The 3rd defendant who had offered
himself as an expert in Pathology should have been
shown the minimum degree of care in conducting
biopsy test and in diagnosing the disease. When the 3rd
defendant has evidently failed in the exercise of such a
degree of care, he has committed professional
negligence and therefore, he is liable to compensate
the plaintiffs on account of the untimely death of the
deceased.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN
&
THE HONOURABLE MR. JUSTICE B.KEMAL PASHA
THURSDAY, THE 11TH DAY OF APRIL 2013
AS.NO. 199 OF 1998 (D)
-----------------------
APPELLANT(S):DEFENDANT NO.3
---------------------------------------------------
DR. N. UMMER,
V
K.M. HAMEED,
Dated this the 11th day of April, 2013
Citation; AIR 2014(NOC)49 kerala,ILR2013(2)Kerala535, 2013 (2) KHC 450, 2013(2)KLJ568
Kemal Pasha, J.
These appeals and cross objection arise from the
judgment and decree in a suit for compensation on
account of alleged medical negligence, leading to the
death of a patient.
2. When Asia fell ill, she along with her husband,
the first plaintiff, approached the first defendant doctor,
who was the Medical Director and the 2nd defendant
Orthopedic and General Surgeon of the Kasaragod
Nursing Home for treatment. A surgery was advised
and consequently she was admitted at the Kasaragod
Nursing Home on 24.9.1989. A surgery was conducted
on her by the 2nd defendant on 25.9.1989 and tissues
were removed for biopsy. Biopsy was conducted by the
3rd defendant, M.D. Pathologist. It is alleged that the 3rd
defendant had wrongly diagnosed her illness as
Tuberculosis, and gave Ext.A5 report to that effect.
Based on the said diagnosis, defendants 1 and 2
continued the treatment and administered medicines
for Tuberculosis. She was discharged on 30.9.1989.
Her condition became deteriorated day by day and then
the first plaintiff took her to Malikdinar Hospital,
Kasaragod. They advised her to go to the Kasturba
Medical College, Manipal. On investigation at Kasturba
Medical College, Manipal, and on pathological
examination, the illness was diagnosed as Synovial
Sarcoma (a form of cancer). By that time, the disease
had affected her lungs, because of want of proper
treatment in time. The deceased died on 19.9.1990,
leaving her husband, the first plaintiff and their minor
children, plaintiffs 2 to 4. Alleging medical negligence
on the part of defendants 1 to 3, the plaintiffs have
claimed an amount of Rs.1,50,000/- with interest as
compensation.
3. Defendants 1 and 2 filed a joint written
statement contending that the deceased had
approached the 2nd defendant during the first week of
September,1989 for consultation. Blood test was
conducted. X-ray was taken on 4.9.1989. As the results
were not conclusive, they referred her to Doctor
Sudhakara Shetty, Professor of Orthopedics at the
Kasturba Medical College, Manipal. From there also
the opinion was that it could be Tuberculosis and she
was advised to biopsy test, thereby she came back to
the Kasaragod Nursing Home. She was admitted there
and a surgery was conducted on 24.9.89 and tissues
were taken for biopsy. Tissues were sent for biopsy to
the Kasaragod Diagnosis Centre, and the biopsy test
was conducted by the 3rd defendant. The 3rd defendant
gave the report that the symptoms were suggestive of
Tuberculosis. Treatments were continued and she was
discharged on 30.9.1989. She came again on 3.10.1989
for removal of suture. The 2nd defendant prescribed
medicines for five days for Tuberculosis. Again she
came back on 8.10.1989. The 2nd defendant advised her
to approach the first defendant as the symptoms were
suggestive of Tuberculosis. The first defendant
prescribed medicines for Tuberculosis. Again she went
to the first defendant on 14.10.89. The same course of
medicines was advised for five more days. On 2.1.1990
she again came back to the 2nd defendant. He again
prescribed medicines for Tuberculosis for five more
days and hip X-ray was taken. Blood examination was
also conducted.
4. The 3rd defendant filed a written statement
contending that the deceased had approached the 2nd
defendant with a complaint of pain at the trochanter
region. The 2nd defendant took tissues from that part
and they were brought to the 3rd defendant. He
conducted histopathological examination of the tissues
and gave the result that features are suggestive of
Tuberculosis. After taking first course of treatment
from defendants 1 and 2, she has not taken the follow
up treatments. She was admitted at the Kasturba
Medical College, Manipal by the end of March, 1990
and discharged on 9.4.1990. The 3rd defendant was not
aware whether she was suffering from cancer. From
9.4.1990 she has not taken any treatment. The 3rd
defendant was covered by an insurance policy issued by
the supplemental 4th defendant towards claims arising
from professional negligence.
5. Based on the claim of indemnity by the 3rd
respondent as revealed in his written statement, the
supplemental 4th defendant insurance company was
impleaded. The supplemental 4th defendant filed a
written statement taking up the contentions in tune
with those resorted to by the 3rd defendant.
6. The court below found professional negligence
on the part of the 3rd defendant which has resulted in
the death of the deceased thereby constituting tortious
liability on the part of the 3rd defendant. The court
below assessed the damages at `75,000/- and ordered
the 3rd defendant to pay the same and further ordered
the supplemental 4th defendant to indemnify the 3rd
defendant.
7. The 3rd defendant and supplemental 4th
defendant have preferred A.S.199 of 1998 and A.S.
No.212 of 1998 respectively. Dissatisfied with the
quantum of compensation fixed by the court below, the
plaintiffs have filed the cross objection in A.S.199 of
1998. In the course of hearing, as we felt that the
insurance policy issued by the supplemental 4th
defendant covering the 3rd defendant for claims arising
out of professional negligence was also required to be
marked in evidence, the same was called for and
marked as Ext.X2.
8. The learned counsel for the appellants have
argued that there is no evidence in this case to prove
that the deceased died on account of any negligence
from the part of the 3rd defendant. It was also argued
that the diagnosis made by the 3rd defendant could not
be treated as a professional negligence, as the said
diagnosis was made with the skill and knowledge which
he had. It was also argued that there was no guarantee
that the deceased could have lived for more period even
if the 3rd defendant had diagnosed the illness as
synovial sarcoma.
9. We have noticed that the 3rd defendant has not
cared to mount the box to depose in support of the
contentions resorted to by him in the written statement.
It is evident that he has conveniently avoided it, for
evading explanation to unpleasant questions in cross-
examination. The fact that Ext.A5 report of biological
examination of the biopsy test was furnished by the 3rd
defendant in respect of the tissues taken from the
deceased in the surgery on 24.9.89, is not in dispute.
Even now, the 3rd defendant stands with his diagnosis of
such pathological examination "as suggestive of
Tuberculosis". The fact that defendants 1 and 2 as well
as the deceased were made to believe the illness of the
deceased as Tuberculosis on account of Ext.A5 report of
the 3rd defendant, is also not in dispute. The appellants
are not challenging the diagnosis made by PWs.2 and 3
at the Kasturbha Medical College Hospital, Manipal as
synovial sarcoma. Synovial sarcoma is a type of cancer
relating to joints of human body.
10. It has to be noted that the surgery was
conducted by the 2nd defendant on the deceased on
25.9.89 and tissues were removed for biopsy. The
biopsy was conducted by the 3rd defendant, who
furnished Ext.A5 report to the effect that the features
were suggestive of Tuberculosis. Thereafter, defendants
1 and 2 continued to treat the deceased for
Tuberculosis. Even though the 3rd defendant has
contended that the deceased had not turned up for
follow up treatment after taking the first course of
medicine, the contentions of defendants 1 and 2 reveal
otherwise. According to defendants 1 and 2, she was
discharged on 30.10.1989 and medicines were
prescribed for five days. She came back on 8.10.1989.
Medicines for Tuberculosis were prescribed. She came
back on 14.10.89 and medicines for 5 more days were
prescribed. Again on 2.1.1990, she came back to the 2nd
defendant, and medicines for five more days were
given. Matters being so, the contention resorted to by
the 3rd defendant that the deceased had discontinued
the treatment after the first course of medicine and has
not made the follow up treatments, is false. It is true
that defendants 1 and 2 were misguided by the opinion
expressed by the 3rd defendant through Ext.A5.
11. The next surgery conducted on the deceased
was on 26.3.1990 at the Kasturbha Medical College
Hospital, Manipal. The pathological examination of
biopsy conducted by PW3 who was the head of the
Department of Pathology at the Kasturba Medical
College, Manipal proved the illness of the deceased as
synovial sarcoma. She was referred to PW2 of the very
same Medical College on 6.4.1990. The examination
conducted by him confirmed the disease as synovial
sarcoma. PW2 took the chest X-ray of the deceased on
5.4.1990, which showed multiple secondary deposits in
both her lungs which were clear indications of the
advanced stage of cancer.
12. Ext.A4 is prescription dated 22.1.1990 issued
by the 2nd defendant to the deceased in which also it is
stated "old Tuberculosis hip". Ext.A5 is the
histopathological report furnished by the 3rd defendant
on 30.9.1989 in respect of the specimen received on
25.9.89 from the deceased Asia. The findings noted in
Ext.A5 are,
"Section shows area of necrosis and
fibrous area with chronic
inflamatory lymphocytets,
epetheloid cells and langhan's type
of giant cells.
Features are suggestive of
tuberculosis."
13. The 3rd defendant has not cared to mount the
box to explain as to how he had arrived at such a
conclusion and findings. PW2, Dr.K. Koteshwar Rao of
the Department of Radio Therapy of the Kasturba
Medical Collelge, Manipal proved Ext.X1 record
relating to the out-patient and in-patient in respect of
the deceased. Initially she was admitted under the
orthopedic surgeon with complaints of pain and
swelling on the left hip area. The surgery was
conducted on 26.3.1990. She was referred to PW2 on
6.4.1990 for further line of treatment with the
oncologist. The post operate diagnosis was made as
synovial sarcoma of left hip bone which is a type of
cancer related to the joint area. The consultation
record dated 6.4.1990 which is available in Ext.X1
treatment records clearly reveals that even prior to the
histopathological examination the disease was
suspected to be synovial sarcoma (left greater
trochanter with multiple lung secondaries. It was
recommended that the case would be reviewed with the
final histopathological report for consideration of
chemotherapy(palliative).
14. Ext.X1(a) is the X-ray report of the deceased.
According to PW2, clear message was given to the
patient and the person who had accompanied her, that
further treatment in the case of the deceased could only
be of palliative in nature.
15. PW3 is the Head of Department of Pathology
at the Kasturba Medical College, Manipal. Ext.X1(b) is
the histopathology report of the deceased, prepared and
furnished by PW3, which shows,
"The site of biopsy is noted as
'inflammed brusae' over the
trochanter left side. The section
showed tumour composed of small
round to oval cells with scanty
cytoplasm and vesicular folded
nucleus arranged in sheets and
alveolar pattern separated by thin
walled capillaries. In areas spindle
shaped cells are seen. Mitosis are 4
-5/ HPF. Areas of necrosis and
lymphatic emboli are seen.
Periphery shows atrophic muscle
fibres and haemosiderin pigment."
The result of the analysis was that it was a case of
synovial sarcoma. According to PW3, the illness of the
deceased was diagnosed to be synovial sarcoma. The
histopathology examination by PW3 did not show any
evidence of tuberculosis and it showed only malignant
tumour.
16. Ext.A11 is another histopathological report in
respect of the deceased prepared by PW3. Ext.A11 is
dated 1.11.1990, and therefore, the said report is after
the death of the deceased. PW3 prepared the said
report on the basis of the examination of the slide that
was tested by the 3rd defendant through which he had
allegedly prepared Ext.A5 report. According to PW3,
the said slide was received for second opinion and that
the said original slide from Kasaragod was tested by
her. PW3 has given clear opinion that the said slide on
examination also did not show any symptoms of
tuberculosis. In Ext.A11 it has been stated that there is
no evidence of tuberculosis on the section and what
could be suggested is only synovial sarcoma. It has also
been stated in Ext.A11 that the said slide was of poor
quality. It has to be noted that the findings in Ext.A11
by PW3 are almost the same as contained in Ext.X1(b).
In spite of the poor quality of the said slide, according
to PW3, what could be suggested is only synovial
sarcoma and not tuberculosis. From the evidence of
PWs.2 and 3 it has clearly come out that the deceased
showed the symptoms of synovial sarcoma only and not
that of tuberculosis. On a perusal of Exts.A5, X1(b) and
A11 it is evident that the 3rd defendant had misread the
microscopic findings in respect of the biopsy of the
deceased. The findings in Exts.X1(b) and A11 by PW3
are almost the same, whereas, the microscopic findings
entered by the 3rd defendant in Ext.A5 regarding the
very same slide are totally different. It cannot be
believed that the very same slide can give two separate
findings on two different microscopic examinations. It
is evident that the 3rd defendant had miserably failed to
make a proper reading of the findings on microscopic
examination of the slide.
17. There is no challenge with regard to the
competence of PW2 and PW3 as experts on the field of
Oncology and Pathology. They can clearly diagnose and
conclude the disease of the deceased as synovial
sarcoma. At the same time, it is evident that the 3rd
defendant had made a wrong diagnosis in Ext.A5
regarding the illness of the deceased as tuberculosis, as
a result of which, the deceased who was a patient
suffering from synovial sarcoma was treated for
tuberculosis by defendants 1 and 2.
18. It has clearly come out that this is not a case
wherein there could be two opinions regarding the
illness of the deceased on pathological examination.
The very same slide cannot have two readings. The
microscopic findings on the examination of the slide
made by the 3rd defendant as revealed in Ext.A5 and the
microscopical findings entered by PW3 on reading the
very same slide as shown in Ext.A11 are totally
different. The microscopical findings can be entered by
a Pathologist correctly with an ordinary skill. It is not a
case wherein there can be two findings.
19. The learned counsel for the 3rd defendant as
well as the supplemental 4th defendant have argued that
the stage of illness of synovial sarcoma, which the
deceased was suffering from, at the time of pathological
examination by the 3rd defendant had not been
ascertained and therefore, there was no guarantee that
the deceased could have lived further or could have
been cured even if the illness was diagnosed as synovial
sarcoma by the 3rd defendant. Of course, nobody can
decide the duration of the life of a human being or
living thing. One can only try to save or prolong the life
of a human being by administering proper medicines.
The deceased who was suffering from synovial sarcoma
was treated with medicines for tuberculosis on the
wrong diagnosis by the 3rd defendant in Ext.A5. The 3rd
defendant cannot be heard to say that there is no
guaranty that the deceased could have lived further or
her disease could be cured even if it was ascertained
that she was suffering from synovial sarcoma by the 3rd
defendant. It has to be noted that the 3rd defendant had
made the pathological examination through which he
prepared and furnished Ext. A5, more than six months
back to the pathological examination by PW3. Nobody
can successfully contend that the said period of six
months was not crucial.
20. The lack of application of proper skill which
the 3rd defendant had possessed at the time of the
pathological examination by him through which he had
prepared Ext.A5 can clearly be categorised as medical
negligence from the part of the 3rd defendant. Had the
disease could be ascertained as synovial sarcoma at the
stage of examination by the 3rd defendant, even from
commonsense it can be stated that she could have lived
long or illness could have been cured on proper
treatment for synovial sarcoma from the very
beginning. Of course, it is correct that, nobody can
predict the duration of the life of a human being. But,
that does not mitigate the gravity of the professional
negligence from the part of the 3rd defendant.
21. In Jacob Mathew v. State of Punjab (AIR
2005 SUPREME COURT 3180) it was held in
paragraph 19;
"The only assurance which such a
professional can give or can be
understood to have given by
implication is that he is possessed of
the requisite skill in that branch of
profession which he is practising
and while undertaking the
performance of the task entrusted
to him he would be exercising his
skill with reasonable competence.
This is all what the person
approaching the professional can
expect. Judged by this standard, a
professional may be held liable for
negligence on one of two findings:
either he was not possessed of the
requisite skill which he professed to
have possessed, or, he did not
exercise, with reasonable
competence in the given case, the
skill which he did possess. The
standard to be applied for judging,
whether the person charged has
been negligent or not, would be that
of an ordinary competent person
exercising ordinary skill in that
profession. It is not necessary for
every professional to possess the
highest level of expertise in that
branch which he practices".
22. In Bolam v. Friern Hospital Management
Committee, [1957] 1 WLR 582, it was held;
"A man need not possess the
highest expert skill; it is well
established law that it is sufficient
if he exercises the ordinary skill of
an ordinary competent man
exercising that particular art."
The degree of skill and care required by a medical
practitioner is stated in Halsbury's Laws of England
(Fourth Edition, Vol.30, Para 35) as follows:-
"The practitioner must bring to his
task a reasonable degree of skill and
knowledge, and must exercise a
reasonable degree of care. Neither
the very highest nor a very low
degree of care and competence,
judged in the light of the particular
circumstances of each case, is what
the law requires, and a person is not
liable in negligence because someone
else of greater skill and knowledge
would have prescribed different
treatment or operated in a different
way; nor is he guilty of negligence if
he has acted in accordance with a
practice accepted as proper by a
responsible body of medical men
skilled in that particular art, even
though a body of adverse opinion
also existed among medical men."
23. Relying on the decision in Whitehouse &
Jorden, [1981] 1 ALL. E.R. 267, the Apex court in
Spring Meadows Hospital and Anr. v. Harjol
Ahluwalia and Anr. [(1998) 4 SCC 39] held;
"The true position is that an error of
judgment 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. 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."
24. In Jacob Mathew v. State of Punjab
(supra) it was held that the test for determining
medical negligence as laid down in Bolam v. Friern
Hospital Management Committee, [1957] 1 WLR
582 holds good in its applicability in India.
25. In Kusum Sharma v. Batra Hospital
[(2010) 3 Supreme Court Cases 480, it was held;
"The medical professional is
expected to bring a reasonable
degree of skill and knowledge and
must exercise a reasonable degree
of care. Neither the very highest nor
a very low degree of care and
competence judged in the light of
the particular circumstances of each
case is what the law requires."
26. Applying the principles enunciated through
the precedents discussed above, it can safely be
concluded that a medical professional is expected to
bring reasonable degree of skill and knowledge and he
must exercise a reasonable degree of care. What is
expected from him is neither the very highest nor the
very low degree of care and competence. In the
present case, no doubt, the 3rd defendant has failed to
exercise a reasonable degree of care in noting down the
symptoms in the microscopic examination. Even
without the highest degree of competence, he could
have noted down the microscopic findings which is
expected from an expert in pathology by applying
ordinary skills. By applying the broad principles of
preponderance of probabilities, the case of PW1 that
the deceased could have lived long, had her disease
been not erroneously identified as tuberculosis by the
3rd defendant, is only to be believed.
27. When a person who possesses sufficient
qualifications in the field, is ready to give medical
advice and treatment as an expert in that field, he
impliedly undertakes that he possesses all sufficient
skill and knowledge for such medical advice or
treatment. Such a person has a duty to diagnose the
illness and to decide the treatment to be given and the
proper medicines to be administered. He has to show a
reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. What is expected
is neither the very highest, nor the very low degree of
care and competence required in such particular
circumstances. The 3rd defendant who had offered
himself as an expert in Pathology should have been
shown the minimum degree of care in conducting
biopsy test and in diagnosing the disease. When the 3rd
defendant has evidently failed in the exercise of such a
degree of care, he has committed professional
negligence and therefore, he is liable to compensate
the plaintiffs on account of the untimely death of the
deceased.
28. It is a fact that the young lady had to meet
with her untimely death on account of the erroneous
diagnosis by the 3rd defendant. At the time of her
death, the deceased was aged 25 only. According to
PW1, the deceased was a tailor by profession and was
getting an income of `1,000/- - `1,200/- per month. In
the cross-examination of PW1, there was no challenge
with regard to the job or income of the deceased. The
yearly income of the deceased can be considered as
`13,000/-. Her contribution to the family after
deducting her personal expenses can be considered as
`9,000/- per annum. Considering the age and
dependency, the multiplier of 18 can be considered.
The total claim of the plaintiffs is `1,50,000/- only. It
seems that the court below has arrived at the
compensation of `75,000/- without furnishing any data
as to how the said amount could be arrived at. Ext.X2,
insurance policy, clearly shows that the 3rd defendant
was validly covered by an indemnity insurance by the
supplemental 4th defendant during the period in
question, and as per Ext.X2 he has coverage for any one
claim arising out of any one event to the tune of
`5 lakhs towards negligence in professional service
rendered.
29. Even on a calculation of compensation towards
loss of dependency of dependency alone by applying the
monthly contribution of the deceased to the family at
the rate of `9,000/- per annum and the multiplier of 18,
the amount will come in excess of the plaint claim.
Therefore, we are limiting the compensation payable to
the plaintiffs at `1,50,000/-, being the plaint claim. The
3rd defendant is liable to pay the said amount of
compensation with interest and in turn, the 3rd
defendant is entitled to be indemnified by the
supplemental 4th defendant. The appeals are devoid of
merits and are only to be dismissed.
In the result, these appeals are dismissed and the
Cross Objection in A.S. No.199 of 1998 is allowed to
the extend as follows:
(1) The Cross objectors are granted
a decree for recovery of `1,50,000/-
with interest at 6% per annum from
19.9.1990, the date of death of the
deceased, till payment/recovery, with
costs of the Cross objection and of
the suit, from the assets of the
supplemental 4th defendant. It is
further decreed that if the liability in
terms of the aforesaid is not satisfied
by depositing the entire amounts
within a period of two months from
now, the rate of interest awarded by
this decree will stand modified at
12% per annum from 19.9.1990 till
date of payment/recovery.
(2) In exercise of the power
under Order 33 Rule 10 r/w O.44 R.
1, it is ordered that the court fee
payable by the plaintiffs in the Cross
objection, and in the suit from which
this Cross objection has arisen, shall
be recoverable from the
supplemental 4th defendant.
Sd/- THOTTATHIL B. RADHAKRISHNAN,
JUDGE
Sd/- B. KEMAL PASHA, JUDGE
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