K.T. Mary v. Pavithran, M. Santha & Dr. C.K. Ramachandran (OS 542/1993 - Thalassery) - AS Nos. 327 & 441 of 1998

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 24TH DAY OF JULY 2018 / 2ND SRAVANA, 1940 AS.No. 327 of 1998 AGAINST THE JUDGMENT AND DECREE DATED 20-12-1997 IN OS NO. 542/1993 of SUB COURT,THALASSERY ## APPELLANT/2ND DEFENDANT: K.T.MARY, STAFF NURSE, PRIMARY HEALTH CENTRE, KADAMMANITTA, PATHANAMTHITTA DISTRICT, RESIDING AT PALAPOIKAYIL HOUSE, VAYALATHALA P.O., PATHANAMTHITTA DISTRICT. BY ADV. SRI.B.S.SWATHY KUMAR ## RESPONDENTS/PLAINTIFFS & 1ST DEFENDANT: 1. VAYALALI PAVITHRAN, S/O.KRISHNAN, SANTHI NILAYAM, NARIKKUNDUM KEEZHUR AMSOM DESOM. 2. M.SANTHA, D/O.RAIRU NAMBIAR, W/O.PAVITHRAN, SANTHI NILAYAM, KEEZHUR AMSOM DESOM. 3. DR.C.K.RAMACHANDRAN, PRIMARY HEALTH CENTRE, P.O.MUZHAKKUNNU, MUZHAKKUNNU. R1 & R2 BY ADVS. SRI.GRASHIOUS KURIAKOSE (SENIOR ADVOCATE) SRI.K.K.RAMESH R3 BY ADV. SRI.V.RAMKUMAR NAMBIAR THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06-07-2018 ALONG WITH AS NO.441/1998,THE COURT ON 24-07-2018 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** **-------------------------------------A.S.Nos.327 & 441 of 1998 -------------------------------------Dated this the 24[th] day of July, 2018** ## **COMMON JUDGMENT** These appeals are filed by defendants 1 and 2 in O.S.No.542 of 1993 before the Court of Subordinate Judge, Thalassery against a decree directing them to pay compensation to the plaintiffs/contesting respondents for their alleged medical negligence. Though defendants 3 to 5, District Collector, Kannur, District Medical Officer, Kannur and Director of Health Services, Thiruvananthapuram were arraigned, no relief was granted against them by the court below. 2. Heard the learned counsel for the appellants and the learned Senior Counsel appearing for the plaintiffs/contesting respondents. Learned Government Pleader is also heard. 3. On 19.01.1991 at about 5.00 p.m. plaintiffs' son Vibish, aged 8 years, was taken to the Primary Health Centre, Iritty (PHC) on account of excessive vomiting. The child was examined by the 1[st] defendant (appellant in A.S.No.441 of 1998), who was the Medical Officer on duty in the PHC at that time. 1[st] defendant attended on the ailing child and prescribed medicines including one injection, viz., Phenergan. 2[nd] 2 AS Nos.327 & 441 of 1998 defendant was the staff nurse in the hospital on duty on that day. As per the direction given by the 1[st] defendant, the 2[nd] defendant administered the injection Phenergan in high dose to the child. It is the allegation that after the injection, the child became unconscious. 1[st] defendant represented that the child was sleeping and asked the plaintiffs to take him home. Although they took the child home, at about 12 O' clock in the night, the child became delirious and again became unconscious after some time. He was taken to a nearby doctor, who advised the 1[st] plaintiff to take the child to a hospital. Shortly after reaching the Co-operative Hospital, Kannur the child died. It is the allegation that the 1[st] defendant without examining the child in detail prescribed medicines and due to the negligence on the part of the defendants, the child died. It is also alleged that over dose of injection caused the death of the child. It is further alleged that the 1[st] defendant did not diagnose the actual ailment of the child. 1[st] plaintiff filed a complaint before Iritty Police, Superintendent of Police, Kannur and other authorities. The District Medical Officer (DMO) conducted an enquiry and found the 1[st] defendant guilty of medical negligence. Hence the plaintiffs caused to issue lawyer notices to the defendants 1 and 2 and other defendants. Defendants 1 and 2 caused to send a false reply. Since they denied any negligence on their part, the suit is filed for compensation. 3 AS Nos.327 & 441 of 1998 4. 1[st] defendant opposed the suit by admitting that he was working as Assistant Surgeon in the Primary Health Centre, Iritty at that time. It is also admitted that Vibish, a child aged about 8 years, was brought to him on 19.01.1991 at about 5.00 p.m. and he examined the boy. History of illness was ascertained from the plaintiffs. 1[st] defendant's diagnosis was that the child was suffering from acute gastritis. However, there was no dehydration, no fever and no convulsions. Other systems were found to be normal. The child was in the hospital barely for an hour. It is incorrect to say that as per the instruction of the 1[st] defendant, heavy dose of Phenergan was given to the child. At that time, the hospital was undergoing maintenance work. There was no inpatient facility in the hospital at that time. Due to the insistence on the part of the plaintiffs, the boy was kept for observation for some time. The observation slip given by the 1[st] defendant would show the real facts. Phenergan was prescribed for injection on the child by the 1[st] defendant. The injection was not available in the hospital and Phenergan is a safe drug which cannot cause death. Since the drug was not available, a prescription was given for buying the medicine from a nearby medical shop. Plaintiffs were also advised that if vomiting continued, the child should be given IV fluid and taken to another hospital with facility. The child was taken home. He was not seen by the 1[st] defendant thereafter. His subsequent developments were also not 4 AS Nos.327 & 441 of 1998 informed. At the time when the 1[st] defendant examined the child, he did not find any other symptom of any major illness. No clinical investigation could be done at the PHC after 5.30 p.m. There was no medical negligence on the part of the 1[st] defendant. 5. The 2[nd] defendant (appellant in A.S.No.327 of 1998) filed a written statement contending that the 1[st] defendant had examined the child on 19.01.1991 and medicine prescribed by him was injected by the 2[nd] defendant, who was working as nurse in the hospital at that time, under the directions given by the 1[st] defendant. She never injected heavy dose of Phenergan to the child. Contention that the child became unconscious on receiving the injection is also incorrect. She was acting only as per the directions of the 1[st] defendant. In fact the child was normal and he was speaking to his parents. The child was not treated as inpatient in the hospital and they left the hospital by 7.00 p.m. There was no negligence on the part of the 2[nd] defendant. 6. 3[rd] defendant District Collector filed a written statement admitting the fact that the child was taken to Primary Health Centre, Iritty and the 1[st] defendant had seen the child on 19.01.1991. Administration of injection Phenergan is also admitted. Fact that the child died is also admitted. After death of the child, the plaintiffs filed a complaint to the 4[th] defendant to conduct an enquiry about the death. Accordingly, an enquiry AS Nos.327 & 441 of 1998 5 was conducted by the then Deputy District Medical Officer of Health (Deputy DMO) on 21.05.1991. The enquiry report was forwarded to the 5[th] defendant for taking action. Action was not finalised at the time of filing the written statement. It is the contention that the 1[st] defendant had examined the child on 19.01.1991 and as per his directions, the 2[nd] defendant injected Phenergan to the child. 3[rd] defendant would contend that at the time of giving injection, the 1[st] defendant had informed the plaintiffs that if vomiting persisted, the child should be admitted to some other hospital. Since the symptoms abated, as requested by the plaintiffs the child was permitted to go home. Thereafter the child was not brought to the PHC or before the 1[st] defendant. According to the enquiry report of the Deputy DMO, the 1[st] defendant did not examine the patient seriously and thus failed to assess the condition of the child. It is also reported by the enquiry officer that the 1[st] defendant ought not have administered heavy dose of Phenergan to the child. Enquiry report further showed that the 1[st] defendant never noted any findings of examination and age of the child in the observation slip. He has not assessed the seriousness of illness and not given a provisional diagnosis in the observation slip. A charge memo was issued against the 1[st] defendant on 11.05.1992 and the same was not completed at the time of filing the written statement. The department had already initiated disciplinary action against the 1[st] defendant. 6 AS Nos.327 & 441 of 1998 7. 4[th] defendant filed a written statement raising the same contentions. 4[th] defendant also contended that disciplinary action had been taken against the 1[st] defendant. 8. Trial court framed the following issues for consideration: _“1. Whether the child of the plaintiff Vipeesh died due to any professional negligence on the part of the 1[st] defendant or the 2[nd] defendant?_ _2. Whether the defendants or any one or more of them are liable to compensate the plaintiffs and if so, what is the quantum of damages to be awarded?_ _3. Relief and costs?”_ Exts.A1 to A13 and B1 to B7 and also Exts.X1 and X2 series were considered by the trial court. PWs 1 to 4 and DWs 1 to 4 are the witnesses examined on each side. 9. I shall go through the material aspects in the oral evidence adduced. PW1 is the father of the deceased child. He deposed in terms of the averments in the plaint. It is an admitted case that on 19.01.1991 at about 5.00 p.m. the child was taken to Iritty PHC where the 1[st] defendant was working as medical officer and 2[nd] defendant was working as nurse. The child was profusely vomiting. According to PW1, the 1[st] defendant did not examine the child carefully. A slip was given for buying medicine from outside. PW1 after purchasing the medicine handed it over to the 2[nd] AS Nos.327 & 441 of 1998 7 defendant. 2[nd] defendant injected the child. Thereafter the child became sleepy. During midnight the child was extremely delirious and he took the child to Dr.Syamala, another doctor in the locality. She advised PW1 to take the child to the Co-operative Hospital, Kannur. By 3.00 a.m., he reached there. Within five minutes of admission, the child expired. The assertion by PW1 is that the child died on account of the medical negligence. He also proved sending complaints against the defendants to various departments, including police. He was cross-examined by the defence counsel. There is no improbability in his evidence despite a searching cross-examination. Basic facts that the child was examined by 1[st] defendant, that he prescribed Phenergan injection, that it was administered by the 2[nd] defendant, etc. remain credible despite a tough cross-examination. 10. PW2 is Dr.Syamala, who was running a nursing home in Iritty. PW1 is known to PW2 earlier. At about 12 O' clock in the night on 19.01.1991, PW1's child was taken to her and she, after examining, asked the child to be taken to a hospital. In cross-examination, she stated that she was unable to state the exact condition of child. 11. PW3 is Dr.Sudha Balakrishnan, who was working in AKG Hospital, Kannur. On 19.01.1991 during night she was in the hospital. PW1's child was admitted to the hospital and immediately thereafter he 8 AS Nos.327 & 441 of 1998 died. The death was reported to the local authority. Since he was admitted in casualty, only IV fluid was administered. It is evident that no treatment was given to the child from AKG Hospital, Kannur. 12. PW4 Dr.Prabhakaran conducted enquiry against the 1[st] defendant. According to his testimony, 50 mg. of Phenergan, contained in a vial (ampule), is a heavy dose to the child. It can only be given to an adult. Further, the 1[st] defendant failed to note the age of the child in the prescription or on any medical records. His evidence, despite crossexamination, would show that the 1[st] defendant did not take proper care to note the relevant details revealed on examination of the child. 13. DW1 is the 1[st] defendant. He admitted that he saw the child in the hospital at about 5.00 p.m. Physical examination of the child revealed that the child was having gastritis. Rest of the system was normal. Phenergan was correctly prescribed for his ailment. 2[nd] defendant gave the injection to the child. Child was experiencing dehydration. A powder was given for correcting dehydration orally (ORHS). After 5.00 p.m., no outpatient consultation was done in the hospital. Inpatient facility was not available due to maintenance. IV fluid could not be administered to the child from the hospital because admission of a patient was impossible. In cross-examination, it has been brought out that another medico-legal case had been filed against him. He himself is a complainant before the Judicial 9 AS Nos.327 & 441 of 1998 First Class Magistrate, Kuthuparamba for dishonour of a cheque. 14. DW2, Dr.Sasidharan is a pediatrician. He was cited to prove that Phenergan is a safe drug for stopping vomiting. He deposed that this medicine will be tolerated by children also. The drug is available in tablet form and injection form. According to DW2, in cross-examination, administration of Phenergan injection is only a symptomatic treatment. He admitted that in Ext.A1 prescription, age of the patient was not written by DW1. 15. DW3, Dr.Ramachandran is a private practitioner. He was having MD in Pharmacology. He also testified that for stopping vomiting, Phenergan is usually given. 16. DW4 is the 2[nd] defendant. She deposed that she administered injection on the child as directed by DW1. She did not understand that one vial of Phernergan is excessive for a eight year old child. However, she did not take care to ascertain from the doctor what could be the quantity of Phenergan to be administered on the child. 17. I shall start with Ext.A1. It is a prescription dated 19.01.1991 issued by the 1[st] defendant in respect of the deceased child. As pointed out by PW4, the 1[st] defendant did not take care to note age of the child in Ext.A1. Besides, none of the details regarding diagnosis was also mentioned in Ext.A1. In this regard it is contended by the learned counsel 10 AS Nos.327 & 441 of 1998 for the 1[st] defendant that Ext.A1 was only a prescription for purchasing medicine. However, the fact remains that no medical record was produced by defendants 1 and 2 to show that other records were kept in the hospital showing the actual diagnosis. Court below has taken this point as one of the reasons for finding fault with the appellants. 18. Ext.A13 is the medical literature in respect of “Promethazine Hydrochloride Injection” commercial name of which is Phenergan. As per Ext.A13, the prescribed dosage of the drug for children between 5 to 10 years, as a sedative, is 20 to 25 mg. and as an antihistaminic, 10 to 25 mg. The literature further shows that Promethazine Hydrochloride is generally well tolerated at normal dosage levels, but side effects occur in some patients. As per the literature, apart from somnolence, dizziness, slight disorientation, mild headache, twitching and jerking of limbs might occur. But, this pertains to normal dosage levels only. Going by any standard, 50 mg. of Phenergan injection administered to an eight year old boy is highly excessive. 1[st] defendant has no case that he directed the 2[nd] defendant to take the injection in accordance to Ext.A13 literature nor the 2[nd] defendant has a case that she followed the guidelines in Ext.A13. 19. Ext.X1 file is regarding the complaint received by the authorities against the 1[st] defendant. It is seen from Ext.X1 that serious allegations were levelled against the 1[st] defendant and an enquiry was AS Nos.327 & 441 of 1998 11 conducted into the matter. Even though the 1[st] defendant' had tried to develop a case that after examination of the child, he ordered injection 1 cc of Phenergan (25 mg.) to be administered to the child, there is no record to support this contention. Father and mother of the deceased child had raised complaints before the 4[th] defendant that the 1[st] defendant did not take care to examine the child properly. Ext.X1 file would show that the child was under treatment of the 1[st] defendant on previous occasions for primary complex and other chest complaints. The materials would show that this had been brought to the notice of the 1[st] defendant by the parents when presented with the complaint of vomiting. It is the accusation against the 1[st] defendant that he never informed that condition of the child was serious. 2[nd] defendant submitted before the authorities that she administered full dose of Phenergan (50 mg) as directed by the medical officer. The medicines prescribed as per Ext.A1 is injection Phenergan one ampule, Perincrm tab and ORS. Observation by PW4 was as follows: _“Observation: On going through the observation slip alone I am almost certain that he never examined the patient properly and as such he never assessed the seriousness of the condition. The age of the patient, time of attendance, symptom at the time of examination and not even a provisional diagnosis is seen in the observation slip. He handled the situation very listlessly_ 12 AS Nos.327 & 441 of 1998 _and thereby failed to understand the actual underlying pathology which provoked vomiting. He ought not had administered a heavy dose of Phenergan, even though not lethal, to an exhausted child if examined properly._ _And because of the same reason he retained the child in the hospital wasting precious time. There is discrepancy regarding the dose of Phenergan in his written statement and the observation slip issued. This might have been stated due to a second thought to be on the safe side. The actual dose of Phenergan ordered and given is 50 mg. which is 'heavy' dose to a dehydrated child.”_ 20. On an over all assessment of the evidence available in the records, I find no reason to fault the trial Judge's finding that there was medical negligence on the part of the appellants. 21. Legal pronouncements pertaining to this issue are clear. Supreme Court in **Laxman v. Trimbak (AIR 1969 SC 128)** laid down the following propositions of law: _“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_ 13 AS Nos.327 & 441 of 1998 _undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those duties gives a right of action for negligence to the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires: (cf. Halsbury's Laws of England) 3[rd] ed. vol.26 p.17). …......”_ Apex court in **Poonam Verma v. Ashwin Patel (AIR 1996 SC 2111)** made the following observations: _“Negligence has may manifestations - it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, wilful or reckless negligence or negligence per se, which is defined in Black's Law Dictionary as under:_ _Negligence per se: Conduct, whether of action or omission, which may be declared and treated as negligence without any argument or proof as to the particular surrounding circumstances, either because it is in violation of a statute or valid municipal ordinance, or because it is so palpably opposed to the dictates of_ 14 AS Nos.327 & 441 of 1998 _common prudence that it can be said without hesitation or doubt that no careful person would have been guilty of it. As a general rule, the violation of a public duty, enjoined by law for the protection of person or property, so constitutes.”_ 22. I need not emphasis the settled legal view that when a medical practitioner is consulted by a patient, he owes certain duties to him. Those duties have been clearly laid down in various judicial pronouncements. In this case, it is evident that the 1[st] defendant, without bestowing required seriousness, examined the child and prescribed medicines to be purchased. In Ext.A1, none of the details of diagnosis was mentioned. No other medical record was produced by the defendants 1 and 2 to show that the 1[st] defendant had ventured to identify the actual problem the child was facing at that time. Facts borne out from Ext.X1 file also indicate that the authorities were not satisfied with the conduct of the 1[st] defendant as a doctor. Insofar as the 2[nd] defendant is concerned, without any application of mind, the whole ampule of injection Phernergan was given to an eight year old child. Therefore, the facts and circumstances borne out from evidence lead only to the inference that the defendants 1 and 2 were negligent in administering drug to the child. 1[st] defendant failed to identify the actual trauma suffered by the child. As revealed from Ext.X1, the child 15 AS Nos.327 & 441 of 1998 had been shown previously to the 1[st] defendant for chest related diseases. Records do not indicate any reason to infer that the 1[st] defendant had investigated the case with reference to primary complex or other chest related problems. Giving overdose of injection Phenergan, though by itself cannot be said to be fatal, could have been proved fatal in the case of a child reeling under serious ailment which had gone undiagonsed. I am of the view that the ultimate finding of the trial court that the defendants 1 and 2 were medically negligent has to be confirmed. 23. 3[rd] defendant represents the State of Kerala. Court below has not stated any acceptable reason for exonerating the State of Kerala from the vicarious liability on account of the negligence on the part of defendants 1 and 2, who were admittedly Government servants. Trial court simply stated that since there was departmental action taken against the 1[st] defendant, the State cannot be held liable. That appears to be not a legally sustainable reason. It is the definite case of all the defendants that the defendants 1 and 2 were working in a Government PHC as duty doctor and staff nurse. Concededly, they were discharging their official duty at the time of the incident. Therefore sad demise of the child occurred due to a medical negligence of defendants 1 and 2 in the course of their employment. The observations by the trial Judge for exonerating the State is legally unsustainable. 16 AS Nos.327 & 441 of 1998 24. However, a question may arise in the context of the plaintiffs not filing any appeal against exonerating the State and its officers from monetary liability to pay compensation. Learned senior counsel appearing for the plaintiffs/respondents urged this court to invoke power vested in it under Order XLI Rule 33 of the Code of Civil Procedure, 1908 (in short, “Code”). 25. Learned senior counsel contended that a Constitution Bench of the Supreme Court in **Panna Lal v. State of Bombay (AIR 1963 SC** **1516)** interpreting Order XLI Rule 33 of the Code held as follows: _“The wide wording of O.41 R.33 was intended to empower the appellate court to make whatever order it thinks fit, not only as between the appellant and the respondent but also as between a respondent and a respondent. It empowers the appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal but also to give such other relief to any of the respondents as “the case may require”._ Another decision in **Dhangir v. Madan Mohan (AIR 1988 SC 54)** in respect of the above provision reads thus: _“The appellate court could exercise the power under R. 33 even if the appeal is only against a part of the decree of the lower court. The appellate court could exercise that power in favour of all or any of the_ 17 AS Nos.327 & 441 of 1998 _respondents although such respondent may not have filed any appeal or objection. The sweep of the power under R. 33 is wide enough to determine any question not only between the appellant and respondent, but also between respondent and co-respondents. The appellate court could pass any decree or order which ought to have been passed in the circumstances of the case. The appellate court could also pass such other decree or order as the case may require. The words "as the case may require" used in R. 33 of O. 41 have been put in wide terms to enable the appellate court to pass any order or decree to meet the ends of justice. What then should be the constraint ? We do not find many. We are not giving any liberal interpretation. The rule itself is liberal enough. The only constraints that we could see may be these : That the parties before the lower court should be there before the appellate court. The question raised must properly arise out of judgment of the lower court. If these two requirements are there, the appellate court could consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. It is true that the power of the appellate court under R. 33 is discretionary. But it is a proper exercise of judicial discretion to determine all questions urged in order to render complete justice between the parties. The court should not refuse to exercise that discretion on mere technicalities.”_ 18 AS Nos.327 & 441 of 1998 26. On a reading of Order XLI Rule 33 of the Code, it can be seen that the appellate court is vested with power to pass any decree or order which ought to have been passed by the trial court. Exercise of the power is discretionary. It empowers the court to exercise the power in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. Discretion vested in this Court under Order XLI Rule 33 of the Code ought to be exercised in favour of the plaintiffs, because the reason stated by the trial court for extricating the State of Kerala from liability is flimsy and unsustainable. Defendants 1 and 2 committed medical negligence during the course of their employment under the State and the plaintiffs, hailing from a rustic village, were compelled to take their ailing child to a nearby Government PHC, where the Government is expected to provide adequate facilities for treatment. It is the responsibility of the State to provide health care, especially to the weaker section of the society. Having regard to the entire facts and circumstances of the case, I am of the view that the State of Kerala, represented by the 3[rd] defendant District Collector, is also liable to pay compensation determined by the court below. 27. Insofar as the quantum of compensation granted by the court below is concerned, there is no dispute. Hence the following directions are made: 19 AS Nos.327 & 441 of 1998 Appeals are dismissed. The observation by the court below that the State of Kerala represented by the 3[rd] defendant is not liable to pay compensation is hereby vacated. The amount of rupees one lakh ordered by the court below as compensation to the plaintiffs shall be paid by the 3[rd] defendant State of Kerala and it shall be recovered from the defendants 1 and 2 in the same proportion as shown in the judgment and decree passed by the court below. Other stipulations in the judgment are hereby confirmed. All pending interlocutory applications will stand dismissed. **A.HARIPRASAD, JUDGE.** **cks** 20 AS Nos.327 & 441 of 1998 ## **A.HARIPRASAD, J.** **A.S.Nos.327 and 441 of 1998** ## **JUDGMENT** **24[th] July, 2018**