Laxman Balkrishna Joshi Vs. Trimbak
Bapu Godbole & ANR  INSC 141 (2 May 1968)
02/05/1968 SHELAT, J.M.
CITATION: 1969 AIR 128 1969 SCR (1) 206
RF 1989 SC1570 (9)
Tort-Negligence of Surgeon.
A person who holds himself out ready to give
medical advice and treatment impliedly holds forth that he is possessed of
skill and knowledge for the Purpose. Such a person when consulted by a patient,
owes certain duties, namely, a duty of care in deciding whether to undertake
the case, a duty of care in deciding what treatment to give, and a duty of care
in the administration of that treatment. A breach of any of these duties gives
a right of action of negligence against him. The medical practitioner has a
discretion in choosing the treatment which he proposes to give to the patient
and such discretion is wider in cases of emergency, but, he must bring to his
task a reasonable degree of skill and knowledge and must exercise a reasonable
degree of care according to -the circumstances of each case. [213 C-E] In the
present case, on 6th May 1953, the son of the first respondent suffered a
fracture of the femur of his left leg.
First aid was given by -a local physician
though the leg was not fully or properly immobilised, and, on the 9th May be
was taken to the appellant's hospital in Poona 200 miles away, in a taxi after
a journey of about eleven hours. The appellant directed his assistant to give
two injections of morphia but only one injection was given. The patient was
then given some treatment in the operation theatre and the first respondent was
assured at 5.30 p.m. that everything was all right and that the patient would
be out of the effects of morphia by 7 p.m. The first respondent thereupon left
for Dhond where he was practising as a medical practitioner. A little later
however, the patient's condition deteriorated and at 9 p.m. be died. The
'appellant issued a certificate that the cause of death was fat embolism.
The first respondent filed a suit against the
appellant for damages for negligence towards his patient. The trial Court, and
the High Court in appeal, held that the appellant had performed reduction of
the fracture, that in doing so he applied with the help of three of his assistants
excessive force, that such reduction was done without giving any anaesthetic
but while the patient was under the effect of the morphia injection, that the
said treatment resulted in the embolism, or shock, which was the proximate
cause of death, that the appellant was guilty of negligence and wrongful acts,
and awarded Rs. 3,000 as damages.
In appeal to, this Court, it was contended
that : (1) The High Court erred in placing reliance on medical works instead of
considering the evidence of the expert examined on behalf of the respondents;
and (2) the findings though concurrent, should be reopened by this Court, as
they were arrived at on a misunderstanding of the evidence and on mere
conjectures and surmises.
HELD: (1) There was nothing wrong in the High
Court emphasising the opinions of authors of well-recognised medical works
instead of basing its conclusions on the expert's evidence as, it was a alleged
by the appellant that the expert was a professional rival of the appellant and
was, therefore, unsympathetic towards him. [216 E-F] 207 (2) The trial court
and the High Court were right in holding that the appellant was guilty of
negligence and wrongful acts towards the patient and was liable for damages,
because, the first respondent's case that what the appellant did was reduction
of the fracture without giving anaesthetic, and not mere immobilisation with
light traction 'as was the appellant's case, was more acceptable and consistent
with the facts and circumstances of the case.
[218 C-D] (a) The first respondent himself
was a medical practitioner who was present throughout when treatment was being
given to his son and understood the treatment [214 A] (b) If reduction of the
fracture had been postponed and only immobilisation had been done, the first
respondent would not have left for Dhond. It was only because the reduction of
fracture had been done and the first respondent was assured that the patients
'condition was satisfactory and that he would come out of the morphia effect in
an hour or so, that the first respondent felt that his presence was no longer
necessary. [214 F-H; 215 A-B] (c) The patient must have been unconscious due to
the effects of morphia and the appellant's version that the patient was
cooperating throughout the treatment in the operation theatre could not be
true. The second morphia injection was not given as directed, because, the
first one had a deeper effect than was anticipated and not because the
assistant forgot to give it. [214 C-D; E-F] (d) In spite of the first respondent
having made a specific reference to the reduction of the fracture and the use
by the appellant of excessive manual force without administering anaesthetic,
in his complaint to the Medical Council the appellant in his explanation did
not specifically answer it. [215 F-H] (e) If his version as to the treatment
given by him to the patient were correct, there was no need for the appellant,
in his letter to the first respondent, written two months later, to 'ask
forgiveness for any mistake committed by him.
[215 E-F] (f) The cause of death was shock
resulting from the appellant's treatment. The appellant's theory that death was
due to embolism which must have set in from the time the accident occurred was
only an afterthought, because : (i) in his apologetic letter he confessed that
even then he was not able to gauge the reasons for the death, (ii) symptoms
showing embolism were not noticed either by the appellant or the first
respondent, and (iii) the appellant having been surgeon of long experience and knowing
that two days had elapsed since the accident would surely have looked for the
symptoms if he had felt there was a possibility of embolism having set in. [217
G-H; 218 A-C]
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 547 of 1965.
Appeal by special leave from the judgment and
decree dated February 25, 27, 1963 of the Bombay High Court in First Appeal No.
552 of 1968.
Purshottamdas Tricumdas and I. N. Shroff, for
Bishan Narain, B. Dutta and J. B.
Dadachatnji, for the respondents.
208 The Judgment of the Court was delivered
by Shelat, J. This appeal by special leave raises the question of the liability
of a surgeon for alleged neglect towards his patient. It arises from the
At about sunset on May 6, 1953, Ananda, the
son of respondent 1, aged about twenty years, met with an accident on the sea
beach at Palshet, a village in Ratnagiri District, which resulted in the
fracture of the femur of his left leg.
Since the sea beach was at a distance of 14'
miles from the place where he and his mother lived at the time it took some
time to bring a cot and remove him to the house. Dr. Risbud, a local physician,
was called at about 8-30 or 8-45 P.m. The only treatment he gave was to tie
wooden planks on the boy's leg with a view to immobilise it and give rest.
Next day, he visited the boy and though he
found him in good condition, he advised his removal to Poona for treatment.
On May 8, 1953, Dr. Risbud procured Mae In tyres
splints and substituted them for the said wooden planks. A taxi was thereafter
called in which the boy Ananda was placed in a reclining position and he, along
with respondent 2 and Dr.
Risbud, started for Poona at about 1 A.m.
They reached the city after a journey of about 200 miles at about 11-30 A.m.
on May 9, 1953. By that time respondent 1 had
come to Poona from Dhond where he was practising as a medical practitioner.
They took the boy first to Tarachand Hospital where his injured leg was
screened. It was found that he had an overlapping fracture of the femur which
required pintraction. The respondents thereafter took the boy to the
appellant's hospital where, in his absence, his assistant, Dr. Irani, admitted
him at 2-15 P.m. Some time thereafter the appellant arrived and after a
preliminary examination directed Dr. Irani to give two injections of 1/8th
grain of morphia and 1/200th grain of Hyoscine H.B. at an hour's interval. Dr.
Irani, however, gave only one injection.
Ananda was thereafter removed to the X-ray
room on the ground floor of the hospital where two X-ray photos of the injured
leg were taken. He was then removed to the operation theatre on the upper floor
where the injured leg was put into plaster splints. The boy was kept in the
operation theatre for a little more than an hour and at about 5-30 P.m., after
the treatment was over, he was removed to the room assigned to him. On an
assurance given to respondent 1 that Ananda would be out of the effect of
morphia by 7 P.m., respondent 1 left for Dhond. Respondent 2, however, remained
with Ananda in the sand room. At about 6-30 P.m. she noticed that he was
finding difficulty in breathing and was having cough. Thereupon Dr. Irani
called the appellant who, finding that the boy's condition was deteriorating
started giving emergency treatment which continued right until 9 P.m. when the
209 boy expired. The appellant thereupon issued a certificate, Ext. 138,
stating therein that the cause of death was fat embolism.
The case of the respondents, as stated in
para 4 of the plaint, was that the appellant did not perform the essential
preliminary examination of the boy before starting his treatment; that without
such preliminary examination a morphia injection was given to him; that the boy
soon after went 'under morphia' that while he was 'under morphia' the appellant
took him to the X-ray room, took X-ray plates of the injured leg and removed
him to the operation theatre.
Their case further was that "While
putting the leg in plaster the defendant used manual traction and used
excessive force for this purpose, with the help of three men although such
traction is never done under morphia alone, but done under proper general
anesthesia. This kind of rough manipulation is calculated to cause conditions
favourable for embolism or shock and prove fatal to the patient. The plaintiff
No. 1 was given to understand that the patient would be completely out of
morphia by 7 p.M. and that he had nothing to worry about. Plaintiff No. 1
therefore left for Dhond at about 6 P.M. the same evening." In his written
statement the appellant denied these allegations and stated that the boy was
only under the analgesic effect of the morphia injection when he was taken to
the X-ray room and his limb was put in plaster in the operation theatre.
Sometime after the morphia injection the patient was taken to the X-ray room
where X-ray plates were taken. The boy was cooperating satisfactorily. He was
thereafter removed to the operation theatre and put on the operation table. The
written statement tiller, proceeds to state :
"Taking into consideration the history
of the patient and his exhausted condition, the defendant did not find it
desirable to give a general anesthetic. The defendant, therefore, decided to
immobilise the fractured femur by plaster of Paris bandages. The defendant accordingly
reduced the rotational deformity and held the limb in proper position with
slight traction and immbilised it in plaster spica. The hospital staff was in
The patient was cooperating satisfactorily.
The allegation that the defendant used excessive
force with the help of three men for the purpose of manual traction is
altogether false and mischievous and the defendant does not admit it." The
appellant further averred that 210 "the defendant put the patients limb in
plaster as an immediate preliminary treatment on that day with a view to
ameliorate the patient's condition." His case further was that at about
6-30 P.m. it was found that the boy's breathing had become abnormal whereupon
the appellant immediately went to attend on him and found that his condition
had suddenly deteriorated, his temperature had one high, he was in coma, was
having difficulty in breathing and was showing signs of cerebral embolism and
that notwithstanding the emergency treatment he gave, he died at about 9 P.M.
The parties led considerable evidence, both oral and documentary,, which
included the correspondence that had ensued between them following the death of
Ananda, the appellant's letter, dated July 17, 1953 to respondent 1, the
complaint lodged by respondent 1 to the Bombay Medical Council, the appellant's
explanation thereto and such of the records of the case as were Produced by the
appellant. The oral testimony consisted of the evidence of the two respondents,
Dr. Gharpure and certain other doctors of Poona on the one side and of the
appellant and his assistant Dr.
Irani, on the other. The nurse who attended
on the boy was not examined. At the time of the arguments the parties used
extensively well-known works on surgery, particularly with reference to
treatment of fractures of long bones such as the femur.
On this evidence, the trial court came to the
following findings: (a) The accident resulting in the fracture of femur in the
left leg of Ananda occurred at about 7 P.m. on May 6, 1953 at the sea beach of
village Palshet. That place was about one and a quarter mile away from the
place where he and respondent 2 had put up. Arrangement had to be made for the
cot to remove him and the boy was brought home between 8-30 and 9 P.m., (b) Dr.
Risbud was called within ten minutes but except for tying three planks to
immobilise the leg he gave no other treatment. This was not enough because the
fracture was in the middle third of the femur and, therefore, the hip joint and
the knee joint ought to have been immobilised, (c) On May 8, 1953, Dr. Risbud
removed the planks and put the leg in Mac Intyres splints.
There was on that day swelling in the thigh
and that part of the thigh had become red. The Mac Intyres protruded a little
beyond the foot, (d) At about mid-night on 8/9 May 1953, a taxi was brought to
Palshet. Ananda was lifted into it and made to lie down in a reclining
position. The party left at 1 A.M. and reached Poona at about 11-30 A.m. The
journey took nearly eleven hours. The boy was first taken to Tarachand hospital
and from there to the appellant's hospital where he was admitted by Dr. Irani
at about 2-15 P.m., (e) After the appellant was summoned to the hospital by Dr.
Irani, he first examined his 211 heart and lungs, took temperature, pulse and respiration
and the boy was thereafter taken to the X-ray room where two Xray plates were
taken. The appellant then directed Dr.
Irani to. give two morphia injections at an
hour's interval but Dr. Irani gave only one injection instead of two ordered by
the appellant. The trial court found that the appellant had carried out the
preliminary examination before he started the boy's treatment. (f) The morphia
injection was given at 3 P.m. The boy was removed to the X-ray room at about
3-20 P.m. He remained in that room for about 45 minutes and was then removed to
the operation theatre at about 4 P.m. and was there till about 5 P.m. when he
was taken to the room assigned to him. The boy was kept in the operation
theatre for a little over' an hour. (g) Respondent 1 was all throughout with
Ananda and saw the treatment given to the boy and left the hospital for Dhond
at about 6 P.m.
on the assurance given to him that the, boy
would come out of the morphia by about 7 P.m. (h) At about 6-30 P.m.
respondent 2 complained to Dr. Irani that the
boy was having cough and was finding difficulty in breathing. The appellant, on
being called, examined the boy and found his condition deteriorating and,
therefore, gave emergency treatment from 6-30 P.m. until the boy died at 9 P.m.
On the crucial question of treatment given to
Ananda, the trial Court accepted the eye, witness account given by respondent 1
and came to the conclusion that notwithstanding the denial by the appellant,
the appellant had performed reduction of the fracture; that in doing so he
applied with the help of three of his attendants excessive force, that such
reduction was done without giving anesthetic, that the said treatment resulted
in cerebral embolism or shock which was the proximate cause of the boy's death.
The trial court disbelieved the appellant's case that be had decided to
postpone reduction of the fracture or that his treatment consisted of
immobilisation with only light traction with plaster splints. The trial Judge
was of the view that this defence was an after-thought and was contrary to the
evidence and the circumstances of the case. On these findings he held the
appellant guilty of negligence and wrongful acts which resulted in the death of
Ananda and awarded general damages in the sum of Rs. 3,000.
In appeal, the High Court came to the
conclusion that though the appellant's case was that a thorough preliminary
examination was made by him before he started the treatment, that did not
appear to be true. The reason for this conclusion was that though Dr. Irani
swore that the patient's temperature, pulse and respiration were taken, the
clinical chart, Ext. 213, showed only two dots, one indicating that pulse was
90 and the other that respiration was 24. But the chart did not record the
temperature. If that was taken, it was hardly likely that it would not be
recorded along with pulse and respiration.
212 As regards the appellant's case that he
had decided to delay the reduction of the fracture and that he would merely
immobilise the patient's leg for the time being with light traction, the High
Court agreed with the trial court that case also was not true. The injury was a
The reasons given by the appellant for his
decision to delay the reduction were that (1) there was swelling on the thigh,
(2) that two days had elapsed since the accident, (3) that there was no urgency
for reduction and (4) that the, boy was exhausted on account of the long
journey. The High Court observed that there could not have been swelling at
that time for neither the clinical notes, Ext. 213, nor the case paper, Ext.
262 mentioned swelling or any other symptom which called for delayed reduction.
Ext. 262 merely mentioned one morphia injection, one X-ray photograph and
putting the leg in plaster of Paris. The reference to one X-ray photo was
obviously incorrect as actually two such photos were taken. This error crept in
because the case paper, Ext. 262, was prepared by Dr. Irani some days after the
boy's death after the X-ray plates had been handed over on demand to respondent
1 and, therefore, were not before her when she: prepared Ext. 262. Her evidence
that she had prepared that exhibit that very night was held unreliable.
Ext. 262, besides, was a loose sheet which
did not even contain either the name of the appellant or his hospital.
It was impossible that a hospital of that
standing would not have printed forms for clinical diagnosis.
The next conclusion that the High Court
reached was that if the appellant had come to a decision to postpone reduction
of the fracture on account of the reasons given by him in his evidence, he
would have noted in the clinical chart, Ext. 213, or the clinical paper, Ext.
262, the symptoms which impelled him to that decision. The High Court agreed
that the medical text books produced before it seemed to suggest that where
time has elapsed since the occurrence of the fracture and the patient has
arrived after a long journey. deferred reduction is advisable. But the High
Court observed, the question was whether the appellant did defer the reduction
and performed only immobilisation to give rest to the injured leg. After
analysing the evidence, it came to the conclusion that what the appellant
actually did was to reduce the fracture, that in doing so he did not care to
give annaesthetic to the patient, that he contented himself with a single
morphia injection, that he used excessive force in going through this
treatment, using three of his attendants. for pulling the injured leg of the
patient that he put that leg in plaster of Paris splints, that it was this
treatment which resulted in shock causing the patient's death, and lastly, that
the appellant's case that the boy died of cerebral embolism was merely a cloak
used for suppressing the real cause of death, viz., shock.
213 These findings being concurrent, this
Court, according to its well-established practice, would not ordinarily
interfere with them. But Mr. Purshottam urged that this was a case where we
should reopen the findings, concurrent though they were, and reappraise the
evidence as. the courts below have arrived at them on a misunderstanding of the
evidence and on mere conjectures and surmises. In order to persuade us to do
so, he took us through the important parts of the evidence. Having considered
that evidence and the submissions urged by him, we have come to the conclusion
that no grounds are made out which could call for our interference with those
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 require : (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17). The
doctor no doubt has a discretion in choosing treatment which he proposes to
give to the patient and such discretion is relatively ampler in cases of
emergency. But the question is not whether the judgment or discretion in
choosing the treatment be exercised was right or wrong, for, as Mr. Purshottam
rightly agreed, no such question arises in the present case because if we come
to the same conclusion as the High Court, viz., that what the appellant did was
to reduce the fracture without giving anesthetic to the boy, there could be no
manner of doubt of his being guilty of negligence and carelessness. He also
said that he was not pressing the question whether in this action filed under
the Fatal Accidents Act (XIII of 1855) the respondents would be entitled to get
damages. The question, therefore, is within a small compass, namely, whether
the concurrent findings of the trial court and the High Court that what the
appellant did was reduction of the fracture without giving anesthetic to the boy
and not mere immobilisation with light traction as was his case, is based on
evidence or is the result of mere conjecture or surmises or of misunderstanding
of that evidence.
While considering the rival cases of the
parties, it is, necessary to bear in mind that respondent 1 is a medical
practitioner of considerable standing and though not an expert in surgery, he
is 214 not a layman who would not understand the treatment which the appellant
gave to the boy. It is not in dispute that he was present all throughout and
saw what was being done, first in the X-ray room and later in the operation
The trial court and the High Court had before
them his version on the one hand and that of the appellant on the other and if
they both found that his version was more acceptable and consistent with the
fact,-, and circumstances of the case than that of the appellant, it would
scarcely be legitimate to say that they acted on sheer conjecture or surmise.
It is not in dispute that the appellant had
directed Dr. Irani to administer two morphia injections. Admittedly only one
was given. Dr. Irani said that it wag not that she omitted to give the second
injection on the appellant's instructions but that she, forgot to give the
That part of her evidence hardly inspires
condence for, in such a case as the present it is impossible to believe that
she would forget the appellant's instructions. The second one was probably not
given because, the one that was given had a deeper effect on the boy than was
anticipated. The evidence of respondent 1 was that after the boy was brought
from the operation theatre to the room assigned to him, he was assured by the
appellant that the boy was all right and would come out of the morphia effect
by about 7 P.m. and that thereupon he decided to return to Dhond and did in
fact leave at 6 P.m. Both the courts accepted this part of his evidence and we
see no reason to find any fault with it.
What follows from this part of his evidence,
however, is somewhat important. If respondent 1 was assured that the boy would
come out of the effect of morphia by about 7 P.m., it must mean that the
appellants version that the boy was cooperating all throughout in the operation
theatre and was even lifting his hand as directed by him cannot be true.
Though the morphia injection of the quantity
said to have been administered to the boy would ordinarily bring about
drowsiness and relief from pain, the evidence, was that the boy was
unconscious. It seems that it was because of that fact that Dr. Irani had
refrained from giving the second injection. The second result that follows from
this part of the evidence of respondent 1 is that if the fracture had not been
reduced but that the appellant had only used light traction for immobilising
the injured leg and had postponed reduction of the fracture, it was hardly
likely that he would not communicate that fact to respondent 1. In that event,
it is not possible that respondent 1 would decide to leave for Dhond at 6 P.m.
There would also be no question of the appellant in that case giving the
assurance that it was all right with the boy. That such an assurance must have
been given is borne out by the fact that respondent 1 did in fact leave Poona
for Dhond that very evening. That would not have happened if reduction of the
215 fracture had been postponed and only immobilisation had been done. The
assurance given by the appellant upon which respondent 1 left Poona for Dhond
implies, on the contrary, that whatever was to be done had been done And that
the presence of respondent 1 was no longer necessary as the boy's condition
thereafter was satisfactory and he would come out of the morphia effect in an
hour or so. This conclusion is fortified by the fact that it was never put to,
respondent 1 that the appellant had at any time told him that he had postponed
reduction of the fracture and that the only thing he had done was
immobilisation by way of preliminary treatment.
The letter of the appellant to respondent 1
dated July 17, 1953, was, in our view, rightly highlighted by both the courts
while considering the rival version of the parties.
In our view, it was not written only to
express sympathy towards respondent 1 for the death of his son but was the
result of remorse on the appellant's part. If the only treatment he had given
was to immobilise the boy's leg and he had postponed putting the fractured ends
of the bone right at a later date, it is impossible that he would write the
letter in the manner in which he did. If he was certain that fat embolism had set
in and the boy's death was due to cerebral embolism, it is impossible that he
would write in that letter that it was difficult for him even after one and a
half months to piece together the information which could explain the reasons
why the boy died. If his version as to the treatment given to the boy were to
be correct, there was hardly any need for him in that letter to ask forgiveness
for any mistake, either of commission or omission, which he might have
committed. It is significant that until he filed his written statement, he did
not at any stage come out in a forthright manner that what he had done on that
day was only to immobilise the boy's leg by way only of preliminary treatment
and that he had postponed to perform reduction of the fracture at a later date.
In the complaint which respondent 1 filed before the Medical Council he had
categorically alleged that while putting the boy's leg in plaster splints the
appellant had used excessive manual force for about an hour, that what he, did
was reduction of the fracture without administering anaesthetic and that was
the cause of the boy's death. It is strange that in his explanation to the
Council, the appellant did not answer specifically to those allegations and did
not come out with the version that there was no question of his having used
excessive force and that too for about an hour as he had postponed reduction
and had only given rest to the boy's leg by immobilising" it in plaster
As we have already stated, both sides used a
number of medical works both at the stage of evidence and the arguments in the,
trial court. Certain passages from these books were shown to 216 the appellant
in cross-examination which pointed out that plaster casts are used after and
not before reduction of the fracture. The following passage from Hagnuson's
Fractures (5th ed.) p. 71, was pointed out to him "It is important to
reduce a fracture as promptly as possible after it occurs before there is
induration, delusion of blood and distension fascia".
The appellant disagreed with this view and
relied on an article by Moore, Ext. 295, where the author advocates delayed
reduction. But in that very article the author further on points out that
"if teams which provide welltrained supervision are available for immediate
reduction "it should be made. 'The author also states that where plaster
cast is used for immobilisation before reduction a cylindrical section 3"
to 4" in width at the site of the fracture should be removed leaving the
rest of the cast intact. The appellant did not follow these instructions though
he placed considerable reliance on the above passage for his theory of delayed
reduction. Counsel for the appellant complained that the High Court perused
several, medical works, drew inspiration and raised inferences therefrom
instead of relying on Dr. Gharpure's evidence, an expert examined by the
respondents. We do not see anything wrong in the High Court relying on medical
works and ,deriving assistance from them. His criticism that the High Court did
not consider Dr. Gharpure's evidence is also not correct. There was nothing
wrong in the High Court emphasising the opinions of authors of these works
instead of basing its conclusions on Dr. Gharpure's evidence as it was alleged
that doctor was a professional rival of the appellant and was, therefore,
unsympathetic towards him.
From the elaborate analysis of the evidence
by both the trial court and the High Court, it is impossible to say that they
did not consider the evidence before them or that their findings were the
result of conjectures or surmises or inferences unwarranted by that evidence.
We would not, therefore, be justified in reopening those concurrent findings or
reappraising the evidence.
As regards the cause of death, the
respondents' case was that the boy's condition was satisfactory at the time be
was admitted in the appellant's hospital, that if fat embolism was the cause of
death, it was due to the heavy traction and excessive force resorted to by the
appellant without administering anaestbetic to the boy. The appellant's case,
on the other band, was that fat embolism must have set in right from the time
of the accident or must have been caused on account of improper or inadequate
immobilisation of the leg, at Palshet and the hazards of the long journey in
the taxi and that the boy died, therefore, of cerebral embolism.
In the death certificate issued by him, the
appellant no doubt had 217 stated that the cause of death was cerebral
embolism. It is true that some medical authors have mentioned that tat embolism
is seldom recognised clinically and is the cause of death in over twenty per
cent of fatal fracture cases. But these authors have also stated that diagnosis
of that embolism can be made if certain physical signs are deliberately sought by
the doctor. Mental disturbance and alteration of coma with full consciousness
occurring some hours after a major bone injury should put the surgeon on guard.
Ho should examine the neck and upper trunk for petechial haemorrhages. He
should turn down the lower lid of the eye to see petechiae; very occasionally
there would be fat in the sputum or in the urine, though these are, not
reliable signs. In British Surgical Practice, Vol 3, (1948 ed.) p. 378, it is
stated, "a fracture of a long bone is the most important cause of fat
embolism, and there is an interval usually of 12-48 hours between the injury
and onset of symptoms during which the fat passes from the contused and
lacerated narrow to the lungs in sufficient quantity to produce
effects..................... The characteristic and bizarre behaviour noted in
association with multiple cerebral fatty emboli usually begins within 2 or 3
days of the injury. The preceding pulmonary symptoms may be overlooked,
especially in a seriously injured patient. The patient is apathetic and
confused, answering simple questions with difficulty; soon he becomes
completely incoherent. Some hours later delirium sets in, often alternating
with stupor and progressing to coma. During the delirious phase the patient may
be violent." In an article in the Journal of Bone Joint Surgery, by
Newman, (Ext. 291), the author observes that the typical clinical picture is
that of a man in the third or fourth decade who in consequence of a road
accident has sustained fracture of the femur and is admitted to hospital
perhaps after a long and rough journey with the limp improperly immobilised,
suffering a considerable shock. None of the, symptoms noted above were found by
the appellant. 'The appellant is a surgeon of long experience. Knowing that two
days had elapsed since the accident, that the leg of the patient had not been
fully or properly immobilised and that the patient had journeyed 200 miles in a
taxi before coming to him, if he had felt that there was a possibility of fat
embolism having set in, he would surely have looked for the signs. At any rate,
if he, had thought that there was some such possibility, lie would Surely have
warned respondent 1, especially as -lie happened to be 'a doctor also of long
standing. The evidence shows that the symptoms suggested in the aforesaid
passages were not noticed by the Sup. C. I./68--15 218 appellant or respondent
1. The assurance that the appellant gave to respondent 1 which induced the
latter to return to Dhond, the appellant's apologetic letter of July 17, 1953
in which he confessed that he had even then not been able to gauge, the reasons
for the boy's death, the fact that while giving treatment to the boy after 6-30
P.m. he did not look for the symptoms above mentioned, all go to indicate that
in order to screen the real cause of death, namely, shock resulting from his
treatment, he had hit upon the, theory of cerebral embolism and tried to
bolster it up by stating that it must have set in right from the time the
accident occurred. The aforesaid letter furnishes a clear indication that he,
was not definite even at that stage that death was the result of embolism or
that even if it was so, it was due to the reasons which he later put forward.
In our view, there is no reason to think that
the High Court was wrong in its conclusion that death was due to shock
resulting from reduction of the fracture attempted by the appellant without
taking the elementary caution of giving anaesthetic to the patient. The trial
court and the High Court were, therefore, right in holding that the appellant
was guilty of negligence and wrongful acts towards the patient and was liable
The appeal is dismissed with costs.
V.P.S. Appeal dismissed.