Left? Right? Right? Left?
The perils of symmetry
The author was in hospital with a broken leg, circa 1976. The surgeon was the best in Bombay. The operation could not begin because of a missing tool—a drill. In the meantime, a nurse narrated a funny story. Just goes to show how Murphy’s Law works. If something can go wrong, it will.
Sometime earlier, my surgeon had to operate on someone’s knee. He opened up the wrong one. Parsis, being a small community, the story spread like wildfire. It so happened that another woman was to be operated on, some time later. As she went under sedation, she plaintively kept on reminding the doctor. “This one, doctor; this one. Doctor, Doctor, this one.”
Torts are a fascinating field of law. It fulfils our favourite cliché; ‘If there is a malady, there has to be a remedy’. Ubi Jus Ibi Remedium. Since all rights are not, and cannot be, codified, lawyers find great opportunities in the Law of Torts. And in the doctrine of distinct and obvious proof.
This is one such case. In normal parlance, a doctor’s mistake is termed ‘medical negligence’. If a patient’s relatives are, for some reason, upset, they either hammer the doctor, beat up the staff or damage the hospital property. While emotions can, understandably, run amok, there are more civilised methods. The term is bandied about rather freely these days, thanks to what are called ‘Consumers’ Courts’. Sue. Sue the doctor, the staff, the hospital, its trustees; even the hamal. For that, one needs to go to court. And face a dispassionate judge.
Ms Crispin had a problem. She consulted a knee doctor, Dr Hostin. The good doctor recommended surgery. The operation was scheduled. The day arrived. The procedure began. The patient was anaesthetised. The operation started. All this while Dr Hostin was in another room. Talk of overworked surgeons. As he entered, he saw the damaged ligament on the operating room’s monitor. Medical science and electronics were at work. Unfortunately, plain common sense was not.
The operation was started by a junior. He had, somehow, in spite of a marked knee, hit the wrong target. Did that knee also have a torn ligament? What is that which Dr Hostin did see on the monitor? Did he not have time to check the written report? Did he not remember which knee he had examined earlier?
Ms Crispin awoke to a new world. The left was undone, not the damaged right. OMG.  There is no fury like a woman wrongly cut up. Ms Crispin hauled the lot to court. The doctor led the defendants. Then followed the hospital, the assistant. The judge was asked for an instant order. Dr Hostin gave an explanation. He was in another room for another operation. He mistook the tear on the monitor as being the right, as opposed to the left, knee. The right was the right, the left was not the right. With just the choice of one out of two, he had it figured wrong. He came to realise the boo-boo later; too late, actually. His defence was that, no more.
Shades of the Parsi woman’s story. Ms Crispin’s lawyer was a smart cookie. He did not wish to go through a long and tortuous, arduous ordeal. He asked for a ‘jatka’ justice. How does that work? Res ipsa loquitur; Latin for ‘The thing speaks for itself’. When the sun is shining high, it has to be day. No explanation is needed.
The judge agreed. Guilty as charged. Summary justice. Dispensed on the spot.
This story will warm the cockles of Indian hearts. Go into court, come out with an order. Ah! A perfect world. But it cannot always be so. Even when the evidence is overwhelming, the defendant may not be so forthcoming with his ‘confession’ as was the good doctor.
Maybe the problem can be solved by marking both limbs. One with a tick (correct) mark; the other with a cross. And then hope that the doctor remembers which is which.
Never was there a story
Of more errant sin,
Than that of Hostin
And his patient, Crispin. 
(With apologies to Juliet and her Romeo)
PS. The author was awake during his operation. A lot of banter, perfect job. No case.
(Bapoo Malcolm is a practising lawyer in Mumbai. Please email your comments to [email protected])
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