In one ear and then into the other

The 6th of February, 1976, was a Friday; a bad day to break your leg. The operating room was disinfected every weekend.  So one had to endure excruciating pain for 3 days, till the coming Monday. But there is always a silver lining. In sympathy, the nurses would spend their time regaling you with stories. One such story was a bit perplexing.

The staff joked that the surgeon had to be reminded that it was the left leg that needed his attention. It transpired that that particular doctor had once operated on the wrong knee, by mistake! The 70s were not consumer-friendly times as yet, so obviously the scalpel-wielder was still at large. However, to give the devil his due, this time he did a marvellous job.

Unfortunately, history repeats itself. A woman had a problem with her ear. The malady required surgery. She agreed to go under the knife. The doctor did the invasive procedure, only to find that the ear was “Okay”. He then decided to investigate the other ear and sure enough found the problem and rectified it. What is called ‘inner-ear’ sicknesses could lead to this situation; at least that is what some doctors say.

Now, instead of being thankful, the “ungrateful” woman sued the doctor. Not for negligence, but for ‘battery’.

At this point we digress a bit to inform the readers about the nuances of these technical terms in relation to law. A threat, an intimidating action, words or acts causing a fear of hurt, are usually classified as an assault. ‘Assault and battery’ involves physical contact, either of the body-to-body type, or with a weapon, an instrument, an object. To illustrate, if I were to lift a vase and threaten to throw it at you, or even give you that impression, assault could be established. If I then hurled it at you, and whether I hit or missed you, it would include battery. To put a fine point on it, the miss would then be “attempted battery”.

YOU BE THE JUDGE.

How would you decide the matter of the ears? To our mind, a plea of negligence would have greater sanctity. But is a decision taken on the spur of the moment, in the operating theatre, with the patient under sedation, a negligent act? Should the surgeon have sealed up the first ear, waited for the patient to wake up, be in her senses, explain to her the situation and then, if she agreed, work on the other ear?

To explain a negligent act requires establishment of a lack of a duty of care. It may not include any mens rea (bad mind), meaning an intentional act to hurt, with knowledge of the outcome. But then, why battery? The word “battering” has to do with harm, usually physical.

The lawyer was smart. From what is argued above, it may be that negligence may not have been possible to prove. The patient was cured, after all. So, the next best attack was a charge of battery.

Nature has given us an even number of external organs. It makes for symmetry and convenience. It helps when one member is affected or lost. The other one comes into play. Yet, it also leads to errors, either of the knee type or the instant aural one. The lady’s lawyer obviously banked on the fact that the operation was contracted on for ear 1, and not ear 2. “Attacking” ear 2, with an instrument or instruments was an act of battery, according to the plaintiff.

YOU BE THE JUDGE.

The court did hold for the patient, BUT, it passed an order for a ridiculously small amount of the equivalent of Rs. 2,400.

A couple of issues back Moneylife had carried a story on the unhappy loss of a 10-year-old boy’s life. The parents did not sue but instead carried out a campaign to avoid similar incidences. Can one compare the ‘two-eared’ lady with the exemplary mother?

And coming back to the dual organ theory, have you ever thanked God that lawyers are endowed with only one mouth? As indeed for the fact everyone else is also so restricted?

Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to bapoomalcolm@gmail.com or mail@moneylife.in

Courtesy By: Moneylife