between the original Plaintiffs and Defendant No.1.
Plaintiff No.1 has been asked in his cross-examination whether Defendant No.1 categorically told him: "I will operate". It is rather strange to question Plaintiff No.1 so. No Surgeon is expected to tell all his patients "I will operate" to make the contract by his express, unequivocal, oral acceptance to his patient's offer for an operation.
To understand the position of the original Plaintiffs and Defendant
No.1 as contracting parties, it would be best to understand the first principles laid down in the Contract Act. It need not detain us to accept that the original Plaintiffs as promisors made the proposal to Defendant No.1 through BH to treat the original Plaintiff No.2. It has to be seen whether the proposal of the original Plaintiffs was accepted by Defendant No.1 as the promissee. If he accepted the promise, there would be an agreement. The agreement is for treating a patient for consideration. It would, therefore, be an agreement enforceable at law and consequently a contract under Section 2 (h) of the Indian Contract Act, 1872. The acceptance by Defendant No.1 as the promissee has to the absolute and unqualified under Section 7 (1) of the Act and be expressed in some usual and reasonable manner under Section 7 (2) of the Act. The relevant portion of Section 7 which runs thus :
7. Acceptance must be absolute.- In order to convert a proposal into a promise, the acceptance must-
(1) be absolute and unqualified;
(2) be expressed in some usual and reasonable manner...
What is the usual and reasonable manner makes for the acceptance by performance or by implications under Sections 8 & 9 of the Act which run thus :
8. Acceptance by performing conditions, or receiving consideration.- Performance of the conditions of a proposal, or the acceptance of any consideration for a reciprocal promise which may be offered with a proposal, is an acceptance of the proposal.
9. Promises, express and implied.- In so far as the proposal or 55 S.1101.1989 (Judgment).sxw
acceptance of any promise is made in words, the promise is said to be express. Insofar as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.
90.Defendant No.1 accepted the proposal of the original Plaintiffs in the usual and reasonable manner that surgeons do. Surgeons would not accept only by saying "I will operate" but by actually operating, by aiding and assisting in operation as circumstances require, by charging the fees for the operation, by contriving to fix the operation to accommodate themselves as per their schedule and, of course, by being shown as one such surgeon in the records of the hospital. By all of these modes the contract between the parties in this case must be implied and is demonstrated by performance.
Pollock & Mulla's Indian Contract Act, Thirteenth Edition at page 241 shows how a proposal can be accepted by performance of its condition since the case of Carlill V. Carbolic Smoke Ball Co. [1891-94] All ER Rep 127. Pollock & Mulla set out this state of circumstance thus:
"when only acts are required, the communication of their performance may or may not be added as a term of the offer at the will of the proposer, which may be either express or inferred from the nature and circumstances of the proposal.
The rule is that no further communication of acceptance is necessary than performance of the proposed act. Mere performance of the act prescribed by the proposal is sufficient acceptance of such proposal and converts it to a promise even without further communication of acceptance. This distinction is recognised in Sections 5 and 8 of the Contract Act.
If an offer takes the form of a promise in return for an act, the performance of that act is in itself an adequate indication of assent."
95.In a case of a contract between the patient and surgeon the performance can be seen by all the acts done for the performance of the surgery, the surgery itself and the consequent payment for the surgery. Even one of these aspects would be sufficient acceptance of the proposal to be made into a contract.
Implied contracts have been so held when payments are made in terms of the contract by one party and accepted by the other. [See. Amrit Banspati Co. Ltd. Vs. Union of India (UOI) AIR 1966 All 104 and M/s. Bhagwati Prasad Pawan Kumar Vs. Union of India AIR 2006 SC 2331].
The contractual relations between the patient and surgeon is best enunciated in the case of Deborah M. Belin Vs. Lenox Dingle, Jr. Et al. No. 462, Sept. Term, 1998 of the Court of Special Appeals of Maryland dated 30th June, 1999. It has been held in that case that :
"To have another physician operate on one's patient without the patient's knowledge and consent is a deceit. The patient is entitled to choose his own physician and should be permitted not to acquiesce in or refuse to accept the substitute. The surgeon's obligation to the patient requires him to perform the surgical operation: (1) within the scope of authority granted by the consent to the operation; (2) in accordance with the terms of the contractual relationship; (3) with complete disclosure of all facts relevant to the need and the performance of the operation; and (4) to utilize his best skill in performing the operation. The patient is entitled to the services of the particular surgeon with whom he or she contracts. The surgeon, in accepting the patient is obligated to utilize his personal talents in the performance of the operation to the extent required by the agreement creating the physician-patient relationship. He cannot delegate to another the duties which he is required to perform personally."
The substitution of one surgeon for another without the consent of the patient was observed thus :
"A patient has a right to choose the surgeon who will operate on him and to refuse to accept a substitute. Co-relative to that right is the duty of the doctor to provide his or her personal services in accordance with the agreement with the patient.
Few decisions bespeak greater trust and confidence that the decision of the patient to proceed with surgery. Implicit in that decision is a willingness of the patient to put his life or her life in the hands of a known and trusted medical doctor."
Consequently it was held in the case of Belin (Supra) that the consent form of the patient should reflect the patient's decision. It was further observed that the failure of the surgeon to perform a medical procedure upon the patient's consent would be deviation from the standard medical care. It was observed that:
It is malpractice whether the right surgeon operates on the wrong part or the wrong surgeon operates on the right part of the patient. In each instance, the surgeon has breached his duty to care for the patient.
.....the doctor who, without the consent of the patient, permits 62 S.1101.1989 (Judgment).sxw
another surgeon to operate violates not only a fundamental tenet of the medical profession, but also a legal obligation.
Bombay High Court
Padam Chandra Singhi & Ors vs Dr. P.B. Desai & Ors on 2 September, 2011
Bench: R. S. Dalvi
1. Plaintiff No.1 is the husband of the original Plaintiff No.2 who suffered from cancer and was consequently admitted to the hospital of Defendants 3 to 7 being the Trustees of Bombay Hospital Trust. Plaintiff Nos.2(a) and 2(b) are the heirs of the original Plaintiff No.2 who has since expired. Defendant No.1 was the Honorary Surgeon attached to Bombay Hospital (BH) and was the head of the department of Oncology. Defendant No.2 was the Honorary Assistant Surgeon who assisted Defendant No.1. The Defendant No. 3 was the Houseman in charge of the CT Scan department in BH.
2. The Plaintiffs' case is that the original Plaintiff No.2 suffered from cancer since July 1977. She was under the treatment of one Dr. J.C. Paymaster in BH up to 1988 when Dr. Paymaster retired from BH. 2 S.1101.1989 (Judgment).sxw
She initially had breast cancer. She was operated upon for breast cancer in 1977. She thereafter suffered lung cancer in 1984. She was given the treatment of chemotherapy also under Dr. Paymaster in Mumbai. She was also treated for cancer in New York, USA in 1985. She was given hormonal therapy and chemotherapy treatment by certain two Doctors in New York, USA. It is the Plaintiffs' case that she was declared to be an inoperable case of cancer. In about 1987 she suffered cervical cancer. After receiving the aforesaid treatments she returned to Bombay. She had vaginal bleeding. Defendant No.2, who initially assisted Dr. Paymaster, knew her case. He advised her to be immediately hospitalized.
3. It is the Plaintiffs' case that Plaintiff No.1 then served as IAS Officer with the Government of Rajasthan. He admitted her to BH in first class. He desired the services of Defendant No.1 who had then stepped into shoes of Dr. Paymaster and was the head of Oncology department. He was informed that Defendant No.1 would separately charge his fees as per the schedule of BH and that other Doctors attached to Defendant No.1 will assist Defendant No.1 and will also charge fees according to the schedule of BH. The original Plaintiffs accepted and agreed to those terms. The Plaintiffs claim that consequently a valid contract was entered into between BH and the original Plaintiffs being Plaintiff No.1 and the original Plaintiff No.2.
4. Accordingly the original Plaintiff No.2 was admitted to BH. Defendant No.1 examined her and advised Exploratory Laprotomy. Certain investigations and tests were conducted upon his 3 S.1101.1989 (Judgment).sxw
instructions.
5. It is the case of the Plaintiffs that it was agreed between Defendant No.1 and the then Plaintiffs that Defendant No.1 will himself operate upon Plaintiff No.2. The original Plaintiff No.2 was admitted on 8th December 1987. Defendant No.1 advised Exploratory Laprotomy on 17th December 1987. The date of operation was fixed on 22nd December 1987 by Defendant No.1. It is the case of the Plaintiffs that it was made clear that only Defendant No.1 should operate and that Rajasthan Government would pay the necessary fees. It is their case that consent was given by original Plaintiff No.2 for the surgery to be performed by Defendant No.1. It is the Plaintiffs' case that but for the agreement and understanding between the then Plaintiffs and Defendant No.1 she would not have consented to the operation.
6. The Plaintiffs accordingly contend that there was an agreement between the then Plaintiffs and Defendant No.1 in consideration of the fees to be charged by Defendant No.1 for performing the surgery upon the original Plaintiff No.2 and for all post operation treatment thereafter. The Plaintiffs contend that the original Plaintiff No.2 gave her consent on 17th December 1987 in the name of Defendant No.1 for the surgery to be performed upon her by Defendant No.1.
7. It is the Plaintiffs' case that despite the contract between the then Plaintiffs and Defendant No.1, Defendant No.1 failed and neglected to operate upon the original Plaintiff No.2 and accordingly committed a breach of the contract by nonperformance. 4 S.1101.1989 (Judgment).sxw
8. It is the case of the Plaintiffs that the abdomen of the original Plaintiff No.2 was opened by Defendant No.2 as the assistant of Defendant No.1. The Defendant No.1 failed to perform surgery and only directed Defendant No.2 to stitch-up the abdomen after being contacted. He even disclaimed that the original Plaintiff No.2 was his patient.
9. Aside from claiming the contract between the parties the Plaintiffs claim that the Defendant No.1 was guilty of the tort of negligence in advising the operation though the Plaintiff No.2 was declared inoperable without considering the risk involved in the operation and then upon his advise for surgery failing to operate himself or render any post operation care and delegating the original Plaintiff No.2 to the care of Defendant No.2.
10.The plaint sets out the aforesaid case of the Plaintiffs in paras 2 to 5 of the plaint. The Plaintiff No.1 has similarly deposed. It would essentially have to be appreciated:
(i) whether or not there was a valid, binding, enforceable contract between the then Plaintiffs and Defendant No.1 which was breached and what kind of contract that was.
and
(ii) Whether Defendant No.1 was guilty of medical negligence in tort.
The Plaintiffs have pleaded the contract. Plaintiff No.1 has deposed about the circumstances leading to the contract and thereafter. From the pleadings read with the evidence the type of contract, if any, 5 S.1101.1989 (Judgment).sxw
entered into by and between the Plaintiffs and the Defendants would have to be appreciated in accordance with the Law of Contracts.
Similarly the Plaintiffs have pleaded tort. Plaintiff No.1 has deposed about the circumstances leading to the tort and its aftermath. From the pleadings read with the evidence it would have to be deciphered whether or not the Defendants committed a wrong in law and their liability for such wrong, if any.
11.The surgery of the original Plaintiff No.2 was wholly unsuccessful. It was realized upon her abdomen being opened that nothing further could be done. Her abdomen was stitched up. She was given treatment in the hospital thereafter. She remained in the hospital until 5th April 1988 when she was discharged and she went back to Rajasthan where she lived. She was then under the care of some Doctors until she expired on 26th February 1989. The Plaintiffs' case in tort upon medical negligence is essentially that the advise of Defendant No.1 itself was erroneous and was given without any care or caution despite having been shown the reports of the Doctors from the USA who had earlier treated the original Plaintiff No.2 and further that even if his opinion had to be carried out, which came to be accepted by the then Plaintiffs, the surgery advised by him was to be undertaken by himself since he was, in the opinion of the original Plaintiffs the best Oncology Surgeon at the relevant time whom they had specifically contracted with. Upon the complete nonperformance by Defendant No.1 of performing surgery or treating the original Plaintiff No.2 the Plaintiffs claim that BH itself through its Trustees were vicariously liable in tort for the negligence of Defendant No.1. 6 S.1101.1989 (Judgment).sxw
12.The Plaintiff No.1 complained not only to Trustees of BH, but also the Maharashtra Medical Council (MMC), the Police and later sued in respect of the breach of contract as well as in tort. The initial case of the Plaintiffs was not only against Defendant No.1 but also against Defendant No.2 and 3 and this was despite the fact that upon the complaints of Plaintiff No.1 Defendant No.2 also addressed the letter to him setting out some relevant facts of the case and giving his explanation thereto. It may be mentioned that though the entire case of the Plaintiffs upon the agreements in the aforesaid paragraphs 2 to 5 of the plaint and upon his further pleadings in the nature of evidence in paragraphs 6 to 9 of the plaint against Defendant No.1 and the explanation given by Defendant No.2 averred in para 10 of the plaint the Plaintiff No.1 sued all the three relevant Doctors being Defendant Nos.1,2 and 3, the Honorary Surgeon, the Honorary Assistant Surgeon and the Houseman respectively for the negligent act of all those Defendants. However the essential case of the Plaintiffs is against Defendant No.1. The Plaintiffs perhaps having realized their case, have dropped their case against Defendants 2 and 3.
13.The Plaintiffs claim damages for negligence upon which the original Plaintiff No.2 is stated to have suffered physical pain, mental agony and anguish. She also claims to have developed complications including intestinal fistula. The Plaintiffs further claim that even after discharge from the hospital and return to her residence the original Plaintiff No.2 had various complications which had to be nursed and attended to until she expired.
7 S.1101.1989 (Judgment).sxw
14.The Plaintiffs have claimed damages of Rs.2.25 lakhs for expenses of hospitalization, Doctors fees and other medical ancillary expenses and Rs.16 lakhs as damages for mental agony and anguish suffered by the Plaintiffs. The Plaintiffs have claimed further damages of both the aforesaid types in sum of Rs.1.90 lakhs and Rs. 3 lakhs after the filing of the suit until the original Plaintiff No.2 expired.
15.These damages are for breach of contract and for liability in tort. These damages in a total sum of Rs.23.75 lakhs are claimed jointly and severally from all the Defendants. The damages for breach of contract would be against only Defendant No.1 since the case of nonperformance of the contract is alleged only against Defendant No.1. The damages in tort are against all the Defendants, but pressed only against Defendant No.1 and consequently by way of vicarious liability against BH. The Plaintiffs have also claimed interest on the aforesaid damages @ 18% p.a.
16.All the Defendants have filed their written statements to the original plaint. The Plaintiffs carried out certain amendments to the plaint thereafter. Defendant No.1 has filed his additional written statement to the further amendments in the plaint. The other Defendants have not filed any further written statements. Mr. Setalwad on behalf of BH asserted that additional written statement was filed and sought to tender a copy. However a search of the records have shown no further written statement of BH filed in the suit. It may be taken, that BH has denied their liability to the Plaintiffs' claim even upon the amendments. The essential defence to be considered in the suit 8 S.1101.1989 (Judgment).sxw
is of Defendant No.1.
17.The case of Defendant No.1 is essentially of denial of the Plaintiffs' claim. It is his case that he had never met or examined the original Plaintiff No.2 prior to 17th December 1987. She was not his patient. She was not admitted to BH under his care. She was being treated by Defendant No.2. She was admitted under the name of Defendant No.2. The tests were performed at the instance of Defendant No.2. He had not instructed or advised in that behalf. He examined the original Plaintiff No.2 as a consultant only for the purpose of giving his opinion. Defendant No.1 denies having had any discussions with either of the original Plaintiffs. He does not recall the reports of the Doctors from the USA. He denies having even advised surgery for removal of the uterus of the original Plaintiff No.2. He denies that he undertook to perform the operation assisted by Defendant Nos.2 or 3 or otherwise. The Defendant No.1 has claimed that he had informed Defendant No.2 that he would be operating on 22nd December 1987 at BH whereupon Defendant No.2 also fixed the operation of the original Plaintiff No.2 on the same day with a view to seek his advise, if the need arose. He specifically claims that he had only one operation fixed on 22nd December 1987 in Operation Theater (O.T.) No.1 and was not asked to operate upon the original Plaintiff No.2 by either of the original Plaintiffs or by Defendant No.2. He denies that the surgery was performed under his instructions. He has also denied that Defendant No.2 or 3 ever came to OT No.1 when he was operating on 22nd December 1987 to call him to attend to the original Plaintiff No.2. He claims that no requests were made by any persons at any time to him to attend to the original Plaintiff No.2 9 S.1101.1989 (Judgment).sxw
whilst she was in the other OT. He, therefore, claims that he had attended to the original Plaintiff No.2 only on 17th December 1987. He claims that the original Plaintiff No.2 was at no time his patient as she was not admitted by him, at his instance or upon his knowledge or consent. He claims that she was attended to by Defendant No.2 alone. He, therefore, claims upon the principles of medical and professional ethics that he was prevented from attending to the original Plaintiff No.2 unless he was specifically requested in that behalf or unless she was specifically transferred or assigned to him by Defendant No.2 whose patient she was.
18.Defendant No.1 further claims that after he completed his own operation and was on the way out of O.T No.1 outside the corridor adjoining the O.T Defendant No.2 informed him of the state of the original Plaintiff No.2 that everything inside her abdomen was "plastered" and therefore, he suggested to Defendant No.2 that it would be advisable to close the abdomen. Defendant No.1 claims that Defendant No.2 was competent and capable of attending to and operating upon the patients independently which he did in this case also. He, therefore, claims that upon the said affairs stated by Defendant No.2 to him for the patient of Defendant No.2 he could only advise to close the abdomen of the patient which was the only alternative.
19.Defendant No.1 further claims that there was no occasion of attending the original Plaintiff No.2 on 22nd December 1987 or for rendering her any post operative care thereafter by him. He claims that the records of BH also show that the original Plaintiff No.2 was 10 S.1101.1989 (Judgment).sxw
the patient of Defendant No.2 alone and not his patient. He has alleged a policy of BH that only the name of the Honorary Surgeon who is a senior Surgeon would be recorded in the medical records of all first class patients such as the original Plaintiff No.2 and hence the documents of the original Plaintiff No.2 in BH are due to such practice/procedure/policy of the hospital. He claims to have put all the facts on record upon he being called upon by BH to answer the complaint of Plaintiff No.1 made against him to the Trustees in his letter dated 12th February 1988. He has refuted his liability in tort as well as in contract and consequently the damages claimed by the Plaintiffs.
20.In his additional written statement he has denied that there were any Doctors working under him but has stated that he was the consulting Surgeon in the Oncology department and other Doctors were subordinates to him. He has claimed that he would attend the patients who are admitted at his instance and/or request and he would advise patients referred to him by other Doctors. It is his case that he would not treat or deal with patients of any other Doctor except upon the request of such Doctor. He has again denied the agreements in the plaint initially denied by him in his original written statement.
21.The case of Defendant No.2 in his written statement is that the original Plaintiff No.2 was admitted under the name and care of Defendant No.1. He was only the assistant of Defendant No.1. He has disclaimed his liability in tort. He claims that he had spoken to Defendant No.1 and 3 and got the original Plaintiff No.2 admitted 11 S.1101.1989 (Judgment).sxw
under the unit head being Defendant No.1. He had examined the original Plaintiff No.2 upon her return from the USA as he had known her as a patient of Dr. Paymaster who had treated her earlier and of whom he was then assistant. When she developed vaginal bleeding on 6th December 1987 he had recommended her hospitalization. The original Plaintiffs had given consent for admission and treatment under the care of Defendant No.1. Consequently, he claims that the original Plaintiff No.2 got admitted to BH on 9th December 1987 in Room No.1005 under the supervision and control of Defendant No.1 in MRC first class. Defendant No.2 claims that the original Plaintiff No.2 was given admission by the Manager (Admission Authority) at BH one Mr. Sharma under the name and care of Defendant No.1.
22.It is his case that his patients were never admitted under the care of Defendant No.1. He claims that he had received 1/3rd of the fees of Defendant No.1. He claims that Defendant No.1 examined the original Plaintiff No.2 on 17th December 1987 clinically in Room No. 1005 MRS and advised removal of the uterus after discussion with the original Plaintiffs and in his absence. He claims that all routine tests were conducted in the hospital. He accepts the case of the Plaintiffs that the original Plaintiff No.2 was declared to be inoperable case on the basis of a biopsy of her cervix. He claims that Defendant No.1 had advised that there were chances of survival of the original Plaintiff No.2 after the surgery. He claims that he had given the entire details of the patient to Defendant No.1. He had told Defendant No.1 about the complexity of the case and had requested Defendant No.1 to manage the surgery himself. It is his further case 12 S.1101.1989 (Judgment).sxw
that Defendant No.1 suggested to him to fix up the case of the original Plaintiff No.2 on 22nd December 1987 when he had another case already fixed up for surgery. It is his case that he had personally met Defendant No.1 at the hospital. He had informed him that the original Plaintiffs insisted that the operation should be performed by Defendant No.1 only, which Defendant No.1 had agreed to do and hence it was fixed on 22nd December 1987 as per the confirmation given by Defendant No.1. He further claims that though Defendant No.1 directed him to take the assistance of another Doctor one Dr. Hegde he had explained to Defendant No.1 that the original Plaintiffs wanted him alone to perform the surgery. It is his case that, therefore, he had taken up the case in OT No.2 on 22nd December 1987.
23.It is the further case of Defendant No.2 that he opened the abdomen of the original Plaintiff No.2 upon epidural anesthesia administered by Dr. Rashmi Kotak, the Anesthetist. He found adhesions and ascities. He had sent Defendant No.3 to call Defendant No.1 from OT.No.1, but Defendant No.1 did not come. He personally requested him to come and see the original Plaintiff No.2. He told Defendant No.1 that everything in her abdomen was totally plastered and full of ascities. It is his case that upon being so informed Defendant No. 1 asked him to close the abdomen without coming into OT No.2. He claims that the original Plaintiff No.2 was in intolerable pain. He was only an assistant of Defendant No.2. It is his further case that the consent for surgery was also not given in his name. It is his case that the patient was opened on the instructions of Defendant No.1 according to his convenience. The entire procedure was fixed up by 13 S.1101.1989 (Judgment).sxw
Defendant No.1. Defendant Nos. 2 and 3 only followed the instructions of Defendant No.1. The entire surgery was under the supervision and control of Defendant No.1. It is his case that the surgery was performed upon the instructions of Defendant No.1 as advised by Defendant No.1 and similarly the closure of the abdomen was done under the instructions of Defendant No.1. He claims that he has carried out his duties as an assistant of Defendant No.1. He claims to have attended to the original Plaintiff No.2 for 3 months for post operation care with due diligence and care. He, therefore, refutes the Plaintiffs' case that he was negligent in performing his duty to the patient or was jointly or severally liable in tort for damages. Defendant No.2 has further claimed that Defendant No.1 neither came inside the operation theater though he had finished his surgery in OT No.1 nor did he attend to the original Plaintiff No.2 after the surgery until she was discharged after 3 months. He alone saw her twice a day as an Assistant Surgeon and gave her all post operative care required.
24.It has been the case of the other Defendants who are the trustees of BH that the Doctors who are attached to BH being Defendants 1, 2 and 3 are independent professionals and are not their servants and agents. They are, therefore, not vicariously liable for the negligence of Defendants 1, 2 and 3. The original Plaintiffs selected and consulted their own Doctors directly for the services to be rendered by them to the Plaintiffs. They claim that they have nothing to do with the treatment given to the original Plaintiff No.2 as that treatment was exclusively in charge of Defendants 1, 2 and 3. They have consequently refuted their liability in any manner to the 14 S.1101.1989 (Judgment).sxw
Plaintiffs.
25.Upon the pleadings of all the parties the following issues came to be framed by Justice N. Arumugham, as he then was, on 12th November 1997 and are answered as follows:
ISSUES FINDINGS
1. Whether there was any contract entered Yes- there was a into between the defendant nos. 1 and 2 contract between the with the plaintiffs regarding the original Plaintiffs and treatment given to the 2nd plaintiff. Defendant No.1.
2. Whether there was any mis-performance No - there was no and negligence on the part of the negligence in tort. defendant nos.1 and 2 in conducting the
surgery on the deceased-plaintiff.
3. Whether the plaintiffs are entitled to Yes - for breach of
claim any damages from the contract. defendants.
4. Whether the suit is sustainable in law Yes
against all the defendants.
5. Whether there was any cause of action Yes for the suit to be filed against the
defendants.
6. Whether the defendant nos.4 to 13 are No liable to pay the suit claim. If so, to what extent.
7. Whether the defendant no.3 is a proper
Does not arise.
and necessary party to the suit.
8. Whether the defendant nos.4 to 13 are No vicariously liable for the suit claim.
9. To what reliefs, if any, which the As per final order
plaintiffs are entitled to ?
15 S.1101.1989 (Judgment).sxw
26.The original Plaintiff No.2 expired prior to the commencement of the trial. Plaintiff No.1 has examined himself. Plaintiff No.1 has also examined two employees of BH to produce certain records and in respect of the contract between the parties and the surgery. He has further examined another Doctor as an expert to prove his case in tort. He has examined a nurse who served the original Plaintiff No.2 upon her return to her residence in Rajasthan until her death to prove the nursing care and nursing expenses. Defendant No.1 examined himself and the Anesthetist who administered anesthesia to the original Plaintiff No.2 at the time of her surgery. Defendant No.2 has not examined himself, but has cross examined the witnesses of the Plaintiffs as well as Defendant No.1. Defendant No. 3 has not contested the suit at all. The remaining Defendants who are the trustees of BH have on behalf of BH also cross examined the witnesses of the Plaintiffs as well as Defendant No.1 but have not examined themselves or led any evidence on behalf of BH.
27.The essential case of the Plaintiffs is against Defendant No.1.
28.The three aspects to be considered in the suit are:
(i)The contract between the original Plaintiffs on the one hand and Defendant No.1 on the other.
(ii)The tort of medical negligence of Defendants 1 and 2.
(iii)The vicarious liability, if any, of BH consequent upon the liability in tort, if any, of Defendants 1 and 2.
If the contract is proved,the breach if any, would have to be seen. The remedy for such breach would be in damages the damages 16 S.1101.1989 (Judgment).sxw
would have to be ascertained. Hence issue Nos.1 and 3 must be considered first.
The case in tort and the consequent vicarious liability would be required to be seen thereafter. Issue Nos. 2 and 6 must be considered thereafter. The other issues would follow.
29.Issue No.1 The oral evidence of the Plaintiff No.1 with regard to :
what transpired in Mumbai upon the initial vaginal bleeding of his wife and her consequent hospitalization is much the same as in his pleadings recited above, his various complaints to the various authorities including the trustees of BH, MMC and the police, and in the criminal complaint filed against Defendants 1,2 and 3.
30.The Plaintiff No.1 has relied upon the documents of BH to show the contract entered into by the Plaintiff with BH. The Plaintiff has claimed the oral contract with Defendant No.1. It is argued on his behalf that the contract can also be implied from the documentary evidence. It has to be seen whether in fact the contract could be made out from its acceptance by performance or from other intrinsic evidence. The intrinsic evidence would be in the admitted work done by Defendant No.1 - the only work being clinically examining original Plaintiff No.2 in Room No.1005 MRC on 17 th December 1987 - and the charges levied upon the original Plaintiffs as the fees of Defendant No.1. The test of the Plaintiffs' case with regard to the contract with Defendant No.1 would be also reflected in the oral evidence of Defendant No.1.
31.The documentary evidence of the initial contract is required to be 17 S.1101.1989 (Judgment).sxw
first examined. The initial note of Defendant No.2 is dated 8th December 1987. It is addressed to the Chief Medical Officer (CMO). It requests admission of the original Plaintiff No.2 in MRC First Class. It describes her condition. It bears certain endorsements of the hospital authorities also of 8th December 1987. It has been marked Exhibit-B in evidence upon it having been produced from the hospital records initially in the inquiry which was conducted by the MMC against Defendant No.1 upon the complaint of the original Plaintiffs. It is also a part of the case papers of the original Plaintiff No.2 marked Exhibit-H in evidence which shall be considered presently.
32.The other note is of the Manager (Admission Authority) at BH one Mr. Sharma who has been examined as the Plaintiff's witness No.2. The note is dated 9th December 1987 also addressed to the CMO. It states that the patient is referred by the Government of Rajasthan and hence no deposit be taken. It specifically directs the admission of the original Plaintiff No.2 under Defendant No.1. It bears the endorsement of the hospital authorities for admission in the specified room. This corroborates the oral evidence of the Plaintiff No.1 that he had met Mr. Sharma and had informed him of the predicament of his wife and his insistence upon being under the care of only Defendant No.1 so that this note was written. This note is also reflected in the hospital records produced by BH being the case papers of the original Plaintiff No.2 marked Exhibit-H.
33.It may be mentioned that the oral case of the Plaintiff of how the contract was entered into being orally denied by Defendant No.1 18 S.1101.1989 (Judgment).sxw
would have to be seen from the documentary evidence, the oral evidence being excluded under the provisions of Section 91 of the Indian Evidence Act.
34.The case papers Exhibit-H show the initial admission form with the various endorsements thereon. The relevant names of the Doctors in the respective columns show Defendant No.1 as the honorary Doctor and Defendant No.3 as the Houseman (house Surgeon/house physician). It does not show the name of Defendant No.2 at all. Despite the note of Defendant No.2 the original Plaintiff No.2 was, therefore, not admitted in the name of Defendant No.2 as the patient of Defendant No.2 or under his care and treatment. The consent of the Plaintiff in the prescribed format is signed by the original Plaintiff No.2 herself. The evidence of the Plaintiff No.1 that the consent was given only by the original Plaintiff No.2 to be under the care of Defendant No.1 and to be operated by Defendant No.1 is seen in the form itself at page No.1 of Exhibit-H. The case of the Plaintiffs that no consent in the operation was given in the name of Defendant No.2 or to Defendant No.2 is accordingly reflected in the admission form itself showing the consent signed by the original Plaintiff No.2 at the foot thereof. Plaintiff No.1 has identified the signature of his wife the original Plaintiff No.2, which is not denied by any of the parties as also his own signature on the reverse of the form. The name of the operation in the form is shown to be Exploratory Laprotomy and the date of the operation is shown to be 22nd December 1987. The consent itself is signed on 22nd December 1987, the date of the operation.
19 S.1101.1989 (Judgment).sxw
35.All the case papers starting from the admission sheet itself in Exhibit-H show the original Plaintiff No.2 referred by or under the care of Defendant No.1 - to wit - she is referred to Dr. E. Borges by Defendant No.3, the houseman, for "fitness for surgery" by Defendant No.1 on page 4 of Exhibit-H.
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