PER S.K. NAIK, MEMBER

          Smt. M.P. Balamani, then 31 yars in age, her husband and their four minor children had filed complaint No.114 during 1995 alleging medical negligence by OPs seeking a compensation of Rs.10 lacs before the Karnataka State Consumer Disputes Redressal Commission, Bangalore (for short ‘the State Commission’).  During the pendency of the complaint Smt. Balamani expired on 14.2.1997 whereafter the complaint was pursued by the deceased’s husband on his own behalf and on behalf of the four minor children as their natural guardian.

          The case of the complainant is that on noticing a lump in her left breast and unable to breastfeed the three month old last child.  Smt. Balamani approached Dr. Srikant (respondent/OP No.2) of Ravi Kirloskar Memorial Hospital & Research Centre (Respondent/OP No.1) who admitted her as indoor patient on 17.10.1994. Dr. Shrikant after examination advised her to undergo biopsy.  It appears that his hospital did not posses the facilities for pathological examination and therefore, he referred the parafin blocks and slides of the biopsy to Bangalore Hospital respondent – opposite party No. 3 for their expert opinion.  Dr. T. Vasudeva Rao, respondent – opposite party no. 4 of Bangalore Hospital gave the histopathology and cytology report stating ; (a) sclerosing adenosis, post inflammatory state; and (b) terminal ductal hyperplasia; meaning thereby that the lump/growth was not cancerous but only an infection.  Based on this report Smt. Balamani was prescribed antibiotic for controlling infection  by respondent/opposite party No. 1, Ravi Kirloskar Hospital and she was discharged on 20.10.1994.  On 25.10.1994 when she came to the hospital for removal of the sutures, a swelling was noticed in her left arm and she was advised higher antibiotics which was directed to be stopped after a few days.  The condition, however, continued to worsen and on the advice of their well wishers, the complainants approached Kidwai Memorial Institute of Oncology who asked her to secure the paraffin blocks and slides which were examined at Bangalore Hospital – respondent no. 3.  Complainants managed to obtain the paraffin blocks and slides from Bangalore Hospital on 30.11.1994 and  handed them over to Kidwai Memorial Institute who after examination on 03.12.1994 diagnosed the ailment as Invasive Ductal Carcinoma Grade III of the breast, a full fledged malignant cancer of the breast.

Alleging that Bangalore Hospital respondent – opposite party no. 3 and in particular Dr. T.Vasudeva Rao respondent – opposite party No. 4 negligently failed to properly diagnose the ailment of breast cancer which was established as such from the same specimen by Kidwai Memorial Institute, the complainant submitted before the State Commission that had respondent/opposite party no. 4 given the correct diagnosis it would have been possible to remove the cancerous growth in the left breast at that time which would have prevented proliferation to lymph nodes and neck region endangering the life of the patient. 

While attributing the main allegation of gross negligence on Dr. T.Vasudeva Rao respondent-opposite party no. 4 in particular and Bangalore hospital respondent – opposite party no. 3 by extension, the complainants also blamed Ravi Kirloskar Hospital respondent – opposite party no. 1 and Dr. Srikant, respondent – opposite party no. 2 for their contributory negligence since they had referred the biopsy specimen to respondent-opposite party No. 3 for examination and further they failed to cross check the diagnosis of respondent/opposite party No. 4.

The State Commission after elaborate discussion of the evidence before it completely absolved Ravi Kirloskar Hosital, respondent – opposite party no. 1 and their doctor Dr. Srikant, respondent – opposite party no. 2 of any deficiency in service.   With regard to Dr. T.Vasudeva Rao, respondent – opposite party no. 4 in particular and respondent/opposite party – 3, Bangalore Hospital by extension ; while the State Commission categorically held that he had failed to correctly interpret/diagnose the biopsy specimen, it held him guilty only of an error of judgement not amounting to negligence.

Under the circumstances, the State Commission dismissed the complaint.  Hence the appeal.

At the outset, it may be stated that respondent – opposite party no. 4 Dr. T.Vasudeva Rao despite repeated attempts had to be finally served notice for substituted service under intimation to Karnataka Medical Council and on his failure to be present he is being proceeded ex-parte as no one has appeared on his behalf.

Learned counsel appearing on behalf of the complainants and other respondents have been heard and record perused.

The moot point involved in this appeal pertains to whether in the facts and circumstances of the case, the slip on the part of Dr. T. Vasudeva Rao, respondent – opposite party No. 4 should be treated only as an error of judgement or the same amounted to medical negligence ?

It is an admitted fact that the same paraffin blocks and the slides which were the subject  of pathological examination before the Bangalore Hospital respondent – opposite party No. 3 was secured by the complainants and were submitted for pathological examination  by the Kidwai Memorial Institute of Oncology.  While Dr. T.Vasudeva Rao, respondent/opposite party – 4, Pathologist of Bangalore Hospital  diagnosed the ailment to be (a) sclerosing adenosis, post inflammatory state; and (b) terminal ductal hyperplasia; finding of the Kidwai Memorial Institute of Oncology of the same paraffin blocks  and slides is that the patient was suffering from Grade III cancer  of the breast.  It was in this backdrop that the complainants alleged negligence particularly on the part of Dr. T.Vasudeva Rao respondent – opposite party No. 4 and submitted before the State Commission that solely on account of the wrong diagnosis made by him Smt. M.P. Balamani had suffered immeasurably.  It was submitted that even a pathologist with little experience would have been able to diagnose the ailment correctly. The State Commission had evaluated the evidence in this background and after taking notice of the fact that Dr. T.Vasudeva Rao, Pathologist had at one point of time tried to escape his responsibility from having rendered such a diagnosis by stating that he had not signed the report (ex. C4), and having made an attempt to pass on the responsibility  to his co-consultant Dr. Jinka Subramanya, who has signed the histopathology report at (ex. C4) for him, during his cross examination, had to admit that he was the author of the report and further after considering other corroborative evidence,  finally held as under :

“Hence, taking into account the totality of circumstances, we have no hesitation to hold that opposite party No. 4 (Dr. T.Vasudeva Rao) is the author of ex. C4 and Dr. Jinka Subramanya has signed it on behalf of opposite party No. 4 due to unexplained exigencies”.

 The State Commission thereafter evaluated the evidence rendered in the form of affidavit submitted by Dr. Teena Rama Rao, Assistant Professor of Pathology of the Kidwai Memorial Institute and Dr. K.C. Lakshmaiah, Assistant Professor of Oncology of Kidwai Memorial Institute and observed as under :

“These facts which have crystallized from material placed on record would lead to an inevitable conclusion that there has been a slip on the part of opposite part -. 4 in coming to the right conclusion with regard to the nature of existing ailment in the patient as the  biopsy specimen disclosed ?”

Having arrived at such a definite conclusion of dereliction, the State Commission, however, held the lapse on the part of Dr. T. Vasudeva Rao as an error of judgement in diagnosis which did not amount to negligence and dismissed the complaint.  In reaching at such a conclusion, the State Commission appears to have been swayed by  two main factors; namely that respondent No. 4 Dr. T.Vasudeva Rao in his report had not entirely ruled out cancer when he stated that :

“A terminal duct hyperplasia is seen. It may be a precursor of lobular carcinoma.”

The other factor which appears to have weighed in the minds of  the State Commission was that the delay of only 45 days between the wrong reporting of the pathological examination by Dr. T.V. Rao respondent – opposite party No. 4 and the correct diagnosis of breast cancer by Kidwai Memorial Institute would not have made much of a difference in the treatment of breast cancer.  In the words of State Commission :

“even if opposite party No. 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 CW2 and CW3 would indicate strongly that an error of judgement 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 no hesitation to say that opposite party-4 and by vicarious extension 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 judgement while issuing the histopathology report with regard to the existing condition of the patient which cannot be termed as deficiency of service.” 

We are, however, not in agreement with this view of the State Commission.

For the reason why we differ with the view taken by the State Commission, we would refer to the same citation in the judgement of Whitehouse Vs. Jordan (1981 I All ER 267) before the House of Lords in which Lord Fraser pointed out as under :-

“The true position is that an error of judgement may, or may not, be negligent, it depends on the nature of the error.  If 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.  It, on the other hand, it is an error that such a man, acting with ordinary care, might have been made, then it is not negligence. (quoted in M/s Spring Meadows Hospital Vs.Harjol Ahluwalia, reported in AIR 1998 Supreme Court 1801-para 9)”

In the case in hand Dr. T.Vasudeva Rao, respondent – opposite party – 4 was employed by the Bangalore Hospital, respondent/opposite party – 3 as a specialist pathologist who has been stated to be a distinguished expert on the subject.    It was, therefore, expected of him to have arrived at the correct diagnosis of the biopsy specimen.  As has been rightly contended by the counsel for the appellant, a pathologist having the basic knowledge of pathology could not have failed to provide the correct findings since subsequent examination and developments amply prove that the breast cancer was so aggressive as to reach Gr.III when it was examined on 20.10.1994.  One would take a somewhat lenient view had it been a borderline case of initial stage of cancer.

We further notice that Dr.T.Vasudeva Rao, respondent/opposite party – 4 has not come clean with his conduct before the State Commission.  He had, in the report at Ex.C-4 and the reply to the legal notice and further in his first affidavit had not mentioned that he had not given the report in question.  However, in the second affidavit filed on 15.9.1999, for the first time, he advanced the plea that he had not signed the report.  The State Commission has rightly observed that respondent/opposite party-4, Dr.T.Vasudeva Rao having made an attempt to disown the report and pass on the blame to his co-consultant has miserably failed and, therefore, conclusively held that he himself was the author of report in Ex.C-4.

This apart a minute perusal of the evidence on record particularly the affidavits filed by respondent/opposite party – 4, Dr.T.Vasudeva Rao reveals the guilt conscience of having committed the mistake.  In his first affidavit Annex.A-12, respondent/opposite party – 4, Dr.T.Vasudeva Rao has stated the following :-

“Assuming that the opinion furnished is slightly at variation with fact it can only amount to an error in judgment or in drawing the conclusion.”

Further, he goes on to conclude :

“A wrong diagnosis or error in judgement would not make respondent No.3 & 4 liable in action in view of the authentative pronouncement of decisions of the National Commission and Supreme Court.”

          It is apparent from this statement that he had made a wrong diagnosis but have been pleading for treating the same to be an error of judgement.  We are afraid the contention is not sustainable since there is no pronouncement that a wrong diagnosis will be treated as an error of judgement.  Thus, all through the proceedings, the guilt of respondent/opposite party – 4, Dr.T.Vasudeva Rao is writ large and his lapse cannot but be  treated as a clear cut instance of negligence. 

          We also do not agree with the opinion of the State Commission that it would not have made much of a difference to the treatment/life of Mrs.Balamani even if respondent/opposite party – 4, Dr.T.Vasudeva  Rao had made the correct diagnosis.  The issue under consideration is whether Dr.T.Vasudeva Rao has made the correct or wrong diagnosis and the subsequent death of Mrs.Balamani due to the affliction of cancer is totally extraneous to the matter.  It should not have been treated as a mitigating factor to reduce the gravity of negligence.

          Thus, in the specific circumstances of this case, it has to be held to be a matter of negligence and not an error of judgement.

          Coming to the question of compensation while the complainant had claimed a sum of Rs.10 lacs when Smt.Balamani was also alive, they continue to maintain the same claim even after her death.  In our view a compensation of Rs.5 lacs to be paid jointly and severally by respondent/opposite party – 4, Dr.T.Vasudeva Rao and by vicarious extension by respondent/opposite party – 3, Bangalore Hospital would be the most appropriate, fair and just dispensation in the facts of this case.  We further direct that complainant No.1 invest a sum of Rs.1 lac in the name of each of his minor children and retain a sum of Rs.1 lac for himself.  The payment through bank draft be made within a period of two months from today failing which it will attract an interest at the rate of 10% per annum till the date of payment.