Topic: Lakhsman Joshi v. Trimbak

Lakhsman Joshi v. Trimbak
Equivalent citations: 1969 AIR 128, 1969 SCR (1) 206 - Bench: SHELAT, J.M., BACHAWAT, R.S., GROVER, A.N. - Citation: 1969 AIR 128 1969 SCR (1) 206 - Citator Info : RF 1989 SC1570 (9) - on 2 May, 1968

Tort-Negligence of Surgeon.

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 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 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]


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.


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 the appellant    who, finding that the boy's condition     was deteriorating started    giving    emergency treatment which continued right until 9 P.m. when the


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


"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 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


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 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.


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, 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 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


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


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, 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


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 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


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 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


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.