General Manager assured that he would tell defendant No.2 to give proper treatment, he failed to tell defendant No.2 anything of that kind. It is further alleged that as a result of this wrong and negligent treatment and cold. Even then, he was asked by defendant No.2 to work in the factory and he worked on December 22, 1961. As his temperature increased, he could not continue working. He went to defendant No.2 asked his advice. Defendant No.2 advised him to take another two days leave and Gopal continued to be under the treatment of defendant No.2 though Gopal was not suffering from venereal disease. Defendant No.2 gave very strong treatment and this made the patient worse. Then defendant No.2 got him admitted in his dispensary on December 25, 1961 at about 11.30 a.m. kept him there for about 24 hours, but continued to treat him very negligently and carelessly on the basis that Gopal was suffering from venereal decease. Gopal became serious Defendant No.2 sent him to Dr. Grant's Nursing Home. It was, however too late and Dr. Grant finding that it was a case of smallpox, sent Gopal to the infectious disease hospital, where Gopal died on December 31, 1961. It was, therefore, submitted by the plaintiff that her son Gopal died on account of gross and culpable negligence and wrong treatment given by defendant No.2 and thereby the plaintiff was required to suffer a heavy loss amounting to Rs.25,000/- which defendant No.1 was liable to pay as the employer of defendant No.2. The plaintiff further claimed damages, in addition to Rs.25,000/-, of Rs.795/-, the amount which the plaintiff was required to pay to Dr. Grant and his Nursing Home, and Rs.222.51p., the amount which she had to spend for purchasing medicines and injections, and remitting Rs. 17.51 p. she claimed in the suit Rs.26,000/-.

4. The suit was resisted by both the defendants. In its written statement, Ex.12, defendant No.1 company denied its liability to pay any compensation and denied all the allegations made against defendant No.1 company denied Ex.12 defendant No.1 company denied its liability to pay any compensation and denied all the allegations made against defendant No.1 company and defendant No.2 and in particular the allegation that defendant No.1 company and defendant No.2 and in particular the allegation that defendant No.2 was an employee of defendant No.1. In his written statement Ex.15, No.2 admitted that he was a permanent Adviser and Consultant in the employment of defendant No.1 on part - time basis, but denied that the deceased Gopal died of smallpox or that he was under his treatment at the time of the death. According to him, the deceased was not treated by him with gross negligence or carelessness, nor was he treated as a V.D. patient. He contended that as soon as he found that there was rash on the body of the deceased Gopal he immediately consulted Dr. Grant, who was also the Medical Consultant of defendant No.1 and Dr. Grant advised Gopal's brother to get gopal admitted in Session Hospital and it was the deceased Gopal's admitted in the Nursing Home of Dr. Grant who in fact, carried out all pathological and other investigations and gave him the best available treatment in Poona. Thereafter, defendant No.2 was watching the progress of the case. There were signs of improvement, where the patient was removed by his brother and taken to the Nayadu infections diseases hospital and from there to the Cantonment General Hospital, where ultimately he died on December 31, 1961. Defendant No.2 contended that the deceased hospital and from there to the Cantonment General Hospital. where ultimately he died on December 31, 1961. Defendant No.2 contended that the deceased Gopal was treated by him as an employee of defendant No.1 company in accordance with the rules of defendant No.1 with all due diligence and care and as such neither defendant No.2 nor defendant No.1 company was liable to pay any damages to the plaintiff.

5. In view of these contention the learned Civil Judge framed 15 issues, but the important issue to be decided was whether the plaintiff proved the defendant No.2 treated the deceased with gross negligence and carelessness.

6. On behalf of the plaintiff, Gopal's brother, Shankar, was examined ., The plaintiff also examined Dr. Gupchup a doctor working in the Cantonment General Hospital, where the deceased Gopal was taken on December 29. 1961 at 6.30 p.m. in a serious condition as a smallpox patient and where he died at 3.45 p.m. on December 31, 1961: one Calut Fernandes, who had taken the photos of Gopal at the Cantonment General Hospital on December 31, 1961: one Calut Fernandes, who had taken the photos of Gopal at the Cantonment General Hospital on December 31, 1961: one Calut Fernandes who had taken at 12.10 p.m. in December 1961 and from where he was removed to the Cantonment General Hospital at 6 0.m. But as the case papers were in the handwriting of one Dr. Kulkarni, who had left the hospital, he merely stated that the case papers were not signed by Dr. Kulkarni, who had left the Navadu Hospital and joined railway service.

7. Defendant No.2 examined himself and Dr. K.B. Grant, M.D.FC.P.C. of Ruby Hall Nursing Home. Poona. The parties also led the documentary evidence of correspondence and papers relating to the service of the deceased and case papers. Ex.94 is the letter of appointment of Dr. Suleman Shaikh, setting out the conditions of his contract entered into by defendant No.1 company with him to implement the medical scheme for the benefit of their employees in their factory in Loni Kalbhor, for which purpose they appointed him as their physician and consultant on a part-time basis. The relevant conditions so far as the scheme is concerned were conditions Nos. 3, 4, 5, 8 and 9 Condition No.3 said that be should attend to the staff for medical advice and treatment at the factory at Loni, Poona twice a week as per the provided that the employees would be free to seek medical advice from him at same without any extra fees. Condition No.5 laid down that in case it was necessary to prescribe costly medicines and drugs, tonics, injections etc., costing more than Rs.4/- he should obtain necessary approval from Dr. Grant Condition No. 8 his professional discretion, he would visit an employee in need of medical advice at his place for the first time in a spell of sickness and that he would be paid for such a visit separately at the rate of Rs.3 per visit. Condition No.9 provided that he should advice on and arrange for hospitalisation and specialist treatment whenever it was necessary.

8. Ex. 95 is another letter under which defendant No.2 was appointed as the permanent physician and consultant on a part-time basis and it reiterated the conditions in the earlier letter. Under these conditions, defendant No.2 was to draw a monthly honorarium of Rs.200/- and he was not entitled to any other benefit to which the employee of the company of permanent categories of the company of the permanent categories were entitled. In 11, 1959, Ex.96 the honorarium was described as salary and it was raised to Rs.300/- p.m. subject to the other terms and conditions of the appointment.

9. The learned Civil Judge, by his aforesaid judgment held that the suit was maintainable in the present form against both the defendants, that defendant No.2 was an employee of defendant No.1 company on or about the time of the illness and death of the defendant No.1 company on or about the time of the illness and death of the deceased Gopal and that the plaintiff proved that defendant No.2 treated the deceased with gross negligence and carelessness. He came to this conclusion, because he was of the view that defendant No.2 gave a wrong treatment to the deceased which deteriorated the health of the deceased. He further held that the deceased was not removed to Dr. Grant's Nursing Home at his own request and the defendants failed to prove that the deceased voluntarily and of his own accord discontinued the treatment of defendant No.2 and Dr. Grant. He was of the view that defendant No.2 failed to prove that he treated the deceased with such skill, knowledge, competence or diligence as was required or expected from him, and hence he passed the decree on the basis of the normal life of the plaintiff as 80 years.

10. The said decree is challenged by Philips India Ltd., defendant No.1 in First Appeal No.377 of 1965 and by Dr. Shaikh Suleman in First Appeal No.155 of 1966.

11. Mr. Singhvi, the learned Counsel for the company defendant No.1 submitted that, in the facts and circumstances of the case, the learned Civil Judge erred in holding that defendant No.2 had a duty to treat the deceased Gopal with more care and skill than he did: that there was no breach of duty on the part of Dr. Shaikh Suleman as a professional man, as he had shown a fair, reasonable and competent degree of skill and that as soon as he found complication, he referred the deceased to Dr. Grant who was also the medical officer of defendant No.1, No.2 was not liable for culpable negligence. He also contended that, in any event the death of Gopal in the Cantonment General Hospital was not proved to be the result of any negligence on the part of the defendant No.2 and hence Mr. Singhvi submitted that the decree passed against defendants Nos.1 and 2 must be set aside. In support, of his argument Mr. Singhvi relied on the evidence of Dr. Gupchup, the plaintiff's witness, who stated that the type of smallpox from which Gopal suffered was called haemorrhage smallpox because there was haemorrhage of membranes and some bleedings,. and such smallpox cases are mostly fat all and generally their treatment did not help in improving the patients. Mr. Singhvi submitted that the very fact that even Dr.Grant, who was a very renowned doctor in Poona, was unable to diagnose the disease of Gopal as smallpox and advised his removal to Season Hospital, showed that Dr. Shaikh Suleman could not be blamed for not treating the deceased as a small pox patient. He relied on the finding of the learned Civil Judge that Dr. Shaikh Suleman could not be held negligent as far as diagnosis was concerned, and submitted that defendant No.2's duty to treat the patient ended when he sent him to Dr. Grant and Dr. Grant due to the inability of the patient to pay the bills of the hospitals advised his removal to Season Hospital, which was a General Hospital, Mr. Singhvi relied on the terms of appointment of Dr. Shaikh Suleman and contended that the terms did not impose a duty on the doctor to look after the patient wherever he was removed or to watch his progress wherever he was removed or to watch his progress, wherever he was treated, as appears to have been assumed by the learned Civil Judge. He submitted that having regard to the admissions of Shankar and the Case Papers. It was clear that on December 12, 1961, Gopal went to Dr. Shaikh Suleman with a complaint of indigestion and 8 days later on December 20 1961 with a complaint of fever and cold. Gopal did not go to him on 22nd 23rd and 24th December 25 1961, Dr. Shaikh Suleman round that he had high fever and he was also having constipation and, therefore, gave a glycerin syringe and allowed him to lie down in the dispensary till 6. 45 p.m when he examined Gopal again and he found red pigmentation on his body . He therefore told Gopal that he should be pathologically tested and for this purpose, it was necessary to consult Dr. Grant Shankar who also in the dispensary at that time. agreed . Then Dr. Shaikh Suleman gave the full history of the case to Dr. Grant and asked Dr. Grant to examine Gopal. Dr. Grant wanted the patient to be admitted to his Nursing Home Gopal was accordingly admitted on December was accordingly admitted on December 26, 1961 at 10.45 a.m Dr. Grant examined him and approved of the treatment which was given by Dr. Shaikh Suleman.

12. Dr. Grant in his evidence stated that on examination he found that Gopal was suffering from bacterium Dr. Grant got several pathological tests made in the case. He found that there was rash and red pigmentation on the body of Gopal. In his opinion, the rash could have been due to several conditions, such as bacterium, Stevens-Johnson sysndrome. viraemia Stevens-Johnson syndrome viraemia and many other causes . Gopal was in the Nursing Home of Dr, Grant from December 26 to December 28, 1961 as seen by the evidence of Dr. Grant and the case papers produced by him. As the relatives of Gopal were unable to pay the charges of Dr. Grant's Nursing Home , Dr. Grant discharged him on December 29, 1961 with a note for being given to the authorities in the Sassoon Hospital where Dr. Grant's Nursing Home Dr. Grant discharged him on December 29, 1961 with a note for being given to the authorities in the Sassoon Hospital where Dr. Grant was honorary physician and Cardiologist since 1947. He gave the note to remove the patient to the ward assigned to him as the honorary physician and cardiologist since 1947 . He gave the note to remove the patient to the ward assigned to him as the honorary of the hospital and of B. J. Medical patient : was improving when he was in his Nursing Home and nobody suggested to him that the patient was suffering from smallpox and there was no epidemic of small pox and there was no epidemic of smallpox and there was no epidemic of smallpox and there was no epidemic of smallpox prevailing in Poona at that time after Gopal's removal from his Nursing Home, Dr. Grant never received information or intimation from any hospital that the patient had on attack of smallpox

13. We are of opinion, having regard to the evidence of Dr. Grant, that Dr. Shaikh Suleman had done all that he could do far Gopal and there was no responsibility on him to look after the patient after he was removed to the Sasoon Hospital.

14. The concept of negligences as a tort is expressed in the well-known definition of Alderson B. in Blyth v. Birmingham Waterworks Co., (1856) 11 Exch 781, as under:-

'Negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do'.

Lord Wright in Lochgelly Iron and Conal Co. v. M'Mullan, (1934) AC 1 said:-

'In strict legal analvisis, negligence means more than heedless or careless conduct, whether in omission or commission: it properly connotes the complex concert of duty, breach and damage thereby suffered by the person to whom the duty was owing'.

Doctors owe to their patients a duty in tort as well as in contract. It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. Although the standard is a high one a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of that kind occurs, or because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment. (See Salmond on the Law of Torts, 16th Edition, p. 232).

15. The Civil liability of medical men towards their patients is perhaps compendiously stated in R. v. Bateman, (1925) 94 LJ KB 791, as follows:-

'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 a patient he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, are, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward .........The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient's death has been caused by the defendant's indolence or carelessness, it will nt avail to show that he had sufficient knowledge: nor will it avail to prove that he was diligent in attendance, if the patient has been killed by his gross ignorance and un-skilfulness ...............As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards case of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he know, or should have known to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare..............' (See Charlesworth on negligence. Fifth Edn., pages 181 and 182. para. 272). The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill. There is no question of warranty undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. A defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence.

16. Lord Denning M. R. rightly pointed out in Hucks v. Cole, (1968) 118 NLJ 469, as follows:-

'A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. If affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best will in the world, thinks sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his filed so much so that his conduct might be deserving of censure of inexcusable'.

17. At page 580 of Charlesworth on Negligence, the law regarding the burden of proof on the plaintiff in an action for negligence is stated as follows generally:-

'In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it. hence it is for the plaintiff to give evidence of the facts on which he bases his claim to the redress which he seeks from the Court. His evidence may consist of facts proved or admitted and after it is concluded tow questions arise. (1) whether on that evidence negligence may be reasonably inferred, and (2) whether, assuming it may be reasonably inferred, it is in fact inferred'.

At page 581, it is stated that there is evidence of negligence if the facts proved and the inferences to be drawn from them are more consistent with negligence on the part of the defendant than with other causes. At page 583, it is stated that the plaintiff's evidence also must show that on the balance of probabilities the most likely cause of the damage was the defendant's evidence also must show that on the balance of probabilities the most likely cause of the damage was the defendant's negligence and not the negligence of any other person.

18. In Halsbury's Laws of England, Volume 26, at page 17, the law is stated as under:-

'22. Negligence: duties owned to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty of care in deciding whether to undertake the case a duty of carte in deciding what treatment to give; and a duty of care in his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient.

'23. Degree of skill and care required. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires: a person is not liable in negligence because someone else of better l skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men'.

The principles so stated by Halsbury were affirmed by the Supreme Court in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, : [1969]1SCR206 .

19. Taylor's Medical Jurisprudence, 12th Edition, at page 55 states:-

'Doctors must be profoundly indebted to Lord Justice Denning for his summing up in the case of Hatcher v. black. The details of the negligence alleged are of no importance to the principles involved, but the generalization made in the Judge's summing up speech was vital to a fair and just appraisal of doctors' responsibilities. He said, 'In a hospital, when a person was ill and came in for treatment no matter what care was used. there was always a risk; and it would be wrong and bad law to say that simply because a mishap occurred the hospital and doctors were liable' .............. 'The jury must not, therefore, find him negligent simply because one of the risks inherent simply because one of the risks inherent in an operation actually took place, or because in a matter of opinion he made an error of judgment. They should find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure'. It is also necessary to bear in mind the following warning given to Courts by Goddard L. J. as he then was, in Mahon v. Osborne. (1939) 2 KB 14 :- 'I would not for a moment attempt to define in vacuo the extent of a surgeon's duly in an operation beyond saying that he must use reasonable care, nor can I imagine anything more disastrous to the community than to leave it to a jury or to a judge, if sitting alone, to law down what it is proper to do in any particular case k without the guidance of witnesses who are qualified to speak on the subject'. Moreover, it is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule. In the law of negligence the test whether the consequences were reasonably foreseeable is a criterion alike of culpability and of compensation, as held by the Privy Council in Overseas Tankship ( U. K.) Ltd. v. Morts Dock and Engineering Co. Ltd. (1961) 1 All Er 404.

20. In Lord Nathan's Medical Negligence, 1957 Edition, the following observation of Lord president Clyde in Hunter v. hanley, (1955) SLT 213, is relied upon at page 21:-

'The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care'.

'The medical man must therefore exercise reasonable skill and care, measured by the standard of what is reasonably to be expected from the ordinarily competent practitioner of his class . If he does so he will have discharged his duty and cannot be held answerable even if the treatment has untoward results. For the medical man is not an insurer; he does not warrant that his treatment will succeed or that he will perform a cure Naturally he will not be liable if. by reason of some peculiarity in the frame or constitution of a patient which was not reasonably to be anticipated, a treatment which in ordinary circumstances would be sound has unforeseen results. But he will not even be liable for every slip or accident.

'The standard of care which the law requires is not insurance against accidental slips. It is such a degree of care as a normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case in question. It is not every slip or mistake which imports negligence'.

Thus in order to decide whether negligence is established in any particular case the act or omission or course of conduct complained of must be judged, not by ideal standards nor in the abstract but against the background of the circumstances in which the treatment in question was given. This is not to say that the standard of skill and care required varies with the circumstances of each case: the standard is always the same, namely the conduct of the ordinarily competent and careful practitioner, but the degree of care required to comply with that standard is conditioned by the actual circumstances of the case. It is the degree of care which varies, not the standard'.

At page 104 of the Book. Lord Nathan has observed:-

'The burden of proving negligence rests upon the person who asserts it. In medical negligence cases therefore it is for the patient to establish his claim against the medical man and not for the medical man to prove that he acted with sufficient care and skill. It is by means of evidence of course that the patient will seek to and indeed must, establish his claim'; but the evidence he adduces may take several different forms. The most important form. ordinarily, is oral evidence which may consist both of the sworn testimony of the patient himself and other persons upon matters of fact such as what was down and what was said upon the relevant occasions, and of the sworn testimony of experts upon matters of opinion, such as the correct mode of treatment for a specific condition. But the patient is not confined to oral evidence; he may also rely upon documentary evidence in order to establish the facts upon which he bases his claim of negligence'.

At page 107 of the Book, it is observed:-

'In all cases, however, the facts proved must be sufficiently compelling to give rise to an inference of negligence; a mere conjecture will be insufficient. Thus if the facts are such that the judge or jury fell able to say 'We are satisfied that on the balance of probabilities there was a breach of duty on the part of the defendant' the plaintiff is entitled to succeed. If, on the other had, the facts proved leave the judge or jury in the position of being able to say no more than that 'a possible explanation is that the defendant failed in his duty but the materials before us do not enable us to say that this was a more probable cause of the mishap than any other', then negligence has not been established; the case has not passed from the realm of conjecture to that of legal inference'.

21. Regarding negligence in diagnosis, Lord Nathan has observed at page 43:-

'The diagnosis of ailments is normally the first matter with which the medical man is concerned; and there can be no doubt that he may find himself held liable in an action for negligence if he makes a wrong diagnosis and thereby causes injury or damage to his patient (as for example where the false diagnosis leads the medical man to apply a wrong treatment or to refrain from applying some treatment which, if it had been applied at once, would have averted or cured the condition complained of). It follows, however, from what has already ben said as to the standard of care required from the medical man, that a mistaken diagnosis is not necessarily a negligent diagnosis. it was said forty years ago, and the principle still holds good, though allowance must of course be made in any particular case for subsequent advances in technique, that 'no human being is infallible: and in the present state of science even the most eminent specialist maybe at fault in detecting the true nature of a diseased condition. A practitioner can only be held liable in this respect if his diagnosis is so palpably wrong as to prove negligence, that is to say. If his mistake is of such a nature as to imply an absence of reasonable skill and car n his part. regard being had to the ordinary level of skill in the profession'.

22. Regarding attendance to the patient, the Book states at page 41 as follows:-

'A medical man may be guilty of negligence if be fails to attend to his patient with the regularity or promptitude which his patient's condition demands, but he can only be held liable civilly if his lack of attention leads to an avoidable deterioration of the patient's condition. Whether the medical man has complied with his duty to be reasonably diligent in attendance can only be decided after the fullest consideration of the circumstances of the particular case; for it is only in the light of those circumstances that it is possible to measure the extent of the duty. He may well be guilty of negligence, however, if for example, as seems to have happened in a Scottish case, he goes in holiday without informing his locum of the existence or condition of one of his patients with the result that the latter's finger remains poultice for an excessive time, eventually necessitating amputation'.

23. In an unreported judgment in O. O. C. J. Appeal No. 27 of 1947. Amelia Flunders v. Dr.Clement Periara. D/- 29-9-1947 (Bom), Chagla, Ag. C. J., and Bhagwati, J. observed:-

'The law on the subject is really not in dispute. The plaintiff has to establish first that there had been a want of competent care and skill on the part of the defendant to such an extent as to lead to a bad result. The plaintiff has also to establish the necessary connection between the negligence of defendant and the ultimate death of the plaintiff's son'. In that case, a large number of experts k were examined in regard to the treatment given by the doctor and it was held that the doctor was not negligent and the appeal Court confirmed the original judgment in the case by Tendolkar, J. dated March 5, 1947, which is also an unreported judgment but in which Tendolkar, J. observed:-

'Action for negligence in Indian are to be determined according to the principles of English Common law and those principles of English Common law and those principles have been set out in an action for negligence against a medical man by Harle, C. J. in Rich v. Pierpont, (1862) 3 F & F 36 : 176 E. R. 16 in these words:-

'It was not enough to make the defendant liable that some medical man, of far grater experience or ability, might have used a greater degree of skill, nor that he might possibly have used some grater degree of care. The question was whether there had been want of competent care and skill to such an extent as to lead to a bad result ...... Considering how much the treatment of a case depended upon its varying phases, which changed as quickly as the shifting hues of the heavens, it was hard for one medical man to come forward and condemn the treatment of a brother in the profession. and say that he would have done this or that, when probably, had he been in a position to judge the case from the first, he would have done no better.' It is clear therefore that the degree of competent care and skill by which the defendant is to be judged is such as maybe reasonably expected from an average person in his profession and not from any person specially gifted or qualified. The defendant in this case is a general practitioner and is to be judged by the average standard of a general practitioner and not even of a consultant, much less of a surgeon, who cures diseases by operation and not by medical treatment. Moreover, in order to succeed, it is not sufficient for the plaintiff to establish the negligence of the defendant; it is necessary further to establish the necessary connection between such negligence and ultimate death'.

24. It is also useful in this connection to refer to the decision of the Privy Council in Vancouver General Hospital v. McDanial, 1934 WN 171 (PC), in which the privy Council had to deal with a small - pox case. The appellants were a statutory corporation which administered a hospital at Vancouver for small -pox and other infectious diseases. The respondent Annabelle McDaniel (an infant) had been a paying patient in the hospital suffering from diphtheria. About nine days after she had been cured and discharge, she developed small-pox. By the judgment appealed from she recovered against the appellants & 5000 damages for disfigurement to her caused thereby: she alleged that she had contracted small pox owing to the negligence of the appellants; the respondent her father, recovered & 545 for medical expenses incurred by him. The negligence alleged was that while in the hospital she had been placed in a room on the same floor as patients suffering from small-pox and had been attended by nurses who also attended those patients. The appellants denied negligence, and pleaded that the technique adopted in the hospital for the prevention of infection was adopted under competent medical advice, and was in accordance with approved modern practice, though the appellants conceded that the infant respondent had contracted smallpox by what was described as cross-infection, while in the hospital and in the circumstances alleged. The Privy Council held:-

'The question was whether the respondents had discharged the onus which was upon them. The substantive evidence adduced by them was meagre in the extreme, and was consistent with evidence adduced by the appellants that in modern practice the system adopted was in vogue throughout Canada, also in the United States. The defence that the system had been adopted upon competent medical advice was not definitely established, but the appellant's technique, in material particulars, was endorsed by every medical witness called by them. Dr. Mc Eachern, associate director of the American College of Surgeons, who was responsible for an annual survey of 3464 hospitals in the United States and Canada had affirmed that the appellants' technique, of which he had knowledge, was in accord with the most approved hospital practice, and that it was the best system known to medical science to - day. He stated that the proximity of smallpox patients to other patients in an infections diseases hospital was quite an accepted procedure in the modern method of handling infectious disease. As regards a common nursing staff, he described that as also accepted procedure in all modern systems'.

In their Lordships' opinion the appellants showed that they had acted in accordance with general and approved practice, and accordingly were entitled upon the evidence to succeed, though their Lordships made it clear that they were offering no made it clear that they were offering no opinion of their own as to the relative merits of what was termed the unit system in contradistinction to the isolation system, for the treatment of smallpox.

25. Dr. H.S. Mehta in his Medical Law and Ethics in India, 1963 Edition, at page 209 observes:-

'The value of expert evidence is obvious in a case where negligence is alleged against a medical man or a medical institution. It may be remembered that the cardinal test for determining the question of medical negligence is: whether a reasonably competent medical man would have acted in more or less the same manner in which the medical man against whom negligence is alleged had acted . It is, therefore, natural that Courts of law appreciate the assistance of expert medical evidence to ascertain this point'.

26. It is, therefore, clear that in any action for negligence against a doctor, as in any other action for negligence, the plaintiff has to prove: (1) that the defendant was under a duty to take a reasonable care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonable care: (2) that there was a breach of duty on the part of the defendant and (3) that the breach of duty was the legal cause of the damage complained of and such damage was reasonably foreseeable.

27. It is in the light of the above settled principles governing medical men that we have to decide whether defendant No. 2, in the facts and circumstances of the present case, was negligent. The evidence referred to above of Dr. Gupchup and Dr. Grant and the conditions of employment of defendant No. 2 are most relevant in this connection . The learned Civil Judge disbelieved the uncorroborated allegations made by the plaintiff and her son Shankar that the deceased Gopal was treated by defendant No. 2 as a V. D. patient. The case papers are before the Court. Dr. Grant is one of the renowned doctors in Poona, who has been running a busy Nursing Home and who is an Honorary to B. J. Medical College and Sassoon Hospital. Even he could not arrive at a clinical finding with regard to the disease from which Gopal was suffering without a detailed pathological test of Gopal. The learned Civil Judge appears to have come to the conclusion that Dr. Shaikh Suleman was negligent, because he did not take proper care to examine Gopal or to find out the real cause of the ailment or to give proper treatment on the basis of the case paper of Gopal, which is at Ex. 81, and the note book maintained by Defendant No. 2, which is at Ex. 87, without due regard to the above principles governing the law of negligence and the proof of such negligence.

28. In the plaint, the mother of the deceased, who is the plaintiff and who did not have any personal knowledge, in effect submitted that defendant no. 2 treated Gopal with gross negligence and carelessness, inasmuch as he failed to diagnose the disease of Gopal as smallpox and went on to treat him as if he was suffering from V. D. Shankar, the brother of the deceased, who gave evidence, also supported this allegation, although he appears to have had no personal knowledge in regard to what happened between defendant No. 2 and the deceased Gopal till December 25, 1961. It is not in dispute that the deceased Gopal was unmarried and was staying separately from Shankar, The deceased was staying in his own room in East Street in Poona Cantonment. Shankar was residing in the compound of the bungalow occupied by the General manager of defendant No. 1 company, as he was working as the driver of the General Manager's car from 1956 till September 13, 1963, when he was dismissed. Defendant No. 2, Dr. Shaikh Suleman, at the material time, was practising as a general medical practitioner in Poona. He had practice for about 32 years and he had passed the L. C. P. S. examination . He was also employed as a medical officer with defendant NO. 1 company and was treating and advising the employees of defendant No. 1 company under the medical scheme which the company had adopted for the benefit of its employees.

29. According to Dr. Shaikh Suleman, the deceased approached him for the first time on December 12, 1961 with a complaint for digestive trouble. He gave him medicine and a pill on that day. Thereafter, Gopal went on December 20, 1961 to him complaining that he had fever, cold and headache. He treated him for the symptoms he gave by giving medicine and a pill. He also gave him a medical certificate to enable him to get leave for a day or two. Gopal went to him also on December 21, 1961, but he k did not go to him on December 22, 23 and 24, 1961. What happened on the most important date, so far as he was concerned, namely, December 25, 1961, is described by him as under:-

'On 25th December, 1961 he was brought to me by his elder brother Shankar at about 11.30 a. m. in a riksha. He gave me history to the effect that Gopal had got constipation for four days and fever. I examined him and found that he had 104 dg. temperature and constipation. I put him in the room and gave him a syringe glycerin. After about an hour. I wrote down the prescription and gave him the injection of dicrysticin. Before injecting him I gave him a test does, waited for 20 minutes and found that there was no reaction of allergy and then only I gave him full does. Then I wrote k down the prescription and asked Shankar to purchase the medicine of Submachine from the chemist. He said to me that he had no money to purchase the medicine. I should purchase it for him and that High Court e would pay the cost afterwards. Accordingly I sent for purchasing those capsules and instructed Shankar to give one capsule every four house. Gopal was kept there only at the request of his brother and I left for may office, I returned to the clinic at about 6 p. m. and examined him. His brother came to meat about 6.45 p. m. when I would like to have pathological test about the cause of the red pigmentation. I also told them I would like to consult Dr. Grant about the same and Shankar and then I should do so. Then I instructed Dr. Grant after giving him the full history of the case and the treatment given by me. Dr. Grant told me that investigation will have to be made in that case and so I should take Gopal either to his Nursing Home or to the Sassoon hospital. I came to my clinic and told Shankar as well as Gopal what Dr. Grant said to me. Both of them told me that a s defendant No.1 used to pay Rs. 75/- for the patient Gopal should be take to the Nursing Home of Dr. Grant and not to the Sassoon Hospital. Then he was admitted to Dr. Grant's Nursing Home on the 26th December with my letter'.

What Dr. Shaikh Suleman stated is fully supported by the case paper and the note book produced by him at Exs. 81 and 87.

30. The plaintiff has led no expert evidence of any doctor to show that any think that Dr. Shaikh Suleman did till this time amounted to the breach of any duty which he owned as a doctor to his patient Gopal. We do not think that the duty cast on the company's doctor in respect to the company's employees is any higher or lower than the duty of an average doctorate towards his patient. There is nothing in the case papers or in the evidence of Dr. Shaikh Suleman to show that he treated Gopal as a V. D. patient. No question was asked even to Dr. Gupchup, who was the plaintiff's witness as to whether any treatment given by Dr. Shaikh Suleman would have led to deterioration of the condition of Gopal, or had anything to do with the subsequent diagnosis of the disease as small-pox. There is some dispute as to whether Gopal had visited k Dr. Shaikh Suleman on December 22, 23 and 24, 1961 and as to whether Shankar was right when he said that Gopal had gone to the doctor on December 22, 23 and 24, 1961 and as to whether Shankar was right when he said that Gopal had gone to the doctor on December 22, 1961 or December 23, 1961. December 24 was a Sunday and it is common ground that gopal had not gone to the doctor on that day. The case papers do not support the statement of Shankar. We do not find any reason to disbelieve Dr. Shaikh Suleman when he said that Gopal had not come to him on December 22, December 23 and December 24, 1961.

31. There is also a dispute as to whether Shankar was attending Gopal and as to whether Dr. Shaikh Suleman told him that Gopal was suffering from syphilis as stated by Shankar, here again we are not inclined to believe Shankar's evidence with regard to the oral discussion which he had with Dr. Shaikh Suleman having regard to the treatment which Dr. Shaikh Suleman gave to Gopal, as shown by the case papers and his subsequent conduct in taking him to Dr. Grant's Nursing Home, where he was treated from December 26, 1961 to December 29, 1961 by Dr. Grant after pathological test for becteraemia. We do not find anything negligent on the part of Dr. Shaikh Suleman in advising his hospitalisation. According to Dr. Shaikh Suleman. Shankar suggested that the deceased should be taken to Dr. Grant, assuring that he would meet the expenses. According to Dr. Shaikh Suleman, it was he who suggested that the deceased should be taken to Dr. Grant's Nursing Home. Here again, we do not see any reason to disbelieve Dr. Shaikh Suleman and, in any event we do not see how by advising Shankar to take Gopal to Dr. Grant Dr. Shaikh Suleman can be held to be negligent.

32. It is common ground that Gopal was removed from Dr. Grant's Nursing Home to the knowledge of Dr. Shaikh Suleman but it seems that Shankar took him to Sassoon Hospital, where he was asked to go to Nayadu's Infectious Diseases Hospital, as someone there suspected that the deceased were suffering from an infectious disease, and accordingly Gopal was taken to Nayhadu's Infectious Diseases Hospital, on December 29, 1961, where he was treated till evening and he was removed from there to the Cantonment General Hospital ,as Shankar and gopal were told that gopal was suffering from small-pox and that nayaud's Infectious Diseases Hospital did not treat small-pox cases coming from Containment are. It is also undisputed that from December 29. 7.30 p. m. till the death of Gopal, Gopal was treated as a small-pox patient in the Cantonment General Hospital for hemorrhage small pox. Gopal died due to hemorrhage small - pox.

33. There is nothing to show that Shankar or anyone else informed Dr. Shaikh Suleman as to where Gopal was being treated after he was removed from Dr. Grant's Nursing Home. We do not think that ea company doctor can be held responsible to a patient if he and his relatives do not care to contract him for advice. It must be, therefore, held that Dr. Shaikh Suleman was not responsible as to what happened to Gopal after he was removed from Dr. Grant's Nursing Home. It is also impossible to hold that Dr. Shaikh Suleman could be responsible for anything that happened to the deceased while he was under the treatment of Dr. Grant in his Nursing Home from December 26 to December 29, 1961, when he was discharged. In fact Dr. Grant has categorically stated that he did not allow any outside doctor to see even the case papers of the patient or to interfere with his treatment.

34. We thus find no evidence whatsoever to show that from December 12. 1961, when Gopal saw. Dr. Shaikh Suleman, according to Dr Shaikh Suleman, till Gopal's death, anything has been established against Dr. Shaikh Suleman which can be said to be unreasonable or incompetent conduct on his part in the diagnosis and treatment and care of Gopal. The very fact that Dr. Grant, who is an M. D. F. C. P. S. with 20 years experience and an Honorary to Sassoon Hospital and B. J. Medical College as the Honorary Physician and Cardiologist since 1947, was not able to diagnose the disease of Gopal as small-pox shows that Dr. Shaikh Suleman, who is a general practitioner and a company doctor, cannot be blamed for the error, if any, in his diagnosis of the disease of Gopal.

35. Moreover, the plaintiff has not led any expert evidence to show that on or before December 25, 1961, any doctor of ordinary skill and competence could have diagnosed the disease of Gopal as small-pox or treated him for small pox. On the contrary the evidence given by Dr. Gupchup on the basis of the record relating to Gopal, shows that the type of small pox which unfortunately killed Gopal was haemorrhage small pox which according to Dr. Gupchup, who had experience for some years of the infectious diseases, is fatal. He even admitted that any treatment that was given in respect of such small pox patients did not improve the patients. he also admitted that he had not applied any pathological test for confirming his diagnosis, because the pathological test was not within easy reach for him. he agreed with the grew expressed in Dickson on Small-pox, 1962 Edition, that in some patient the fulminating or haemorrhage small-pox was so overwhelming that it may occur within 24 to 36 hours with no outward manifestations at all and that appearance are very indefinite with no findings on which to base a certain diagnosis. There was admittedly no epidemic of small pox in December 1961 in Poona,. It is, therefore, quite possible that neither Dr. Shaikh Suleman nor Dr. Grant could suspect that Gopal, who had already some previous vaccinations,. could be suffering from small pox because Gopal was in fact not suffering from small-pox. It may be that the fulminating smallpox suddenly appeared on December 29, 1961 after the discharge of Gopal from Dr. Grant's Nursing Home . In any event, it can never k be said that any defect or any error in the treatment or diagnosis of Dr. Shaikh Suleman had led to any deterioration of the health of Gopal or to the appearance of the fulminating small-pox which killed him. We do not think that in the absence of some expert evidence to show that there was something wrong in the treatment given by Dr. Shaikh Suleman on December 25, 1961 and earlier, it is open to the Court to hold that he was guilty of negligence in examining , diagnosing or treating Gopal as long as Gopal was under his care. The plaintiff has also not proved by any evidence on record that the death of Gopal was caused by anything that was done or omitted to be done by Dr. Shaikh Suleman. In the absence of such proof, even assuming that there were some negligence, the plaintiff cannot succeed.

36. This would have been enough to dispose of this matter but we rind that the learned trial judge has recorded his findings, without applying the correct principles of law of medical negligence to the facts of the case on the basis of the conjectures nd surmises and irrelevant considerations and misunderstanding the evidence on record. Courts should be careful in censuring professional men like doctors. In the absence of clear and satisfactory evidence of negligence from which the only probable inference is one of negligence, it would be wrong to censure doctors who belong to a learned profession and who are ordinarily expected to maintain high standards of professional conduct in dealing with their patients. We, therefore, proceed to deal with the reasons and findings of the learned Civil Judge on the basis of which he has condemned defendant NO.2 as negligent and virtually disbelieved Dr. Grant and censured him by saving that he was prepared to say anything in Court to protected a fellow doctor like defendant no. 2.

37. At the outset, the must be noted that although the learned Civil Judge rightly disbelieved Shankar's evidence and said that it was not possible to hold that Dr. Shaikh Suleman had treated Gopal as a. V. D. patient in para, 10 of his judgment he appears to have tacitly assumed that there was negligence on the part of Dr. Shaikh Suleman in not disagreed stated above, having regard to the nature of the smallpox which killed Gopalk, it was not possible for Dr. Shaikh Suleman or even Dr. Grant to diagnose the disease as smallpox at the stage at which they had treated Gopal. It may be that having regard to the evidence of Dr. Gupchup and that is stated in Kickson's Book, which unfortunately was not made available to us by the defendants counsel and attorneys, it was impossible k for a doctor with ordinary kill and competence to diagnose it at that stage. It is also possible that the fulminating or hemorrhage smallpox occurred after Gopal was discharged from Dr. Grant's Nursing Home.

38 It will be useful in this connection to notice the information contained in the Encyclopedia Britannica Volume 20, about that nature of the eruption in smallpox, which is as under:-

'The eruption of smallpox, whether scantly or profuse, has more lesions on the parts of the body exposed to irritation than elsewhere more on the face than on the abdomen and chest, more on back of the arms and hands than on the front, more on the limbs than on the trunk, and more on the back than on the abdomen. Protected places such as the armpits, the depression of the eyelid, and the back of the ear (unless irritated by wearing glasses) are relatively spared. However, unusual and extremely severe forms of smallpox may be evidenced only by prostration, deep redness of the skin with hemorrhages, and sometimes a fatal outcome occurring before the delayed eruption of pocks with its characteristic distribution becomes apparent. The presence of vaccination scars should not influence the diagnosis of smallpox; immunity diminishes in some persons more rapidly than in others.

Of laboratory methods of diagnosis, the most trustworthy is the identification of the lesions produced on the chorioallantoio membranes of the chick embrovo. This requires a minimum of three days and a laboratory with 12 days incubated fertile eggs, a skilled inoculate or, and a pathologist trained to recognize the lesions. Microscopic examination, agar gal precipitation, hemaglutination inhibition and complement fixation tests are quicker and helpful, but less definite in interpretation'.

It is, therefore, clear that in some fatal case of smallpox the medical science is still very defective in the diagnosis of the disease. Moreover as stated by Dr. Gupchup even the pathological tests were not easily available in his hospital. having regard to all these facts, it cannot be said that Dr. Shaikh Suleman was guilty of any negligence is not coming to the conclusion on December 25, 1961 or till December 29, 1961 (though he was actually not responsible for the treatment and diagnosis of the disease of Gopal from and after December 26, 1961), that the disease which had affected Gopal was smallpox.

39. In para. 11 of the judgment, the learned Civil Judge has blamed Dr. Shaikh for not consulting Dr. Grant till late in the evening of December 25, 1961 and for not changing the treatment. though his treatment did not bring about improvement in the condition of Gopal. The learned Judge, in our opinion, was wholly wrong in coming to the conclusion that the treatment which Dr. Shaikh Suleman gave to the patient required to be changed in the facts and circumstances of the case. The only medical witness examined by the plaintiff. Dr. Gupchup, was not asked any question on behalf of the plaintiff as to whether there was anything wrong in the treatment given by Dr. Shaikh Suleman. Dr. Shaikh Suleman maintained that the treatment which he gave was the proper treatment. No question was asked to him as to whether any change was necessary during his treatment. The case papers do not show that Gopal had gone to Dr. Shaikh Suleman on December 22, and December 23, 1961. It is common ground that he did not go on the 24th, which was a Sunday. In these circumstances, when could Dr. Shaikh Suleman consider the change of any treatment? The learned Judge was not justified in holding that merely because Dr. Shaikh Suleman stated that 'after careful examination, he noticed rash on the body of Gopal'. meant that he had never carefully examined the patient earlier. That, in our opinion, is not at all fair to a medical mans who says in fact on oath that he had examined and produced the case papers to show that he had started the treatment for the patient. The learned Judge was also wrong in assuming without any basis, that he did not care to know what the disease was, although the treatment which was given by Dr. Shaikh Suleman was of high fever and constipation and he said on oath before the Court that he treats Gopal as having infectious fever and this was supported by the evidence of Dr. Grant who said that Dr. Shaikh Suleman had told him that Gopal was suffering from flu.

40. The learned judge has blamed Dr. Shaikh Suleman for not watching the progress or regress of his treatment right from December 12, 1961. The learned Judge was not justified in holding that his treatment was wrong merely because on December 25, 1961, the patient appeared before the doctor with high fever and constipation. It is difficult to understand how the learned Judge could come to the conclusion that merely because Dr. Shaikh gave Dicrysticin injection and Subamycin capsules, that the line of treatment required to be changed. There was no evidence on record from which the learned Judge could come a such a conclusion.

41. As stated in the passage from the judgment of Lord Goddard quoted above, it is not for the Court o sit in judgment over the treatment which the doctor had given. The doctor had a discretion. It was for the plaintiff to establish by expert evidence that in the circumstances, the doctor should have changed his treatment before the learned Judge could infer that there was something wrong with the treatment. As far as we can infer from the treatment of Dicrysticin and Subamycin we must say that that was considered to be the normal treatment for some years for high fevers. In any event, there is nothing on the record to show that the streptonvicin and penicillin drugs or Submachine and penicillin drugs or Submachine drugs, which were given for some years to patients, would lead to any deterioration of the condition of the patient. The learned Judge, in our opinion, jumped to the conclusion, that Mr. Shaikh Suleman had acted in a careless manner in treating the patient right from the beginning. without any foundation in the evidence.

42. The evidence on record, on the contrary, shows that whenever Gopal came to Dr. Shaikh Suleman, he gave all treatment which ordinarily a reasonable medical practitioner would give in 1961. It may be that in 1965, when the suit was heard, the treatment might have been different. But, as observed by Lord Denning in one case, it is not possible to judge the treatment given by Dr. Shaikh Suleman in the year 1961 with the medical spectacles of 1965 or later years. We have gone through the entire evidence carefully. We have seen that case papers and we find no reason whatsoever to support the finding of the learned Civil Judge that Dr. Shaikh Suleman was careless in examining, diagnosing or treating Gopal as long as he was under his care and advice.

43. The learned Judge in para 12 of his judgment has blamed Dr. Shaikh Suleman (1) for not giving proper history of the patient to Dr. Grant. (2) for not foreseeing the adverse effects of wrong treatment and (3) for trying to whitewash the defects his treatment by describing the disease as ineffective fever. We find no basis for any of these conclusions The learned Judge has relied on a minor discrepancy between the evidence of Dr. Shaikh Suleman and Dr. Grant, with regard to the giving of the history of Gopal to Dr. Grant, for holding that Dr. Shaikh Suleman did not give the history of the patient to Dr. Grant, although both of them say that the history was given. Dr. Shaikh Suleman said that he had personally given the history to Dr. Grant. Dr. Grant said that it was given on the phone. The learned Judge, in our opinion, was not justified in giving importance to this discrepancy having regard to the fact that the two doctors, who are both busy, were giving evidence about the event which had happened nearly four years earlier and if they did not give identical evidence with regarded to the manner in which Dr. Grant was contacted and told by Dr. Shaikh Suleman it was not proper to infer that Dr. Shaikh Suleman could not have given the history of the patient to Dr. Grant before Dr. Grant would commence the treatment though, normally, a doctor, who sends or takes a patient to a consultant, is bond to give such history as the consultant would require.

44. Moreover, Dr. Grant himself said that the condition and symptoms of Gopal required a through investigation and he did it after several pathological tests to find out the case of the rash and red pigmentation on the body of the patient. He also stated on oath before the Court that the rash could have been due to the several conditions, such as, bacterium, Stevens Johnson syndorme. viraemia and many other cause. If that was the position of the patient, it was wrong on the part of the learned trial Judge to blame Dr. Shaikh Suleman merely because he did not give full details of the history to Dr. Grant, who was going to make a thorough investigation by pathological tests.

45. The learned Civil Judge, in our view, was wholly wrong in coming to the conclusion that Dr. Grant stated at the trial that he approved of the treatment given by Dr. Shaikh Suleman only to support a fellow doctor, 'as Dr. Grant had a soft corner for Dr. Shaikh and had a genuine and sincere desire to help him in his times of difficulty even by making his own position somewhat risky in the Court of law'. We think that these remarks of the learned Judge were uncalled for, particularly when the learned Judge himself has observed that Dr. Grant is a very busy and learned doctor and a leading practitioner of Poona and no allegations were made by the plaintiff against Dr. Grant in this plaint and no question was put to Dr. Grant that he had any reason to support Dr. Shaikh Suleman without any regard for truth.

46. The inference of the learned Judge that the treatment given by Dr. Shaikh was wrong is as already stated, unfounded and baseless. The further inference of the learned Judge that the serious turn in the case and illness of Gopal must have been due to the treatment given by defendant nO. 2, is not only baseless and wholly unscientific but shows a misconception on the part of the learned Judge about the nature of smallpox. There was no evidence of any doctor before the learned Judge to show that smallpox could be caused by any of the medicine which Dr. Shaikh gave to Gopal. Dr. Gupchup had stated before the learned Judge that the smallpox which had affected Gopal was haemorrhage smallpox or fulminating smallpox for which there was no known remedy in the science of medicine Vaccination being only the best means of preventive spread of infection though not always the sure means . No medical scientist in the world has yet discovered the cause of smallpox virus: and it is astounding that the learned Judge jumped to the conclusion that the treatment given by Dr. Shaikh Suleman was responsible for the deterioration of the condition of the patient.

47. It was also perverse on the part of the learned Judge to have come to the conclusion that merely because Dr. Shaikh Suleman said in cross-examination that he treated Gopal as suffering from infectious fever and he could not say what type of fever it was, he was trying to white wash his wrong treatment. The learned Judge appears to have had some misapprehension about the nature of infectious fever, which is an expression used at times by doctors in connection with certain kinds of fevers which could nt be specifically diagnosed for some time. In the present case, even Dr. Grant who was certainly an expiration his own line, could not arrive at his conclusions without several pathological tests If, in these circumstances. Dr. Shaikh Suleman stated that it was infectious fever, it was wrong on the part of the learned Judge to hold that he had done so to white-wash his won wrong treatment.

48. In para 13 of his judgment, the learned Civil Judge has blamed Dr. Shaikh Suleman (1) for not caring to inquire about the health and progress of the patient while the patient was in Dr. Grant's Nursing Home (2) for the effort of Dr. Grant to rescue Dr. Shaikh Suleman by stating that it was his practice not to allow anybody to read the case papers, (3) for not seeing Gopal on December 28 and December 29, though Dr. Shaikh Suleman went to the Nursing Home, and for merely getting information from the staff of the Nursing Home with regard to his progress. (4) for trying to white-wash the whole affairs by stating that as Gopal was not under his treatment since the time he was removed to Dr. Grant's Nursing Home, he was not responsible for whatever happened to him and (5) for denying all responsibility to the patient after removal of Gopal to Dr. Grant's Nursing Home.

49. We do not think that any of these reasons given by the learned Judge can be considered sufficient to support an inference of negligence on the part of Dr. Shaikh Suleman. In the first place, although the learned Judge has shown great regard for Dr. Grnat, he has disbelieved Dr. Grant without any adequate reason when Dr. Grant told in the Court that he never allowed any outside doctor to see the case papers or to interfere with his treatment. Dr. Grant is a doctor high up in the hierarchy of medical profession. Dr. Shaikh Suleman is an L. C. P.S. general medical practitioner. It was wholly wrong on the part of the learned Civil Judge to disbelieve Dr. Grant when he said that it was his practice never to allow any other doctor to see the case papers or to interfere with the treatment in his Nursing Home.

50. All the other reasons given by the learned Civil Judge, therefore, for holding Dr. Shaikh Suleman responsible for negligence and carelessness must be considered as totally irrelevant. We do not think that a company doctor has the duty to visit a hospitalised employee, who is being treated by another doctor. There was nothing unusual if Dr. Shaikh Sule man went to the Nursing Home and inquired from the staff about the progress of the patient without seeing the patient himself or the temperature chart. It was not necessary for him to see the patient in the Nursing Home. No such duty is cast on the company doctor under the terms of his appointment. The learned Judge erred in holding that Dr. Shaikh Suleman was wrong or careless or negligent in denying his liabilities after Gopal was removed to the Nursing Home of Dr. Grant.

51. In para. 14 of his judgment the learned Judge has blamed Dr. Shaikh (1) for not caring even to ascertain the proximate case of the death of Gopal and (2) for stating that Shankar and Gopal went without informing him to Navadu's Infectious Diseases Hospital and to the Cantonment General Hospital. The learned Judge has observed:-

'No sane person in general and a person like Shankar who has already spent a lot of amount over his brother in particular, would voluntarily choose to go to such a hospital and the Defendant's contentions in this behalf are as ridiculous as anything and cannot be believed even for a moment. Apart from this, Dr. Shaikh is the Medical Officer of the Defendant No. 1 company and cannot avoid his liability and save his skin simply by saying that he is not responsible because the patient was taken to these hospitals without his knowledge of permission. It cannot also be believed that Gopal was removed or rather decided to be removed to the Session Hospital without the knowledge of Defendant No. 2 and in that case, it is idle for defendant No. 2 to say that his responsibility was over soon after Gopal was removed to the Nursing Home or anywhere else'.

The reasoning adopted by the learned Judge, in our opinion, is wholly inconsistent with the principles governing the liability of medical men towards their patient. which have been enunciated above. We do not find any term in the medical scheme of the company which requires the company's doctor to follow the patient irrespective of whether the patient is removed from one hospital to the other without consulting him or without his advice. There is also nothing to show that even if he advised the removal of the patient to a particular hospital, he was required to attend to the patient in the hospital, even though he had nothing to do with the hospital and he had nothing to do with the hospital and he had no control over the patient in the hospital.

52. Shankar himself in his evidence has not stated that he took Gopal from Session Hospital to Nayadu's Infectious Diseases Hospital and form Nayadu's Infectious Diseases Hospital to the Cantonment General Hospital after informing defendant No. 2. He has clearly admitted in his evidence that since after he left the Nursing Home of Dr. Grant, he could not meet defendant No. 2 till January 4, 1962. The learned Judge was, therefore, wholly unmindful of this admission when coming to the conclusion that it was the duty of Dr. Shaikh Suleman to go and inquire of the patient wherever he was taken , even though neither the patient nor his brother created to inform him about the patient's removal to Nayadu's Infectious Diseases Hospital and the Cantonment General Hospital.

53. There was nothing unusual if a company's doctor conducted himself fin such a way if the employee or his relatives do not care to inform him about the treatment which they pursue without consulting him. The learned Judge was also wrong in drawing an adverse inference against Dr. Shaikh Suleman merely because Dr. Shaikh Suleman did not come to know about the cause of the death of Gopal in the Cantonment General Hospital on December 31. 1961. It was admitted by Dr. Gupchup that he did not inform Dr. Grant even though it was his duty to inform him. Dr. gupchup did not inform Dr. Shaikh Suleman about the cause of death. Dr. Grant in his evidence maintained that the deceased might not have died of smallpox. Dr. Gupchup admitted that the pathological tests which appear to be the only real scientific tests for finding out smallpox were not available to him. In these circumstances, if a medical man like Dr. Shaikh Suleman does not save that he knew about the proximate cause of death, it cannot be considered to be negligence on his part.

54. In para . 15 of his judgment, the learned Civil Judge has again blamed Dr. Shaikh Suleman because; (1) Dr. Gupchup stated that on December 29. 1961, when the patient was brought to the Cantonment General Hospital at 6. 30 p. m. Gopal was suffering from smallpox and his condition was serious and the rash appeared in such a case on the third day in vesicular type of smallpox and this showed that Dr. Shaikh was careless in not diagnosing the disease of Gopal as smallpox. (2) Dr. Dongare of Nayadu's Infectious Diseases Hospital produced the case papers which also showed that the provisional diagnosis was smallpox. (3) Dr. Shaikh Suleman therefore ought to have been able to find out that the disease from which Gopal was suffering was smallpox and (4) Dr. Shaikh Suleman tempered with the case papers and fabricated false evidence to support his version and thereby exposed himself to be a person not mindful about the truth.

55. These reasons are somewhat inconsistent with the earlier reasoning of the learned Judge that a doctor cannot be blamed for a mistake in diagnosis. What is more, the learned Judge went to the extent of saying in a round about way that Dr. Grant was also careless in not finding out what Dr. Dongare and Dr. Gupchup could easily find out, namely, that Gopal was suffering from smallpox on December 29, 1961. We must say that this approach adopted by the learned Judge to the two doctors cannot be consist red to be fair.

56. In Roe v. Ministry of Health, (1954) 2 All ER 131. Lord Justice Denning rightly pointed out:-

'These two men have suffered such terrible consequences that there is a natural felling that they should be compensated. But we should be doing a discredit to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to thing more of their own safety than of the good of their patients. Initiative would be stiffed and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due carte for the patients at every point but we must not condemn as negligence that which is only a misadventure'.

As already stated above, the nature of smallpox disease in general and the facts and circumstances in which Dr. Shaikh Suleman and Dr. Grant treated the decreased Gopal do not justify the necessary inference that doctors exercising ordinary skill could have reasonably come to the conclusion that the deceased was suffering from smallpox before he was discharged from smallpox before he was discharged from the Nursing Home of Dr. Grant.

57. In any event, the plaintiff has not been able to establish by any expert evidence that an ordinary doctor could have reasonably come to such conclusion on or before December 29, 1961 prior to his discharge from the Nursing Home. The very fact that Dr. Grant, an eminent physician of Poona sent the patent to his ward in Sassoon Hospital, shows that he did not at the time of the discharge consider Gopal to be a smallpox patient. On the contrary Dr. Grant in his evidence has said' 'I can definitely say that the rash appearing on the body of the patient was not due to the infection of smallpox. Similarly the blood culture was negative of smallpox'.

58. Having regard to this evidence, the Court would ordinarily hesitate to question the diagnosis made by Dr. Shaikh Suleman and Dr. Grant. It was admitted by Dr. Gupchup that no postmortem examination of Gopal was made. Dr. Gupchup has even admitted in the cross examination: 'it is the characteristic of smallpox that rash appears after 72 hours. The rash in all they varieties of smallpox is similar. In the initial stage the rash is not vesicular. I have not heard that preliminary rash also appears in some cases. When I examined the patient I found that there was only one type of rash on his person and it was vesicular. Such rash appears in other discuses also. They are chickenpox. Vesicular rash does not appear in toxic scarlet fever. I have not come across any case of German Measiles, Subamycin belongs to an antiseptic group of drugs. Such a drug could be administered in the case of present nature'. Although it is the duty of the Court to judge the negligence of doctors, it is not open to the Court to ignore the evidence on the record and jump to the conclusion without any basis that Dr. Shaikh Suleman or Dr. Grant ought to have been able to find out that Gopal was suffering from smallpox in the facts and circumstances of the case.

59. So far as the finding of the learned Civil Judge in regard to the tampering of the case papers and fabricating false evidence is concerned, we think that it is based entirely on the misreading of the evidence and misapprehension of the duties of a doctor when maintaining record like Ex. 37. Ex. 87 is a note book, which appears to have been written in different hands on different page. The entry in regard to December 25, 1961, December 20, 1961, December 21, 1961, December 25 , 1961, and shows the treatment which he have to him and the complaint a which he ascertained from him . The following appears to have been written in different hand below the entries made by Dr. Shaikh Suleman on December 25, 1961:-

'With constipation for four days came at 11.30 a. m. with 104 temp. F. IN the evening I consulted alone with Dr. Grant who advised admission 26-1201961 as I saw rash on the body, His brother took letter from me as he did not want to go elsewhere except Dr. Grant for admission. He was against admission is Sassoon Hospital'.

It is difficult to understand why these particular entries are regarded by the learned Judge as false and fabricated when it is proved by overwhelming evidence and admitted by Shankar himself that the deceased was kept in the dispensary by Dr. Shaikh Suleman and removed to the Nursing Home of Dr. Grant next day, which he could not have done unless he had discussed it with Dr. Grant.

60. The reason given by the learned Judge for holding that the entries were false and were manipulated afterwards is that all the entries must have been made by Dr. Shaikh Suleman after he came to know that something unusual had happened and the plaintiff was thinking of taking some action in this behalf This surmise on the part of the learned Judges entirely base less. Similarly in Ex. 81, the case paper, although the front page is entirely written by Dr. Shaikh and even on the backside, the entries are made with regard to the treatment by Dr. Shaikh Suleman, some entries are made in a left-hand column of the case paper not by him. Dr. Shaikh Suleman stated in the course of his cross-examination that they were made by his compounded. It is difficult to understand how this alone could lead to an inference that Dr. Shaikh Suleman manipulated and fabricated all these entries with a view to protect himself or to make out a false case to repel the claim of the plaintiff.

61. In any event, these entries had nothing to falsify the actual treatment and care which Dr. Shaikh Suleman was expected to give or take in respected of Gopal. These entries could not have led to the deterioration of the health of the patient. As already stated above, in the absence of anything to show that the treatment which Dr. Shaikh Suleman gave to the patient was so defective that a doctor with ordinary skill and competence would not reasonably give such treatment, it was wrong to proceed on the footing that these case papers were fabricated or manipulated by Dr. Shaikh Suleman to protect himself. In our opinion, none of the reasons given by k the learned Judge in para 15 is, therefore, relevant or sufficient to draw an inference that Dr. Shaikh Suleman or Dr. Grant was in any manner negligent in their duties.

62. In para, 16 of his judgment the learned Judge, after referring to the passages of Lord nathan's Book on Medical Negligence, summed up the findings as follows:-

'The plaintiff has led oral evidence of the doctors who have actually treated the case and given their definite opinion as well as the actual state of affairs seen by them. The documentary evidence produced on behalf of both the Defendants is more than enough to give a sound support to the case of the plaintiff. The evidence of Dr. Grant appears to have possibly been given by Defendant No. 1 mainly with the idea of showing that Dr. Grant has got no concern whatsoever with Defendant No. 1 but at the same time he could not help harming the case of Defendant No. 2 in spite of his honest efforts to save his skin if possible. I have already discussed above the evidence of Dr. Grant as well as the case papers produced by him and it is easy to find that the condition of Gopal was serious on admission. The relevant notices in exhibit 75/1 are taken not by Dr. Grant but by his assistant viz. Dr. Sardesai but the fact remains that Dr. Shaikh had treated Gopal as a patient of flu and he was also brought to him as a patient of flu but on admission, Dr. Grant did not find Gopal as a patient of flu, his diagnosis was, however, a s can be seen from Exhibit 75/3. that Gopal was suffering from acute secondary thrombosis site price puerperal infections. Thus, it may be seen that the diagnosis made as well as the line of treatment given by Dr. Shaikh was neither confirmed nor continued by Dr. Grant and as such his evidence does not help the case or case of Defendant No.2. On the other hand the case papers produced by Dr. Grant go to show that the case had taken a serious turn and reached an advanced stage and Dr. Shaikh was cognizant of the fact that it had gone out of his control. Similarly, the circumstantial evidence including the conduct of Dr. Shaikh, with regard to the treatment of Gopal before as well as after he was removed to and from Dr. Grant's Nursing Home, already discussed above, definitely supports the caws of the Plaintiff. All this evidence and circumstances taken together have got the cumulative effect of leading us to the undoubted and irresistible conclusion that Defendant No. 2 was culpably negligent and utterly careless in treating the deceased Gopal and there has certainly been a breach of duty on the part of the company's Doctor'.

63. Fro the reasons stated above, the entire reasoning of the learned Judge and the above findings are baseless and unjustified having regard to the nature and symptoms of the disease from which Gopal was suffering and the evidence on record Besides, as already stated above, there is no evidence at all to show that the learned Judge applied his mind to the necessity for the plaintiff to prove, besides negligence the fact that the deceased deteriorated in health or died as a result of that negligence Dr. Gupchup's evidence, as discussed above, completely negatives such a fact, as he admitted that no medical treatment exists for haemorrhage cause of the sad and unfortunate death of the deceased Gopal.

64. Mr. Singhvi has not addressed any arguments before us regarding the liability of defendant No. 2. But we are inclined to agree with the learned Civil Judge that if defendant No. 2 But we are inclined to agree with the learned Civil Judge that if defendant No. 2 as a Company doctor, was negligent in the discharge of his duties, then defendant No.1 company also would be liable. Mr. Singhvi however fairly stated that he conceded that as medical officer in the part time service of the company defendant No.2 was in the employment of defendant No. 1 He wanted us not to deal with the question of the liability of the company in view of our conclusion that defendant No. 2 was not negligent. But we do not think that the question should be left open when this appeal is being heard nine years after it was filed. If we were to come to the conclusion that defendant No. 2 was negligent we would have had no hesitation in holding defendant No. 1 liable for it along with defendant No. 2

65. Mr. Singhvi, however, addressed an argument that the learned Civil Judge, in any event, erred in taking the lifetime of the plaintiff as 80 years and awarding compensation on the basis of Rs.100/- p.m. being sent by the deceased Gopal to her, when the salary of Gopal was only Rs.105/- p.m. Here too, the question cannot survive in view of our finding that defendant No.2 was not negligent in the discharge of his duties as a medical officer. Nevertheless the very fact that the plaintiff is still surviving, though the suit was pending for some years in the trial Court and the above appeal is pending in this Court for nine years and her mother died at the age of 80 years, can be a sufficient basis for agreeing with the learned Civil Judge in holding that the longevity of the life which should be given to the plaintiff for the purpose of the suit can be reasonably fixed at 80. There is also nothing unreasonable in the assumption made by the learned Civil Judge that if Gopal were to live, he would have sent to the plaintiff, who is ordinarily residing at Kerala with a daughter a sum of Rs.100 p.m. On that basis, if at all we were to agree with the learned Judge in holding that defendant No.2 was guilty of negligence in the discharge of his duties the amount of compensation awarded by him would have been considered to be reasonable.

66. However, as the plaintiff has failed to prove actionable negligence on the part of defendant No.2 her suit must be dismissed and the decree passed by the learned Civil Judge must be set aside. Nevertheless, the order passed by the learned Civil Judge for recovering the Court-fees from the plaintiff through the Collector of Poona shall stand. Mr. Singhvi for defendant No.1 company and Mr. Chitnis for defendant No.2 did not press for costs.

67. The appeals, are therefore, allowed with no order as to costs, the plaintiff's suit is dismissed the decree passed by the trial Court is set aside. If the plaintiff fails to deposit the amount which appears to have been withdrawn after the decretal amount was deposited in Court by defendant No.1 the guarantor bank shall deposit the amount as per the terms of the guarantee given in Court. The order passed by the trial Court for recovering the court-fees shall stand.

68. Appeals allowed.


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