It is borne in mind that

to err is human and nobody is impeccable, not even the master of Rudolph Virchow who was known as "the father of modern pathology" erred in pathology

. diagnosis of Squamous Cell Carcinoma larynx which caused untimely death of Emperor Frederick III of Germany. Compared to hospital or clinic based medical practitioners, the histopathologist is not in the front line when it comes to allegations of medical negligence. However, with the recent upward trend in medical negligence allegations in our country histopathologists can no longer expect to be exempted. -1-

1. This revision petition is a very peculiar, its about alleged the medical negligence against the two medical specialist one was the Pathologist and another Cancer Specialist.

2. The relevant facts in this revision are; the complainant/ Petitioner Mr. O. P. Tiwari (herein referred as a Patient) was suffering from an ulcer on inner aspect of right cheek ( mouth). On 26/8/2002 he consulted Dr. Ashok Aggarwal at Nazreth Hospital, Allahabad, the OP-1. Biopsy from the ulcer was taken, its histopathology (HPE) was reported on 3/9/2002 by the hospital Pathologist, the OP-2 Dr. Rakesh Mishra, as Well differentiated epidermoid carcinoma. Thereafter, on 4/9/2002 he patient consulted Dr. B. Paul, a cancer specialist,( OP-3 in the original complain) at Kamala Nehru Memorial Hospital (KNMH), Allahabad. He advised Chemotherapy by injection Methotrexate 50 mg for 4 weeks. Complainant took 1st dose of chemotherapy. Thereafter, for better treatment on 9/9/2002, the patient went to Rajiv Gandhi Cancer Institute and Research Centre, at New Delhi, where thorough check was performed and the HPE slides were reviewed and it was found that he was not suffering from cancer , the review report given was as Pesudoepitheliomatous Hyperplasia with mild dysplasia. Hence, the treatment was stopped. The slides were again reviewed by Pathologist at KNMH, on 11/9/2002 which was opined as No evidence of malignancy. Thus, under such confusion, he went to Dr.R.K.Dixit of J. K. Cancer Hospital at Kanpur, who advised fresh biopsy and review the slides again from Pragya Pathology , who reported it as negative for malignancy. Therefore, dissatisfied with several divergent HPE reports from different labs, he finally visited Dr. V. Bhattacharya at Varanasi, who performed excision biopsy of ulcer and sent for HPE study at Rastogi Diagnostic Laboratory where Dr.Rastogi reported it as Leukoplakia with mild dysplasia on 1/11/2002. Therefore, the patient filed a complaint before the District Forum, Allahabad alleging that, the OP-1 to 3 were committed deficiency in service and medical negligence.

3. The District Forum allowed the complaint by holding OP-2 and 3 responsible for negligence and directed OP-2 and OP-3 each to pay Rs.2.5 lacs as compensatin to the complainant and Rs.2000/- towards cost.

4. Aggrieved by the order of the District Forum, the opposite party filed first appeal before the State Commission, UP, which was allowed and dismissed the complaint. Therefore, against the order of State Commission, the complainant filed this revision against OP 1 and 2 only.

5. Heard, the arguments advanced by counsel for both the parties. Ms. Ila Haldia, learned counsel for the complainant/petitioner vehemently argued the matter and stressed that there was negligence in HPE diagnosis. The OP-2 Pathologist wrongly diagnosed it as Sqaumous Cell Carcinoma (SCC). Due to the said report, the Dr. B. Paul started anti cancerous drug Methotrexate injection on 4/9/2002. The counsel reiterated the sequence of events as stated in the complaint. The OP-2 gave wrong diagnosis, while few other pathologists reviewed the same slides and opined about no existence of malignancy. Hence, it was total negligence and deficiency in service from the OP-2 Pathologist who is solely liable for the sufferings and mental agony of the patient. She has invited my attention towards, the investigation report of Dr. (Maj. ) B.P. Singh, Incumbent Medical Officer, Medical Care Unit, Fafamau Allahabad, who held the OP-2/ Pathologist, as responsible for the wrong report by which cancer treatment was started.

6. The rival arguments advanced by the learned counsel for the OP/respondents that, there was no negligence in diagnosis; it was not a wrong diagnosis. He submitted that, HPE reporting was done with all caution; there is possibility of different diagnosis by different pathologist. He further argued on the jurisdictional point in the revision and invited my attention towards the judgment of the Honble Supreme Court on the point of jurisdictional error in the case of Rubi (Chandra) (2011) 11 SCC 269 ; Dutta vs. United India Insurance Co. Ltd. Yunus Ali (dead) through his (2008) 7 SCC 293 ; (2005) 6 SCC LRs. Vs. Khursheed Akram P. T. Thomas vs. Thomas Job 478 and M/s DLF Housing and Construction Company (P) Ltd. vs. Sarup Singh and Ors. 1969 (3) SCC 807.

7. After thoughtful consideration, in my opinion, no doubt the OP-2 Pathologist was a qualified as MD and experienced pathologist,but the HPE report issued by him is a just single line report given as Cheek. The report is devoid of Microscopic Well diff. Epidermoid Carcinoma details like cellular features, the mitotic figures etc. It is not as per prescribed standard of reporting, thus it is not a reasonable and careful practice. prescribed standard practice of reporting in histopathology. Such a single line HPE report will lead the treating physician nowhere, and certainly relying upon such report the Cancer specialist Dr.B.Paul started chemotherapy.

8. After going through the medical books on Cancer Pathology, Diagnostic Pitfalls in , some research Histopatholgy and Cytopatholgy Practice, The Journal of Surgical Oncology and review articles in Surgical Pathology- it is noted that, The Squamous cell carcinoma (SCC) is a common and important primary cutaneous malignancy. On biopsies, SCC is characterized by significant squamous cell atypia, abnormal keratinization, and invasive features. Diagnostic challenges may occasionally arise, especially in the setting of small punch biopsies or superficial shave biopsies, where only part of the lesion may be assessable by the pathologist. Benign mimics of SCC include pseudoepitheliomatous hyperplasia, eccrine squamous syringometaplasia, inverted follicular keratosis, and keratoacanthoma, while malignant mimics of SCC include basal cell carcinoma,melanoma, andmetastatic carcinoma.

9. Although the Pathologist usually, is not directly come in contact with the patient but still he owes duty of care towards the care of the patient and he is liable for negligence. Once a pathologist accepts the specimen, a duty of care is assumed towards the patient. An incorrect diagnosis in HPE or any laboratory test which subsequently causes damage to the patient raises the question of medical negligence against the pathologist, e.g. incorrect diagnostic interpretation of non-cancerous lesion is a cancerous resulting in the patient undergoing potentially damaging chemotherapy or needless surgery. It is pertinent to note that, Dr. B. Paul, the cancer specialist had not clinically assessed the patient properly and just started anti-cancerous Methotrexate on receipt of HPE report from OP-2. He would have considered initial choice of treatment either surgical/radiation prior to the Chemotherapy which was a last resort.

10. Its also borne in mind that, once a Pathologist embarks upon a laboratory task on behalf of the patient (e.g. trimming of a specimen and subsequent reading of the histopathology slides), a duty of care is assumed towards the patient. In the judge stated that ,

a Bolams Case the doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by responsible body of medical men skilled in that particular art.

This means that it has to be shown that the incorrect diagnosis was due to negligence and not an acceptable error in each individual case. The decision for negligence would be based on peer review, i.e. upon the opinion of other practicing histopathologists.

11. Errors in diagnosis and documentation pose the most common problems in histopathology. Most common reasons for histopathology-related medical negligence arise due to (1)mistaken diagnosis due to misinterpretation of the slide, (2) a missed important lesion or feature in the specimen either through oversight and failure of sampling and (3) poor wording or omissions in the report leading to failure of the clinician to have an understanding of the nature or extent of the lesion or adequacy of the sample.

12. I have perused all other four HPE reports available on file, which were issued by other pathologists . In this case the OP-2 has not acted with reasonable standard. The OP-2 gave the report as Well differentiated SSC, but it was deferred by other 4 pathologists of same qualification and skill. None of them opined it as SCC. Considering the other aspects of pathology, that many times there are different interpretations from different Pathologists, even the Senior histopathologists. Also, it is pertinent to note that, the Pathologist Dr. Rakesh Misra OP-2 adopted shortcut in reporting of HPE, it was his duty to mention entire microscopic details , by which he could have defended his mistake . It is clear that, it was not a Standard of Care, thus OP-2 erred in diagnosis.

13. To establish the claim for medical negligence, it requires four elements to be proved. These are: with the standard of care.The English Court duty; breach of duty; harm; and causation during 1954 by its order in has decided that a medical Bolam Vs. Frien Hospital Management professional would be absolved of any allegation of any negligence, if he practiced a sufficient care to select a procedure which is normally followed in that course of time and in that place. It also set three criteria for the safety of the medical professional: (i) He must possess adequate skill in that area of medical practice; (ii) He exercises reasonable care while performing his skill. (iii) Mere negligence will not make out a case for compensation against him but that negligence should have a direct nexus with the injury caused to the complainant. If the injury does not have a direct link towards negligence, no award of compensation exists. The Honble Supreme Court adopted the principles enunciated in the Bolam Test fully and followed in all their historical judgements in Dr Laxman Balakrishnan Joshi Vs D Trimbak, (AIR 1969 SC 128 ), Bopu Godbok and Anr AS Mittal & Ors Vs State of Uttar Pradesh and (AIR 1989 SC 550) (AIR Ors. Indian Medical Association of India Vs VP Shantha & Ors 1996 SC 550) , S (AIR 1998 SC 1801 ) and pring Meadows Hospital Vs. Harijot Ahluwalia lastly in 2006(2) CPR 14 (NC) P. No. 62). Kunal Saha Vs Dr Sugumar Mukherji & Ors (

14. After thoughtful consideration, I am of opinion that, Errors in diagnosis and documentation pose the most common problems in histopathology. On the basis of HPE report of OP-2 , the cancer specialist Dr. B. Paul gave only one dose of injection Methotrexate. The single dose will not cause any serious side effects. Even, the treatment was stopped; after review of slides, therefore, the OP-2 will not be totally liable for the negligence. Also, there is nothing on record to show that, Which injury the patient suffered by single dose of Methotrexate It wont mean that, the other suffering of patient can be brushed aside, but, the patient deserves a compensation for , which include emotional pain, suffering and anguish due to the wrong non-economic damages reporting, which is a professional negligence.

15. The patients go and get themselves admitted in the hospital relying on the hospital to provide them the medical service for which they pay the necessary fee. It is expected from the hospital, to provide such medical service and in case where there is deficiency of service or in cases like this, where the diagnosis was wrong led to further sufferings and mental agony to the, the hospital also must be held liable.As, the OP-2 was working in the Nazreth Hospital, (OP-1) which was a Contract of Service therefore, the hospital is vicariously liable for the act of OP-2. Several judgments of Honble Supreme Court and High Courts held hospital vicariously liable on different occasions. Similar view was by this commission in the case Smt.Rekha Gupta Vs , 2003(2) CPJ,160,NC. Bombay Hospital Trust & Anr

16. Therefore, on the basis of forging discussion and relying upon the several decisions of the Honble Supreme Court and this commission, this revision petition is allowed and the order of State Commission is set aside. The OP-1 hospital is directed to pay total sum of Rs.50, 000/- within 90 days to the complainant otherwise it will carry interest @9% per annum till its realization. The parties are directed to bear their own costs. ...................... DR. S.M. KANTIKAR PRESIDING MEMBER