Degree of Proof Expected of a Doctor called upon to Answer a Charge of Medical Negligence [JUDGMENT]

Medical Negligence - Whether the respondent was medically negligent in discharging the child on 19.05.1989 without understanding as to what extent the child was recovered and what actually was the internal condition of her lungs.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
A. HARIPRASAD, J.
A.S.No.167 of 2003
Dated this the 6th day of July, 2018
AGAINST THE JUDGMENT AND DECREE DATED 23.08.1996 IN OS NO.48/1992 of SUB COURT, PAYYANNUR
APPELLANTS/PLAINTIFFS M.K. KESAVAN AND ANOTHER BY ADV.SRI.O.V.MANIPRASAD  RESPONDENT/DEFENDANT DR.O.K.ABDUL RASHEED BY ADV. SRI.V.N. RAMESHAN NAMBISAN 
JUDGMENT
Appellants are the plaintiffs in O.S.No.48 of 1992 before the Court of Subordinate Judge, Payyannur. They filed a suit for damages for the alleged medical negligence on the part of the respondent.
2. Relevant pleadings are thus: Defendant/respondent is a pediatrician. He is running a clinic by name OKEY's clinic, Taliparamba. On 08.05.1989, the plaintiffs took their child Archana, aged four years, to his clinic on account of fever and related problems. After seeing the child, the defendant prescribed medicines. Since the child did not recover properly, she was again taken to the defendant's clinic on 12.05.1989. On that day, the child was admitted in the clinic. The defendant treated the child for pneumonia, which was correctly diagnosed by him. On 19.05.1989, the child was discharged stating that she was completely cured. The plaintiffs were asked to administer medicines to the child for five days more from home. Believing that the child was completely cured, the plaintiffs took her home and gave medicines as directed. Later, the condition of the child became worse. On 21.05.1989, the child was again taken to the defendant's clinic. At that time also, the defendant instructed the plaintiffs to continue the medicine. When the child's condition became precarious, she was taken to the defendant's clinic again on 22.05.1989, but they could not meet the defendant. On 25.05.1989, since the child was seriously ill, she was taken to Dr.Usman, who was examined at the trial as DW2. He, after examining the child, directed the plaintiffs to take her to a better hospital in Mangalore. By that time the health condition of the child was completely deteriorated. On the way to Mangalore, the child started omitting and therefore she was taken to a hospital at Kanhangad. Dr.Padmanabhan (PW3) examined her. Thereafter, she was taken to the Vijaya clinic, Mangalore on 27.05.1989. Evacuation of the chest fluid was done and immediately thereafter the child expired on the same day. It is the allegation in the plaint that the cause of death was medical negligence on the part of the defendant. Even though he had diagnosed the disease of the child, he failed to give proper treatment and discharged the patient without verifying as to what extent the patient had recovered.
3. The defendant/respondent filed a written statement admitting that the plaintiffs' child was brought to his clinic on 08.05.1989 for treatment. The child was found suffering from pneumonia and the defendant asked the plaintiffs to admit the child in his clinic, but they refused to do so. So the defendant prescribed medicines to the child. On 12.05.1989, the child was brought to his house with high fever. As required by the defendant, the child was admitted in his clinic. Thereafter, effective and continuous treatment was given to the child. The child had shown remarkable improvements within 48 hours of starting treatment. Temperature remained normal till the date of discharge of the child on 19.05.1989. According to the defendant, he had correctly diagnosed the child's ailment as pneumonia and appropriate treatment was given. Plaintiffs were asked to bring the child to his clinic after five days of discharge. The records would show that thereafter the child was not brought to his clinic as directed. Later, he came to know that the child was taken to Vijaya clinic, Mangalore and the sad demise of the child. It was understood by the defendant that on 05.05.1989 the child had been taken to another pediatrician at Taliparamba and he also diagnosed the disease of the child as pneumonia. He too had advised the plaintiffs to admit the child in his nursing home. The records produced from Vijaya clinic also shows that the child was treated for emphysema, a lung disease. 1½ litres of pus was drained from the child's lungs. The defendant is not responsible for the death of the child. Plaintiffs are not entitled to get any damage or compensation from the defendant.
4. Subsequently the plaint was amended for which an additional written statement was filed by the defendant.
5. Court below framed the following issues: 
“1) Whether the suit is maintainable? 
2) Whether the defendant failed to make correct diagnosing and provide with required treatment? 
3) Whether the plaintiffs resorted to different treatment by various doctors without disclosing the earlier treatment? 
4) Whether the defendant was in any way negligent. Or irresponsible as alleged in discharge of his duties? 
5) Whether the suit is malafide? 
6) Whether the plaintiff is entitled to any compensation or to recover any amount as claimed? 
7) Whether the plaintiffs have cause of action? 
8) Whether there is any basis for the plaint claim? 9) Relief and costs?” 
6. Evidence in this case consists of the testimonies of PWs 1 to 3 and DWs 1 and 2 and Exts.A1 to A23 and B1 to B5.
7. Heard.
8. Learned counsel for the appellants/plaintiffs contended that the trial Judge committed a grave error in finding that there was no medical negligence on the part of the respondent/defendant. Admitted facts are as follows: On 08.05.1989, the respondent had seen the child by name Archana, aged four years, with high fever and other related problems. On that day itself, it was identified that the child was suffering from pneumonia. Even though medicines were prescribed and the appellants were advised to administer the same to the child, again the child was taken to his clinic on 12.05.1989 and the respondent examined and admitted her. Exts.B1 to B3 would show that she was conservatively treated in the clinic for pneumonia. The above facts are admitted by both sides. The appellants have no case that the ailment of the child was wrongly diagnosed. Medical records from other hospitals also show that the child was suffering from pneumonia during the relevant period.
9. Learned counsel for the appellants contended that the trial Judge committed a grave error in dismissing the suit despite finding that the respondent had failed to see that the child was not actually cured at the time of discharge, but in the process of developing emphysema. In paragraph 22 of the judgment, the trial Judge held that at the most the negligence or failure on the part of the respondent was that he failed to see that the child was not actually cured and was in the process of developing emphysema. But, still the court below found that there was no negligence on his part. It is also contended by the learned counsel that discharge of the child was made without taking pains to see as to what extent the child was cured and was there any possibility of developing secondary complications on account of pneumonia.
10. Before considering the legal and medical issues involved in this case, I shall go through the evidence adduced by the parties.
11. PW1, father of the child, deposed in terms of his pleadings. It is his definite case that on 08.05.1989 and 10.05.1989 the respondent had examined the child and on 12.05.1989, the child was admitted in his clinic and treated till 19.05.1989. It is the case of the respondent, in his written statement as well as at the time of deposition as DW1, that the child was completely cured on the date of discharge. PW1 deposed that he was informed that the child had recovered from illness. However, medicines for five days had been prescribed, which they purchased as revealed from Ext.A4, cash receipt issued from Manna medicals. It is said to be a medical shop run by the respondent himself. Cash receipts are Exts.A2 to A7. Ext.A10 is the prescription dated 18.05.1989. It is the case of the 1st appellant as PW1 that the doctor did not take proper care to see the health condition of the child at the time of discharge on 19.05.1989. On 22.05.1989, the child was taken to the respondent's clinic is the assertion by PW1. However, that is a disputed statement as DW1 denied it. PW1 would say that on 22.05.1989 the respondent examined the child again and directed to continue the medicines for three more days. Thereafter the child was not seen by the respondent. On 25.05.1989 the child was taken to the respondent's clinic, but, as he was not available there, she was taken to DW2 for treatment. At that time, her health condition was very bad and DW1 advised the appellants to take the child to a better hospital at Mangalore. Despite cross-examination on PW1, these aspects are not discredited. PW2 was examined on the side of the appellants to show that his child also died on account of medical negligence committed by the respondent. However, that may not be a relevant matter for deciding the alleged medical negligence in this case.
12. PW3, Dr.A.C.Padmanabhan, examined the child. He issued Ext.A22 certificate which shows that Baby Archana was examined and admitted by him in his clinic on 26.05.1989 at 10.50 a.m. and discharged on 27.05.1989 referring her to Dr.S.R.Ullal, Mangalore for further treatment. Ext.A22 does not show what was the treatment given by PW3. Testimony of PW3 would show that x-ray would have revealed the degree of improvement. But, admittedly in this case no x-ray was taken. Instead, DW1 deposed that on external examination he was satisfied that the child was completely cured.
13. Testimony of DWs 1 and 2 is to the effect that on 19.05.1989 at the time of discharge the child was perfectly alright and five more days medicine was only required for attaining normalcy. But in the meantime, admittedly things became worsen.
14. Exts.B1 to B3 would show the diagnosis and the treatment given.
15. Factually, there cannot be a dispute that the respondent had correctly identified the illness of the child as pneumonia and administered medicines. But, at the time of discharge the child was not completely cured, otherwise further complications would not have normally arisen.
16. Learned counsel for the appellant contended that the court below without any justification brushed aside the testimonies of plaintiffs' witnesses and on conjectures and surmises, found that the respondent is not negligent, despite entering a definite finding that he had failed to see that the child was actually not cured at the time of discharge.
17. Relying on a download from the site of Mayo Clinic, it is contended by the learned counsel that the course of treatment to be adopted in the case of pneumonia is as follows: “If pneumonia is suspected, your doctor may recommend the following tests: 
Blood tests. Blood tests are used to confirm an infection and to try to identify the type of organism causing the infection. However, precise identification isn’t always possible.
Chest X-ray. This helps your doctor diagnose pneumonia and determine the extent and location of the infection. However, it can’t tell your doctor what kind of germ is causing the pneumonia.
Pulse oximetry. This measures the oxygen level in your blood. Pneumonia can prevent your lungs from moving enough oxygen into your bloodstream.
Sputum test. A sample of fluid from your lungs (sputum) is taken after a deep cough and analyzed to help pinpoint the cause of the infection. Your doctor might order additional tests if you’re older than age 65, are in the hospital, or have serious symptoms or health conditions. These may include: 
CT scan. If your pneumonia isn’t clearing as quickly as expected, your doctor may recommend a chest CT scan to obtain a more detailed image of your lungs.
Pleural fluid culture. A fluid sample is taken by putting a needle between your ribs from the pleural area and analyzed to help determine the type of infection.” 
According to him, chest x-ray would have revealed the extent and location of the infection suffered by the child and in this case, admittedly no x-ray was taken. A download from the site of Radiology Information shows how pneumonia diagnosed and evaluated. The relevant portion reads as follows: 
How is pneumonia diagnosed and evaluated? 
Your primary doctor will begin by asking you about your medical history and symptoms. You will also undergo a physical exam, so that your doctor can listen to your lungs. In checking for pneumonia, your doctor will listen for abnormal sounds like crackling, rumbling or wheezing. If your doctor thinks you may have pneumonia, an imaging test may be performed to confirm the diagnosis.
One or more of the following tests may be ordered to evaluate for pneumonia: 
Chest x-ray (www.RadiologyInfo.orghttps:// www.radiologyinfo.org/en/info.cfm?pg=chestrad) : An xray exam will allow your doctor to see your lungs, heart and blood vessels to help determine if you have pneumonia. When interpreting the x-ray, the radiologist will look for white spots in the lungs (cold infiltrates) that identify an infection. This exam will also help determine if you have any complications related to pneumonia such as abscesses or pleural effusions (fluid surrounding the lungs).
CT of the lungs (www.RadiologyInfo.orghttps: //www.radiologyinfo.org/en/info.cfm?pg=chestct) : A CT scan of the chest may be done to see finer details within the lungs and detect pneumonia that may be more difficult to see on a plain x-ray. A CT scan also shows the airway (trachea and bronchi) in great detail and can help determine if pneumonia may be related to a problem within the airway. A CT scan can also show complications of pneumonia, abscesses or pleural effusions and enlarged lymph nodes.
Ultrasound of the chest (www.RadiologyInfo.orghttps: //www.radiologyinfo.org/en/info.cfm?pg=genus) : 
Ultrasound may be used if fluid surrounding the lungs is suspected an ultrasound exam will help determine how much fluid is present and can aid in determining the cause of the fluid.
MRI of the chest (www.RadiologyInfo.orghttps: //www.radiologyinfo.org/en/info.cfm?pg=chestmr) : MRI is not generally used to evaluate for pneumonia but may be used to look at the heart, vessels of the chest and chest wall structures. If the lungs are abnormal because of excess fluid, infection or tumor, an MRI may provide additional information about the cause or extent of these abnormalities.
Needle biopsy of the lung (www.RadiologyInfo.Org https://www.radiologyinfo.org/en/info.cfm? pg=nlungbiop) : Your doctor may request a biopsy of your lung(s) to determine the cause of pneumonia. This procedure involves removing several small samples from your lung(s) and examining them. Biopsies of the lung can be done using x-ray, CT, ultrasound and /or MRI.” 
18. It is the contention of the appellants that despite showing symptoms of acute pneumonia and problems related thereto, the respondent did not take proper care to see the extent of the ailment or the area affected by clinically examining the child through x-ray.
19. The contention raised by the respondent is that he was satisfied that the child was perfectly alright at the time of discharge. It is his deposition that the course of medicines prescribed at the time of discharge must have not been administered properly. Against this contention, I have seen the testimony of PW1 saying that the medicines were administered to the child as directed by the respondent. It cannot be presumed that the appellants, who are the parents of a seriously ailing child, failed to administer the medicines as they are the best persons to work for the welfare of the child. Therefore, the contention that there must have been any dereliction in administering medicines cannot be accepted in the absence of any evidence. The fact that the child died due to the complications arising out of pneumonia infection is also established by the documentary and oral evidence.
20. The only question to be decided is whether the respondent was medically negligent in discharging the child on 19.05.1989 without understanding as to what extent the child was recovered and what actually was the internal condition of her lungs.
21. Learned counsel for the appellants relying on the decision of the Supreme Court in Laxman v. Trimbak (AIR 1969 SC 128) contended that the Apex Court has stated in candid words the degree of proof expected of a doctor called upon to answer a charge of medical negligence. The observations in paragraph 11 of the decision read as follows: 
“The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. 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: (cf. Halsbury's Laws of England) 3rd ed. vol.26 p.17). …......” 
22. Another decision relied on by the learned counsel for the appellants is Poonam Verma v. Ashwin Patel (AIR 1996 SC 2111). In paragraph 40, the following principles have been stated by the Supreme Court: 
“Negligence has may manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black's Law Dictionary as under: Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.” 
23. A three Judge bench of the Supreme Court in Jacob Mathew v. State of Punjab (2005 (3) KLT 965) has considered the issues of medical negligence in extenso, both as a civil liability and criminal liability. In paragraph 15 of the decision, it has been held by the Supreme Court that a clear distinction exists between “simple lack of care” incurring civil liability and “very high degree of negligence”, which is required in criminal cases. It was observed in the decision regarding negligence by professionals in the following lines: 
“In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not assure his client of the result. A lawyer does not tell his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. A surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D.Williams & Co. Ltd., [2001] P.N.L.R. 233, CA, Sedley L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable. (Charlesworth & Percy, ibid, Para 8.03).” 
24. A division bench of this Court in Dr.T.T.Thomas v. Elisa (1986 KLT 1026) made the following observations: 
“Devaluation of standards in professional ethics is a dangerous trend. Its proliferation in medical profession is more calamitous than in other professional or occupational areas. “There can be few, if any, professions other than that of medicine about which it is possible to fashion a television series entitled 'Your Life in Their Hands” - (Mason and McCall Smith - Law and Medical Ethics). Failure to make a proper diagnosis sometimes may be the consequence of human error. But when diagnosis is correctly made, the imperative duty of the medical man to take adequate and prompt curative steps need not be overemphasised, for, any inertia on his side is at his risk as to all costs and consequences. If the allegations in this case are true, this would fall within the amplitude of the above proposition.” 
25. The legal principles stated above are well settled and if I apply the principles stated in the above decisions to this case, I can only find that the respondent was negligent in not taking care to see that the child had been cured completely at the time of discharge on 19.05.1989. Instead, he prescribed medicines for five days and in spite of a re-visit by the appellants with the child, he instructed that the medicines should be continued. It is not clear as to why the respondent did not take care to see as to what extent the child had been recovered, by taking x-ray, which is not explained properly. The evidence adduced by doctors in this case shows that there is 80 to 90% accuracy in the x-rays for pneumonia.
26. Court below misread the evidence, despite finding that there are elements of negligence on the part of the respondent. On a reevaluation of the evidence, I am of the view that the court below thoroughly misread the evidence and failed to find the negligence on the part of the respondent in treating minor Archana. The fact that she died on account of complications arose out of emphysema is evident from Ext.A15 death report issued from Vijaya Clinic, Mangalore. Emphysema, indisputably, is a complication arising out of pneumonia infection and the child's chest cavity was full of pus. The quantity of pus evacuated on 27.051989 would show the degree to which she developed complications within a short time, which only indicates that the child was not cured at the time of discharging from the hospital of the respondent.
27. Having regard to the facts and circumstances, the quantum of damages claimed is modest in any count. I find that it is not excessive or baseless.
In the result, the appeal is allowed. Judgment and decree passed by the court below is set aside. Suit is decreed. The respondent shall pay an amount of 2,00,000/- (Rupees two lakhs only) as compensation to the appellants with interest at the rate of 6% per annum from the date of decree. The respondent shall bear the costs throughout. Court fee for the suit and appeal shall also be collected from the respondent.
All pending interlocutory applications will stand closed.