Kerala: The Kerala High Court has recently ruled that the maxim of 'res ipsa loquitor' will be applied in a case of medical negligence if a patient suffers an implication that is not contemplated normally. Holding so, the HC upheld the judgment of the sub court and dismissed the plea made by a consultant urologist and the hospital.
'Res ipsa loquitor' means "the thing speaks for itself". Roughly translated it implies- " the principle that the mere occurrence of some types of accident is sufficient to imply negligence,"
It is a maxim that can be relied upon by a party to a litigation, who has no knowledge or insufficient knowledge about how the incident occurred, to rely upon the incident and the attendant circumstances.
The High Court made the observation in a case where a doctor and a hospital approached the court opposing a lower court's decision of applying the principle of 'res ipsa loquitor' in a case of medical negligence where a patient suffered postrio paresis and became crippled for life.
The doctor and the hospital approached the high court after the sub court of Thiruvananthapuram received the plea of a 29-year-old patient who became paraplegic and lost his sound after he had surgery for the removal of kidney stones. The court applied the maxim of 'res ipsa loquitor' on the case and awarded a compensation of Rs.20,40,000 to the petitioner.
The petitioner submitted that he developed severe pain in the abdomen and consulted the respondent doctor, who is a super-specialist in Urology, the petitioner was diagnosed as having secondary calculi in the right kidney and was advised to undergo keyhole surgery to remove the calculi. He was admitted to the hospital in 2005 and the operation commenced under general anesthesia. Within 30 minutes of commencement of the surgery, the operation was halted and the petitioner was brought out of the theater with oxygen support and catheter inserted. Post-operation, the patient noticed that he became crippled and unable to move.
Subsequently, he was referred to Sree Chithira Tirunal Institute of Medical Sciences, where, spinal subdural clots were detected. He suffered permanent damage to his lower limbs. He alleged that illness and disability occurred due to the injury sustained on the spinal cord during the keyhole surgery performed by a doctor in the most callous, negligent, and irresponsible manner and claimed compensation to the tune of Rs.60 lakhs.
The counsel for the respondent doctor and the hospital denied the allegations and pointed out that the averments were all cooked up, solely for gaining an undue financial advantage. It was further stated that after carrying out all the required investigations, the patient was diagnosed with multiple secondary calculi with right hydronephrosis with obstruction at the pelvic-ureteric junction. Moreover, while the track dilation was done with coaxial metal dilators, the patient developed cardiac problems and the procedure had to be abandoned. The problems arose either because of a pre-existing aneurysm rupture or because of cardiac arrest, they submitted.
The Sub Court, Thiruvananthapuram found negligence on the part of the doctor and hospital and awarded compensation to the patient to the extent of Rs.20,40,000/- with interest at 6% per annum from the date of suit till realization, along with costs.
Aggrieved by the judgment and decree, the doctor and hospital approached the High Court. The counsel for the doctor and the hospital argued that the surgery performed or attempted to be performed and the injury alleged to have been caused on the spinal-cord as pointed out by the patient, had no rationale or anatomical connection to infer negligence.
On the other hand, counsel for the patient contradicted the arguments and submitted that this is a classic instance of the maxim res ipsa loquitor to be applied.
After considering the submission of both the parties, the division bench of Justices SV Bhatti and Bechu Kurien Thomas observed that this is a case where " an admittedly healthy man, who drove his bike to the hospital and 'walks' into the operation theater, is administered general anesthesia to carry out surgery for removal of kidney stones, is later, taken out of the operation theater as a paraplegic." Hence, the question that arises in front of the bench is if the " maxim res ipsa loquitor get attracted on the above facts? If the maxim applies, what would be the effect?"
While agreeing that the maxim may be applied in this case, the court stated,
In the case of medical negligence, the principle of res ipsa loquitor is applicable, if the patient suffers a complication not contemplated normally. In such a case, the plaintiff is not required to prove anything more than the complication as having occurred. The res proves itself. The onus shifts to the defendant who has to discharge it by adducing evidence.
The precedent in the Supreme Court decision in V.Kishan Rao v. Nikhil Super Speciality Hospital andAnother[(2010) 5 SCC 513] was referred to by the bench in this regard wherein it was stated ""In the treaties on Medical Negligence by Michael Jones, the learned author has explained the principle of res ipsa loquitor as essentially an evidential principle and the learned author opined that the said principle is intended to assist a claimant who, for no fault of his own, is unable to adduce evidence as to how the accident occurred."
While appreciating the arguments of counsel appearing for the doctor and hospital that there was absolutely no evidence to prove that the doctor was negligent, the court also acknowledged the fact that " as a patient, when one lies on the operation table, that too under general anesthesia, it is impossible for the patient to comprehend what happens around him. When the patient is under general anesthesia, he is unaware of the processes that are being carried out. it was not possible for the plaintiff to specify the nature of acts done or performed on him, that could be depicted as negligent."
The court added that the operation was halted and the patient was brought out of the theater and was given oxygen support and catheter inserted. It was not in dispute that the patient has become crippled for life and his condition is referred to in medical terms as postrio paresis. Hence the court concluded,
it can be safely concluded that the plaintiff had sustained serious injuries during the operation performed by the 2nd defendant at the 1st defendant hospital. the maxim res ipsa loquitor applies in the instant case. Defendants failed to prove the cause of the injury sustained by the plaintiff. Even though he deposed that the cardiologist of the Hospital and two other Doctors had seen the plaintiff when the injury occurred, none of them were examined as witnesses or even cited as witnesses. Even the anesthetist who was inside the operation theater throughout was not examined. These are all direct witnesses who were not examined.....Even the vague and indirect reference to a possible lack of oxygen supply to the brain and its cause has not been explained by the defendants. They have miserably failed to discharge their onus or explain the cause of the injury.
The court further added that the disability now suffered by the patient is not seen referred to as an expected complication from a procedure of this nature. This also indicates that it is not a normal complication that has occurred to the patient.
The court finally ordered
Thus by the application of the principle of res ipsa loquitor, the defendants alone could have answered or explained the allegation of negligence. As mentioned in the earlier part of this Judgment, the learned Counsel for the appellant had fairly submitted that the appellants are not challenging the quantum of damages awarded. Having stated so, in the absence of any challenge against the quantum of damages awarded, we affirm the judgment dated 27.07.2019 in O.S. No.1111 of 2011 of the Principal Subordinate Judge's Court, Thiruvananthapuram.
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