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PETITIONER: LAXMAN BALKRISHNA JOSHI

       Vs.

RESPONDENT: TRIMBAK BAPU GODBOLE AND ANR.

DATE OF JUDGMENT: 02/05/1968

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. BACHAWAT, R.S. GROVER, A.N.

CITATION:  1969 AIR  128            1969 SCR  (1) 206  CITATOR INFO :  RF         1989 SC1570  (9)

ACT: Tort-Negligence of Surgeon.

HEADNOTE: A person who holds himself out ready to give medical  advice and treatment impliedly holds forth that he is possessed  of skill  and  knowledge for the Purpose.  Such a  person  when consulted by a patient, owes certain duties, namely, a  duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of  care in the administration of that treatment.  A breach of any of these  duties gives a right of action of negligence  against him.  The medical practitioner has a discretion in  choosing the  treatment which he proposes to give to the patient  and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and  must exercise a reasonable degree of care according  to -the circumstances of each case. [213 C-E] In  the present case, on 6th May 1953, the son of the  first respondent suffered a fracture of the femur of his left leg. First aid was given by -a local physician though the leg was not  fully or properly immobilised, and, on the 9th  May  be was  taken  to the appellant’s hospital in Poona  200  miles away, in a taxi after a journey of about eleven hours.   The appellant  directed his assistant to give two injections  of morphia  but only one injection was given.  The patient  was then  given some treatment in the operation theatre and  the first  respondent was assured at 5.30 p.m.  that  everything was  all  right  and that the patient would be  out  of  the effects of morphia by 7 p.m. The first respondent  thereupon left  for  Dhond  where  he  was  practising  as  a  medical practitioner.    A  little  later  however,  the   patient’s condition   deteriorated  and  at  9  p.m.  be  died.    The ’appellant issued a certificate that the cause of death  was fat embolism. The first respondent filed a suit against the appellant  for damages  for  negligence  towards his  patient.   The  trial Court, and the High Court in appeal, held that the appellant had performed reduction of the fracture, that in doing so he

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applied  with the help of three of his assistants  excessive force,  that  such  reduction was done  without  giving  any anaesthetic  but while the patient was under the  effect  of the  morphia injection, that the said treatment resulted  in the  embolism,  or shock, which was the proximate  cause  of death,  that  the  appellant was guilty  of  negligence  and wrongful acts, and awarded Rs. 3,000 as damages. In  appeal to, this Court, it was contended that :  (1)  The High  Court  erred  in placing  reliance  on  medical  works instead  of considering the evidence of the expert  examined on  behalf of the respondents; and (2) the  findings  though concurrent,  should be reopened by this Court, as they  were arrived at on a misunderstanding of the evidence and on mere conjectures and surmises. HELD:     (1)  There  was nothing wrong in  the  High  Court emphasising  the  opinions  of  authors  of  well-recognised medical  works  instead  of basing its  conclusions  on  the expert’s evidence as, it was a alleged by the appellant that the  expert  was a professional rival of the  appellant  and was, therefore, unsympathetic towards him. [216 E-F] 207 (2)  The  trial  court  and the High  Court  were  right  in holding  that  the appellant was guilty  of  negligence  and wrongful  acts  towards  the  patient  and  was  liable  for damages, because, the first respondent’s case that what  the appellant  did was reduction of the fracture without  giving anaesthetic, and not mere immobilisation with light traction ’as  was  the  appellant’s case,  was  more  acceptable  and consistent  with  the facts and circumstances of  the  case. [218 C-D] (a)  The first respondent himself was a medical practitioner who was present throughout when treatment was being given to his son and understood the treatment [214 A] (b)  If  reduction  of the fracture had been  postponed  and only  immobilisation  had been done,  the  first  respondent would  not  have left for Dhond.  It was  only  because  the reduction of fracture had been done and the first respondent was  assured that the patients ’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-B] (c)  The  patient  must  have been unconscious  due  to  the effects  of  morphia and the appellant’s  version  that  the patient  was  cooperating throughout the  treatment  in  the operation  theatre  could not be true.  The  second  morphia injection was not given as directed, because, the first  one had a deeper effect than was anticipated and not because the assistant forgot to give it. [214 C-D; E-F] (d)  In spite of the first respondent having made a specific reference  to the reduction of the fracture and the  use  by the   appellant   of   excessive   manual   force    without administering  anaesthetic, in his complaint to the  Medical Council   the   appellant  in  his   explanation   did   not specifically answer it. [215 F-H] (e)  If his version as to the treatment given by him to  the patient  were correct, there was 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)  The  cause  of  death  was  shock  resulting  from  the appellant’s  treatment.  The appellant’s theory  that  death was due to embolism which must have set in from the time the accident occurred was only an afterthought, because : (i) in his apologetic letter he confessed that even then he was not able  to  gauge  the reasons for the  death,  (ii)  symptoms

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showing embolism were not noticed either by the appellant or the  first respondent, and (iii) the appellant  having  been surgeon  of  long experience and knowing that two  days  had elapsed since the accident would surely have looked for  the symptoms if he had felt there was a possibility of  embolism having set in. [217 G-H; 218 A-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 547 of 1965. 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.   Dadachatnji,  for  the respondents. 208 The Judgment of the Court was delivered by Shelat, J. This appeal by special leave raises the  question of  the liability of a surgeon for alleged  neglect  towards his patient.  It arises from the following facts. At  about sunset on May 6, 1953, Ananda, the son of  respon- dent 1, aged about twenty years, met with an accident on the sea beach at Palshet, a village in Ratnagiri District, which resulted  in  the  fracture of the femur of  his  left  leg. Since the sea beach was at a distance of 14’ miles from  the place where he and his mother lived at the time it took some time  to  bring  a cot and remove him  to  the  house.   Dr. Risbud, a local physician, was called at about 8-30 or  8-45 P.m. The only treatment he gave was to tie wooden planks  on the  boy’s leg with a view to immobilise it and  give  rest. Next day, he visited the boy and though he found him in good condition,  he advised his removal to Poona  for  treatment. On May 8, 1953, Dr. Risbud procured Mae Intyres splints  and substituted  them  for the said wooden planks.  A  taxi  was thereafter  called in which the boy Ananda was placed  in  a reclining  position and he, along with respondent 2 and  Dr. Risbud,  started for Poona at about 1 A.m. They reached  the city after a journey of about 200 miles at about 11-30  A.m. on May 9, 1953.  By that time respondent 1 had come to Poona from   Dhond   where  he  was  practising   as   a   medical practitioner.  They took the boy first to Tarachand Hospital where  his injured leg was screened.  It was found  that  he had an overlapping fracture of the femur which required pin- traction.   The respondents thereafter took the boy  to  the appellant’s  hospital where, in his absence, his  assistant, Dr.  Irani, admitted him at 2-15 P.m. Some  time  thereafter the  appellant arrived and after a  preliminary  examination directed Dr. Irani to give two injections of 1/8th grain  of morphia  and  1/200th grain of Hyoscine H.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  leg  were  taken.   He  was  then  removed  to  the operation  theatre on the upper floor where the injured  leg was  put  into  plaster splints.  The boy was  kept  in  the operation  theatre  for a little more than an  hour  and  at about  5-30  P.m.,  after the treatment  was  over,  he  was removed to the room assigned to him.  On an assurance  given to  respondent 1 that Ananda would be out of the  effect  of morphia by 7 P.m., respondent 1 left for Dhond.   Respondent 2, however, remained with Ananda in the said room.  At about 6-30  P.m.  she noticed that he was  finding  difficulty  in breathing and was having cough.  Thereupon Dr. Irani  called

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the  appellant  who, finding that the  boy’s  condition  was deteriorating  started  giving  emergency  treatment   which continued right until 9 P.m. when the 209 boy expired.  The appellant thereupon issued a  certificate, Ext.  138, stating therein that the cause of death  was  fat embolism. The  case  of the respondents, as stated in para  4  of  the plaint, was that the appellant did not perform the essential preliminary  examination  of  the boy  before  starting  his treatment;  that  without  such  preliminary  examination  a morphia injection was given to him; that the boy soon  after went  ’under morphia’ that while he was ’under morphia’  the appellant  took him to the X-ray room, took X-ray plates  of the  injured leg and removed him to the  operation  theatre. Their case further was that               "While   putting  the  leg  in   plaster   the               defendant   used  manual  traction  and   used               excessive  force  for this purpose,  with  the               help  of three men although such  traction  is               never done under morphia alone, but done under                             proper general anesthesia.  This kind of  rough               manipulation is calculated to 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.  Plaintiff  No.               1 therefore left for Dhond at about 6 P.M. the               same evening." In   his  written  statement  the  appellant  denied   these allegations  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 tiler, proceeds  to state :                "Taking into consideration the history of the               patient  and  his  exhausted  condition,   the               defendant did not find it desirable to give  a               general anesthetic.  The defendant, therefore,               decided  to immobilise the fractured femur  by               plaster  of  Paris  bandages.   The  defendant               accordingly  reduced the rotational  deformity               and  held  the limb in  proper  position  with               slight  traction and immbilised it in  plaster               spica.  The hospital staff was in  attendance.               The  patient was  cooperating  satisfactorily.               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  does  not               admit it."               The appellant further averred that               210               "the  defendant  put  the  patients  limb   in               plaster as an immediate preliminary  treatment               on  that  day with a view  to  ameliorate  the               patient’s condition." His  case further was that at about 6-30 P.m. it  was  found that  the boy’s breathing had become abnormal whereupon  the

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appellant  immediately went to attend on him and found  that his condition had suddenly deteriorated, his temperature had one high, he was in coma, was having difficulty in breathing and  was  showing  signs  of  cerebral  embolism  and   that notwithstanding the emergency treatment he gave, he died  at about  9  P.M. The parties led considerable  evidence,  both oral  and  documentary,, which included  the  correspondence that had ensued between them following the death of  Ananda, the appellant’s letter, dated July 17, 1953 to respondent 1, the  complaint lodged by respondent 1 to the Bombay  Medical Council, the appellant’s explanation thereto and such of the records of the case as were Produced 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. Irani, on the other.  The nurse who attended on the boy  was not examined.  At the time of the arguments the parties used extensively  well-known works on surgery, particularly  with reference  to treatment of fractures of long bones  such  as the femur. On  this  evidence, the trial court came  to  the  following findings  :  (a) The accident resulting in the  fracture  of femur in the left leg of Ananda occurred at about 7 P.m.  on May 6, 1953 at the sea beach of village Palshet.  That place was  about one and a quarter mile away from the place  where he and respondent 2 had put up.  Arrangement had to be  made for  the  cot  to remove him and the boy  was  brought  home between  8-30 and 9 P.m., (b) Dr. Risbud was  called  within ten minutes but except for tying three planks to  immobilise the  leg  he gave no other treatment.  This was  not  enough because  the fracture was in the middle third of  the  femur and,  therefore, the hip joint and the knee joint  ought  to have  been  immobilised,  (c) On May  8,  1953,  Dr.  Risbud removed  the planks and put the leg in Mac Intyres  splints. There was on that day swelling in the thigh and that part of the  thigh  had  become red.  The Mac  Intyres  protruded  a little  beyond the foot, (d) At about mid-night on  8/9  May 1953, a taxi was brought to Palshet.  Ananda was lifted into it and made to lie down in a reclining position.  The  party left  at  1 A.M. and reached Poona at about 11-30  A.m.  The journey  took nearly eleven hours.  The boy was first  taken to  Tarachand  hospital 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 211 heart and lungs, took temperature, pulse and respiration and the boy was thereafter taken to the X-ray room where two  X- ray  plates  were taken.  The appellant  then  directed  Dr. Irani to. give two morphia injections at an hour’s  interval but Dr. Irani gave only one injection instead of two ordered by the appellant.  The trial court found that the  appellant had  carried  out  the  preliminary  examination  before  he started  the boy’s treatment. (f) The morphia injection  was given  at  3 P.m. The boy was removed to the X-ray  room  at about  3-20  P.m.  He remained in that  room  for  about  45 minutes  and  was then removed to the operation  theatre  at about  4  P.m. and was there till about 5 P.m. when  he  was taken to the room assigned to him.  The boy was kept in  the operation theatre for a little over’ an hour. (g) Respondent 1 was all throughout with Ananda and saw the treatment given to  the boy and left the hospital for Dhond at about 6  P.m. on  the assurance given to him that the, 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

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cough   and  was  finding  difficulty  in  breathing.    The appellant,  on being called, examined the boy and found  his condition  deteriorating  and,  therefore,  gave   emergency treatment from 6-30 P.m. until the boy died at 9 P.m. On  the crucial question of treatment given to  Ananda,  the trial  Court  accepted  the eye, witness  account  given  by respondent 1 and came to the conclusion that notwithstanding the  denial  by the appellant, the appellant  had  performed reduction of the fracture; that in doing so he applied  with the  help of three of his attendants excessive  force,  that such reduction was done without giving anesthetic, 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 be  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 in the death  of  Ananda  and awarded general damages in the sum of Rs. 3,000. In appeal, the High Court came to the conclusion that though the  appellant’s  case  was  that  a  thorough   preliminary examination was made by him before he started the treatment, that  did  not  appear  to be true.   The  reason  for  this conclusion  was  that  though  Dr.  Irani  swore  that   the patient’s temperature, pulse and respiration were taken, the clinical  chart,  Ext.  213,  showed  only  two  dots,   one indicating that pulse was 90 and the other that  respiration was  24.  But the chart did not record the temperature.   If that  was taken, it was hardly likely that it would  not  be recorded along with pulse and respiration. 212 As regards the appellant’s case that he had decided to delay the  reduction  of  the fracture and that  he  would  merely immobilise  the patient’s leg for the time being with  light traction,  the High Court agreed with the trial  court  that case  also was not true.  The injury was a simple  fracture. The reasons given by the appellant for his decision to delay the reduction were that (1) there was swelling on the thigh, (2)  that two days had elapsed since the accident, (3)  that there was no urgency for reduction and (4) that the, boy was exhausted  on account of the long journey.  The  High  Court observed  that  there could not have been swelling  at  that time for neither the clinical notes, Ext. 213, nor the  case paper,  Ext.  262 mentioned swelling or  any  other  symptom which  called for delayed reduction.  Ext. 262  merely  men- tioned  one  morphia  injection, one  X-ray  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.  This error crept in because  the  case paper,  Ext. 262, was prepared by Dr. Irani some days  after the boy’s death after the X-ray plates had been handed  over on  demand to respondent 1 and, therefore, were  not  before her when she: prepared Ext. 262.  Her evidence that she  had prepared  that exhibit that very night was held  unreliable. Ext.  262,  besides, was a loose sheet which  did  not  even contain  either the name of the appellant or  his  hospital. It was impossible that a hospital of that standing would not have printed forms for clinical diagnosis. The next conclusion that the High Court reached was that  if the  appellant had come to a decision to postpone  reduction of  the fracture on account of the reasons given by  him  in his  evidence,  he would have noted in the  clinical  chart,

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Ext.  213,  or the clinical paper, Ext.  262,  the  symptoms which impelled him to that decision.  The High Court  agreed that  the  medical text books produced before it  seemed  to suggest that where time has elapsed since the occurrence  of the  fracture  and  the patient has  arrived  after  a  long journey.  deferred  reduction is advisable.   But  the  High Court  observed, the question was whether the appellant  did defer  the  reduction and performed only  immobilisation  to give rest to the injured leg.  After analysing the evidence, it  came to the conclusion that what the appellant  actually did was to reduce the fracture, that in doing so he did  not care to give annaesthetic to the patient, that he  contented himself  with  a  single morphia  injection,  that  he  used excessive force in going through this treatment, using three of  his  attendants.  for pulling the  injured  leg  of  the patient  that he put that leg 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 cerebral embolism was merely  a  cloak used for suppressing the real cause of death, viz., shock. 213 These  findings being concurrent, this Court,  according  to its   well-established   practice,  would   not   ordinarily interfere with them.  But Mr. Purshottam urged that this was a  case  where  we should reopen  the  findings,  concurrent though they were, and reappraise the evidence as. the courts below  have  arrived at them on a  misunderstanding  of  the evidence and on mere conjectures and surmises.  In order  to persuade us to do so, he took us through the important parts of  the evidence.  Having considered that evidence  and  the submissions  urged  by him, we have come to  the  conclusion that  no  grounds  are made out which  could  call  for  our interference with those findings. The duties which a doctor owes to his patient are clear.   A person  who holds himself out ready to give  medical  advice and  treatment impliedly undertakes that he is possessed  of skill  and  knowledge for the purpose.  Such a  person  when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the  administration of that treatment.  A breach of  any  of those, duties gives a right of action for negligence to, the patient.   The  practitioner  must  bring  to  his  task   a reasonable degree of skill and knowledge and must exercise a reasonable  degree of care.  Neither the very highest nor  a very  low degree of care and competence judged in the  light of the particular circumstances of each case is what the law require  : (cf.  Halsbury’s Laws of England 3rd ed. vol.  26 p.  17).  The doctor no doubt has a discretion  in  choosing treatment which he proposes to give to the patient and  such discretion is relatively ampler in cases of emergency.   But the  question is not whether the judgment or  discretion  in choosing the treatment be exercised was right or wrong, for, as Mr. Purshottam rightly agreed, no such question arises in the  present case because if we come to the same  conclusion as the High Court, viz., that what the appellant did was  to reduce  the fracture without giving anesthetic to  the  boy, there  could  be no manner of doubt of his being  guilty  of negligence  and carelessness.  He also said that he was  not pressing the question whether in this action filed under the Fatal Accidents Act (XIII of 1855) the respondents would  be entitled to get damages.  The question, therefore, is within a small compass, namely, whether the concurrent findings  of the  trial court and the High Court that what the  appellant did was reduction of the fracture without giving  anesthetic

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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  is, necessary  to  bear in mind that respondent 1 is  a  medical practitioner  of  considerable standing and  though  not  an expert in surgery, he is 214 not  a layman who would not understand the  treatment  which the appellant gave to the boy.  It is not in dispute that he was  present  all throughout and saw what  was  being  done, first in the X-ray room and later in the operation  theatre. The  trial  court  and the High Court had  before  them  his version  on  the one hand and that of the appellant  on  the other  and  if  they both found that his  version  was  more acceptable and consistent with the fact,-, and circumstances of the case than that of the appellant, it would scarcely be legitimate  to  say that they acted on sheer  conjecture  or surmise. It  is  not in dispute that the appellant had  directed  Dr. Irani to administer two morphia injections.  Admittedly only one  was  given.  Dr. Irani said that it wag  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 condence for,  in such a case as the present it is impossible to believe  that she  would forget the appellant’s instructions.  The  second one  was probably not given because, the one that was  given had  a deeper effect on the boy than was  anticipated.   The evidence of respondent 1 was that after the boy was  brought from  the operation theatre to the room assigned to him,  he was assured by the appellant that the boy was all right  and would  come  out of the morphia effect by about 7  P.m.  and that thereupon he decided to return to Dhond and did in fact leave  at 6 P.m. Both the courts accepted this part  of  his evidence  and  we see no reason to find any fault  with  it. What  follows  from this part of his evidence,  however,  is somewhat  important.  If respondent 1 was assured  that  the boy would come out of the effect of morphia by about 7 P.m., it  must mean that the appellants version that the  boy  was cooperating all throughout in the operation theatre and  was even  lifting  his hand as directed by him cannot  be  true. Though  the morphia injection of the quantity said  to  have been  administered to the boy would ordinarily  bring  about drowsiness and relief from pain, the evidence, was that  the boy  was unconscious.  It seems that it was because of  that fact  that  Dr. Irani had refrained from giving  the  second injection.  The second result that follows from this part of the evidence of respondent 1 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 1.  In  that event, it is not possible that respondent 1 would decide  to leave for Dhond at 6 P.m. 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 given 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 215 fracture had been postponed and only immobilisation had been done.   The  assurance  given by the  appellant  upon  which respondent 1 left Poona for Dhond implies, on the  contrary,

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that  whatever  was to be done had been done  And  that  the presence  of  respondent 1 was no longer  necessary  as  the boy’s  condition  thereafter was satisfactory and  he  would come  out  of  the morphia effect in an hour  or  so.   This conclusion  is fortified by the fact that it was  never  put to, respondent 1 that the appellant had at any time told him that he had postponed reduction of the fracture and that the only  thing  he  had  done  was  immobilisation  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 courts  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 appellant’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  the  bone right at a later date, it is impossible that he would  write the letter in the manner in which he did.  If he was certain that fat embolism had set in and the boy’s death was due  to cerebral  embolism, it is impossible that he would write  in that letter that it was difficult for him even after one and a half months to piece together the information which  could explain the reasons why the boy died.  If his version as  to the treatment given to the boy were to be correct, there was hardly  any need for him in that letter to  ask  forgiveness for any mistake, either of commission or omission, which  he might have committed.  It is significant that until he filed his written statement, he did not at any stage come out in a forthright manner that what he had done on that day was only to  immobilise  the  boy’s leg by way  only  of  preliminary treatment and that he had postponed to perform reduction  of the  fracture  at  a later date.   In  the  complaint  which respondent  1  filed  before  the  Medical  Council  he  had categorically  alleged that while putting the boy’s  leg  in plaster  splints  the appellant had  used  excessive  manual force for about an hour, that what he, did was reduction  of the fracture without administering anaesthetic and that  was the  cause  of the boy’s death.  It is strange that  in  his explanation  to  the Council, the appellant did  not  answer specifically to those allegations and did not come out  with the  version that there was no question of his  having  used excessive  force  and that too for about an hour as  he  had postponed reduction and had only given rest to the boy’s leg by immobilising" it in plaster splints.  As  we  have already stated, both sides used  a  number  of medical  works  both  at  the  stage  of  evidence  and  the arguments in the, trial court.  Certain passages from  these books were shown to 216 the  appellant in cross-examination which pointed  out  that plaster casts are used after and not before reduction of the fracture.   The following passage from Hagnuson’s  Fractures (5th ed.) p. 71, was pointed out to him               "It  is  important  to reduce  a  fracture  as               promptly  as possible after it  occurs  before               there  is  induration, delusion of  blood  and               distension fascia". The  appellant  disagreed with this view and  relied  on  an article  by  Moore,  Ext. 295, where  the  author  advocates delayed  reduction.  But  in that very  article  the  author further on points out that "if     teams which provide well- trained supervision are available for   immediate  reduction "it  should  be made.  ’The author also  states  that  where plaster  cast is used for immobilisation before reduction  a

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cylindrical  section  3" to 4" in width at the site  of  the fracture  should  be removed leaving the rest  of  the  cast intact.   The  appellant did not follow  these  instructions though he placed considerable reliance on the above  passage for  his  theory  of delayed  reduction.   Counsel  for  the appellant  complained that the High Court  perused  several, medical  works,  drew  inspiration  and  raised   inferences therefrom instead of relying on Dr. Gharpure’s evidence,  an expert examined by the respondents.  We do not see  anything wrong  in  the  High  Court relying  on  medical  works  and ,deriving assistance from them.  His criticism that the High Court  did not consider Dr. Gharpure’s evidence is also  not correct.   There  was  nothing  wrong  in  the  High   Court emphasising  the opinions of authors of these works  instead of  basing its conclusions on Dr. Gharpure’s evidence as  it was  alleged  that doctor was a professional  rival  of  the appellant  and  was, therefore, unsympathetic  towards  him. From  the  elaborate analysis of the evidence  by  both  the trial court and the High Court, it is impossible to say that they did not consider the evidence before them or that their findings  were  the  result of conjectures  or  surmises  or inferences  unwarranted  by that evidence.   We  would  not, therefore,  be  justified  in  reopening  those   concurrent findings or reappraising the evidence. As  regards  the cause of death, the respondents’  case  was that the boy’s condition was satisfactory at the time be was admitted  in the appellant’s hospital, that if fat  embolism was the cause of death, it was due to the heavy traction and excessive  force  resorted  to  by  the  appellant   without administering anaestbetic to the boy.  The appellant’s case, on  the other band, was that fat embolism must have  set  in right from the time of the accident or must have been caused on  account of improper or inadequate immobilisation of  the leg,  at Palshet and the hazards of the long journey in  the taxi and that the boy died, therefore, of cerebral embolism. In  the  death certificate issued by him, the  appellant  no doubt had 217 stated that the cause of death was cerebral embolism.  It is true  that  some  medical authors have  mentioned  that  tat embolism is seldom recognised clinically and is the cause of death in over twenty per cent of fatal fracture cases.   But these  authors  have  also stated  that  diagnosis  of  that embolism   can  be  made  if  certain  physical  signs   are deliberately  sought by the doctor.  Mental disturbance  and alteration  of coma with full consciousness  occurring  some hours  after a major bone injury should put the  surgeon  on guard.   Ho  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 signs.  In British Surgical Practice, Vol 3,  (1948 ed.) p. 378, it is stated,               "a  fracture  of  a  long  bone  is  the  most               important cause of fat embolism, and there  is               an interval usually of 12-48 hours between the               injury and onset of symptoms during which  the               fat  passes  from the contused  and  lacerated               narrow to the lungs in sufficient quantity               to  produce  effects.....................  The               characteristic and bizarre behaviour noted  in               association   with  multiple  cerebral   fatty               emboli  usually begins within 2 or 3  days  of               the injury.  The preceding pulmonary  symptoms               may  be overlooked, especially in a  seriously

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             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 a man in the third  or  fourth decade  who in consequence of a road accident has  sustained fracture  of the femur and is admitted to  hospital  perhaps after  a  long and rough journey with  the  limp  improperly immobilised,  suffering a considerable shock.  None of  the, symptoms  noted  above were found by  the  appellant.   ’The appellant is a surgeon of long experience.  Knowing that two days  had  elapsed since the accident, that the leg  of  the patient had not been fully or properly immobilised and  that the patient had journeyed 200 miles in a taxi before  coming to  him, if he had felt that there was a possibility of  fat embolism having set in, he would surely have looked for  the signs.  At any rate, if he, had thought that there was  some such possibility, lie would Surely have warned respondent 1, especially  as  -lie happened to be ’a doctor also  of  long standing.  The evidence shows that the symptoms suggested in the aforesaid passages were not noticed by the Sup.  C. I./68--15 218 appellant or respondent 1. The assurance that the  appellant gave  to respondent 1 which induced the latter to return  to Dhond, the appellant’s apologetic letter of July 17, 1953 in which  he confessed that he had even then not been  able  to gauge, the reasons for the boy’s death, the fact that  while giving treatment to the boy after 6-30 P.m. he did not  look for the symptoms 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.  The aforesaid letter furnishes a clear indication that he, was not definite even at that stage that death  was the result of embolism or that even if it was so, it was due to the reasons which he later put forward. In our view, there is no reason to think that the High Court was  wrong  in its conclusion that death was  due  to  shock resulting  from reduction of the fracture attempted  by  the appellant  without taking the elementary caution  of  giving anaesthetic  to the patient.  The trial court and  the  High Court  were, therefore, right in holding that the  appellant was  guilty  of  negligence and wrongful  acts  towards  the patient and was liable for damages. The appeal is dismissed with costs. V.P.S.                                   Appeal dismissed. 219