LAXMAN BALKRISHNA JOSHI versus TRIMBAK BAPU GODBOLE AND ANR.

f,AXMA'.'11 RALKRISHNA JOSHI

TRIMBAK RAPU GODROl,E AND ANR.

May 2, 1968

[R. S. BACHAWAT, J. M. SHELAT AND A. N. GROVER, JJ.)

Tort-l'l/egliRence of S11rgeon.

person v.·ho holds himself out ready to give medical advice and tn!"•tment impliedly holds forth that he is possessed of skill and know-ledge. for t~c purpose. Such person 'vhen consulted by patient, owes ccna10 du11es. namely. duty of care in deciding whether to undenake the case,. <1 duty of ~arc in deciding what treatment to give, and duty of care 111 the adm1n1stration of that treatment. breach of any of these duties r.nve-; right of action of ne,:?:ligence against him. The medi-cal practitioner h;-is discretion in choosing the treatment \\[1]hich he pro-poses to give co the patient and such discretion is wider in cases of emer-gency. hut, he must bring to his task reasonable degree of skill and know}edgc and must exercise 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 fracture of the femur of his left leg. First aid was given by local physician though the leg was not fully or properly immobilis-ed. and. on the 9th May he was taken to the appellant's hospital in Poona 200 mile~ av.·ay. in taxi after 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 m~dical practitioner. little Jatci ho,vevcr. the patienfs condition deteriorated and ~t 9 p.m. he died. The appe11ant issued certificate that the cause of death was fat embolism.

1be first respondent filed 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 misunderstanding of the evidence and on mere con-jectures and surmises.

HEJ,D : (I) There was nothing wrong in the High C.ourt cmphasis-in~ 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 alleged hy the appellant that the expert was orofcssional rival of the appellant and \\'as, therefore, unsympathetic to\vards him. [216 E-F}

(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 circum-stances of the case. [218 C-D]

(a) The first respondent himself was 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 immo-bilisation 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 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. 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 treat-ment. The appellant's theory that death was due to embolism which must have set in from the time the accident occurred was only an after-F 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 possibility of embolism ha,;ng set in. [217 G-H; 218 A-Cl

CIVIL APPELLATE JURISDICTION : 1965.

Civil Appeal No. 547 of

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 respon-dents.

The Judgment of the Court was delivered by

Shelat, J. This appeal by special leave raises the <JUestion of the liability of surgeon for alleged neglect towards his patient. the liability of surgeon for alleged neglect towards his patient. of surgeon for alleged neglect towards his patient. surgeon for alleged neglect towards his patient. lt arises from the following facts. At about sunset on May 6, 1953, Ananda, the son of respon-dent I, aged about twenty years, met with an accident on the sea bc.ach at Palshct, 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 distance of I" miles from the place where he and his mother Jived at 1he time it took some time to bring cot and remorn him Jo the house. Dr. Risbud, 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 view to immo-bilise 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. taxi was thereafter called in which the boy Ananda Web placed in 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 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 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 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 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 respon-dent 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

boy expired. The appellant thereupon issued 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 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 opera-tion theatre. Their case further was that

"While putting the leg in plaster the defendant used manual traction and used excessive force for this pur-c pose, 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 mani-pulation 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 pro-F ceeds to state :

"Taking into consideration the history of the patient and his exhausted condition, the defendant did not fmd it desirable to give general anaesthetic. The dekn-dant, 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 exces-sive 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

"the defendant put the patient's limb in plaster as an immediate preliminary treatment on that day with 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 appel-lant immediately went to attend on him and found that his condi-tion had suddenly deteriorated, his temperature had gone high, he was in coma, was having difficulty in breathing and was show-ing 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 find-ings : (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 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 treat-ment. 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 little beyond the foot, (d) At about mid-night on 8/9 May 1953. taxi was brought to Palshet. Ananda was lifted into it and made to lie down in 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

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 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 diffi-culty 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 frac-ture; 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 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 respira-tion were. ta~en,_ the clinical chart. Ext. 213, showed only two dots, one md1cat1ng that pulse was 90 and the other that respira-tion 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.

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 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 jour-ney. 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 symp-tom which called for delayed reduction. Ext. 262 merely men-tioned 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 un-reliable. Ext. 262. besides, was loose sheet which did not even contain either the name of the appellant or his hospital. It was impossible that 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 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 deci-sion. The. High Court agrwd ;iut the medical text books pro-duced before it seemed to su~gest 1l1a1 where time has elapsed since the occurrence or the fracture •md the patient has anived after 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 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 cloak used for suppres-sing the real cause of dc<1th, 1·i;: .. shock.

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 case where we should reopen the findings, concurrent though they were, and reappraise the evidence as the courts below have arrived at them on misunderstanding of the evidence and on mere conjectures s· 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 doctor owes to his patient are clear. 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 person 11hen consulted by a· patient owes him certain duties, viz., duty of care in deciding whether to undertake the case, duty of care in deciding what treatment to give or duty of care in the administration of that treatment. breach of any of those duties gives right of action for negligence to the patient. The practitioner must bring to his task reasonable degree of skill and knowledge and must exer-cise reasonable degree of care. Neither the very highest nor 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 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 appel-F lant 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 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 medical practitioner of con-siderable standing and though not an expert in surgery, he is

not layman who would not understand the treatment which the appdlant gave to the boy. It is not in dispute that he was pre-sent 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 con-jecture 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 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 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 un-conscious. 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 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

fracture had been postponed and only immobilisatio~ had been done. The assurance given by the appellant upon which respon-dent 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 appel-lanf 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 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 cere-bral embolism, it is impossible that he would write in that letter that it was difficult for him even after one and 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 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 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 reduc-tion and had only given rest to the boy's leg by immobilising it in plaster splints.

As we have already stated, both sides used number of medi-cal works both at the stage of evidence and the anmments in the trfal court. Certain passages from these books ~ere shown to

the. ;ippcllant in cros;-excnnina1ion which pointed out lh<1t pia'!cr 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 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 reduc-tion. 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 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 delay-ed 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 conclu-sicms on Dr. Gh:rrpurc's evidence as it was allcscd that that doctor was professional rival of the appellant and was, there-fore. 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 sur-mises 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 the boy's condition was satisfactory at the time he was admitted 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>bilisa-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

L. ll. JOSHI v. T. B. GODBOLE (She/at, J.)

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. dis-turbance and alteration of coma with full consciousness occur-B ring some hours after 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,"a fracture of 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 symp-toms 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 seriously injured patient. The patient is apathetic and confused, answering simple questions with difficulty; soon he becomes completely incoherent. Some hours later delirium sets in, often alternating with stupor and progressing to coma. During the delirious phase the patient may be violent."

In an article in the Journal of Bone Joint Surgery by Newman, (Ext. 291), the author observes that the typical clinical picture is that of man in the third or fourth decade who in consequence of road accident has sustained fracture of the femur and is adntitted to hospital perhaps after Jong and rough journey with the lirnp improperly immobilised, suffering considei·able shock. None of the symptoms noted above were found by the appellant. The appellant is 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 taxi before coming to him, if he had felt that there was possibility of fat embolism having set in, he would surely have looked for the signs. At any rate, if he had thought that there was some such possibility, he would surely have warned respondent 1, especially as he happened to be doctor also of long standing. The evidence shows that the symp-toms suggested in the aforesaid passages were not noticed by the lOSup. C. l.i68-15

~18 SUPRE~iE COURT REPORTS

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 con-fessed that he had even then not been able to gauge the reasons for the boy's death, the fact that while giving treatment to the boy after 6-30 P.M. he did not look for the symptoms above-mentioned, all go to indicate that in order to screen the real cause of death, namely, shock resulting from his treatment, he had hit upon the theory of cerebral embolism and tried to bolster it up by stating that it must have set in right from the time the accident occurred. 111e aforesaid letter furnishes 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 result-ing 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 wrong-ful acts towards the patient and was liable for damages.

The appeal is dismissed with costs.

Appeal dismissed.