# f,AXMA'.'11 RALKRISHNA JOSHI v. TRIMBAK RAPU GODROl,E AND ANR

- **Citation:** [1969] 1 S.C.R. 206
- **Court:** Supreme Court of India
- **Decided:** 1968-05-02
- **Case number:** Civil Appeal No. 547 of 1965
- **Bench:** R. S. Bachawat, J. M. Shelat, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/f-axma-11-ralkrishna-joshi-v-trimbak-rapu-godrol-e-and-anr-4380
- **Pages:** 13

## Headnote

B
Tort-l'l/egliRence of S11rgeon.
A person v.·ho holds himself out ready to give medical advice and
tn!"•tment
impliedly holds forth that he is possessed of skill and knowledge. for t~c purpose.
Such a person 'vhen consulted by a patient, owes
ccna10 du11es. namely. a duty of care in deciding whether to undenake
the case,. <1 duty of ~arc in deciding what treatment to give, and a duty
C
of care 111 the adm1n1stration of that treatment.
A breach of any of
these duties r.nve-; a right of action of ne,:?:ligence against him.
The medical practitioner h;-is a discretion in choosing the treatment \\1hich he proposes to give co the patient and such discretion is wider in cases of emergency. hut, he must bring to his task a reasonable degree of skill and
know}edgc and must exercise a reasonable dl"-grc.e of care ttccordin.e to
the circumstances of each case. [213 C-E]
·
In the present case, on 61h 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 he was taken to the appellant's hospital in
Poona 200 mile~ av.·ay. in a taxi after a journey of ahout eleven hoors.
'fhc appellant directed his assistant to give two injections of morphia
but only one injection was given.
The patient
\Vas then ~iven some
treatment in the opcratjon theatre and the first respondent \\.'ao:; assured
at 5.JO p.m. that e.vcrything \\·as all right and that the patient \\'ouJd be
out of the effects of morphia by 7 p.m.
The first respondent thereuPQn
left for Dhond \vhere he was practising as a
m~dical practitioner.
A
little Jatci ho,vevcr. the patienfs condition deteriorated and ~t 9 p.m. he
died.
The appe11ant issued a certificate that the cause of death was fat
embolism.
1be first respondent filed a suit against the appellant for damages for
negligence towards his patient.
"fhe trial Court. and the High Court in
appeal. held that the appellant had performed reduction of the fracture,
that in doin~ so he applied with the help of three of his a~sistants cxces.sive
force, that such reduction was done \Vithout giving nny anaesthetic hut
while the patient was under the effect of the morphia in.iection. that the
said treatment rec;ulted in the. embolism. or shock. v.'hich \\'as the pro'.":i·
mate cause of death. that the appel1ant \\'as guilty of ne~ligenc.e and
"'rongful acts. and awarded Rs. 3,000 as damages.
In appeal to this Court. it was oontended that : (I) The High Court
erred in placing reJiancc on niedical works instead of considering the
evidence of the expert examined on behalf of the re<pondents; and (2)
the findings though concurrent. should he reopened by this Court. as thev
were arrived at on a misunderstanding of the evidence and on mere conjectures and surmises.
HEJ,D : (I) There was nothing wrong in the High C.ourt cmphasisin~ the opinions of authors of v."CJ1-recogniscd medical works instead of
b.l.~ng itc; conclusions on the expert's evidence as. it \\'as a alleged hy
the appellant that the expert was a orofcssional rival of the appellant
and \\'as, therefore, unsympathetic to\vards him. [216 E-F}
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(2) The trial court and the High Court were right in holding that the
appelhmt 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 \Vas 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

## Text

f,AXMA'.'11 RALKRISHNA JOSHI
A
v.
TRIMBAK RAPU GODROl,E AND ANR.
May 2, 1968
[R. S. BACHAWAT, J. M. SHELAT AND A. N. GROVER, JJ.)
B
Tort-l'l/egliRence of S11rgeon.
A person v.·ho holds himself out ready to give medical advice and
tn!"•tment
impliedly holds forth that he is possessed of skill and knowledge. for t~c purpose.
Such a person 'vhen consulted by a patient, owes
ccna10 du11es. namely. a duty of care in deciding whether to undenake
the case,. <1 duty of ~arc in deciding what treatment to give, and a duty
C
of care 111 the adm1n1stration of that treatment.
A breach of any of
these duties r.nve-; a right of action of ne,:?:ligence against him.
The medical practitioner h;-is a discretion in choosing the treatment \\1hich he proposes to give co the patient and such discretion is wider in cases of emergency. hut, he must bring to his task a reasonable degree of skill and
know}edgc and must exercise a reasonable dl"-grc.e of care ttccordin.e to
the circumstances of each case. [213 C-E]
·
In the present case, on 61h 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 he was taken to the appellant's hospital in
Poona 200 mile~ av.·ay. in a taxi after a journey of ahout eleven hoors.
'fhc appellant directed his assistant to give two injections of morphia
but only one injection was given.
The patient
\Vas then ~iven some
treatment in the opcratjon theatre and the first respondent \\.'ao:; assured
at 5.JO p.m. that e.vcrything \\·as all right and that the patient \\'ouJd be
out of the effects of morphia by 7 p.m.
The first respondent thereuPQn
left for Dhond \vhere he was practising as a
m~dical practitioner.
A
little Jatci ho,vevcr. the patienfs condition deteriorated and ~t 9 p.m. he
died.
The appe11ant issued a certificate that the cause of death was fat
embolism.
1be first respondent filed a suit against the appellant for damages for
negligence towards his patient.
"fhe trial Court. and the High Court in
appeal. held that the appellant had performed reduction of the fracture,
that in doin~ so he applied with the help of three of his a~sistants cxces.sive
force, that such reduction was done \Vithout giving nny anaesthetic hut
while the patient was under the effect of the morphia in.iection. that the
said treatment rec;ulted in the. embolism. or shock. v.'hich \\'as the pro'.":i·
mate cause of death. that the appel1ant \\'as guilty of ne~ligenc.e and
"'rongful acts. and awarded Rs. 3,000 as damages.
In appeal to this Court. it was oontended that : (I) The High Court
erred in placing reJiancc on niedical works instead of considering the
evidence of the expert examined on behalf of the re<pondents; and (2)
the findings though concurrent. should he reopened by this Court. as thev
were arrived at on a misunderstanding of the evidence and on mere conjectures and surmises.
HEJ,D : (I) There was nothing wrong in the High C.ourt cmphasisin~ the opinions of authors of v."CJ1-recogniscd medical works instead of
b.l.~ng itc; conclusions on the expert's evidence as. it \\'as a alleged hy
the appellant that the expert was a orofcssional rival of the appellant
and \\'as, therefore, unsympathetic to\vards him. [216 E-F}
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(2) The trial court and the High Court were right in holding that the
appelhmt 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 \Vas 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 patient's
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-Bl
(c) The patient must have been unconscious due to the effects of
n1orphia 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. [2\5 F-H]
( e) If his version as to the treatment given by him to the patient
\Vere correct, there \Vas 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) The1 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 afterF
thought, because: (i) in his apolo_ge.tic 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 ha,;ng set in. [217 G-H; 218 A-Cl
G
CIVIL APPELLATE JURISDICTION :
Civil Appeal No. 547 of
1965.
H
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 the appellant.
Bishan Narain, B. Dutta and J. B. Dadachanji, for the respondents.
208
SUPREME COURT REPORTS
[1969) I SCR.
The Judgment of the Court was delivered by
Shelat, J. This appeal by special leave
raises the
<JUestion
of the liability of a surgeon for alleged neglect towards his patient.
lt arises from the following facts.
At about sunset on May 6, 1953, Ananda, the son of respondent I, aged about twenty years, met with an accident on the
sea bc.ach at Palshct, a village in Ratnagiri District, which resultc<l
in the fracture of the femur of his left leg.
Sin.cc the sea b~ach
was at a distance of I" miles from the place where he and his
mother Jived at 1he time it took some time to bring a cot and
remorn him Jo the house. Dr. Risbud, a local ph}·sici;m, was
called at about 8-30 or 8-45 P.M.
The only treatment he gave
was to tic wooden planks on the boy"s leg with a view to immobilise it and give rest.
!\ext day, he visited the boy and though
he found him in 2ood condition, he advised his removal to Poona
for treatment.
On May 8, 1953. Dr. Risbud
procured
Mac
lntyres splints and substituted them for the said wooden planks.
A taxi was thereafter called in which the boy Ananda Web placed
in a reclining position and he, along with respondent 2 and· Dr.
Risbud. started for Poona at about 1 A.~1.
They reaclv::d the
city after a journey of about 200 miles at about 11-30 A.'1. on
May 9, 1953. By that time respondent I had come to Poona from
Dhond where he w"s pr"ctising 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 fr:icture
of the femur which required
pin-traction.
The
respondents
thereafter took the boy to the appellant\ hospital where. in his
absence. his assistant, Dr. Irani. admitted him at 2- I '.i
t'.~t. Some
time thereafter the appellant :irrivcd and after
a
p1cli111inary
examination directed Dr. Ir:ini to give two injections of 1, 8th
grain of 111orphia and I /200th grain of Hyoscinc 11.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 le_g \\ere taken.
He was then removed to the opcr:1tion theatre on1 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 '.'-:10 P.M., after the treatment was over, he was removed
to the roo111 assigned to hinl.
()n an assurance givr.!n to respondent I that Ananda would be out of the effect of morphia by
7
P.~t.. respondent 1 left for Dhond.
Respondent 2. ho"ever.
remained with Anand,1 in the s:1id room. At about 6-30 P.\r. she
noticed that he was finding difficulty in breathing and w,:s having
couoh.
Thereupon Dr. I~ani called the appellant who, finding
that the bov's condition was deteriorating started l!iving emer·
gcncy treat1i1ent which continued right until 9 P.M. "·h~n the
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L. B. JOSH! l'. T. B. GODBOLE (She/at, J.)
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 tr.iction
is never done under morphia alone, but done under
proper general anaesthesia.
This kind of rough manipulation is calculated lo 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.
Pluintiff
No. 1 therefore left for Dhond at about 6 P.J>;. the
san1e evening.'·
rn· his written statement the appellant denied these ailegations
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 then proceeds to state :
"Taking into consideration the history of the patient
and his exhausted condition, the defendant did not fmd
it desirable to give a general anaesthetic.
The dekndant, therefore, decided to immobilise
the fractured
femur by plaster of Paris bandages. The defendant
accordingly reduced the rotational deformity and ;1cld
the limb in proper position with slight traction and
immobilised it in plaster spica.
The hospital staff was
in attendance.
The patient was
cooperating
saiis ·
factorily. 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 docs not admit it."
The appellant further averred that
210
SUPREME COURT RP.PORTS
[1969] I S.C.R.
"the defendant put the patient's limb in plaster as
an immediate preliminary treatment on that day with a
view to ameliorate the patient's condition."
llis case further was that at about 6-30 P.M. it was found that
the boy's breathing had become abnormal whereupou the appellant immediately went to attend on him and found that his condition had suddenly deteriorated, his temperature had gone 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 I, the complaint lodged by respondent
I to the Bombay Medical Council, the appellant'~ explanation
thereto and such of the records of the case as were rroducrd 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.
Ir~ni, 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 qu~11er mile away from the place where he and respcndent 2
had put up. Arrangement had to be made for the cot to remove
him und the boy was brought home between 8-30 und 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 lntyres
splints.
There was on that day swelling in the thigh :md 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
I A.M. and reached Poona at about 11-30 A.M.
The journey
took nearly eleven hours. The boy was first taken to Taracband
hO!'pital 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
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L. B. JOSHI V. T. B. GODBOLE (She/at, /.)
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heart and lungs, took temperature, pulse and respiration and the
boy was thereafter taken to the X-ray room where two X-r3:y plates
were taken.
The appellant then directed Dr. Iram ~o give two
morphia injections at an hour's interval but Dr. Iram gave m~ly
one injection instead of two ordered by t~e appellant.
T~e. tnal
court found that the appellant had earned out the prelinnn'19'
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 tbe 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 anaesthetic, 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 he
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
m the death of Ananda and awarded general dama!!:es in the sum
of Rs. 3,000.
~
In appeal, the High Court came to the conclusion that though
the appellant's c_ase was that a thorough preliminary examination
was made by him before he started the treatment, that did not
appear t? be true. The reason for this conclusion was that though
J?r. Irani swore that the patient's temperature, pulse and respiration were. ta~en,_ the clinical chart. Ext. 213, showed only two
dots, one md1cat1ng that pulse was 90 and the other that respiration was 24.
~ut the chart cJ!d not record the temperature. If
that was taken, 1t was hardly likely that it would not be recorded
along with pulse and respiration.
~12
SUl'Rl:..i'.IE COURT REPORTS
fJ9(i9] J SCR.
As regards the appellam's case that he had decided to delay
the r,·duction of the fracture and that he would merelv immobifoe
the p;itient's leg for the tin1c being with light traction. the High
Coun a~recd with the tri;il court that that case also was not true.
The
inj'~1ry was a simple fracture.
The reasons given by the
"l'P,·llant fllr his deci>ion to delay the reduction were that ( l)
thcr,: W•JS swelling on the thigh. ( 2) that two days had elapsed
since the accident. (3) that there was no urgency for reduction
and r 4) that the boy was exhausted on account of the long journey.
The High CoJrt obsnved that there could not have been
swc!ling 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 nlllrphi,i rnjcction. one X-r<1y 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. Thi'
error crept in became the c'"" paper, Ext. 262. was prepar.::d by
Dr. Irani some days after the boy's death after the X-ray platet;
had been handed ow:- on demand to respondent I and, therefore,
were not before her when she prepared Ext. 262.
Her evidence
tl1at 'he had prepared thar 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 ho.spit•rl of th'1t standing would not have printed
form~ for clinical <li.ignosi...,.
The next conclusion th•Jt the Hi~h Court reached· w:1s that if
the appellant had come to a dccisi<lll to postpone reduction of the
fraclurc 011 accounr of the
rl\1~011..., ~iven bv hi1n in his evidence.
he would have noted in the clinical chart, Ext. 2 I 3, or the clinical
paper, Ext. 262, the symptoms which impelled him to that decision.
The. High Court agrwd ;iut the medical text books produced before it seemed to su~gest 1l1a1 where time has elapsed
since the occurrence or the fracture •md the patient has anived
after a Ionμ journe).
ddcrred reduction is advisable.
But the
High Court ob,cn·cd. :he
question was whether the appellant
did defc,- the reduction and performed only
immohilisation
to
give rt:~t to the injured le~.
After analysing the evidence, it can1e
to the coucl11,ion that what the appellant actually did
was
to
reduce the fr<1cture. that in doing so he did not care to
give
annacsthetic to the patient. that he contented himself with a single
morphia injection. that he used excessive force in going through
this treatment. usin~ three of his allcndants for pullinl! the injured
leg of the patient that he put that le)! 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 cerehral emllolis111 was merelv a cloak used for suppressing the real cause of dc<1th, 1·i;: .. shock.
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These Jindinos 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 findings.
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 11hen 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. l7).
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. J'urshottam 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 anaesthetic 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 anaesthetic 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 i~ necessary
to bear in mind that respondent l is a medical practitioner of considerable standing and though not an expert in surgery, he is
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SUPREME COURT REPORTS
( 1969] I S.C.R.
not a layman who would not understand the treatment which the
appdlant gave to the boy. It is not in dispute that he was present all throughout and saw what was being done, first i11 the
X-ray room and later in the operation theatre.
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 appdlant had directed Dr. Irani
to administer two morphia injections.
Admittedly only one was
given.
Dr. Irani said that it was not that she omitted to give the
second injection on the appellant's instructions but that she forgot
to give the other one. That part of her evidence hardly inspires
confidence 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 pan of his evidence and we sec no reason
to find any fault with it.
What follows from this part of his
evidence, however, is somewhat importanl. If respondent 1 was
assured that the boy would come out of the effect of morphia by
about 7
l'.~1 .. it must mean that the appellant's version that the
boy was cooperating all throughout in the operation theatre and
wa5 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 l 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 l. In that event.
it is not possible that respondent 1 would decide to leave for Dhond
at G P. "· 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 eiven 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
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L. B. JOSHI v. T. B. GODBOLE (Shelat, J.)
215
fracture had been postponed and only immobilisatio~ had been
done. The assurance given by the appellant upon which respondent 1 left Poona for Dhond implies, on the contra1y, that what-.
ever was to be done had been done and that the presence .. of
respondent 1 was no longer necessary as
the
bo~·s condition
thereafter was satisfactory and he woul~ co~e ou~ of the morphia
effect in an hour or so.
This conclusion JS forttlied by the fact
that it was never put to respondent 1 that the. appellant had at
any time told him that he had postponed r~ductton. of. the fracure
and that the only thing he had done was Jmmob1hsatton 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 co.urts
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 appellanf 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 rhe bone right at a later date, it is impossible that he would
write the letter in the mamwr 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
letkr 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 perfonn reduction of the
fracture at a later date.
In the complaint which respondent 1
filed before the Medical Council he had categorically alleoed that
while putting the boy's leg in plaster splints the· appell~nt had
used excessive manual force for about an hour, that what he did
was reduction of the fracture without administering anaesthetic
'.lld .that that w.as the cause of th~ boy's death. It is strange that
m his explanation to the Council, the appellant did not answer
specifically to those allegations and did not come out with the
version that there wa.~ 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 splints.
As we have already stated, both sides used a number of medical works both at the stage of evidence and the anmments in the
trfal court.
Certain passages from these books ~ere shown to
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SUPRF~tE COllRT REPORTS
fl%9jlSCR
the. ;ippcllant in cros;-excnnina1ion which pointed out lh<1t pia'!cr
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casts arc used after and not bcfom reduction of the fracture.
The
following pa'Sil;!e from Hag1111son's Fractures (5th ed.) p. 71. w.is
pointed out to him :
"It is important tci reduce a fracture ;1s
promptly
a' possible after it occurs before there rs induration.
defusion of blood <ll~C! clist~nsion foscia".
The appellant disagreed wit!i this view and relied on an article
by Moore, Ext. 295. where the author advocates delayed reduction.
But in that \·cry anick th~ author further on points out th~rt
"ii tcallls which provide well-trained supervision arc available
for immediate :eduction ... it should be made.
Tire author also
states that where plaster c:rsl is used for illlmobilisation bcf,>re
reduction a cvlindrical section 3" to 4" in width ;n the srte of :he
fracture shou-ld he removed leaving the rest ol the c;i.;t intact.
The appellant did not follow these 'instructions ti1ou6h ile placed
wmiderable reliance on the abm·e passage for his theory of delayed
reduction.
Counsel for the appellant complained that the
High Court pcrrrscd several medical works. drew impiration and
raised inferences thercfro'1' instead of relying on Dr. Gharpurc's
evidence, an expert examined by the respondent<.
We do not sec
:lnything \\Tong in the High Court relying on n1cdic:.1l \\'Or~s and
deriving assistance from them.
His criticism that the Hid1 Court
did no't con;ider Or. Gharpure's evidence is a:"' not~ co;-rect.
There was 11othing wrong in the High Court emphasisi11g the
opinions of authors of these works instead of basing its conclusicms on Dr. Gh:rrpurc's evidence as it was allcscd
that
that
doctor was a professional rival of the appellant and was, therefore. u11syn1p;;Hhetic tov;;;!rJs hi1n.
r:ro1n the cl;.iboratc 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 unwarrnntcd bv that evidence. We would not,
therefore. be justified in reopening those concurrent ilndings or
reappraising the evidence.
As regards the cause of death. the respondems' :asc 11•as that
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the boy's condition was satisfactory at the time he was admitted
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in the appellant's hospital. that if fat cmholism was the er.use of
death. it was due to the hcavv traction and excessive force resorted
to by the appellant without ·administering anaesthetic to the boy.
The ~ppellant's case. on the other hand. was that fat emb<1lism
must have set 'in right from the time of the accident or must have
been caused on account cf improper or inadequate immc>bilisaH
tion of the leg at J>alshct and the hazards of the Jon)! journey in
111c taxi and that the hoy died. therefore. of cerebral embolism.
in the death certificate is<t:ed by him, the appell;1n! no doubt had
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L. ll. JOSHI v. T. B. GODBOLE (She/at, J.)
211
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stated that the cause of death was cerebral embofam. It is true
that some medical authors have mentioned that fat embolism is
seldom recognised clinicaJJy and is the cause of death in over
twenty per cent of fatal fracture cases. But these authors have
also stated that diagnosis of fat embolism can be made 1f certam
physical signs are deliberately sought by the doctvr. MentaJ. disturbance and alteration of coma with full consciousness occurring some hours after a major bone injury should put the surgeon
on guard.
He 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 si_gns.
In British Surgical Practice, Vol 3, ( 1948 ed.) p. 378, It 1s
stated,
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"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,
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(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
adntitted to hospital perhaps after a Jong and rough journey with
the lirnp improperly immobilised, suffering a considei·able shock.
None of the symptoms noted above were found by the appellant.
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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 ntiles 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
H had thought that there was some such possibility, he would surely
have warned respondent 1, especially as he 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
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SUPRE~iE COURT REPORTS
[i969j I SC.R.
appellant or respondent I. 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 abovementioned, 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.
111e 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 laking 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 for damages.
The appeal is dismissed with costs.
V.P.S.
Appeal dismissed.
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