Medical Negligence- Principle Of 'Res Ipsa Loquitor' Will Apply If Patient Suffers A Complication Not Contemplated Normally : Kerala High Court

The Kerala High Court has held that the principle of 'res ipsa loquitor' will apply in a case of medical negligence if a patient suffers a complication which is not contemplated normally.

'Res Ipsa Loquitor' (the thing speaks for itself) is a rule of presumption applied in cases to presume negligence when certain attendant circumstances are proved.

The High Court was dealing with a case of a 29 year old man who became a paraplegic and lost his sound after undergoing a surgery for removal of kidney stones.

In a suit filed by the patient seeking damages against the hospital and the doctor, the Sub Court Thiruvananthapuram found that his situation was caused due to medical negligence and awarded compensation to the plaintiff to the extent of Rs.20,40,000/- with interest at 6% per annum from the date of suit till realization, along with costs.

Challenging the decree, the hospital and the doctor filed regular first appeal before the High Court. The appellants submitted that the challenge was only confined to the findings of negligence against them and that they were not challenging the compensation.

While considering the appeal, a division bench of Justices SV Bhatti and Bechu Kurien Thomas summarized the mishap as follows :

"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..".

The bench said that the issue was whether the maxim res ipsa loquitor get attracted in such a situation.

Answering this in the affirmative, the bench said :

"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.

The Court noted that within 30 minutes of commencement of the surgery, the operation was halted and the plaintiff was brought out of the theater with oxygen support and catheter inserted.He could move out of the hospital only after three months of treatment, that too with the help of support. It was not in dispute that the plaintiff has become crippled for life and his condition is referred to in medical terms as postrio paresis.

The High Court rejected the argument that the plaintiff had not pleaded material averments to establish negligence. The Court observed that as a lay person who was administered general anesthesia during the operation, the plaintiff cannot be expected to be aware of what happened during the surgical procedure.

"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. Admittedly, the plaintiff was being operated upon under general anesthesia. it was not possible for the plaintiff to specify the nature of acts done or performed on him, that could be depicted as negligent. Plaintiff, as a patient undergoing a procedure, can never claim knowledge of the niceties of the procedure and actual omissions, if any, by the professional, whom he relied upon for treatment".

The Court noted that the appellants had not examined many witnesses who had direct knowledge of the what happened during the procedure.

"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 noted while dismissing the appeal.

Case Title : PRS Hospital and another v Anil Kumar (RFA 131/2020)

Bench       : Justices SV Bhatti and Bechu Kurian Thomas

Appearances : Advocate C R Syamkumar(for appellants); Advocate Anoop Bhaskar (for respondent)

Click here to read/download the judgment

above facts? If the maxim applies, what would be the effect?

31.1. In the case of medical negligence, the principle of res ipsa loquitor is applicable, if the patient suffers a complication

not contemplated normally.