M.L. Malik, J.
1. This is defendant's first appeal. The defendant is a surgeon who has been held liable to pay damages for negligence in the performance of an abdominal operation resulting in death of the patient. The plaintiffs are husband and children of the deceased patient. Decree has been given for Rs. 4,000/- with corresponding costs and interest at 3% per annum. The claim was laid for Rupees 11,000/-. The plaintiffs, being dissatisfied with the quantum of damages awarded, have filed a cross-objection for enhancement of the amount.
2. The facts may be briefly stated. Respondent 1 Rambeharilal was Collector, Shahdol at the relevant time i.e. in the year 1958. Appellant Dr. J. N. Shri-vastava was a medical officer in the employment of the State of Madhya Pra-desh, then in charge of the Sohagpur Government Hospital, Shahdol, In the night intervening 27th and 28th Sept. 1958, Shrimati Kanti Devi, wife of Rambeharilal, got an attack of severe abdominal pain with occasional vomiting. Dr. Shrivastava was called for consultation and treatment. He gave her Strepto-Penicillin injections on the following two days along with sedatives. The pain did not abate. Instead, temperature started rising. On 30-9-1958, it was about 100F. Dr. Shrivastava observed extreme tenderness over the right iliac fossa -- which had been throughout. He asked Dr. Datta to do the blood differential count which revealed 84% polys. This confirmed the doctor's tentative diagnosis as a case of acute appendicitis. He, therefore, advised surgical operation of appendectomy.
3. Rambeharilal and his wife were at first hesitant for an operation. They had their consultations with friends- Even the District Medical Officer, Umaria, Dr. Mishra, was consulted on phone. Dr, Mishra was of the opinion that surgical operation was not imminent as 48 hours had passed and the pain had subsided appreciably. He advised conservative line of treatment
4. Dr. Mishra's opinion was communicated to Dr. Shrivastava who, however, was not inclined to agree. He was still of the opinion that prompt appendectomy was advised lest peritoneal infection took place by perforation.
5. Rambeharilal and his wife ultimately consented to Dr. Shrivastava performing the surgical operation. Shrimati Kanti Shrivastava was brought to the hospital at 1 p.m. She was prepared for the operation after preliminary tests were done. I may record here some relevant extracts from the case sheet of the patient, which I have no reason to believe to have been subsequently fabricated or manipulated. The case sheet appears to be a genuine document.
History : Intermittent attack of pain in the right hypochondriac, lumber and iliac region for last four years. Vomiting occasional. Jaundice nil. Occasional temperature in low degrees,
Complaint : (i) Pain all over abdomen-- 2 days, (ii) Running menstrual period-- 1 day.
Present illness : Patient complained of vague pain all over the abdomen since last two days. Occasionally the pain be-comes exaggerated in the right hypochondriac, right lumber and right iliac region.
History of vomiting and eractation :
No shoulder pain.
History of past illness : patient got similar attacks intermittently since last four years- Those were not accompanied by fever, vomiting or shoulder pain.
Family history : Patient is mother of seven children; youngest is four months' old.
General Examination : Built -- fat and flabby. Nutrition -- Good. Pulse -- 84 per minute. Volume and tension -- normal. Temperature -- 99.4F- Neck glands-- Not palpable. Jaundice -- Nil. Anaemia -- Nil. Cyanosis -- Nil.
System Gastro Intestinal : Tongue --Slightly coated. Teeth and gums --Healthy. Abdomen -- Nothing particular except flabbiness. Liver and spleen --Not palpable.
On palpation : Abdomen --- soft. Mec-burneyg point -- extremely tender. Murphy's sign -- + No mass felt except on the right lumber region. Percussion --NAD. Auscaltation -- NAD.
Respiratory system -- NAD.
Cardiovascular system : Cardriac impulse -- Normal at 5th space. Pulse rate-- 84/minule, Volume -- Good, Tension-- normal. Condition of arterial wall --Normal. B. P. -- 110/70.
Nervous system -- NAD.
Genito urinary system : P. R. -- Nothing particular, P. V. -- NAD, Done by Dr. V. Janki.
Progress of the case since 28-9-1958 to 30-0-1958 : Pain persisting and gradually localized in the right iliac fossa. Temperature gradually rises to 99.4F. Blood differential count done on 30-9-1958 : Polymorpho Nuclear Leucocytes -- 84%. Lymphocytes -- 12%. Nonoeytes -- 2%. Eosinophils -- 2%. Urine could not be obtained even by catheterization. Provisional diagnosis : Acute appendicitis Advised operation for appendix.
6. After preliminary preoperative preparations, Smt. Kanti Shrivastava was taken to the operation theatre. Gridiron incision was made by Dr. Shrivastava for appendectomy but the appendix was found normal. He, however, found the gall bladder fundus acutely inflamed and full of stones. It was of enormous size. The incision was then closed and a second incision known as Koeker's incision was given. The gall bladder was removed.
7. According to Dr. Shrivastava, the gall bladder fundus extended up to the right iliac fossa which was rather unusual. The gall bladder was usually situated high up, but it was so enlarged and inflamed that it had descended up to the appendicular region and could be seen through the gridiron incision. The gall bladder fundus was black and full of stones.
8. Operation took nearly two hours. Rambeharilal and his friends were waiting outside the Operation Theatre. Dr. Shrivastava brought the diseased gall bladder on a tray and showed it to all present and told them that the appendix was found normal but the malady lay with the gall bladder, which was successfully removed.
9. Dr. Shrivastava was assisted by Dr. Datta in the operation. Dr. Mrs. Janki had given anaesthesia The anaesthesia used was ethtychloride induction, maintained by chloroform. The case sheet shows that the condition of the patient was good throughout the operation. The anaesthesia had no adverse effect during the course of operation- The patient regained consciousness by about 5 p.m. and asked for water. The progress was satisfactory till the afternoon of the 1st Oct. 1958. Thereafter, the condition began to deteriorate. Shri Rambeharilal called the Surgical Specialist from the Medical College, Rewa, for consultation. Dr. Mishra, D. M. O. Umaria, had already reached Shahdol on the morning of 1st. Dr. Ram-kumar Singh, Dr. J. P. Tiwari, Dr. Shrikhande, the Surgical Specialist had joint consultations with Dr. Shrivastava on the line of treatment to be followed. Specimen urine of the patient was got examined and the report given by the Laboratory Technician on 2-10-1958 revealed granular cast + + + with sugar traces and albumin + + +. Dr. Shrikhande also noticed icteric tinge in the conjunctiva. That indicated extensive damage to the kidneys. Liver was also damaged as was evident from the development of the jaundice. Dr. Mrs. Ganpathy, the Medical Specialist attached to the Medical College, Rewa, was consulted in the early morning of 2nd Oct. 1958 on telephone regarding treatment. Dr. Shri-kande returned to Rewa and requested Dr. Mrs. Ganpathy to proceed to Shahdol. Dr. Mrs. Ganpathy reached Shahdol at 11 p.m. on 2nd Oct. and saw the patient. Despite treatment prescribed by a team of medical experts, the patient expired at 2.20 a.m. on the 3rd Oct. 1958.
10. In the opinion of Dr. Shrikhande, who had made enquiry into the conduct of the operating surgeon, the cause of death was an overwhelming toxemia consequent upon a progressive hepato-renal failure which developed after an operation done under prolonged chloroform anaesthesia which led finally to peripheral circulatory collapse as was seen from the progressive fall in the B. P., rapid thready pulse and high temperature.
The prolonged chloroform anaesthesia on an inadequately prepared patient, Dr. Shrikhande says, was probably responsible for the development of hepatorenal failure.
11. The plaintiffs have given the following particulars of negligence on the part of the operating surgeon :
(A) In correct diagnosis which indicated careless and incompetent examination and lack of proper knowledge in the subject.
(B) Non-examination of urine which was a pre-requisite before undertaking a major abdominal operation. Urine tests done on the 2nd Oct. 1958, unmistakably showed kidney trouble as also damaged liver.
(C) Use of chloroform as an aesthesia which was contra-indicated.
(D) Hasty and rash advice for an operation despite the contrary opinion of the D.M.O. Dr. Mishra, who wanted conservative line of treatment to continue.
(E) Undertaking a major operation when to the knowledge of the operating surgeon the hospital was ill-equipped.
(F) Removing the gall bladder without obtaining consent of the patient's husband. In fact, there was no trouble with the gall bladder.
(G) Careless handling of the case after the operation.
(H) Wilful disregard of the line of treatment suggested by medical experts and senior doctors.
12. The learned District Judge found in favour of the defendant that he had made on false representations to persuade the lady to undergo the surgical operation for appendectomy but the negligence lay, the Court said, in wrong diagnosis, in not obtaining consent of the husband for cholecystectomy, performing the operation in an ill-equipped hospital, the use of chloroform as the anaesthetic and the non-examination of the urine before the operation was performed, which would have indicated that the patient was already suffering from damagedliver and diseased kidney and that pre-operative precautions were necessary in the case of a patient who was suffering from some kind of nephritis.
13. Before I deal with the charge of negligence, I would like to quote what Lord Denning said in Roe v. Minister of Health (1954) 2 QB 66 :
'One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a disservice to the community at large if we were to impose liability an hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled 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 care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.'
In Hatcher v. Black (1954) Times 2nd July, Lord Denning explained the law on the subject of negligence against doctors and hospitals in the following words :
'Before I consider the individual facts, I ought to explain to you the law on this matter of negligence against doctors and hospitals. Mr. Marven Everett sought to liken the case against a hospital to a motor-car accident or to an accident in a factory. That is the wrong approach. In the case of an accident on the road, there ought not to be any accident if everyone used proper care; and the same applies in a factory; but in a hospital, when a person who is ill goes in for treatment, there is always some risk, no matter what care is used. Every surgical operation involves risks. It would be wrong, and, indeed, bad law, to say that simply because a misadventure or mishap occurred, the hospital and the doctors are thereby liable. It would be disastrous to the community if it were so. It would mean that a doctor examining a patient or a surgeon operating at a table, instead of getting on with his work, would be forever looking over his shoulder to see if someone was coining up with a dagger; for an action for negligence against a doctor is for him like unto a dagger. His professional reputation is as dear to him as his body, perhaps more so, and an action for negligence can wound his reputation as severely as adagger can his body. You must not, therefore, find him negligent simply because something happens to go wrong; if, for instance, one of the risks inherent in an operation actually takes place or some complication ensues which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment. You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medicalman, in short, when he is deserving of censure for negligence in a medical man is deserving of censure.'
Equally pertinent are the observations of Lord Denning in Roe's case ((1954) 2 QB 66) to the following effect :
'It is so easy to be wise after the event and to condemn as negligence that which was only a misadventure. We ought always to be on our guard against it, especially in cases against hospitals and doctors. Medical science has conferred great benefits on mankind, but these benefits are attended by considerable risk. Every surgical operation is attended by risk. We cannot take the benefit without taking the risk. Every advance in technique is also attended by risk. Doctors, like the rest of us, have to learn by experience; and experience often teaches in a hard way. Something goes wrong and shows up a weakness, and then it is put right. That is just what happens here. The doctor did not know that there could be undetectable cracks in ampoules, but it was not negligent for him not to know it at that time- We must not look at the 1947 accident with 1954 spectacles.'
14. While deciding the present case, the learned District Judge seems to have overlooked these oft quoted observations of Lord Denning. The learned Judge did not bear in mind the difference in approach on the question if negligence re-lating to motor-car accidents and negligence against doctors.
15. Let me now deal with each charges of negligence pleaded against the operating surgeon :
Diagnosis : The diagnosis of an ailment is normally the first matter with which the medical man is concerned. 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 to the patient. But it must be remembered that a mistaken diagnosis is not necessarily a negligent diagnosis. 'No human being is infallible and in thepresent state of science, even the most eminent specialist may be 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 nature as to imply an absence of reasonable skill and care on his part, regard being had to the ordinary level of skill in the profession.' (See : Medical Negligence by Nathan. 1957 Edition, at pp. 43-44).
16. In the present case, the plaintiffs' Own expert witnesses testify that with the clinical symptoms present, the disease could be mistaken for appendicitis. Dr. Shrikhande has stated in the last para of his deposition that acute appendicitis could be mistaken for acute cholecystitis and vice versa. Similarly, Dr. S. C. Pandey in para 19 of his deposition has said that acute abdomen was a condition which, if not attended within reasonable time, was likely to lead to serious consequences. Acute abdomen could mean a number of things, such as appendicitis, cholecystitis, pancreatitis, perforated peptic ulcer and so many other things. Anyone of these things could be mistaken for the other because the clinical systems were usually similar. It there was tenderness in the right iliac fossa as one of the pathological conditions present, it would be a case of appendicitis. Temperature, nauses, pain and tenderness in the iliac fossa were suggestive of appendicitis, 84% polys indicated inflammation somewhere in the body.
17. Rodney Maingot in his book 'Abdominal operations' 5th Edition, at page 899 writes :
'Acute cholecystitis may be confused with acute perforated peptic ulcer, acute pancreatitis, acute appendicitis, acute pyelonephritis, intestinal obstruction, pneumonia, or myocardian infraction.'
18. In 'The Early Diagnosis of the Acute Abdomen' by Sir Zachary Cope (12th Edition) at p. 42 :
'Right iliac pain, tenderness and rigidity. The most common cause of these symptoms is of course, acute appendicitis, but there are many pitfalls which are considered more fully in Chapter 5, suffice to say here that a similar group of symptoms may result from disease of the pancreas, gall bladder, duodenum, right kidney, the ileo caecal glands, a Mackel's diverticulum, the end of the ileum (il-citis), a retained testis (in the male) and the right fallopian tube and ovary (in the female).'
19. Pain getting localized in the right iliac fossa, was the condition which led the doctor to diagnose the case as one of acute appendicitis. Vomiting and rising temperature and high percentage of polys in the blood report confirmed his belief that it was most likely a case of appendicitis. It ultimately turned out that the appendix was found normal but the gall bladder fundus had descended up to the appendicular region. The clinical symptoms could, therefore, be mistaken one for the other i.e. cholecystitis for appendicitis. There is absolutely no negligence in the diagnosis. A mistaken diagnosis is not necessarily a negligent diagnosis nor would it imply an absence of reasonable skill and care on the part of the doctor.
20. Removal of the gall bladder without obtaining consent of the patient's husband :
The law on the subject of consent is that a surgeon who performs an operation without the patient's consent commits an assault on him for which he is liable for damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained. The point in controversy in the present case is fully covered by the decision in Marshall v. Curry (1933) 3 DLR 260 : 60 Can CC 136 Nova Scotia Supreme Court. In that case the plaintiff employed the services of a surgeon for performing an operation for the cure of hernia. While the plaintiff was under the influence of an anaesthetic, the surgeon without the knowledge or consent of the plaintiff, removed the plaintiff's left testicle. The plaintiff alleged that the surgeon was negligent in diagnosing the case and in not informing the plaintiff that it might be necessary in treating the hernia to remove the testicle and that removing of the testicle in the above circumstances was an assault upon him.
Chisholm, C. J. made the following pertinent observations :
'I am unable to see the force of the opinion, that in cases of emergency where the patient agrees to a particular operation, and in the prosecution of the operation, a condition is found calling in the patient's interest for a different operation, the patient is said to have made the surgeon his representative to give consent. There is unreality about that view. The idea of appointing such a representative, the necessity for it, the existence of a condition calling for a different operation, are entirely absent fromthe minds of both patient and surgeon. The will of the patient is not exercised on the point. There is, in reality, no such appointment, I think it is better, instead of resorting to a fiction, to put consent altogether out of the case, where a great emergency which could not be anticipated arises, and to rule that it is the surgeon's duty to act in order to save the life or preserve the health of the patient; and that in the honest execution of that duly he should not be exposed to legal liability. It is, I think, more in conformity with the facts and with reason, to put a surgeon's justification in such cases on the higher ground of duty, as was done in the Quebec cases.'
His Lordship further said :
'In the case at bar, I find that the defendant after making the incisions on plaintiff's body, discovered conditions which neither party had anticipated, and which the defendant could not reasonably have foreseen, and that in removing the testicle he acted in the interest of his patient and for the protection of his health and possibly his life. The removal I find was in that sense necessary, and it would be unreasonable to postpone the removal to a later date. I come to this conclusion despite the absence of expressed and possibly of implied assent on the part of the plaintiff.'
21. In the present case the surgeon found the appendix to be normal but the gall bladder in a highly pathological condition. The patient was under the influence of the anaesthetic. The surgeon could not rush out, leaving the patient with the abdomen open, for obtaining consent of the husband. It was not imporative to obtain the husband's consent when the operation was being performed on a lady who was sui juris, The surgeon had to decide for himself whether the intensely inflamed gall bladder with its mucous membrane swollen, containing stones, with incidence of gangrene likely to supervene, needed immediate removal, otherwise the life of the patient was in danger. The surgeon was of the view that the gall bladder needed to be removed forthwith. This is the course suggested by Hamilton Bailey and McNeil Love in their treatise 'A Short Practice of Surgery', 11th Edition at page 440 :
'Should gall stones be found during the course of another abdominal operation, cholecystectomy should be performed provided it does not add appreciably to the risk. If it is likely to do so, it is better to perform cholecystectomy, whichadds little to the shock and operating time, than to leave the stones in situs.'
22. The authors at page 435 recommend that cholecystectomy should be done once a patient has had, gall stones cholic, unless the patient is very old or otherwise enfeebled. In case a patient is very old or weak, cholecystostomy can be substituted. (In cholecystostomy the fluid contents of the gall bladder is aspirated, the fundus is opened and stones are removed).
23. Dr. S. C. Pandey, the expert examined by the plaintiffs, says that the surgeon in the present case should have performed cholecystostomy. The patient in the present case, as we note, was a young lady aged 32, with nutrition good, without any jaundice or anaemia, with normal blood pressure, a pulse having normal volume and tension, with no history of diabetes or nephritis, with cardiac impulse normal, and but for the pain in the abdomen otherwise quite healthy, to sustain an operation of cholecystectomy.
24. Some discretion must be left to the judgment of the doctor on the spot. He has to bear the whole picture in mind, use his commonsense, his experience and judgment as far as it fitted the particular case. One cannot be guided by what has been written in the text books. The statements in text books were no substitute for judgment of the surgeon who has to handle the situation at the spot. Nor can negligence be inferred when a surgeon of higher education, higher experience and higher degree of skill would probably have adopted a different mode of treatment. In Challand v. Bell, 18 DLR (2d) 150, the Court took the view that the general practitioner should not be criticised just because experts disagree. The Court said that it was important to view the treatment and to see matters with the eyes of the attending physician. No medical practitioner was insurer for effecting a cure nor should the Courts condemn and honest exercise of judgment even though the other practitioners may disagree with that judgment.
25. No fault has been found with the surgery performed by the defendant. The diseased gall bladder had been preserved in a jar and was produced in Court. No attempt was made to show that the gall bladder which had been removed, was normal and contained no stones. It was in a highly pathological condition, could not be doubted at all. Inorder to save the life of the patient, the defendant felt that cholecystectomy was imminent. In his opinion, no risk was involved. The patient was tolerating the anaesthetic alright and her general condition throughout the operation remained good. No negligence could, therefore, be attributed to the surgeon when he decided to remove the diseased gall bladder whether or not there was consent, express or implied, of the patient, for such removal. An emergency had arisen which the surgeon, when he opened the abdomen, had not anticipated and he had to take a quick decision in the honest execution of his duty towards his patient in order to save her life or preserve her health. Dr. Datta was the person who alone could be consulted. He was assisting the defendant. He also approved of the course adopted.
The surgeon, therefore, was not negligent in undertaking the second operation when the emergency arose; and that was considered best and the only inevitable course in the interest of the patient.
26. Anaesthesia : The case sheet records consent of the patient's husband to the use of chloroform as the anaesthesia. It is in the following words : 'I agree to have my wife operated upon for appendicitis by inhaling chloroform, the hazards of which were explained to me.' Firstly, therefore, if chloroform had had any adverse effect for reason of personal idiosyncrasy of the patient which could not be anticipated -- and which the clinical tests performed before the operation, did not forewarn, that will not normally amount to negligence. Chloroform was the only anaesthetic available in the hospital then and was being administered to the vast majority of patients even for major operations. The surgeon was performing about 300 major operations in a year with creditable success. The chloroform anaesthesia rarely exhibited deleterious effects.
Secondly, with regard to the anaesthetic, the person ultimately responsible for its correctness would be the person administering it. It was Dr. Mrs. Janki who had given anaesthesia and it was impossible for the surgeon involved in an abdominal operation, to direct and supervise its administration. Dr. Mrs. Janki was also a collaborator to whom it was reasonable to entrust the work for which she alone could be made responsible. If she was of the opinion that chloroform was contra-indicated, she should have withdrawn from the case. In an action for malpractice where the choice of anaesthetic is at issue, the anaesthesiologist cannot be exonerated merely because the surgeon insisted on a particular anaesthetic procedure. The evidence discloses that Dr. Mrs. Janki administered chloroform without the least objection. That was the only anaesthetic available.
Thirdly, it was the anaesthetist's duty to see that the patient was safeguarded until she returned to consciousness. Dr. Mrs. Janki says that the patient's general rendition was good throughout the operation, that she recovered consciousness by 5 P.M., just after an hour of the operation, that the administration of chloroform had shown no adverse effect and that she had examined the physical condition of the patient prior to the administration of the anaesthesia and was satisfied that the administration of chloroform would not be hazardous.
Fourthly, it would be pertinent to note that the operation contemplated was appendectomy. The surgeon did not anticipate that a diseased gall bladder was the malady which he would be required to operate. The pre-operative preperations were all directed for appendectomy.
Fifthly, it cannot be said with absolute certainty that it was chloroform which was responsible for hepato-renal failure. That was only a probability. No postmortem examination of the body was done and the cause of death was not tried to be found on the basis of scientific data. It is, no doubt, true that chloroform is no longer used as a general anaesthetic except under emergency conditions. The tendency of chloroform, the recent study has indicated, is to induce damage to the liver and kidneys. Most of the untoward effects of chloroform which led to its being discarded resulted from hypoxia since when combined with high concentration of Oxygen it has been shown to be relatively safe. The danger of chloroform lay in the serious depression of heart which it frequently introduced.
Grollman in his book 'Pharmacology and Therapeutics' (14th Edition at p. 75), however, warns against confusion likely to be caused by the trauma of surgery, hypoxia and hypercarbia for being mistaken as toxic effects of anaesthetic. This is what he says:
'In considering the action of the anaesthetic drug or metabolic and other functions of the organs, one must differentiate the effects of anaesthetic per se from the secondary non-specific effects induced by the trauma of surgery, hypoxia and hypercarbia. Many effects attributed to thetoxic effects of the anaesthetic result in fact from vascular, respiratory or other influences. Surgery, for example, induces profound alterations in the nitrogen metabolise compared to which those induced by the anaesthetic are insignificant. Alterations in the concentration of plasma proteins are generally a consequence of altered fluid balance, while changes in the electrophoretic pattern of plasma proteins result from damage to the liver. The barbituratea cause a rise in plasma volume by inducing the movement of fluid into the circulation. Hypothermia may cause respiratory acidosis and contribute to the development of ventricular fibrillation. Changes in rural function during and following anaesthesia are primarily a result of hemodynamic changes and effects on the antidiuretic and adrenal cartical hormones rather than on the kidney itself.'
To the same effect are the observations in 'The Text Book of Pathology : Structure and Function in Diseases, by William Boyd, Seventh Edition' at page 578 dealing with Diseases of Kidney under the Head Note Traumatic tubular nephrosis or neorosis which the author says, 'is the commonest cause of acute oliguric failure. In war time it is naturally due to wounds, but in civil life it is caused by accidents or severe surgical procedures. The prognosis is very much worse in traumatic tubular necrosis, wherein some series the mortality has been as high as 70 per cent than in toxic variety.'
The author under the Head Note 'The Hepato-renal Syndrome' at pp. 581-82 writes:--
'This rather nebulous entity is marked by necrotic cells both in the liver and kidney. There is tubular necrosis with bile staining of the necrotic cells and_ focal areas of necrosis in the liver. The condi-dition may develop as the result of crush injuries to the liver and operation of the gall bladder, or in cases of obstructive jaundice which have been subjected to severe abdominal operations.....'
It follows, therefore, that chloroform anaesthesia may not be the real cause of hepato-renal failure but the pathological effects may have been induced by trauma of surgery.
Sixthly, the operation was performed in 1958. Use of chloroform was probably in vogue then. Let us not judge matters with 1980 glasses.
27. Non-examination of urine before surgery:
The defendant surgeon was keen to have the patient's urine examined beforeundertaking the operation but unfortunately the sample urine could not be obtained despite catheterization. Naturally, therefore, he had to satisfy himself with the clinical examination done. The Blood Pressure was normal, the patient had no history of hypertension, no edema, no anemia, no retinal-changes, no symptoms of albuminuria or uremia indicative of kidney disease. Some such symptoms, had they been present, would have warned the surgeon to take precautions against the possibility of the kidneys being diseased. Renal failure is generally associated with arterial hypertension. Kidneys are, therefore, considered as part of car-dio-vascular-renal disease.
Urine examination done on 2-10-1958 would not necessarily indicate chronic kidney disease from before the operation. Some kind of toxemia, especially by bacterial toxins transported through the blood stream from a focus of infection could readily damage the kidney. After all, one-fifth of the total blood of the body circulates through kidney per minute and it is easy to understand how readily the kidney gets damaged by circulating toxic substances. Removal of the gall bladder which was gangrenous at places, could be a seat of some bacterial organisms.
The operation seemed imperative to the surgeon and he did not think it wise to wait. There is no negligence just because examination of urine was dispensed with in an emergency.
It may as well be observed that the urine report was given by a Laboratory Technician and not by a pathologist. Dr. C. B. Singh, the Expert examined by the defendant, says that he would not readily trust the report given by a technician. For granular casts, microscopic examination was necessary and a technician usually was not trained to give microscopic findings. It would not, therefore, be safe to attribute negligence on the basis of a report given by a technician.
28. Was the hospital ill-equipped for major operations- :
The hospital, being a Government hospital, it would be difficult to say that it was kept ill-equipped. Dr. Shrivastava says that he had been performing nearly 300 major operations every year with 98% success. Rambeharilal had earlier got his aunt operated for gall bladder. That operation was successful. The surgeon was making the best use of whatever facilities were being made available and he says, 'the facilities wereenough for relieving the sufferings and misery of people who needed the surgical hand'. Rambeharilal was the Collector of the District and knew that the hospital was the best to meet any emergency.
29. Post operative care and attendance: All that could possibly be done was done for the patient. A team of doctors including the surgical and medical specialists attached to the Medical College, Rewa, rushed to Shahdol. They had their joint consultations. They agreed upon a course of treatment which was meticulously given. The patient had all the attention. A Collector's wife could not he ignored.
30. To sum up, Dr. Shrivastava should not be judged for negligence by the unsatisfactory result, particularly in a case where a quick decision had to be taken during the course of an operation. It is unadvisable to pass an arm-chair judgment disregarding the factors which influenced the mind of the surgeon during a particular operation. As Lord Denning said, 'it is easy to be wise after the event and to condemn as negligence that which was only a misadventure'. Dr. Shrivastava was a qualified surgeon, who had worked for 9 years with consultant surgeons in United Kingdom. He had his own reputation at Shahdol and as the statistics would show, he had been performing with 98% success major operations a numbering 300 a year. And it so happened that after Rambeharilal was posted as Collector, he learned that Mrs. Rambeharilal was his distant counsm. That developed a family friendship. Rambeharilal had confidence in Dr. Shrivastava's professional skill and knew that he was excellent in his job and had been successfully performing abdominal operations. Unfortunately, Mrs. Rambeharilal died 3 days after the operation, not because the offending organ was not successfully removed but because the lady could not withstand the trauma of surgery or because some type of toxemia developed. The surgeon had followed a recognized practice and had shown reasonable carefulness and skill in the performance of the operation. He could not, therefore, be made liable in damages for negligence.
31. In the result, the appeal is accepted. The judgment and decree of the trial Court is set aside. The plaintiff's suit shall stand dismissed with costs. The plaintiffs, probably, would not have filed the suit, butthey appear to have been misguided by Dr. Shrikhande's administrative report Ex. p-6. That report formed the basis of the suit and the trial Court was also greatly influenced by the opinion expressed herein. The cross-objection filed by the plaintiffs is dismissed.
32. The plaintiffs shall pay costs of the defendant-appellant of both the Courts. Counsel's fee Rs. 500.