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MANU/KE/0042/1994

Equivalent Citation: 1995ACJ253, AIR1994Ker289, ILR1994(2)Kerala834, 1994(1)KLJ782

Equivalent Citation : 1994 (1)KLJ 782

IN THE HIGH COURT OF KERALA

A.S. No. 297 of 1993

Decided On: 06.04.1994

Appellants: Joseph alias Pappachan and Ors.


Vs.
Respondent: Dr. George Moonjely and Anr.

Hon'ble Judges/Coram:
K. John Mathew and Dr. K. Narayana Kurup, JJ.

Counsels:
For Appellant/Petitioner/Plaintiff: Thomas V. Jacob, Adv.

For Respondents/Defendant: P.N.K. Achan, Adv.

*Case Note:
Tort--Vicarious liability--Owners of hospitals have the same duty as the
doctor while accepting a patient jar treatment--Must use reasonable care and
skill--They are liable for the negligence of the staff they employ. Suit is one
for damages suffered by the Plaintiffs on account of the death of Mary, the
wife of the 1st Plaintiff and the mother of the Plaintiffs 2 to 4, as a result of
the negligence of the Defendants in treating her. Mary was admitted to the
2nd Defendant's Hospital for Post partum sterilisation operation. She was
discharged from the hospital after the operation only to be brought back the
next day with complaints of pus and faecal matter oozing out through the
surgical slit. She was referred to Krishna Nursing Home in Cochin. The doctor
at the said Nursing home told the 1st Plaintiff that Mary had to be kept under
observation for a few days. The 1st Plaintiff who was very anxious took Mary
to the nearby City Hospital where she was operated upon. Her abdominal
cavity was found filled with faecal matter and thick foul smelling pus. The
small intestine was found adhered together into one mass and on clearing the
faecal matter and pus it was found that the small intestine was cut and left
unsutured. A few days after the operation at City Hospital, the faecal
discharge started again and the condition of the patient became worse. She
was moved to Little Flower Hospital, Angamaly where she was again operated
upon. It was found on opening the abdomen that the terminal 10" of the
ileum was perforated in many places with massive peritonitis with pockets of
pus. Loops of intestine were found distended and edematous and peritoneal
cavity was found to contain faecal matter. The patient was again operated
upon after a few days when it was found that one of the distended loops had
burst in one place and was discharging bile-stained fluid. Mary ultimately
died. The Defendants contended that no injury was caused to the intestine at
the time of Post partum sterilisation operation and that she died because of
perforations caused to her small intestine due to typhoid fever. The post

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mortem certificate issued by the Assistant Professor, Department of Forensic
Medicine and office of the Police Surgeon, Medical College, Alleppey shows
that the ileum was sutured and that the middle part of fallopian tubes were
found necrosed fimbrial ends wore intact with fallopian tubes which would
mean that the ileum was mistakenly cut instead of the knuckle of the fallopian
tube which is the standard Post partum sterilisation procedure. The trial court
granted a decree for Rs. 93,000 with interest at the rate of 12 per cent per
annum. A.S. 297/93 is filed by the Plaintiffs claiming the plaint amount while
A. S. 54 of 1991 is filed by the Defendants praying to set aside the judgment
of the trial court; Dismissing the appeal filed by the Defendants and allowing
the appeal by the Plaintiffs in part. field: Persons who run a hospital are in
law under the self same duty as the humblest doctor; whenever they accept a
patient for treatment, they must use reasonable care and skill to cure him of
his ailment. The hospital authorities cannot, of course, do it by themselves;
they have no ears to listen through the stethoscope, and no hands to hold the
surgeon's scalpel. They must do it by the staff which they employ; and if their
staff are negligent in giving the treatment, they are just as liable for that
negligence as is anyone else who employs others to do his duties for him.
Gold and Others v. Essex County Council (1942) 2 All E. R. 237-- Referred to.
Tort--Negligence of Medical men--Degree of skill and care required in law.
Held; The principle of awarding damages which apply in medical cases are no
different from those which are applicable in other cases involving personal
injury. The first point to be noticed is that the person who commits the
tortious act is necessarily liable in damages for all the direct consequences
that flow from the wrongful act albeit he may not be liable for those acts
which are too remote. The doctor has a legal duty to take all reasonable care
and the breach of that legal duty to take care resulting in damages to the
Plaintiffs gives rise to cause of action to the person injured. The question is
what is the degree of skill and care expected of a doctor ? He must bring to
his task a reasonable degree of skill and knowledge, and must exercise a
reasonable degree of care. 'Neither the highest, nor a very low degree of care
and competence' judged in the light of the particular circumstances of each
case, is what law requires.

JUDGMENT

K. Narayana Kurup, J.

1. This case reminds us of the Stone Age cave doctor performing 'surgery' by making
an 'incision' with a sharpened stone and 'suturing' with a stone needle -- his primitive
instruments --while the 'anaesthetist' stood by with a large club in his hand, ready to
strike the patient if he showed any sign of life.

2. These two appeals arise out of the judgment of the learned Principal Subordinate
Judge, Parur in O. S. No. 109 of 1984 D/-10-1-1990 granting a decree of Rs. 93,000/-
with interest at the rate of 12% per annum on the above sum in favour of the
plaintiffs-appellants (being husband and minor children of deceased Mary) towards
damages under various heads for causing the death of the said Mary by negligently
performing a Post Partum Sterilization (P.P.S.) operation. A. S. No. 297 of 1993 filed
by the plaintiffs is for enhancement of compensation as claimed in the plaint and A. S.
No. 54 of 1991 filed at the instance of the defendants 1 and 2 is to set aside the
judgment and decree of the trial court in O. S. No. 109 of 1984.

3. For the sake of convenience, we are treating A. S. No. 297 of 1993 as the main

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appeal.

A. S. No. 297/93 - Facts :

4. On 22-11-1982 deceased Mary (24), was admitted to the Little Flower Hospital,
Angamaly for her third delivery and on 24-11-1982, she gave birth to a male child, the
fourth plaintiff. The delivery was normal and she was discharged from the hospital on
26-11-1982. On the same day she was admitted in the nearby Moonjely Medical
Centre, Angamaly run by the second defendant who is none other than the wife of the
first defendant for Post Partum Sterilisation operation. On 27-11-1982 deceased Mary
was surgically operated by the first defendant. According to the first plaintiff, the
operation was done in a most brutal manner after tying the hands and legs of
deceased Mary to the frame of the stretcher -- operating table. On 5-12-1982
deceased Mary was discharged from Moonjely Medical Centre only to be brought back
to the same hospital on the next day, namely, 6-12-1982 with complaints of pus and
faecal matter oozing through the surgical slit. The first defendant thereupon gave an
unsigned reference letter to the first plaintiff directing him to take deceased Mary to
Krishna Nursing Home, Cochin. Mary was admitted in Krishna Nursing Home at about
12.30 a.m. on 7-12-1982. In the morning of 7-12-1982 she was examined by Dr.
Sabha-pathi, Chief Medical Officer of the Krishna Nursing Home who informed the first
plaintiff that Mary has to be kept under observation for a few days for fixing final
treatment. As the first plaintiff was very anxious, Mary was taken to nearby City
Hospital, Cochin on 7-12-1982 at about 6 p.m. and on the third day, namely, on 9-12-
1982 Dr. Joseph (since deceased) of City Hospital, Cochin assisted by P. W. 5 Dr. Mary,
operated deceased Mary when it was found that the abdominal cavity of deceased Mary
was filled with faecal matter and thick, foul smelling pus. The small intestine was found
adhered together into one mass. When cleared of all faecal matter and pus, the doctors
saw that the small intestine of deceased Mary was seen 'cut and left unsutured' and
faecal^ matter and pus were seen coming through that cut leading to peritonitis. Dr.
Joseph conducted laparotomy and end to end anastomosis and abdomen closed with
drain and tension sutures. A few days after the operation on 9-12-1982 in the City
Hospital, faecal discharge started again through the drain and the condition of the
patient became worse. As she required prolonged treatment, she was removed to the
Little Flower Hospital, Angamaly, nearer home, at the request of the first plaintiff,
where she was admitted on 22-12-1982. On 30-12-1982 she was again surgically
operated at Little Flower Hospital and on opening the abdomen the terminal 10" of the
ileum was found to be perforated in many places with places with massive peritonitis
with pockets of pus. Strangely enough this perforation was not noticed by the City
Hospital doctors'. Loops of intestine were found distended and edematous and
peritoneal cavity was found to contain faecal matter. On 3-1-1983 deceased Mary was
again surgically operated at Little Flower Hospital when it was found that one of the
distended loops had burst in one place and was discharging bile-stained fluid. Her
condition progressively became worse and she breathed her last on 8-1-1983.

5. On the above averments the plaint was laid praying for a decree of damages for Rs.
1,75,000/- from the defendants with interest at the rate of 12% per annum from 26-
11-1982 till realisation and for other reliefs.

6. First and second defendants filed a written statement controverting the averments
contained in the plaint. According to the first defendant, the small intestine of
deceased Mary was not cut during the P. P. S. operation and according to him the
fourth operation in the Little Flower Hospital, Angamaly on 3-1-1983 was necessitated
due to the failure of the previous two operations conducted in Little Flower Hospital,
Angamaly and City Hospital, Cochin. At any rate, according to the first defendant, the

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P.P.S. operation has nothing to do with intestine and no injury was caused to the
intestine of the deceased Mary at the time of P.P.S. operation. The first defendant had
a further case that deceased Mary died because of perforations caused to her small
intestine due to the Typhoid fever :

7. The evidence in this case consist of the oral evidence of PWs. 1 to 8 and DW 1 and
Exts. A1 to A15 and XI to X20.

8. The trial Court on a consideration of the evidence, found the first defendant guilty of
negligence in conducting the P.P.S. operation on the deceased and the second
defendant being the owner of the hospital vicariously liable for the negligent act of the
first defendant. The court also found that DW 1 was working there as her employee
and that the said hospital/clinic is an ill-equipped one and found that the
plaintiffs/appellants areentitled to get Rs. 93,000/- only as damages with interest at
the rate of 12% per annum.

-10. Being aggrieved by the judgment and decree of the trial Court, the plaintiffs have
come up with the instant appeal with a prayer to decree the suit in terms of the plaint.
In the connected appeal the defendants pray for setting aside the decree.

11. The following questions arise for consideration in these appeals, namely : (1)
whether the death of the deceased Mary was caused on account of negligence of the
first defendant in performing the P.P.S. operation; (2) If the answer to the above
question is in the affirmative, what is the nature of liability of defendants 1 and 2; and
(3) whether the damages awarded by the lower court is adequate or not?

12. In order to decide the first question, we propose to examine the evidence adduced
in this case in detail. Ext. X13 is the out patient record of the Little Flower Hospital,
Angamaly in the name of deceased Mary which shows that she was admitted there on
22-11-1982 for delivery and was discharged on 26-11-1982 after normal delivery. Ext.
X 4 is the description of medicines of Moonjely Medical Centre, where the P.P.S.
operation was done by the first defendant on deceased Mary which shows that
deceased Mary was surgically operated on 27-11-1982 under local anaesthesia (no
description of the anaesthesia used is given) after administering intravenous Fortwin
which is an analgesic -- pain killer. Ext. X 4 further shows that deceased Mary was
brought to Moonjely Medical Centre on 6-12-1982 with complaint of 'foul smelling
discharge through the surgical slit. It further reveals that deceased Mary was referred
to Krishna Nursing Home at about 10.30 p.m. on 6-12-1982. Ext. X 5 is the certificate
of admission issued by Krishna Nursing Home, Cochin in favour of deceased Mary
which shows that deceased Mary was admitted in that hospital at 12.45 a.m. on 7-12-
1982 with faecal matter discharging through Sub-Umbilical opening. Ext. X7 is the
Laparotomy findings issued by City Hospital, Cochin which shows that faecal matter
was pouring out through The gaped surgicalincision of about 3 c.m. long below the
umbilicus. Ext. X7 made the further shocking revelation that the abdominal cavity was
filled with faecal matter and thick foul smelling pus and that the terminal ileum about
25 c.m. from the ileo-cecal junction was completely cut transversely up to the
mesentery. Ext. X16 case records of City Hospital, Cochin relating to the deceased
Mary show that the small intestine was anastomosed end to end and abdomen closed
with drain and tension sutures. Ext. X17 Post-mortem certificate issued by Dr. E. O.
Raja, Assistant Professor, Department of Forensic Medicine and office of the Police
Surgeon, Medical College, Alleppey regarding the body of Mary shows that the 'ileum
was sutured and that the middle part of the fallopian tubes were found necrosed and
fimbrial ends were intact with fallopian tubes. According to Ext. X 17 post mortem
report deceased Mary dies as a result of peritonitis. Ext. X 19 Medico-legal opinion by

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Dr. V. K. Jayapalan, Director and Professor and Police Surgeon and State Medico-legal
Expert and Consultant shows that deceased Mary died of peritonitis developed as a
complication of the injury sustained to the intestine during the operation of P. P. S.
Ext. X 14 is the dying declaration of deceased Mary, which was recorded by the Judicial
IInd Class Magistrate, Always on 31-12-1982 at 5.35 p.m. It contains the further
shocking revelation that she was operated without administering anaesthesia after
covering her head with a towel and tying her hands and legs to the frame of the
operating table.

13. P W 1 is the first plaintiff, husband of deceased Mary and P. W. 2 is the then
Director of City Hospital who proved Exts. X 7 and X 16 records of City Hospital. PW 3
is Dr. Ayyappan Pillai, who inspected the Moonjely Medical Centre as per the request of
the Superintendent of Police, Alwaye. PW 4 was the Judicial IInd Class Magistrate,
Alwaye who recorded Ext. X 14 dying declaration of deceased Mary. PW5 is Dr. Mary
who assisted Dr. Joseph who conducted the laparotomy operation on deceased Mary in
the City Hospital, Cochin and has proved Ext. X 16 case records of CityHospital.
Besides swearing in categorical terms that deceased Mary has suffered a cut injury to
the intestine which was left un-sutured. She stated that faecal matter was seen coming
through that cut and that she saw the formation of peritonitis through that cut. PW 6 is
the Deputy Superintendent of Police, Alwaye, who proved Exts. X18 and X19. PW 7 is
the sister of deceased Mary and P W 8 is Dr. Jayapalan, Director and Professor and
Police Surgeon and State Medico-Legal Expert and Consultant who gave expert opinion.

14. On the side of the defendants, the first defendant gave evidence as DW 1.

15. On an appreciation of evidence adduced in this case, we find that deceased Mary
was hale and hearty when she was admitted in the Moonjely Medical Centre for P.P.S.
operation which was done by the second defendant on 26-11-1982. In fact she had
given birth to a healthy baby without any complication only two days back, namely,
24-11-1982 in the Little Flower Hospital. Complication started on the very day she was
surgically operated for P.P.S. by the first defendant on 27-11-1982. Even the very
surgery was done under crude and primitive conditions. It is doubtful whether the
room in which it was done was kept under aseptic condition. The worst side of the
picture is the gruesome fact that she was operated upon by the first defendant without
administering even local anaesthesia. Ext. X 4 hospital records of Moonjely Medical
Centre shows that intravenous Fortwin was administered to Mary along with local
anaesthesia (L.A.) without mentioning as to what is the local anaesthetic agent used.
Fortwin being an effective pain killer usually administered post operatively to relieve
pain, it is rather strange that it was administered along with local anaesthesia.
Therefore, we are inclined to believe that in all probability the first defendant
administered to deceased Mary Fortwin alone as a substitute for local anaesthesia
thereby causing excruciating pain to her. Deceased Mary was very categoric on this
aspect in Ext. X14 dying declaration when she states that she was operated
withoutanaesthesia. Her stay in Moonjely Medical Centre after P.P.S. operation on 27-
11-1982 deceptively uneventful was not that smooth as she was feeling discomfort due
to heavy distention of abdomen, a sure sign that something had gone wrong with the
operation. But her complaints were dismissed by the first defendant as mere gas
(flatulence) and she was eventually discharged 'fit' on 5-12-1982 only to be brought
back to the same hospital on the next day with complaint of discharge of pus and
faecal matter through the surgical wound. Instead of referring deceased Mary to the
nearby Little Flower Hospital which is a fullfledged hospital with all modern amenities
which could have saved much precious time the first defendant for reasons best known
to him, referred her to Krishna Nursing Home, where she was admitted at 12.30 a.m.
on 7-12-1982. As already noticed Ext. X 5 certificate of admission issued from the

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Krishna Nursing Home in favour of deceased Mary shows that she was admitted in that
hospital with faecal matter discharging through the sub-umbilical opening. Ext. X 7
laparotomy findings issued by the City Hospital, Cochin shows that faecal matter was
pouring through gaped incision of about 3 c.m. long below the umbilicus. Ext. X 7 also
shows that the abdominal cavity of deceased Mary was filled with faecal matter and
thick foul smelling pus and the terminal ileum about 25 c.m. from the ileo-cecal
junction was completely cut transversely up to the mesentery. Ext. X 16 case records
of City Hospital shows that small intestine was anastomosed end to end and abdomen
closed with drain and tension sutures. Necessity for anastomosis, arises only when the
small intestine has suffered a cut in which case the portion of the intestine which has
suffered a cut which is left, un-sutured resulting in irreparable damage has to be
resected and the remaining loose ends of the small intestine has to be joined together
by anastomosis. In this connection it is worthwhile to refer to the evidence of PW 5
who is none other than Dr. Mary, who assisted Dr. Joseph (since deceased) while
performing the laparotomy on deceased Mary. According to PW5, page 6 of Exhibit X
16 is in her handwriting and that small intestine of deceased Mary was cut up to
mesentery about 10" from the ceacum, i.e., 10" away from ceacum. Exhibit X5
certificate of admission issued by Krishna Nursing Home, Cochin shows that faecal
matter was oozing through the sub-umbilical opening. Exhibit X7 laparotomy finding
issued by City Hospital, Cochin shows that faecal matter was pouring out through the
gaped incision of about 3 c.m. long below the umbilicus. Exhibit X7 made the further
shocking revelation that the abdominal cavity was filled with faecal matter and thick
foul smelling pus and that the terminal ilearn about 25 c.m. from the ileo-cecal
junction was completely cut transversely up to the mesentery. Exhibit X17 postmortem
certificate dated 11-1-1983 shows that the ileum was found sutured and the peritoneal
cavity was soiled with faecal matter. Exhibit X17 post-mortem certificate throws
considerable light on the negligence with which first defendant performed the P.P.S.
operation on deceased Mary. It shows that the ileum was found sutured. This suturing
of ileum has obvious reference to the 2nd operation done at City Hospital, where
laparotomy was conducted and cut sutured with drain and tension wire. The suturing of
ileum was necessitated because it was already cut (but left unsutured) at the P.P.S.
operation performed on deceased Mary by the first defendant on 27-11-1982. The fact
that ileum was mistakenly cut is evident from the further finding in Exhibit X 17 post
mortem certificate to the effect that the middle part of the fallopian tubes were found
only necrosed. In Exhibit X17 post mortem certificate, there is no finding that the
fallopian tubes were cut, which means that the first defendant was negligent in
conducting the P.P.S. operation and that he cut the small intestine instead of cutting
off the knuckle of the fallopian tube which is the standard P.P.S. procedure. According
to PW8, Dr. V. K. Jayapalan. Director of Professor and Police Surgeon and State Medico
Legal Expert and Consultant, deceased Mary died of peritonitis developed as a
complication of the injury sustained to the intestine during P.P.S. operation. According
to him if a patient undergoing surgical operation happens to sustain a cut injury to the
intestine and leaving the injury as such unsutured for a period of 7 to 10 days, there is
every likelihood of that patient reaching a very critical and fatal stage or condition. He
further swears that he did not find any other reason to account for peritonitis. From
these facts it is clear that Mary died due to peritonitis as a sequel to the cut in her
small intestine which she suffered as a result of the negligent P.P.S. operation
performed on her by the first defendant. The contention of the first defendant that the
small intestine was not cut during the P.P.S. operation can be accepted only with a
pinch of salt in the light of the clinching evidence that has been brought out in this
case. Why we are holding so is because of the fact that Mary first complained of
discharge of pus and faecal matter through the surgical incision on 6-12-1982, viz., on
the 10th day after the P.P.S. operation. The first defendant has no case that she had
undergone any other surgical operation in the interregnum between 27-11-1982 and

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6-12-1982. So the only possible and plausible reason for the abnormal discharge is the
cut to the intestine which she suffered while undergoing the P.P.S. operation at the
hands of the first defendant.

16. The other contention of defendants 1 and 2 is that Mary died because of
perforations caused to her small intestine due to typhoid fever and not because of any
cut to the intestine. On examining this contention in the light of the evidence brought
out in this case, we find no merit in the said contention. The defendants rely on the
findings contained in Exhibit X6 operation records of Little Flower Hospital, Angamaly
to the effect that in the distal portion of the ileum there are number of perforations
extending from about 2" proximal to ileo-cecal junction 10". Reliance is also placed on
Exhibit XII histopathological report of Kasthurba Medical College, Manipal appended to
the death certificate issued by Little Flower Hospital, Angamaly in which it is stated
that lymphicytes plasma cells and few histocytes morphology is suggestive of
perforation due to typhoid fever'. On an anxious consideration of the various related
aspects of thisargument we are afraid we cannot accept this contention. First of all, it
has to be noted that it is an accepted medical proposition that perforation due to
typhoid usually occurs during 2nd to 3rd week after the onset of symptoms typical of
typhoid. In this connection it has to be noted that Mary never presented any symptom
of typhoid. That apart, it is worthwhile to note that even though Exhibit X6 mentions
about perforations, such perforations were not seen mentioned either in Exhibit X7
laparotomy findings issued by City Hospital, Cochin or in Exhibit X18 and X19 medico-
legal opinion or in Exhibit X17 post-mortem certificate. As already noticed, Exhibit X!7
post mortem certificate mentions only about the cut to the intestine (when it states
that the ileum was found sutured) and not about any typhoid ulcer perforation.
Moreover, if it was a case of typoid ulcer perforation, deceased Mary would have
presented an entirely different clinical picture. Deceased Mary never presented any
such symptom. All that she had was faecal matter and thick foul smelling pus oozing
through the cut in the small intestine. To cap it all neither the surgeon of the Little
Flower Hospital, who made the findings regarding typhoid ulcer perforation nor the
Pathologist of Kasthurba Hospital who issued the histopathology report which forms
part of the death certificate has been examined in this case. In the light of the above
discussion, the conclusion is irresistible that Mary died on account of negligence of the
first defendant in performing the P.P.S. operation and not on account of perforation
due to typhoid fever.

17. Having found the answer to the first question in the affirmative, the second
question is the nature of liability of defendants 1 and 2. The first defendant as D.W. 1
has admitted that the second defendant who is his wife is the owner of Moonjely
Medical Centre where deceased Mary had undergone P.P.S. operation. He further
swears that he conducted the P.P.S. operation as an employee and doctor of that
hospital. In the light of our finding that the first defendant was negligent in performing
the P.P.S. operation, he is primarily liable for his negligent act and thesecond
defendant as the owner of the hospital is vicariously liable for the negligent act of the
first defendant. Regarding the vicarious liability of those who run the hospital for the
negligent acts of the doctors employed by them, the question is no longer resintegra.
Persons who run a hospital are in law under the self-same duty as the humblest
doctor; whenever they accept a patient for treatment, they must use reasonable care
and skill to cure him of his ailment. The hospital authorities cannot, of course, do it by
themselves; they have no ears to listen through the stethoscope, and no hands to hold
the surgeon's scalpel. They must do it by the staff which they employ; and if their staff
are negligent in giving the treatment, they are just as liable for that negligence as in
anyone else who employs others to do his duties for him. (See in this connection Gold
v. Essex County Council (1942) 2 All ER 237.) Therefore, we find that the first

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defendant is primarily liable for his negligent act and second defendant being the
owner of the hospital is vicariously liable for the negligent conduct of the first
defendant.

18. The principle of awarding damages which apply in medical cases are no different
from those which are applicable in other cases involving personal injury. The first point
to be noticed is that the person who commits the tortious act is necessarily liable in
damages for all the direct consequences that flow from the wrongful act albeit he may
not be liable for those acts which are too remote. The doctor has a legal duty to take
all reasonable care and the breach of that legal duty to take care resulting in damages
to the plaintiffs gives rise to cause of action to the person injured. The question is what
is the degree of skill and care expected of a doctor? He must bring to his task a
reasonable degree of skill and knowledge, and must exercise a reasonable degree of
care. 'Neither the highest, nor a very low degree of care and competence' judged in
the light of the particular circumstances of each case, is what law requires.

A. Viewed in the above perspective it can be seen that Mary's death was caused as a
direct consequence of negligence on the part of the first defendant in performing the
P.P.S. operation and the first defendant failed to exercise reasonable degree of care
and skill in performing the said operation. In fact, he was reckless in cutting the small
intestine of deceased Mary instead of the fallopian tube and leaving it unsutured giving
rise to peritonitis which is the direct cause of Mary's death.

19. With regard to the quantum of damages awarded by the trial court, we are of the
view that the same is not adequate to meet the ends of justice.

20. An amount of Rs. 30,000/- has been awarded for medical expenses incurred by the
first plaintiff and supported by medical bills. Since that is the actual expenditure
incurred by the first plaintiff, no enhancement is called for and we confirm the same.
For pain and suffering a sum of Rs. 30,000/- as claimed is decreed and we limit the
claim to the amount claimed and decreed even though considering the excruciating
pain suffered by the deceased we are of the view that the plaintiffs were entitled to
claim a higher amount under this head.

21. Under the head of loss of consortium and pecuniary loss the amounts of Rs.
15,000/- and Rs. 18,000/- respectively awarded by the trial court appears to us to be
niggardly. For a grave and substantial injury of the nature suffered by the plaintiffs, no
amount of money would be a "perfect compensation" which can restore to them what
has been lost by them for ever. Deceased Mary was only 24 years of age at the time of
her death. She was survived by her husband the first plaintiff and three young
children, plaintiffs 2 to 4. She was a housewife looking after the entire household. She
was also deriving income out of her poultry business. The infant baby had to be
properly looked after and for that purpose and also for looking after the household
work the first plaintiff has to engage some responsible person. The first plaintiff himself
has lost his life partner depriving him of his thrill and joy of life and the children lost
their mother's love and care. Considering all these facts, we are of the view that the
plaintiffs are entitled to "substantial damages" to the tune of Rs. Onelakh under the
head of loss of consortium, pecuniary loss, loss of amenities of life and shortened
expectation of life. We are very much conscious of the fact that the "niggardly" amount
decreed by the courts have deterred many a victim of medical negligence from
pursuing the legal remedy.

22. In the result, A. S. No. 297 of 1993 is allowed in part and the plaintiffs are given a

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decree for a sum of Rs. 1,60,000/- together with interest at the rate of 12% per
annum on the above sum from the date of suit till realisation and proportionate cost
from defendants 1 and 2 and from their assets. Defendants 1 and 2 are ordered to pay
appellants cost in this appeal inclusive of court-fee on the Memorandum of Appeal.
Forward a copy of this judgment to the District Collector, Ernakulam to recover the
amount of court-fee from defendants 1 and 2.

A. S. No. 54 of 1991.

In the light of our finding that defendants 1 and 2 are liable for damages to the
plaintiffs for negligently causing death of Mary and in view of the fact that we have
allowed A. S. No. 297 of 1993 and enhanced the quantum of damages from Rs.
93,000/- to Rs. 1,60,000/- this appeal must fail. Appeal dismissed. No costs.

*A reproduction from ILR (Kerala Series)

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