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Oncologist

     

  • M.P.
    BALAMANI
    v. M.A.R.K.M.H. & RESEARCH CENTRE


    (2001) CPJ 483

        

    KARNATAKA STATE CONSUMER

    DISPUTES REDRESSAL COMMISSION,

    BANGALORE


       

    Consumer Protection Act, 1986 – Section 14(1)(d) – Medical Negligence
    – Error of Judgement in Diagnosis – Compensation – Histopathology Cytology Report issued
    by opposite party on the biopsy specimen – Report
    diagnosed the case as – sclerosing adenosis, post
    inflamatory state and terminal ductal hyperpiasia -
    Examination of same slide and block about 40 days after
    disclosed that, – patient having an advanced breast
    cancer – Patient suffering from cancer confirmed -
    Error of judgment on part of opposite party established -
    Contention, wrong diagnosis recorded in the Histopatholoy
    Report resulted in avoidable sufferings and ultimate death
    of patient – Contention not acceptable – Error of
    judgment not contributed to the type of suffering which the
    patient had to undergo – Ailment if would have been
    detected 45 days earlier, position would have been no
    different – Opposite party absolved from the stigma of
    negligence – Complainant failed to establish deficiency in
    service, not entitled to any compensation.

     

    Held : Looking at the tenor of the complaint, the
    prime target is opposite party-4 Dr. Vasudeva Rao,
    Consultant Pathologist of the Bangalore Hospital, who had
    issued a Histopathology & Cytology Report on the biopsy
    specimen of Balamani sent to him from opposite party-1
    hospital. The report (Ex.C4) diagnosed the case as “elerosing
    adenosis, post inflammatory state and terminal
    ductal hyperplasia”. The examination of the same slide and
    block at Kidwai Memorial Institute of Oncology about 40 days
    later however disclosed that “the patient was having an
    advanced breast cancer”. According to the complainants,
    the wrong diagnosis recorded in the Histopathology Report by
    opposite party-4 resulted in the avoidable suffering and
    ultimate death of the patient. (Para 18)

     

    Held further : It is borne out from records that
    while Ex.C4 was issued on 20/10/1994, Ex. C11 was issued by
    Kidwai Memorial Institute on 3.12.1994. The crucial point
    for consideration in this backdrop is whether the type of
    cancer as revealed on 3.12.1994 could have been halted or
    eliminated had it been correctly diagnosed on 20.10.1994
    i.e., about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly
    in the following words:

     

    ” In
    breast cancer 30 to 40 days would not make any difference as
    regards the stage “.

     

    With regard to the stage in the development of breast cancer, C.w. 2 has in her chief-examination clarified as follows:

     

    ” As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in any aggressive form “.

       

    This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W.3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate srongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factory contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on reocrd, we have no hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service. (Para 35, 36 & 37)

     

    Held further: If that be so, it has to be held in conclusion that the complainants have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4, but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. (Para 41)

     

    Result: Complaint dismissed.

     

    ORDER

     

    Mr. Abdul Perwad, Member – This is a complaint filed under Section 12 r/w Section 17 of the C.P. Act, 1986 alleging deficiency of service on the part of four opposite parties including 2 hospitals. The facts of the case as narrated in the complaint are as follows:

     

    Mrs. Balamani, aged about 31 years, with the second complainant got herself admitted opposite party-1 hospital on 17.10.1994 on account of a pain in the left breast while feeding her 3 months’ old child. There was a lump in her breast which was examined by Dr. Srikant opposite party-2 and diagnosed as granulome and hence a biopsy was conducted and the specimen was sent to opposite party-3 Bangalore Hospital for pathological examination. Dr. Vasudeva Rao (opposite party-4), Pathologist opposite party-3 hospital diagnosed the ailment as Sclerosing Adenosis and a report to that effect was issued. Opposite party-2, on the basis of the report, diagnosed that complainant-1 was not suffering from cancer of the breast and hence discharged her on 20.10.1994, assuring that it was an infection.Certain drugs were also prescribed at the time of discharge which were however asked to be discontinued about 20 days later.

     

    2. It is the case of the complainants that the patient did not register any improvements; on the other hand her condition worsened. She developed swelling of the left hand and lumps developed in the lymph and neck. Hence, on advise of well-wishers, she approached Kidwai Memorial Institute of Oncology. The slide and paraffin block were obtained from opposite party- 3 hospital and submitted for examination. Kidwai Memorial Institute, after due examination, diagnosed the ailment as “Invasive ductal carcinoma, GR-III of the breast”. It is alleged that when complainant-1 approached opposite party-1 in the month of October, 1994 she had developed cancer of the breast and by 3.12.1994, the disease had spread to the lymph nodes and the neck region. According to the complainants this could have been prevented but for the wrong diagnosis of opposite party-3 and opposite party-4.

      

    3. At the Kidwai Memorial Institute complainant-1 was treated with chemotherapy by Dr. Lakshmaiah, but no surgery was undertaken since the disease had spread intensively. It is the case of the complainants that such a spreading could have been prevented, had it been properly diagnosed by opposite party-4. In fact, it would have been possible to remove the cancerous growth from the breast before it could spread to other areas and the patient would have recovered completely. It was the type of ailment which a beginner in the field of pathology would detect, but on account of the negligence of an exerienced opposite party-4, and the staff of opposite party-3, complainant -1 came to be the victim of a dreaded, incurable disease, opposite party-1 and opposite party-2 are also privy to such a happening, since it is they who directed the complainants to opposite parties-3 and 4 to get a pathology report. They had a duty to cross-check the diagnosis of opposite parties-3 and 4 which they have failed to do. Hence it is alleged that opposite parties 1 to 4 are all responsible for the gruesome ailment to which complainant-1 was subjected to.

     

    4. It is further alleged that apart from a sum of Rs. 60,000/- already spent on treatment, much more will have to be spent on complainant-1consistent with the sinister nature of the ailment which called for expensive treatment. The financial burden on complainant-2 had proved deplorable for the further reason that he was at that point of time unemployed. The children, one of whom was hardly 10 months’ old, was to be looked after by compnt-2 since compnt-1 was not able to do it. They were totally deprived of the care of the mother which in itself was a cause of hardship and trauma resulting in acute mental distress and anxiety to all concerned. Since such an avoidable misery was the direct outcome of the negligence of the opposite parties, they are liable to pay appropriate damages to the complainants, which the opposite parties have declined when a lega, notice was issued to them. The complainants, therefore, prayed that the opposite parties be directed to pay a sum of Rs.10 lakhs by way of damages, together with interest @ 18% p.a. from the date of complaint till payment.

     

    5. In the objection filed, opposite parties-3 and 4 refused these allegations strongly on the following lines:

      

    (1) When complaint-1 reported at the Bangalore Hospital, her last child was 10 months old. Complainant -1 had seen lump in her breast (L) when the child was 3 months old and at that point of time itself she had pain while feeding the child. Nevertheless, she chose to report at opposite party-3 hospital after 7 months, by which time the process of advancement of the damage to a point of no return had set in. This is a costly negligence for which complainants alone are responsible.

     

    (2) The reference made by opposite party-1 hospital to opposite party-3 hospital to conduct a histopathological examination was in a small piece of paper, with virtually no information about the clinical condition of the patient. The referring doctor had suggested cancer of the breast and infective granuloma as the two alternative clinical diagnosis of the patient. Medical jurisprudence will testify that in such a situation the pathologist will generally lean on a common cause while making a diagnosis in a difficult situation. Histopathological examination is a long drawn  process which takes about 2-3 days before a report is drawn up. In the instant case all possible precautions have been taken to arrive at a correct conclusion.

     

    (3) The surgeon or the doctor who attends to the patient is responsible to corroborate the clinical picture and the histopathological examination report. It there is variance, he should obtain a second opinion or reexamine the patient to eliminate possibility of malignancy involving any destructive procedure.

     

    (4) In the instant case diagnosis was made by Kidwai Memorial Institute of Oncology. If only review of the diagnosis was sought, opposite parties-3 and 4 also could have diagnosed the disease as cancer.

      

    (5) There was an interregnum of only 40 days between the histopathology by opposite parties-3 and 4 and the final diagnosis at Kidwai. At that time cancer had already spread to different parts of the body of the patient. The gap of 40 days makes absolutely no difference as the disease process had reached the status of micro-metastasis when the patient first noticed the lump and pain in her breast 7 months earlier.

     

    (6) The pathological report issued by opposite parties-3 and 4 clearly indicates that malignancy cannot be ruled out and the patient needs to be followed up in that direction. It is difficult even for an experienced pathologist to distinguish a malignancy from an acute inflamatory lesion.

     

    (7) The work of a pathologist consists of examining the tissue and have a microscopic view to identify the disease process. The opinion of the pathologist is neither final nor conclusive since it is based on either a tissue or a slide and he has no total picture of the clinical condition of the patient. Despite these constraints, opposite parties 3 and 4 have opined that the patient had a pre-malignancy condition which should be treated to cure. Hence no negligence can be attributed to opposite parties 3 and 4.

     

    (8) From the very nature of the complexity of this case which is bound to involve complicated medical issues calling for expert evidence, the issues involved are to be sorted out in a Civil Court and not in a summary proceedings before this Commission.

     

     6. Opposite parties 1 and 2 took up the following defence vis-à-vis the allegations levelled against them:

     

    (a)  The patient was discharged from opposite party-1 hospital and was further treated as an out-patient for Sclorising Adenosis which is based on the pathology report. According to the said report it was not a case of the cancer of the breast but Sclorising Adenosis and hence malignancy was ruled out. Hence the patient was discharged on 20.10.1994, giving her certain antibiotics.

     

    (b)  On 25.10.1994 when the patient came to remove the sutures, a swelling in her left arm was noticed and hence Dr. Kamath, a physician of opposite party-1 hospital was consulted. He advised higher antibiotics in view of the pathological report of opposite party 4 and the patient was advised to come back again after a week for follow-up.

        

    When she came again as advised no increase in swelling was noticed and hence the antibiotics were discontinued and she was asked to come back again after a week. She however failed to report thereafter.

     

    (c)  There is no deficiency of service on the part of opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 are also jointly and severally responsible with opposite parties 3 and 4 for whatever happened to complainant- 1 is not based on facts but a motivated allegation.

      

    (d)  Opposite party-1 hospital is run by the Trust created in the memory of Ravi Kirloskar where only nominal charges are levied for the services rendered. Hence opposite party-1 hospital falls outside the purview of the expression ‘service’ as defined in Section2(1)(d) of the C.P. Act, 1986 and hence the complaint is not maintainable against opposite party-1.

     

    (e) The case involves complicated recording of evidence by experts and other elaborate process and as such it is not liable to be adjudicated upon in summary proceedings before this Commission. The complainants have to seek their remedy in a Civil Court for the redressal of their grievances.    

      

    7. For these and other reasons set out in the statement of objections, filed, opposite parties 1 and 2 prayed that the complaint be dismissed as shorn of merits.

     

    8. Opposite parties filed their version. Opposite parties 1 and 2 filed their affidavit evidence with certain documents. Exs.C1 to C4 and C6 to C105 were marked for the complainants with consent. Exs.R1 to R10 were marked with consent for opposite parties 1 and 2, while Exs.R11 to R20 were marked for opposite parties 3 and 4, also with consent.

     

    9. Complainant 2 filed his affidavit (C1 had died in the meantime and as such her name was deleted from the complaint by an order of this Commission). In support of his case Complainant 2 has examined himself as C.W.1. Two witnesses, viz., Dr. Teena Ramarao and Dr. K.C. Lakshmaiah were examined as C.W.2 and C.W.3 respectively. On behalf of opposite parties Dr. Srikanth Jagirdar, Opposite party 2 is examined as R.W.1 and Dr. P. Vasudeva Rao, opposite party 4 is examined as R.W. 2.

     

    10. We have heard the arguments of Mr. T.R. Raghupati, learned Counsel for the complainants, Mr. K.M. Basavaraj, learned Counsels, for opposite parties 1 and 2 and Mr. Manojkumar for opposite parties 3 and 4.

      

    11. In the context of the various contentions raised and the issues highlighted by the learned Counsels, the following points arise for consideration :

      

    (1) Whether the complainants had to seek their remedy in a Civil Court in view of the complex nature of the case as contended by the opposite parties?

     

    (2) Whether the complainants have established deficiency of service on the part of opposite parties or any among them within the meaning of that expression under the C.P. Act by acceptable evidence?

      

    (3) Whether the complainants are entitled to any compensation?

     

    (4) What order ?

     

    12. Point No.1: In a case of alleged medical negligence necessary facts are to be established by evidence, which may mostly involve examination of witnesses and their cross-examination. If every case involving examination-in-chief and cross-examinations are to be construed as involving complicated medical issues, and if on account of such presumption every such case is to be referred to a Civil Court, it would virtually amount to taking away medical negligence cases from the purview of the C.P. Act. That was evidently not the view of the Hon’ble Supreme Court while taking a decision in Indian Medical Association v. V.P. Shantha & Ors. A parameter has nowhere been laid down for the purpose of deciding precisely when a case involving alleged medical negligence is to be referred to a Civil Court and when it can be adjudicated upon by the Consumer Forums. In the first instance, what are the issues which cannot be decided upon in a summary proceedings are not clearly defined anywhere, nor any rule of the thumb is indicated in any judgment pronounced till now. That being the case, it is necessarily within the realm of the Consumer Forums or the Commission, as the case may be, to decide whether it could rise up to the task or the issues involved would be too complicated to be decided in a so-called summary proceedings and hence to be safely referred to a Civil Court. In the instant case, having regard to the type of allegations made and the issues surrounding such allegations, we had no occasion to believe that it is beyond this Commission to adjudicate upon this case. Hence, apropos the contention of the opposite parties that the complainants have to seek their remedy in a Civil Court, we hold that this Commission is well equipped to deal with this case. In the result, we answer point No.1 in the negative.

       

    13. Point No. 2: Under this point it will have to be seen whether the deficiency attributed by the complainants to the opposite parties or for that matter to any of the opposite parties can be said to have been established by acceptable evidence.

      

    14. It is not in dispute that Balamani w/o M.Lakshminarasimhaiah was admitted to opposite party 1 hospital on 17.10.1994. It is also not disputed that a biopsy of her left breast was conducted and the specimen was sent to opposite party 3 hospital for pathological examination. It is also not disputed that a histopathological report on the basis of the examination conducted was issued. It is also not disputed that Balamani was discharged from opposite party 1 hospital on 20.10.1994. The dispute however centres round the alleged negligence on the part of the opposite parties in diagnosing and treating Balamani who had noticed a lump in her breast which pained while she fed her child.

       

    15. Mr. T.R. Raghupati, learned Counsel for the complainants, during the course of taking us through the facts of the case submitted that it was opposite party 3’s report which had laid the foundation for the unfortunate incident leading to the untimely death of Balamani. The learned Counsel pointed out that despite no denial in the reply notice, opposite party 4 had denied in his cross-examination that he had signed the Histopathology and Cytology Report (Ex.C4) of the Bangalore Hospital. It was pointed out that in his affidavit evidence opposite party 4 had disowned the report contending that it was signed by Dr. Jinka Subramanyam. The learned Counsel pointed out that it is only an after-thought to avoid responsibility arising out of a wrong diagnosis, by which the changes of saving a life was lost. The learned Counsel wondered what was it that the Hospital Authorities did when they found out that their Chief Pathologist had not signed his own report. Dr. Teena Rama Rao, (C.W.2) has during her cross-examination stated very clearly that the slide examined by opposite party 4 clearly showed that cancer was aggressive (Grade-III). The same opinion was expressed by C.W. 3, Dr. Lakshmaiah that the patient had advanced cancer, but the report of the Bangalore Hospital does not suggest any cancer in the patient. According to C.W. 3, the ailment could have manifested about 5 years earlier. The learned Counsel submitted that despite such strong indications in the slide, opposite party 4 had given a report of no incidence of cancer which can only be born out of indifference in discharging his duties as a pathologist. The learned Counsel also submitted that having known that he had erred beyond redemption, opposite party 4 has been trying to take shelter behind the native contention that he was not the author of the report since, as he put it during his evidence, he does not allow anybody to sign for him. The learned Counsel pointed out that the role of opposite party 2 does not attract as much stigma since he had relied faithfully on the report of opposite party 4 yet he cannot be in the clear entirely since he had failed to double-check what opposite party 4 had to say, particularly when the patient had familiar symptoms.

      

    16. Mr. Manojkumar, learned Counsel for opposite parties 3 and 4 on the other hand argued that there is no merit in the contentions raised by the learned Counsel for the complainants in as much as his whole story falls to the ground when viewed from the proper perspective. In the first instance, the learned Counsel submitted, it is the bounden duty of the referring ddoctor to provide the history of the patient with all necessary clinical details to the pathologist which has not been done in this casewith a result, a report had to be produced on the basis of just a slide and a block. It was pointed out that opposite party 4 in his affidavit-evidence has clearly stated that Dr. Jinka Subramaniam had signed the report and not him, but the complainants had failed to implead Dr. Jinka Subramaniam for reasons best known to them. Moreover, it is not correct to say that Ex.C4 is bereft of any reference to cancer. In fact, the report very clearly indicated that the symptoms noticed may be a precursor to lobularcarcinoma which is enough warning on an impending cancer which was not well taken either by opposite parties-1 and 2 or by complainants themselves. To substanciate his contention that the patient had no cancer at the time when opposite party No.4 conducted the pathological examination, the learned Counsel invited our attention to the deposititon of Dr. Teena Rama Rao who stated that the cells had proliferted in the biopsy specimen in a benign way which only means that no malignancy was visible at that point of time. It is contended that opposite parties 3 and 4 have dutifully and painstakingly brought out a report indicating clearly the chances of cancer setting in if effective steps are not taken, notwithstanding the constraints of not having the benefit of the patient’s history and hence no negligence could be attributed to them for whatever reason.

       

    (a) Mr. K.M. Basawaraj, learned Counsel for opposite parties-1 and 2 submitted in his turn that Balamani came to opposite party-1 hospital with a lump and prickly sensation in her left breast for which a biopsy was done on 18.10.1994 and the specimen was sent to opposite party-3 hospital for a histopathological report. When the report was received, it revealed that the lump in the breast was a benign growth and hence the patient was given necessary medication and was advised to come for follow-up. The learned Counsel contended that this was the normal procedure followed in a case of this nature. Opposite parties-1 and 2 had adopted the time honour procedure of depending on the histopathological report for which opposite parties-1 and 2 cannot be faulted. The learned Counsel invited our attention to the deposition of Dr. Lakshmaiah (C.W. 3) that the opinion of the Pathologist is conclusive. The learned Counsel while taking us through the contents of Ex.C4 emphasised that for the type of observations made in the report, opposite party Nos. 1 and 2 has no option whatsoever to go through any line of treatment other than what was actually given to the patient. It was submitted that the patient was treated with the best possible case in opposite party-1 hospital and hence there could be no iota of blemish or negligence attributable to it for any reason whatsoever. In support of his contention the learned Counsel relied on the following case laws while summing upon his argument on the above lines.

     

    (1) AIR 1996 SC 2111

     

    (2) AII Eng. Reporter 1957 (2) P. 118

     

    (3) AIR 1969 SC 128 (para 11)

      

    (4) AIR 1998 SC 1801

      

    17. We have given due consideration to the detailed submissions made on either side. At the very outset, it is necessary to have a clear perspective with regard to the approach to be adopted in a case of this nature. It has to be stated at this juncture itself that the standard of care expected of a medical man is neither too high nor too low. What the law expects from him is neither a miracle nor achieving the impossible but exercise of a duty of care expected of a reasonably skilled practitioner who performed the functions he is called upon to do diligently and conscientiously. The path of a medical man is not strewn with roses all the way; it is thorny most of the time, albeit what a patient expects from him, but law looks at neither of these aspects, but evaluates his performance on the basis of certain parameters. The Hon’ble Supreme Court in Dr. Laxman Balkishan Joshi v. Dr. Trinbak Bapu Godbole, reported in AIR 1969 SC 128 (quoted in D. P. Bhandhari v. Sir Ganga Ram Hospital, reported in II (1991) CPJ 409), has laid down the following criteria to make such evaluation:

      

    (i) A duty of care in deciding whether to undertake the case,

    (ii) A duty of care in deciding what treatment to give, and

    (iii) A duty of care in the administration of that treatment.

       

    A breach of any of these duties gives a right of action to a patient for negligence. These tests presuppose that a medical practitioner must bring to his task a reasonable degree of knowledge and skill and perform his duties with a reasonable degree of care. The super-speciality atmosphere prevailing in high-tech corporate hospitals was not susceptible of adding much to these basic concepts of duties required of a medical practitioner, except perhaps broadening the sphere of treatment to some extent. Even today, the test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill could be guilty of when acting with reasonable care.

       

    18. It is necessary to approach the instant case bearing these guidelines in mind in order to arrive at a conclusion whether the negligence attributed to the opposite parties or for that matter to different opposite parties individually can be said to have been established by acceptable evidence. Looking at the tenor of the complaint, the prime target is opposite party-4 Dr. Vasudeva Rao, Consultant Pathologist of the Bangalore Hospital, who had issued a Histopathology & Cytology Report on the biopsy specimen of Balamani sent to him from opposite party-1 hospital. The report (Ex. C4) diagnosed the case as – sclerosing adenosis, post inflammatory state and terminal ductal hyperplasia. The examination of the same slide and block at Kidwai Memorial Institute of Oncology about 40 days later however disclosed that “the patient was having an advanced breast cancer.” According to the complainants, the wrong diagnosis recorded in the Histopathology Report by opposite party-4 resulted in the avoidable suffering and ultimate death of the patient. Para 8 of the complaint describes this aspect in the following words:

      

    “It is submitted that if the ailment had been diagnosed properly at the earliest stage it would have been possible to remove the cancerous growth in the left breast. It would have prevented further spreading of the disease. Complainant No.1 would have fully recovered from the ailment. Solely on account of the wrong diagnosis made by the 3rd and 4th respondents, the complainant No.1 has suffered immeasurably and the disease has now become incurable. Even a Pathologist with little experience would have been able to diagnose the ailment correctly. It is abvious that the wrong diagnose is the result of sheer negligence on the part of the 4th respondent and the staff of the third respondent hospital”.

      

    19. It is this specific allegation which calls for examination on the basis of evidence, both documentary and oral, adduced in this case. Opposite party-4 has taken the contention that Ex.C4 has not been signed by him, but it is signed by Dr. Jinka Subramaniam who was also a Pathology Consultant in opposite party-3 hospital. During the course of his cross-examination by Mr. Raghupathi, learned Counsel, opposite party-4 has spoken as follows:

      

    “However in my affidavit filed on 15.5.1999, I have stated that I have not given the report and that I have not signed that report. In Ex. C4 the signature above my name is not my signature”.

      

    In continuation, opposite party-4 has also stated as follows:

      

    “I did not normally allow anybody to sign for me”.

     

    However, he makes the following admission:

     

    “I have not stated that I have not given the report at Ex.C4, either in the reply given to the legal notice or in the version filed by me or in the first affidavit which I filed before this Commission”.

        

    20. A reading of these depositions in conjunction would hardly fail to reveal the fact that opposite party-4 who had missed out on hiding behind the shadow of his colleague in the first instance had come wise later to the situation where his colleague had signed for him. He admits that Dr. Jinka Subramanyam is “shown to have signed for me”. In Ex. C4 the name of opposite party-4 is typed out at the bottom and Dr. Jinka Subramanyam has signed it “for” Dr. T. Vasudeva Rao, M.D. Opposite party-4 has in his deposition stated that he did not “nornally” allow anybody to sign for him, which means that exceptions are made. In the combined version filed by him and opposite party-3, after explaining that opposite party-3 hospital had two distinguished Pathologists, namely Dr. T. Vasudeva Rao and Dr. Jinka Subramanyam, it is stated as follows:

     

    “The Pathologist of Bangalore Hospital who examined the tissue did make every effort to reach a conclusion”.

       

    21. If at all the test was conducted by Dr. Jinka Subramanyam, this was the occasion to mention it. However the identity is not divulged here since, apparently, opposite parties-3 and 4 were testing the water as to the course the case would take in due course. At a later stage when it was evident that things would zero in on opposite party-4 in particular, the aforementioned contention was raised in the affidavit filed by opposite party-4 on 15.5.1999 which was not taken in the first affidavit he filed on 1.7.1997. Such an intention is entirely evident from the material on record. Even opposite party No. 2 has stated in his evidence. “However my information is that Dr. Vasudeva Rao did the Pathology test”. Hence, taking into account the totality of circumstances, we have no hesitation to hold that opposite party No.4 is the author of Ex.C4, and Dr. Jinka Subramanyam has signed it on behalf of opposite party-4 due to unexplained exigencies.

      

    22. If that be so, what is to be seen next is whether Ex.C4 is a precurser to the course of events that took place later thereby, according to the complainants, the patient had to undergo avoidable pain and suffering which ultimately lead to her untimely demise. In order to get an insight into the import of the Report (Ex.C4), particularly when its contents have been the subject-matter of not only diverse pleadings but also expert opinion of varying shades, it would be in the fitness of things to reproduce it. The body of the report reads as follows:

      

    “Cross Examination: Two firm to soft grey nodular pieces of tissue measuring 1×0.5 x 0.5 cms and 0.5 x 0.5 cm are received. They are sectioned and processed in toto.

     

    Microscopic Examination : Aggregates of compressed ducts with surrounding fibrous tissue are seen. Inflammatory cells predominate around them and some dilated ducts. The scarring gives the appearance of a sclerosing adenoma. A terminal duct hyperplasia is seen. It may be a precursor of labular carcinoma. Follow up of this case is suggested.

      

    Microscopic Diagnosis :

    (1) Sclerosing adenosis, post inflammatory state.

    (2) Terminal ductal hyperplasia (See microscopy above)”

      

    23. The report also indicates that the preopposite party diagnosis of the referring doctor, namely opposite party-2 was “Ca Breast”, “Chronic infective granuloma”. According to opposite party-4 these are two alternative diagnosis on the basis of which he was called upon to give a histopathology report of the specimen sent to him. He was contended that even though the referring doctor is supposed to give him the background material of the case, opposite party No.2 has not given him any details, with a result, he was contrained to formulate his report on the basis of what he was in the slide and block sent to him. He has detailed the constraint in which he had to issue Ex.C4 in para 3 (ii) of the joint-version filed by him and opposite party-3, which reads as follows:

       

    (ii) The reference made to the Bangalore Hospital from Ravi Kirloskar Hospital, was to conduct a histopathological examination, was in a small piece of paper with virtually no information about the clinical condition of the patient. The referring doctor has put both the cancer of the breast and the infective granuloma as the two alternative clinical diagnosis of the patient. As the first complainant mother of a small child and as she was breast feeding the child the commonest cause for such pain in the breast was the infection of the breast. This aspect is made clear as one of the diagnosis by the referring Surgeon. The medical jurisprudence would testify that in such a situation the pathologist would generally lean on a common cause while making a diagnosis in a difficult situation. If there is any error of judgment, it is both natural and permitted by the referring Surgeon that the clinical picture and clinical diagnosis strongly suggested the presence of infective process in the breast”.

      

    24. On this aspect opposite party-2, Dr. Srikanth Jagirdar has not come out with any explanation in his affidavit. He has only said that “the disease was diagnosed as “Ca Breast (L)” “chronic infective granuloma” and hence “the tissue was sent to the 3rd respondent hospital for histopathological examination on the same day”. He has nowhere come out with a contention that it was not incumbent on him to inform the pathologist about the clinical condition of the patient. It is seen that Ex. R19 which is the requisition slip sent by opposite party2 to opposite party-3 hospital requesting for a histopathology report does not contain any information regarding the clinical condition of the patient. It is therefore, evident that opposite party-4 had no feed back from the referring doctor with regard to the case history of the patient or her clinical condition at the time when he received the requisiton from opposite party No.1 hospital, except the pre-OP diagnosis of opposite party-2 that the patient had either cancer of the breast or chronic infective granuloma.

      

    25. “Granuloma” according to Oxford Concise Medical Dictionary is a mass of granulation tissue produced in response to chronic infection, inflammation, a foreign body or to unknown causes”. In other words, it is not a malignant mass. Hence opposite party-4 had to keep in view two options while examining the slide and the block sent to him. According to him histopathological examination is a long drawn process which takes atleast 2-3 days before a report is drawn up. The work of a pathologist consists of examining the tissue and to have a microscopic view to tell the disease process that is reflecting in a patient. His opinion is neither final nor conclusive as he is totally handicapped regarding the total picture of the patient as he is given either a tissue or a slide to work on and nothing else. In the instant case, according to him even the referring doctor was not helpful in providing necessary clinical inputs of the patient, with a result, his task was made extremely difficult. Cancer is a concealed disease which in many cases is not apparent to the naked eye. Even the attending doctor or surgeon infers on the disease and its stage preliminarily from the oral complaints of the patient and from his examination and lab reports. In such circumstances, it is stated, the tissue and the slide alone cannot give a full picture to make a total or final diagnosis. Hence it is the case of opposite party-4 that there is enough scope for an error of judgment.

      

    26. What might be an error of judgment, if at all, for opposite party-4 is negligence par excellence to the complainants. In para 6 of the complaint the following specific allegation has been made:

      

    “After examination of the very same slides and paraffin blocks by the Kidwai Memorial Institute of Anchology the ailment was diagnosed as Invasive Ductal Carcinoma GR III of the breast. When complainants had approached the first respondent in the month of October, 1994 itself she had developed cancer of the breast. By 3.12.1994, the disease had spread further to the lymph nodes and neck region. This resulted solely on account of wrong diagnosis made by the respondents 3 and 4”.

      

    27. Opposite parties-3 and 4 have strongly reputed this allegation on the basis of the very Ex.C4 on which the complainants have relied upon to make the type of allegations referred to above. According to opposite party-4 he has not ruled out cancer in his report entirely. Ex.C4, clearly indicates that the features seen in his microscopic examination “may be a precursor of lobular carcinoma”, which means that the symptoms of impending cancer was evident in the tissue examined. In view of such possibility it is stated, he had suggested follow up of the case which in itself is ample testimony that he had diagnosed possible occurrence of cancer in the patient, but at the moment of examination what was seen was Sclerosing adenosis in post inflammatory state and terminal ductal hyperplasia.

      

    28. Dr. Teena Rama Rao, Asst. Professor of Pathology (C.W. 2) who conducted the examination of the slide and the paraffin block at the Kidwai Memorial Institute and came to the conclusion that the patient was suffering from “Invasive ductal carcinoma GR-III breast intraduct comedocarcinoma present” has, in her evidence spoken abouty Ex.C4 in the following terms:

      

    It would mean that the cells of the breast have proliferated in number in a benign form. We call it as benign proliferative breast disease.

     

    It is also reflected therein that the same could be a pre-cancerous stage”.

     

    This evidence corroborates the contention of opposite party-4 that his report is not benefit of any reference to cancer but an observation has indeed been made by him warning the onset of cancer in the patient for which he has also suggested follow-up. C.W.2 however does not believe that opposite party-4 had any constraints for want of clinical inputs of the patient from opposite party-1 hospital since, in her cross-examination she has stated that “in her opinion Ex.R-19 itself contains adequate clinical history”. As far as the observation in Ex.C4 (which contradicted Ex. C11A) is concerned C.W.2 observed, “I would only say it is the opinion of other pathologist”.

     

    29. The fact that the patient was suffering from cancer and not from benign proliferative breast disease as diagnosed by opposite party No.4 has been confirmed in his chief-examination by Dr. K.C. Lakshmaiah, Asst. Professor of Oncology in Kidwai Memorial Institute (C.W. 3) in the following words:

      

    “The patient was having an advanced breast cancer. In medical terminology it was stage 4 form”.

      

    This evidence corroborates the diagnosis at Ex.C11A (except for the stage of the disease which is mentioned as Grade III in Ex. C11A) which goes to establish that the patient was indeed suffering from cancer of the left breast. With regard to the question as to the probable period during which the patient could be said to be suffering from the said ailment, C.W. 3 has spoken in the course of his cross-examination as follows:

      

    “Having regard to the stage of cancer as on 6.12.1994, that is the day on which the patient came to our hospital, it is my view that the lady must have started development of malignant-clone substances more than five years ago”.

      

    30. This piece of important evidence, coming as it does from a doctor under whose supervision the patient was administered chemotherapy and even salvage chemotherapy at a later stage proves conclusively that the patient was suffering from cancer of the left breast but opposite party-4 has not diagnosed it as cancer, but has concluded that it was a case of benign proliferative breast disease, which in his own words is described as “Sclerosing adenosis, post inflammatory state terminal ductal hyperplasia”. However it has to his credit that he has not entirely ruled out cancer, since he has expressed his apprehension that the condition revealed in histopathology is a precancerous stage for which he had suggested a follow up.

      

    31. These facts which have crystallised from the material placed on record would lead to an inevitable conclusion that there has been a slip on the part of opposite party-4 in coming to the right conclusion with regard to the nature of existing ailment in the patient as the biopsy specimen disclosed. In his own words, it may amount to an error of judgment but not a case of negligence as contended by the complainants. In para 3 (ii) of the joint-version, opposite party 3 has stated on behalf of opposite party-4 as follows:

      

    It is more than possible that the pathologist given the benefit of doubt in the first instance. But error in judgment would not be an act of negligence in medical parlance”.

      

    32. It is in the context of this submission that we need to recall the following words of Load Denning in Res. v.Minister of Health, (1954) 2 QB 66:

      

    “One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a dis-service to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due case for the patient at every point, but we must not condemn as negligence that which is only a misadventure” (Emphasis supplied).

       

    33. When a similar issue involving error of judgment in Whitehouse v. Jordan, I (1981) All ER 267, came up in appeal before the House of Lords, a circumstantial variance in such error was emphasised. Lord Fraser pointed out thus:

       

    “The true position is that an error of judgment may, or may not, be negligence, it depends on the nature of the error. It it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made then it is not negligence”. (quoted in M/s. Spring Meadows Hospital v. Harjol Ahluwalia, reported in AIR 1998 Supreme Court 1801 ” para 9)

       

    34. Tested by the touch-stone of these observations, it has to be said that opposite party No.4 is guilty of an error of judgment in diagnosis which does not amount to negligence, particularly when he has not entirely ruled out cancer. The natural question that arises in the context of the apparent error of judgment by opposite party-4 is to what extent a correct diagnosis would have contributed to the welfare of the patient. We have already alluded to the deposition of Dr. Lakshmaiah who has stated very clearly that having regard to the stage of cancer as on 6.12.1994 the development of malignant clone substance must have started in the breast of the patient more than 5 years earlier. When the patient was examined in Kidwai Memorial Institute, she was suffering from Grade-III cancer, which was not susceptible of being removed even by surgery. It was a stage where the patient did not respond even to chemotherapy. If the patient was in such a condition, whether she could have been helped if opposite party-4 had correctly diagnosed her case about 45 days earlier is the million dollar question which needs to be answered before opposite party-4 is to be labelled as entirely responsible for the suffering and ultimate death of the patient.

      

    35. It is borne out from records that while Ex.C4 was issued on 20.10.1994, Ex.C11 was issued by Kidwai Memorial Institute on 3.12.1994. The crucial point for consideration in this backdrop is whether the type of cancer as revealed on 3.12.1994 could have been halted or eliminated had it been correctly diagnosed on 20.10.1994 i.e. about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly in the following words:

      

    “In breast cancer 30 to 40 days would not make any difference as regards the stage”.

       

    36. With regard to the stage in the development of breast cancer, C.W. 2 has in her chief examination clarified as follows:

     

    “As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in an aggressive form”.

         

    37. This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W. 3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate strongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factor contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on record, we have not hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service.

      

    38. If that be so, what remains to be seen is whether opposite party-1 and opposite party No.2, particularly opposite party-2 is guilty of negligence as alleged by the complainants. The only allegation against them is that since Balamani was referred to opposite party-3 by opposite party-1 and opposite party-2 the latter are also jointly and severally liable to pay damages. In the course of his cross-examination complainant No. 2 has denied a suggestion that opposite party 2 was not guilty of negligence or deficiency in service. In the course of his affidavit evidence complainant No.2 has made the following averment:

      

    “It is also a case of negligence on the part of first respondent, as a doctor with bare minimum knowledge of medicine would have suspected cancer on noticing lumps in my wife’s left breast and the first and second respondents ought to have on their own ought to have advised us to take the block and slide to Kidwai Memorial Institute which is undoubtedly the best hospital for cancer in Bangalore”.

     

    39. We do not believe that failure to refer the patient to Kidwai Memorial Institute can be construed as negligence or for that matter an omission on the part of opposite party “1 and/or opposite party 2 since they have done what they thought best in the circumstances of the case. The complainants have infact not come out with an allegation that opposite party No.3 hospital is unequal to the task; rather, their allegation is that the task has been performed negligently. Hence we find that opposite party-1 or even opposite party-2 cannot be found fault with for referring the biopsy specimen to opposite party-3 hospital. We do not find any shortcoming or inadequacy in the manner or nature of the duties performed by them whatsoever.

      

    40. That leaves us with the other allegation that a doctor with a minimum knowledge of medicine ought to have suspected cancer on noticing lump in the breast of the patient. This allegation has no basis since one of the diagnosis of opposite party-2 as mentioned in Ex.R19 is “Ca Breast” which means cancer of the breast. The fact that Ex. R19 also suspects chronic infective granuloma does not take away the effect of the main diagnosis, namely cancer of the breast. Hence the type of allegation made by the complainants regarding diagnosis of the patient does not have much of a leg to sustain its weight. Even from the point of view of treatment given to the patient on receipt of Ex.C4, we have no reason to find fault with opposite party-1 or 2 since it has come in the evidence of C.W. 3 that if one gets a report like Ex.C4, the patient would be put on antibiotics and followed up. This is exactly what opposite parties-1 and 2 have done. It is not necessary for us to go into any other aspects of diagnosis or treatment of the patient in opposite party-1 hospital since the complainants themselves have not come out with any other allegation on other aspects. The material placed on record, it has to be stated, are not such as would point a finger of guilt on opposite party-2 in discharging his function at opposite party-1 hospital and hence we have no hesitation to hold that no stigma of deficiency of service can be attributed to either of them.

        

    41. It that be so, it has to be held in conclusion that the complainants, have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4 but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. We quote Lord Denning again to support this view.

      

    “You must not, therefore, find him negligent simply because something happens to go wrong; if, for instance, one of the risks inherent in an operation actually takes place or some complication ensures which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment”.

       

    42. This is a warning which needs to be applied to every case involving medical negligence. In the instant case, by the standard set in the above words, we are not able to come to a conclusion that the opposite parties 1 to 4 are guilty of negligence in diagnosis and/or treating Balamani. In the result, we answer point No.2 in the negative.

      

    Point No.3

     

    43. In the view that we have taken under Point No.2, this point is also liable to be answered in the negative. Since no deficiency of service is attributable to the doctors (opposite party-2 and opposite party No.4) it has to be held that no vicarious liability could be attributed to either Ravi Kirloskar Memorial Hospital and Research Centre (opposite party-1) or The Bangalore Hospital (opposite party 3) or vice-versa.

      

    Point No. 4

       

    44. In the result we pass the following:

     

    ORDER

      

    The complaint is dismissed.

       


         


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  • M.P. BALAMANI v. M.A.R.K.M.H. & RESEARCH CENTRE
    (2001) CPJ 483
        
    KARNATAKA STATE CONSUMER
    DISPUTES REDRESSAL COMMISSION,
    BANGALORE

       
    Consumer Protection Act, 1986 – Section 14(1)(d) – Medical Negligence – Error of Judgement in Diagnosis – Compensation – Histopathology Cytology Report issued by opposite party on the biopsy specimen – Report diagnosed the case as – sclerosing adenosis, post inflamatory state and terminal ductal hyperpiasia - Examination of same slide and block about 40 days after disclosed that, – patient having an advanced breast cancer – Patient suffering from cancer confirmed - Error of judgment on part of opposite party established - Contention, wrong diagnosis recorded in the Histopatholoy Report resulted in avoidable sufferings and ultimate death of patient – Contention not acceptable – Error of judgment not contributed to the type of suffering which the patient had to undergo – Ailment if would have been detected 45 days earlier, position would have been no different – Opposite party absolved from the stigma of negligence – Complainant failed to establish deficiency in service, not entitled to any compensation.
     
    Held : Looking at the tenor of the complaint, the prime target is opposite party-4 Dr. Vasudeva Rao, Consultant Pathologist of the Bangalore Hospital, who had issued a Histopathology & Cytology Report on the biopsy specimen of Balamani sent to him from opposite party-1 hospital. The report (Ex.C4) diagnosed the case as “elerosing adenosis, post inflammatory state and terminal ductal hyperplasia”. The examination of the same slide and block at Kidwai Memorial Institute of Oncology about 40 days later however disclosed that “the patient was having an advanced breast cancer”. According to the complainants, the wrong diagnosis recorded in the Histopathology Report by opposite party-4 resulted in the avoidable suffering and ultimate death of the patient. (Para 18)
     
    Held further : It is borne out from records that while Ex.C4 was issued on 20/10/1994, Ex. C11 was issued by Kidwai Memorial Institute on 3.12.1994. The crucial point for consideration in this backdrop is whether the type of cancer as revealed on 3.12.1994 could have been halted or eliminated had it been correctly diagnosed on 20.10.1994 i.e., about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly in the following words:
     
    ” In breast cancer 30 to 40 days would not make any difference as regards the stage “.
     
    With regard to the stage in the development of breast cancer, C.w. 2 has in her chief-examination clarified as follows:
     
    ” As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in any aggressive form “.
       
    This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W.3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate srongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factory contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on reocrd, we have no hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service. (Para 35, 36 & 37)
     
    Held further: If that be so, it has to be held in conclusion that the complainants have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4, but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. (Para 41)
     
    Result: Complaint dismissed.
     
    ORDER
     
    Mr. Abdul Perwad, Member – This is a complaint filed under Section 12 r/w Section 17 of the C.P. Act, 1986 alleging deficiency of service on the part of four opposite parties including 2 hospitals. The facts of the case as narrated in the complaint are as follows:
     
    Mrs. Balamani, aged about 31 years, with the second complainant got herself admitted opposite party-1 hospital on 17.10.1994 on account of a pain in the left breast while feeding her 3 months’ old child. There was a lump in her breast which was examined by Dr. Srikant opposite party-2 and diagnosed as granulome and hence a biopsy was conducted and the specimen was sent to opposite party-3 Bangalore Hospital for pathological examination. Dr. Vasudeva Rao (opposite party-4), Pathologist opposite party-3 hospital diagnosed the ailment as Sclerosing Adenosis and a report to that effect was issued. Opposite party-2, on the basis of the report, diagnosed that complainant-1 was not suffering from cancer of the breast and hence discharged her on 20.10.1994, assuring that it was an infection.Certain drugs were also prescribed at the time of discharge which were however asked to be discontinued about 20 days later.
     
    2. It is the case of the complainants that the patient did not register any improvements; on the other hand her condition worsened. She developed swelling of the left hand and lumps developed in the lymph and neck. Hence, on advise of well-wishers, she approached Kidwai Memorial Institute of Oncology. The slide and paraffin block were obtained from opposite party- 3 hospital and submitted for examination. Kidwai Memorial Institute, after due examination, diagnosed the ailment as “Invasive ductal carcinoma, GR-III of the breast”. It is alleged that when complainant-1 approached opposite party-1 in the month of October, 1994 she had developed cancer of the breast and by 3.12.1994, the disease had spread to the lymph nodes and the neck region. According to the complainants this could have been prevented but for the wrong diagnosis of opposite party-3 and opposite party-4.
      
    3. At the Kidwai Memorial Institute complainant-1 was treated with chemotherapy by Dr. Lakshmaiah, but no surgery was undertaken since the disease had spread intensively. It is the case of the complainants that such a spreading could have been prevented, had it been properly diagnosed by opposite party-4. In fact, it would have been possible to remove the cancerous growth from the breast before it could spread to other areas and the patient would have recovered completely. It was the type of ailment which a beginner in the field of pathology would detect, but on account of the negligence of an exerienced opposite party-4, and the staff of opposite party-3, complainant -1 came to be the victim of a dreaded, incurable disease, opposite party-1 and opposite party-2 are also privy to such a happening, since it is they who directed the complainants to opposite parties-3 and 4 to get a pathology report. They had a duty to cross-check the diagnosis of opposite parties-3 and 4 which they have failed to do. Hence it is alleged that opposite parties 1 to 4 are all responsible for the gruesome ailment to which complainant-1 was subjected to.
     
    4. It is further alleged that apart from a sum of Rs. 60,000/- already spent on treatment, much more will have to be spent on complainant-1consistent with the sinister nature of the ailment which called for expensive treatment. The financial burden on complainant-2 had proved deplorable for the further reason that he was at that point of time unemployed. The children, one of whom was hardly 10 months’ old, was to be looked after by compnt-2 since compnt-1 was not able to do it. They were totally deprived of the care of the mother which in itself was a cause of hardship and trauma resulting in acute mental distress and anxiety to all concerned. Since such an avoidable misery was the direct outcome of the negligence of the opposite parties, they are liable to pay appropriate damages to the complainants, which the opposite parties have declined when a lega, notice was issued to them. The complainants, therefore, prayed that the opposite parties be directed to pay a sum of Rs.10 lakhs by way of damages, together with interest @ 18% p.a. from the date of complaint till payment.
     
    5. In the objection filed, opposite parties-3 and 4 refused these allegations strongly on the following lines:
      
    (1) When complaint-1 reported at the Bangalore Hospital, her last child was 10 months old. Complainant -1 had seen lump in her breast (L) when the child was 3 months old and at that point of time itself she had pain while feeding the child. Nevertheless, she chose to report at opposite party-3 hospital after 7 months, by which time the process of advancement of the damage to a point of no return had set in. This is a costly negligence for which complainants alone are responsible.
     
    (2) The reference made by opposite party-1 hospital to opposite party-3 hospital to conduct a histopathological examination was in a small piece of paper, with virtually no information about the clinical condition of the patient. The referring doctor had suggested cancer of the breast and infective granuloma as the two alternative clinical diagnosis of the patient. Medical jurisprudence will testify that in such a situation the pathologist will generally lean on a common cause while making a diagnosis in a difficult situation. Histopathological examination is a long drawn  process which takes about 2-3 days before a report is drawn up. In the instant case all possible precautions have been taken to arrive at a correct conclusion.
     
    (3) The surgeon or the doctor who attends to the patient is responsible to corroborate the clinical picture and the histopathological examination report. It there is variance, he should obtain a second opinion or reexamine the patient to eliminate possibility of malignancy involving any destructive procedure.
     
    (4) In the instant case diagnosis was made by Kidwai Memorial Institute of Oncology. If only review of the diagnosis was sought, opposite parties-3 and 4 also could have diagnosed the disease as cancer.
      
    (5) There was an interregnum of only 40 days between the histopathology by opposite parties-3 and 4 and the final diagnosis at Kidwai. At that time cancer had already spread to different parts of the body of the patient. The gap of 40 days makes absolutely no difference as the disease process had reached the status of micro-metastasis when the patient first noticed the lump and pain in her breast 7 months earlier.
     
    (6) The pathological report issued by opposite parties-3 and 4 clearly indicates that malignancy cannot be ruled out and the patient needs to be followed up in that direction. It is difficult even for an experienced pathologist to distinguish a malignancy from an acute inflamatory lesion.
     
    (7) The work of a pathologist consists of examining the tissue and have a microscopic view to identify the disease process. The opinion of the pathologist is neither final nor conclusive since it is based on either a tissue or a slide and he has no total picture of the clinical condition of the patient. Despite these constraints, opposite parties 3 and 4 have opined that the patient had a pre-malignancy condition which should be treated to cure. Hence no negligence can be attributed to opposite parties 3 and 4.
     
    (8) From the very nature of the complexity of this case which is bound to involve complicated medical issues calling for expert evidence, the issues involved are to be sorted out in a Civil Court and not in a summary proceedings before this Commission.
     
     6. Opposite parties 1 and 2 took up the following defence vis-à-vis the allegations levelled against them:
     
    (a)  The patient was discharged from opposite party-1 hospital and was further treated as an out-patient for Sclorising Adenosis which is based on the pathology report. According to the said report it was not a case of the cancer of the breast but Sclorising Adenosis and hence malignancy was ruled out. Hence the patient was discharged on 20.10.1994, giving her certain antibiotics.
     
    (b)  On 25.10.1994 when the patient came to remove the sutures, a swelling in her left arm was noticed and hence Dr. Kamath, a physician of opposite party-1 hospital was consulted. He advised higher antibiotics in view of the pathological report of opposite party 4 and the patient was advised to come back again after a week for follow-up.
        
    When she came again as advised no increase in swelling was noticed and hence the antibiotics were discontinued and she was asked to come back again after a week. She however failed to report thereafter.
     
    (c)  There is no deficiency of service on the part of opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 whatsoever and hence the contention of the complainants that opposite parties 1 and 2 are also jointly and severally responsible with opposite parties 3 and 4 for whatever happened to complainant- 1 is not based on facts but a motivated allegation.
      
    (d)  Opposite party-1 hospital is run by the Trust created in the memory of Ravi Kirloskar where only nominal charges are levied for the services rendered. Hence opposite party-1 hospital falls outside the purview of the expression ‘service’ as defined in Section2(1)(d) of the C.P. Act, 1986 and hence the complaint is not maintainable against opposite party-1.
     
    (e) The case involves complicated recording of evidence by experts and other elaborate process and as such it is not liable to be adjudicated upon in summary proceedings before this Commission. The complainants have to seek their remedy in a Civil Court for the redressal of their grievances.    
      
    7. For these and other reasons set out in the statement of objections, filed, opposite parties 1 and 2 prayed that the complaint be dismissed as shorn of merits.
     
    8. Opposite parties filed their version. Opposite parties 1 and 2 filed their affidavit evidence with certain documents. Exs.C1 to C4 and C6 to C105 were marked for the complainants with consent. Exs.R1 to R10 were marked with consent for opposite parties 1 and 2, while Exs.R11 to R20 were marked for opposite parties 3 and 4, also with consent.
     
    9. Complainant 2 filed his affidavit (C1 had died in the meantime and as such her name was deleted from the complaint by an order of this Commission). In support of his case Complainant 2 has examined himself as C.W.1. Two witnesses, viz., Dr. Teena Ramarao and Dr. K.C. Lakshmaiah were examined as C.W.2 and C.W.3 respectively. On behalf of opposite parties Dr. Srikanth Jagirdar, Opposite party 2 is examined as R.W.1 and Dr. P. Vasudeva Rao, opposite party 4 is examined as R.W. 2.
     
    10. We have heard the arguments of Mr. T.R. Raghupati, learned Counsel for the complainants, Mr. K.M. Basavaraj, learned Counsels, for opposite parties 1 and 2 and Mr. Manojkumar for opposite parties 3 and 4.
      
    11. In the context of the various contentions raised and the issues highlighted by the learned Counsels, the following points arise for consideration :
      
    (1) Whether the complainants had to seek their remedy in a Civil Court in view of the complex nature of the case as contended by the opposite parties?
     
    (2) Whether the complainants have established deficiency of service on the part of opposite parties or any among them within the meaning of that expression under the C.P. Act by acceptable evidence?
      
    (3) Whether the complainants are entitled to any compensation?
     
    (4) What order ?
     
    12. Point No.1: In a case of alleged medical negligence necessary facts are to be established by evidence, which may mostly involve examination of witnesses and their cross-examination. If every case involving examination-in-chief and cross-examinations are to be construed as involving complicated medical issues, and if on account of such presumption every such case is to be referred to a Civil Court, it would virtually amount to taking away medical negligence cases from the purview of the C.P. Act. That was evidently not the view of the Hon’ble Supreme Court while taking a decision in Indian Medical Association v. V.P. Shantha & Ors. A parameter has nowhere been laid down for the purpose of deciding precisely when a case involving alleged medical negligence is to be referred to a Civil Court and when it can be adjudicated upon by the Consumer Forums. In the first instance, what are the issues which cannot be decided upon in a summary proceedings are not clearly defined anywhere, nor any rule of the thumb is indicated in any judgment pronounced till now. That being the case, it is necessarily within the realm of the Consumer Forums or the Commission, as the case may be, to decide whether it could rise up to the task or the issues involved would be too complicated to be decided in a so-called summary proceedings and hence to be safely referred to a Civil Court. In the instant case, having regard to the type of allegations made and the issues surrounding such allegations, we had no occasion to believe that it is beyond this Commission to adjudicate upon this case. Hence, apropos the contention of the opposite parties that the complainants have to seek their remedy in a Civil Court, we hold that this Commission is well equipped to deal with this case. In the result, we answer point No.1 in the negative.
       
    13. Point No. 2: Under this point it will have to be seen whether the deficiency attributed by the complainants to the opposite parties or for that matter to any of the opposite parties can be said to have been established by acceptable evidence.
      
    14. It is not in dispute that Balamani w/o M.Lakshminarasimhaiah was admitted to opposite party 1 hospital on 17.10.1994. It is also not disputed that a biopsy of her left breast was conducted and the specimen was sent to opposite party 3 hospital for pathological examination. It is also not disputed that a histopathological report on the basis of the examination conducted was issued. It is also not disputed that Balamani was discharged from opposite party 1 hospital on 20.10.1994. The dispute however centres round the alleged negligence on the part of the opposite parties in diagnosing and treating Balamani who had noticed a lump in her breast which pained while she fed her child.
       
    15. Mr. T.R. Raghupati, learned Counsel for the complainants, during the course of taking us through the facts of the case submitted that it was opposite party 3’s report which had laid the foundation for the unfortunate incident leading to the untimely death of Balamani. The learned Counsel pointed out that despite no denial in the reply notice, opposite party 4 had denied in his cross-examination that he had signed the Histopathology and Cytology Report (Ex.C4) of the Bangalore Hospital. It was pointed out that in his affidavit evidence opposite party 4 had disowned the report contending that it was signed by Dr. Jinka Subramanyam. The learned Counsel pointed out that it is only an after-thought to avoid responsibility arising out of a wrong diagnosis, by which the changes of saving a life was lost. The learned Counsel wondered what was it that the Hospital Authorities did when they found out that their Chief Pathologist had not signed his own report. Dr. Teena Rama Rao, (C.W.2) has during her cross-examination stated very clearly that the slide examined by opposite party 4 clearly showed that cancer was aggressive (Grade-III). The same opinion was expressed by C.W. 3, Dr. Lakshmaiah that the patient had advanced cancer, but the report of the Bangalore Hospital does not suggest any cancer in the patient. According to C.W. 3, the ailment could have manifested about 5 years earlier. The learned Counsel submitted that despite such strong indications in the slide, opposite party 4 had given a report of no incidence of cancer which can only be born out of indifference in discharging his duties as a pathologist. The learned Counsel also submitted that having known that he had erred beyond redemption, opposite party 4 has been trying to take shelter behind the native contention that he was not the author of the report since, as he put it during his evidence, he does not allow anybody to sign for him. The learned Counsel pointed out that the role of opposite party 2 does not attract as much stigma since he had relied faithfully on the report of opposite party 4 yet he cannot be in the clear entirely since he had failed to double-check what opposite party 4 had to say, particularly when the patient had familiar symptoms.
      
    16. Mr. Manojkumar, learned Counsel for opposite parties 3 and 4 on the other hand argued that there is no merit in the contentions raised by the learned Counsel for the complainants in as much as his whole story falls to the ground when viewed from the proper perspective. In the first instance, the learned Counsel submitted, it is the bounden duty of the referring ddoctor to provide the history of the patient with all necessary clinical details to the pathologist which has not been done in this casewith a result, a report had to be produced on the basis of just a slide and a block. It was pointed out that opposite party 4 in his affidavit-evidence has clearly stated that Dr. Jinka Subramaniam had signed the report and not him, but the complainants had failed to implead Dr. Jinka Subramaniam for reasons best known to them. Moreover, it is not correct to say that Ex.C4 is bereft of any reference to cancer. In fact, the report very clearly indicated that the symptoms noticed may be a precursor to lobularcarcinoma which is enough warning on an impending cancer which was not well taken either by opposite parties-1 and 2 or by complainants themselves. To substanciate his contention that the patient had no cancer at the time when opposite party No.4 conducted the pathological examination, the learned Counsel invited our attention to the deposititon of Dr. Teena Rama Rao who stated that the cells had proliferted in the biopsy specimen in a benign way which only means that no malignancy was visible at that point of time. It is contended that opposite parties 3 and 4 have dutifully and painstakingly brought out a report indicating clearly the chances of cancer setting in if effective steps are not taken, notwithstanding the constraints of not having the benefit of the patient’s history and hence no negligence could be attributed to them for whatever reason.
       
    (a) Mr. K.M. Basawaraj, learned Counsel for opposite parties-1 and 2 submitted in his turn that Balamani came to opposite party-1 hospital with a lump and prickly sensation in her left breast for which a biopsy was done on 18.10.1994 and the specimen was sent to opposite party-3 hospital for a histopathological report. When the report was received, it revealed that the lump in the breast was a benign growth and hence the patient was given necessary medication and was advised to come for follow-up. The learned Counsel contended that this was the normal procedure followed in a case of this nature. Opposite parties-1 and 2 had adopted the time honour procedure of depending on the histopathological report for which opposite parties-1 and 2 cannot be faulted. The learned Counsel invited our attention to the deposition of Dr. Lakshmaiah (C.W. 3) that the opinion of the Pathologist is conclusive. The learned Counsel while taking us through the contents of Ex.C4 emphasised that for the type of observations made in the report, opposite party Nos. 1 and 2 has no option whatsoever to go through any line of treatment other than what was actually given to the patient. It was submitted that the patient was treated with the best possible case in opposite party-1 hospital and hence there could be no iota of blemish or negligence attributable to it for any reason whatsoever. In support of his contention the learned Counsel relied on the following case laws while summing upon his argument on the above lines.
     
    (1) AIR 1996 SC 2111
     
    (2) AII Eng. Reporter 1957 (2) P. 118
     
    (3) AIR 1969 SC 128 (para 11)
      
    (4) AIR 1998 SC 1801
      
    17. We have given due consideration to the detailed submissions made on either side. At the very outset, it is necessary to have a clear perspective with regard to the approach to be adopted in a case of this nature. It has to be stated at this juncture itself that the standard of care expected of a medical man is neither too high nor too low. What the law expects from him is neither a miracle nor achieving the impossible but exercise of a duty of care expected of a reasonably skilled practitioner who performed the functions he is called upon to do diligently and conscientiously. The path of a medical man is not strewn with roses all the way; it is thorny most of the time, albeit what a patient expects from him, but law looks at neither of these aspects, but evaluates his performance on the basis of certain parameters. The Hon’ble Supreme Court in Dr. Laxman Balkishan Joshi v. Dr. Trinbak Bapu Godbole, reported in AIR 1969 SC 128 (quoted in D. P. Bhandhari v. Sir Ganga Ram Hospital, reported in II (1991) CPJ 409), has laid down the following criteria to make such evaluation:
      
    (i) A duty of care in deciding whether to undertake the case,
    (ii) A duty of care in deciding what treatment to give, and
    (iii) A duty of care in the administration of that treatment.
       
    A breach of any of these duties gives a right of action to a patient for negligence. These tests presuppose that a medical practitioner must bring to his task a reasonable degree of knowledge and skill and perform his duties with a reasonable degree of care. The super-speciality atmosphere prevailing in high-tech corporate hospitals was not susceptible of adding much to these basic concepts of duties required of a medical practitioner, except perhaps broadening the sphere of treatment to some extent. Even today, the test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he/she has been proved to be guilty of such failure as no doctor of ordinary skill could be guilty of when acting with reasonable care.
       
    18. It is necessary to approach the instant case bearing these guidelines in mind in order to arrive at a conclusion whether the negligence attributed to the opposite parties or for that matter to different opposite parties individually can be said to have been established by acceptable evidence. Looking at the tenor of the complaint, the prime target is opposite party-4 Dr. Vasudeva Rao, Consultant Pathologist of the Bangalore Hospital, who had issued a Histopathology & Cytology Report on the biopsy specimen of Balamani sent to him from opposite party-1 hospital. The report (Ex. C4) diagnosed the case as – sclerosing adenosis, post inflammatory state and terminal ductal hyperplasia. The examination of the same slide and block at Kidwai Memorial Institute of Oncology about 40 days later however disclosed that “the patient was having an advanced breast cancer.” According to the complainants, the wrong diagnosis recorded in the Histopathology Report by opposite party-4 resulted in the avoidable suffering and ultimate death of the patient. Para 8 of the complaint describes this aspect in the following words:
      
    “It is submitted that if the ailment had been diagnosed properly at the earliest stage it would have been possible to remove the cancerous growth in the left breast. It would have prevented further spreading of the disease. Complainant No.1 would have fully recovered from the ailment. Solely on account of the wrong diagnosis made by the 3rd and 4th respondents, the complainant No.1 has suffered immeasurably and the disease has now become incurable. Even a Pathologist with little experience would have been able to diagnose the ailment correctly. It is abvious that the wrong diagnose is the result of sheer negligence on the part of the 4th respondent and the staff of the third respondent hospital”.
      
    19. It is this specific allegation which calls for examination on the basis of evidence, both documentary and oral, adduced in this case. Opposite party-4 has taken the contention that Ex.C4 has not been signed by him, but it is signed by Dr. Jinka Subramaniam who was also a Pathology Consultant in opposite party-3 hospital. During the course of his cross-examination by Mr. Raghupathi, learned Counsel, opposite party-4 has spoken as follows:
      
    “However in my affidavit filed on 15.5.1999, I have stated that I have not given the report and that I have not signed that report. In Ex. C4 the signature above my name is not my signature”.
      
    In continuation, opposite party-4 has also stated as follows:
      
    “I did not normally allow anybody to sign for me”.
     
    However, he makes the following admission:
     
    “I have not stated that I have not given the report at Ex.C4, either in the reply given to the legal notice or in the version filed by me or in the first affidavit which I filed before this Commission”.
        
    20. A reading of these depositions in conjunction would hardly fail to reveal the fact that opposite party-4 who had missed out on hiding behind the shadow of his colleague in the first instance had come wise later to the situation where his colleague had signed for him. He admits that Dr. Jinka Subramanyam is “shown to have signed for me”. In Ex. C4 the name of opposite party-4 is typed out at the bottom and Dr. Jinka Subramanyam has signed it “for” Dr. T. Vasudeva Rao, M.D. Opposite party-4 has in his deposition stated that he did not “nornally” allow anybody to sign for him, which means that exceptions are made. In the combined version filed by him and opposite party-3, after explaining that opposite party-3 hospital had two distinguished Pathologists, namely Dr. T. Vasudeva Rao and Dr. Jinka Subramanyam, it is stated as follows:
     
    “The Pathologist of Bangalore Hospital who examined the tissue did make every effort to reach a conclusion”.
       
    21. If at all the test was conducted by Dr. Jinka Subramanyam, this was the occasion to mention it. However the identity is not divulged here since, apparently, opposite parties-3 and 4 were testing the water as to the course the case would take in due course. At a later stage when it was evident that things would zero in on opposite party-4 in particular, the aforementioned contention was raised in the affidavit filed by opposite party-4 on 15.5.1999 which was not taken in the first affidavit he filed on 1.7.1997. Such an intention is entirely evident from the material on record. Even opposite party No. 2 has stated in his evidence. “However my information is that Dr. Vasudeva Rao did the Pathology test”. Hence, taking into account the totality of circumstances, we have no hesitation to hold that opposite party No.4 is the author of Ex.C4, and Dr. Jinka Subramanyam has signed it on behalf of opposite party-4 due to unexplained exigencies.
      
    22. If that be so, what is to be seen next is whether Ex.C4 is a precurser to the course of events that took place later thereby, according to the complainants, the patient had to undergo avoidable pain and suffering which ultimately lead to her untimely demise. In order to get an insight into the import of the Report (Ex.C4), particularly when its contents have been the subject-matter of not only diverse pleadings but also expert opinion of varying shades, it would be in the fitness of things to reproduce it. The body of the report reads as follows:
      
    “Cross Examination: Two firm to soft grey nodular pieces of tissue measuring 1×0.5 x 0.5 cms and 0.5 x 0.5 cm are received. They are sectioned and processed in toto.
     
    Microscopic Examination : Aggregates of compressed ducts with surrounding fibrous tissue are seen. Inflammatory cells predominate around them and some dilated ducts. The scarring gives the appearance of a sclerosing adenoma. A terminal duct hyperplasia is seen. It may be a precursor of labular carcinoma. Follow up of this case is suggested.
      
    Microscopic Diagnosis :
    (1) Sclerosing adenosis, post inflammatory state.
    (2) Terminal ductal hyperplasia (See microscopy above)”
      
    23. The report also indicates that the preopposite party diagnosis of the referring doctor, namely opposite party-2 was “Ca Breast”, “Chronic infective granuloma”. According to opposite party-4 these are two alternative diagnosis on the basis of which he was called upon to give a histopathology report of the specimen sent to him. He was contended that even though the referring doctor is supposed to give him the background material of the case, opposite party No.2 has not given him any details, with a result, he was contrained to formulate his report on the basis of what he was in the slide and block sent to him. He has detailed the constraint in which he had to issue Ex.C4 in para 3 (ii) of the joint-version filed by him and opposite party-3, which reads as follows:
       
    (ii) The reference made to the Bangalore Hospital from Ravi Kirloskar Hospital, was to conduct a histopathological examination, was in a small piece of paper with virtually no information about the clinical condition of the patient. The referring doctor has put both the cancer of the breast and the infective granuloma as the two alternative clinical diagnosis of the patient. As the first complainant mother of a small child and as she was breast feeding the child the commonest cause for such pain in the breast was the infection of the breast. This aspect is made clear as one of the diagnosis by the referring Surgeon. The medical jurisprudence would testify that in such a situation the pathologist would generally lean on a common cause while making a diagnosis in a difficult situation. If there is any error of judgment, it is both natural and permitted by the referring Surgeon that the clinical picture and clinical diagnosis strongly suggested the presence of infective process in the breast”.
      
    24. On this aspect opposite party-2, Dr. Srikanth Jagirdar has not come out with any explanation in his affidavit. He has only said that “the disease was diagnosed as “Ca Breast (L)” “chronic infective granuloma” and hence “the tissue was sent to the 3rd respondent hospital for histopathological examination on the same day”. He has nowhere come out with a contention that it was not incumbent on him to inform the pathologist about the clinical condition of the patient. It is seen that Ex. R19 which is the requisition slip sent by opposite party2 to opposite party-3 hospital requesting for a histopathology report does not contain any information regarding the clinical condition of the patient. It is therefore, evident that opposite party-4 had no feed back from the referring doctor with regard to the case history of the patient or her clinical condition at the time when he received the requisiton from opposite party No.1 hospital, except the pre-OP diagnosis of opposite party-2 that the patient had either cancer of the breast or chronic infective granuloma.
      
    25. “Granuloma” according to Oxford Concise Medical Dictionary is a mass of granulation tissue produced in response to chronic infection, inflammation, a foreign body or to unknown causes”. In other words, it is not a malignant mass. Hence opposite party-4 had to keep in view two options while examining the slide and the block sent to him. According to him histopathological examination is a long drawn process which takes atleast 2-3 days before a report is drawn up. The work of a pathologist consists of examining the tissue and to have a microscopic view to tell the disease process that is reflecting in a patient. His opinion is neither final nor conclusive as he is totally handicapped regarding the total picture of the patient as he is given either a tissue or a slide to work on and nothing else. In the instant case, according to him even the referring doctor was not helpful in providing necessary clinical inputs of the patient, with a result, his task was made extremely difficult. Cancer is a concealed disease which in many cases is not apparent to the naked eye. Even the attending doctor or surgeon infers on the disease and its stage preliminarily from the oral complaints of the patient and from his examination and lab reports. In such circumstances, it is stated, the tissue and the slide alone cannot give a full picture to make a total or final diagnosis. Hence it is the case of opposite party-4 that there is enough scope for an error of judgment.
      
    26. What might be an error of judgment, if at all, for opposite party-4 is negligence par excellence to the complainants. In para 6 of the complaint the following specific allegation has been made:
      
    “After examination of the very same slides and paraffin blocks by the Kidwai Memorial Institute of Anchology the ailment was diagnosed as Invasive Ductal Carcinoma GR III of the breast. When complainants had approached the first respondent in the month of October, 1994 itself she had developed cancer of the breast. By 3.12.1994, the disease had spread further to the lymph nodes and neck region. This resulted solely on account of wrong diagnosis made by the respondents 3 and 4”.
      
    27. Opposite parties-3 and 4 have strongly reputed this allegation on the basis of the very Ex.C4 on which the complainants have relied upon to make the type of allegations referred to above. According to opposite party-4 he has not ruled out cancer in his report entirely. Ex.C4, clearly indicates that the features seen in his microscopic examination “may be a precursor of lobular carcinoma”, which means that the symptoms of impending cancer was evident in the tissue examined. In view of such possibility it is stated, he had suggested follow up of the case which in itself is ample testimony that he had diagnosed possible occurrence of cancer in the patient, but at the moment of examination what was seen was Sclerosing adenosis in post inflammatory state and terminal ductal hyperplasia.
      
    28. Dr. Teena Rama Rao, Asst. Professor of Pathology (C.W. 2) who conducted the examination of the slide and the paraffin block at the Kidwai Memorial Institute and came to the conclusion that the patient was suffering from “Invasive ductal carcinoma GR-III breast intraduct comedocarcinoma present” has, in her evidence spoken abouty Ex.C4 in the following terms:
      
    It would mean that the cells of the breast have proliferated in number in a benign form. We call it as benign proliferative breast disease.
     
    It is also reflected therein that the same could be a pre-cancerous stage”.
     
    This evidence corroborates the contention of opposite party-4 that his report is not benefit of any reference to cancer but an observation has indeed been made by him warning the onset of cancer in the patient for which he has also suggested follow-up. C.W.2 however does not believe that opposite party-4 had any constraints for want of clinical inputs of the patient from opposite party-1 hospital since, in her cross-examination she has stated that “in her opinion Ex.R-19 itself contains adequate clinical history”. As far as the observation in Ex.C4 (which contradicted Ex. C11A) is concerned C.W.2 observed, “I would only say it is the opinion of other pathologist”.
     
    29. The fact that the patient was suffering from cancer and not from benign proliferative breast disease as diagnosed by opposite party No.4 has been confirmed in his chief-examination by Dr. K.C. Lakshmaiah, Asst. Professor of Oncology in Kidwai Memorial Institute (C.W. 3) in the following words:
      
    “The patient was having an advanced breast cancer. In medical terminology it was stage 4 form”.
      
    This evidence corroborates the diagnosis at Ex.C11A (except for the stage of the disease which is mentioned as Grade III in Ex. C11A) which goes to establish that the patient was indeed suffering from cancer of the left breast. With regard to the question as to the probable period during which the patient could be said to be suffering from the said ailment, C.W. 3 has spoken in the course of his cross-examination as follows:
      
    “Having regard to the stage of cancer as on 6.12.1994, that is the day on which the patient came to our hospital, it is my view that the lady must have started development of malignant-clone substances more than five years ago”.
      
    30. This piece of important evidence, coming as it does from a doctor under whose supervision the patient was administered chemotherapy and even salvage chemotherapy at a later stage proves conclusively that the patient was suffering from cancer of the left breast but opposite party-4 has not diagnosed it as cancer, but has concluded that it was a case of benign proliferative breast disease, which in his own words is described as “Sclerosing adenosis, post inflammatory state terminal ductal hyperplasia”. However it has to his credit that he has not entirely ruled out cancer, since he has expressed his apprehension that the condition revealed in histopathology is a precancerous stage for which he had suggested a follow up.
      
    31. These facts which have crystallised from the material placed on record would lead to an inevitable conclusion that there has been a slip on the part of opposite party-4 in coming to the right conclusion with regard to the nature of existing ailment in the patient as the biopsy specimen disclosed. In his own words, it may amount to an error of judgment but not a case of negligence as contended by the complainants. In para 3 (ii) of the joint-version, opposite party 3 has stated on behalf of opposite party-4 as follows:
      
    It is more than possible that the pathologist given the benefit of doubt in the first instance. But error in judgment would not be an act of negligence in medical parlance”.
      
    32. It is in the context of this submission that we need to recall the following words of Load Denning in Res. v.Minister of Health, (1954) 2 QB 66:
      
    “One final word. These two men have suffered such terrible consequences that there is a natural feeling that they should be compensated. But we should be doing a dis-service to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. Initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due case for the patient at every point, but we must not condemn as negligence that which is only a misadventure” (Emphasis supplied).
       
    33. When a similar issue involving error of judgment in Whitehouse v. Jordan, I (1981) All ER 267, came up in appeal before the House of Lords, a circumstantial variance in such error was emphasised. Lord Fraser pointed out thus:
       
    “The true position is that an error of judgment may, or may not, be negligence, it depends on the nature of the error. It it is one that would not have been made by a reasonably competent professional man professing to have the standard and type of skill that the defendant holds himself out as having, and acting with ordinary care, then it is negligence. If, on the other hand, it is an error that such a man, acting with ordinary care, might have made then it is not negligence”. (quoted in M/s. Spring Meadows Hospital v. Harjol Ahluwalia, reported in AIR 1998 Supreme Court 1801 ” para 9)
       
    34. Tested by the touch-stone of these observations, it has to be said that opposite party No.4 is guilty of an error of judgment in diagnosis which does not amount to negligence, particularly when he has not entirely ruled out cancer. The natural question that arises in the context of the apparent error of judgment by opposite party-4 is to what extent a correct diagnosis would have contributed to the welfare of the patient. We have already alluded to the deposition of Dr. Lakshmaiah who has stated very clearly that having regard to the stage of cancer as on 6.12.1994 the development of malignant clone substance must have started in the breast of the patient more than 5 years earlier. When the patient was examined in Kidwai Memorial Institute, she was suffering from Grade-III cancer, which was not susceptible of being removed even by surgery. It was a stage where the patient did not respond even to chemotherapy. If the patient was in such a condition, whether she could have been helped if opposite party-4 had correctly diagnosed her case about 45 days earlier is the million dollar question which needs to be answered before opposite party-4 is to be labelled as entirely responsible for the suffering and ultimate death of the patient.
      
    35. It is borne out from records that while Ex.C4 was issued on 20.10.1994, Ex.C11 was issued by Kidwai Memorial Institute on 3.12.1994. The crucial point for consideration in this backdrop is whether the type of cancer as revealed on 3.12.1994 could have been halted or eliminated had it been correctly diagnosed on 20.10.1994 i.e. about 45 days earlier. Dr. Lakshmaiah has spoken on this aspect very clearly in the following words:
      
    “In breast cancer 30 to 40 days would not make any difference as regards the stage”.
       
    36. With regard to the stage in the development of breast cancer, C.W. 2 has in her chief examination clarified as follows:
     
    “As per Ex.C11, the grade of the cancer of the breast relating to the slide in question is Grade-III. Grade III suggests that the cancer of the breast was in an aggressive form”.
         
    37. This form of aggressive cancer did not respond to chemotherapy. Hence if it had been detected about 45 days earlier, the position would have been no different as deposed by C.W. 3. This leads us to the inevitable conclusion that even if opposite party-4 had come out with the correct diagnosis, there would have been no salvation for the patient which is most unfortunate. But on that account the complainants have no case to allege that but for the negligence of opposite party-4 and by extension opposite party-3 the patient would have been cured and she would have been alive today. The evidence adduced by C.W.2 and C.W.3 would indicate strongly that an error of judgment in opposite party-4 had not contributed to the type of suffering which the patient had to undergo and this factor contributes largely to absolve opposite party-4 of the stigma of negligence attributed to him by the complainants. Considering the totality of circumstances brought into being on record, we have not hesitation to say that opposite party-4 and by vicarious extention opposite party-3 cannot be construed as negligent in diagnosing the condition of complainant No.1. Rather, we are inclined to believe that opposite party No.4 committed an error of judgment while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service.
      
    38. If that be so, what remains to be seen is whether opposite party-1 and opposite party No.2, particularly opposite party-2 is guilty of negligence as alleged by the complainants. The only allegation against them is that since Balamani was referred to opposite party-3 by opposite party-1 and opposite party-2 the latter are also jointly and severally liable to pay damages. In the course of his cross-examination complainant No. 2 has denied a suggestion that opposite party 2 was not guilty of negligence or deficiency in service. In the course of his affidavit evidence complainant No.2 has made the following averment:
      
    “It is also a case of negligence on the part of first respondent, as a doctor with bare minimum knowledge of medicine would have suspected cancer on noticing lumps in my wife’s left breast and the first and second respondents ought to have on their own ought to have advised us to take the block and slide to Kidwai Memorial Institute which is undoubtedly the best hospital for cancer in Bangalore”.
     
    39. We do not believe that failure to refer the patient to Kidwai Memorial Institute can be construed as negligence or for that matter an omission on the part of opposite party “1 and/or opposite party 2 since they have done what they thought best in the circumstances of the case. The complainants have infact not come out with an allegation that opposite party No.3 hospital is unequal to the task; rather, their allegation is that the task has been performed negligently. Hence we find that opposite party-1 or even opposite party-2 cannot be found fault with for referring the biopsy specimen to opposite party-3 hospital. We do not find any shortcoming or inadequacy in the manner or nature of the duties performed by them whatsoever.
      
    40. That leaves us with the other allegation that a doctor with a minimum knowledge of medicine ought to have suspected cancer on noticing lump in the breast of the patient. This allegation has no basis since one of the diagnosis of opposite party-2 as mentioned in Ex.R19 is “Ca Breast” which means cancer of the breast. The fact that Ex. R19 also suspects chronic infective granuloma does not take away the effect of the main diagnosis, namely cancer of the breast. Hence the type of allegation made by the complainants regarding diagnosis of the patient does not have much of a leg to sustain its weight. Even from the point of view of treatment given to the patient on receipt of Ex.C4, we have no reason to find fault with opposite party-1 or 2 since it has come in the evidence of C.W. 3 that if one gets a report like Ex.C4, the patient would be put on antibiotics and followed up. This is exactly what opposite parties-1 and 2 have done. It is not necessary for us to go into any other aspects of diagnosis or treatment of the patient in opposite party-1 hospital since the complainants themselves have not come out with any other allegation on other aspects. The material placed on record, it has to be stated, are not such as would point a finger of guilt on opposite party-2 in discharging his function at opposite party-1 hospital and hence we have no hesitation to hold that no stigma of deficiency of service can be attributed to either of them.
        
    41. It that be so, it has to be held in conclusion that the complainants, have failed to establish any deficiency of service within the meaning of that expression under the Consumer Protection Act, against opposite parties by acceptable evidence. It is true, we have found an error of judgment in opposite party-4 but such an error cannot, in the context of the surrounding circumstances of the case, be construed as negligence. We quote Lord Denning again to support this view.
      
    “You must not, therefore, find him negligent simply because something happens to go wrong; if, for instance, one of the risks inherent in an operation actually takes place or some complication ensures which lessens or takes away the benefits that were hoped for, or if in a matter of opinion he makes an error of judgment”.
       
    42. This is a warning which needs to be applied to every case involving medical negligence. In the instant case, by the standard set in the above words, we are not able to come to a conclusion that the opposite parties 1 to 4 are guilty of negligence in diagnosis and/or treating Balamani. In the result, we answer point No.2 in the negative.
      
    Point No.3
     
    43. In the view that we have taken under Point No.2, this point is also liable to be answered in the negative. Since no deficiency of service is attributable to the doctors (opposite party-2 and opposite party No.4) it has to be held that no vicarious liability could be attributed to either Ravi Kirloskar Memorial Hospital and Research Centre (opposite party-1) or The Bangalore Hospital (opposite party 3) or vice-versa.
      
    Point No. 4
       
    44. In the result we pass the following:
     
    ORDER
      
    The complaint is dismissed.
       

         

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