Bombay High Court
Dr. Vk Mehta, Madhya Pradesh And Another vs Smt. Shalinibai W/O Vishnu Choudhari ... on 8 May, 2025
2025:BHC-NAG:5118
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
SECOND APPEAL NO.251 OF 2006
APPLICANTS : 1 Dr. V. K. Mehta,
Aged about 65 years, Occupation Medical
Practitioner, Resident of B-4.1, Doctors
Quarters, R.D. Gardi Medical Collage Ujjain,
Madhya Pradesh.
2 Dr. N. Khan,
Aged about 60 years, Occupation Medical
Practitioner, R/o. 8 Saraswati Niwas, Dhanvatri
Nagar, Warud, Post Sewagram, District
Wardha.
..VERSUS..
RESPONDENTS : 1 Smt. Shalinibai W/o Vishnu Choudhari,
aged about 65 years, Occupation Housewife,
Resident of Mouza Deoli, Tahsil Deoli, Dist.
Wardha (Dead) thr LRs
1A. Ravindra S/o Vishnupant Chaudhari,
Aged about 51 years, Occu: Unknown, R/o.
Ward No.1 at Palasgaon, Post. Nandora, VTC
Palasgaon, Dist. Wardha.
1B. Meena W/o Dilip Pawar,
Aged about 57 years, Occu: Unknown, R/o.
Plot No.34, Old Bhandara Road, Opp.
Lakadganj P. S. Lakadganj, Bhandewadi,
Nagpur.
1C. Sau. Ujjwala W/o Prakashrao Ghodmare,
Aged about Major, Occ: Unknown, R/o.
Mouza Deoli, Dist. Wardha.
2 The Kasturba Health Society,
through it's Chairman, Sewagram, Tehsil and
District Wardha.
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Mr D. L. Dharmadhikari, Advocate for Appellants.
Mr S. P. Kshirsagar, Advocate for LRs of Respondent No.1.
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2
CORAM : M. W. CHANDWANI, J.
RESERVED ON : 12th FEBRUARY, 2025
PRONOUNCED ON 8th MAY, 2025.
JUDGMENT
1. Heard.
2. The following substantial questions of law were framed by
this Court on 01.11.2007, while admitting the appeal:
"(A) Whether the lower appellate Court could have passed
the impugned judgment and decree against the doctors for
medical negligence for performing and operation after thorough
clinical examination and the biopsy report indicating the cancer
merely on the ground that one doctor opined that there was no
malignancy and no operation was required though he himself
has deposed that there can be two different opines of two
different doctors if from the same set different slides are
examined by the different doctors ?
(B) Whether the lower at that Court could have passed
the impugned judgment and decree though Dr. Sharma, who
examined the samples and gave his report, on the basis of which
it was decided to operate the respondent No.1 was not made
party though he was the necessary party ?
(C) Whether the lower appellate Court could have passed
the impugned judgment and decree when there was absolutely
no evidence to show negligence on part of the appellants ?"
3. For deciding the substantial questions of law framed by this
Court, brief facts of the case are necessary.
Shalinibai Vishnu Chaudhari/the original plaintiff had a small
cyst in her right breast; it was not adhered to the skin and was movable
and therefore, she had been to Kasturba Health Society, Sewagram. The
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respondent No.2/the original defendant No.1 got her examined through
appellant No.1/the original defendant No.2, a physician. She was advised
to get the said cyst removed. Accordingly, on 16.07.1984, the cyst was
removed and was sent for biopsy to the pathology department. Appellant
No.2, who was in-charge of the pathology department, issued a report
concluding that it was a case of fibroadenosis with intraductal carcinoma
and opined that it was A-type cancer. Therefore, appellant No.1 informed
Sushilabai that she had stage IV cancer. He advised for complete removal
of her right breast entirely. Shalinibai and her husband had no option but
to go for surgery for removal of the entire right breast. Thereafter, further
treatment was continued. Appellant No.1 prescribed heavy doses of
medicines resulting into vomiting and loss of hair. The health of
Shalinibai started deteriorating. One of the relatives of Shalinibai,
Dr. Pawar who visited her got suspicions about the diagnosis and
doubted the histopathology report issued by appellant No.2. Therefore,
he took slide Nos. B-84-1013 and B-84-1082 from appellant No.2 and
got them examined from Dr. Vyawhare. Thereafter, the said slides were
sent for obtaining a second opinion from Dr. Arun R. Chitale, Surgical
Pathologist and Electron Microsopist at Bombay who also opined that
there was no malignancy. On insistence by the husband of Shalinibai, she
got discharged from the hospital. However, she was referred to Sant
Tukdoji Cancer Hospital, Nagpur but she did not go for treatment at
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Sant Tukdoji Cancer Hospital, Nagpur and thereafter, filed a suit for
damages against Kasturba Health Society, Sewagram demanding damages
of Rs.50,000/- on account of deformity and Rs.1,00,000/- towards
physical and mental harassment. The learned Trial Court dismissed the
suit. Feeling aggrieved, Shalinibai preferred an appeal before the learned
District Judge, Wardha. The learned District Judge, Wardha allowed the
appeal and decreed the suit of Shalinibai. Feeling aggrieved with the
impugned judgment of the First Appellate Court, this appeal came to be
filed and the above substantial questions of law were raised.
4. Mr. Dharmadhikari, learned counsel appearing on behalf of
the appellants submitted that the appellants are well experienced doctors
in the medical field and that most of the cases of cysts in the breast are
found to be breast cancer. Appellant No.1 after conducting clinical
examination and finding the cyst in the right breast of Shalinibai, thought
it fit to rule out the possibility of cancer and therefore, a biopsy was
suggested. Accordingly, Shalinibai was operated for removal of the cyst
and the tissues were sent for histopathological analysis to the pathology
department of Kasturba Health Society, Sewagram, where appellant No.2
was the Head of Department. Upon receipt of the histopathology report,
the appellant suggested removal of the entire right breast which was
accordingly removed under the supervision of appellant No.1.
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5. According to him, even if a wrong diagnosis was done by
appellants, that cannot make them liable for negligence. To buttress his
submission, he seeks to rely on the case of Dr Chanda Rani Akhouri and
others vs. Dr M. A. Methusethupathi and others., (2023) 13 SCC 632,
wherein, in para 29 of the judgment, the Hon'ble Supreme Court quoted
para 89 of the decision in Kusum Sharma vs. Batra Hospital and Medical
Research Centre, (2010) 3 SCC 480, which is reproduced here.
"29. In para 89 of the judgment in Kusum Sharma (supra), the tests
of medical negligence while deciding whether the medical
professional is guilty of medical negligence, varied tested principles
have to be kept in view, this Court held as under:
"89. On scrutiny of the leading cases of medical negligence
both in our country and other countries specially the United
Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the
medical professional is guilty of medical negligence following
well-known principles must be kept in view:
I. Negligence is the breach of a duty exercised by
omission to do something which a reasonable man,
guided by those considerations which ordinarily
regulate the conduct of human affairs, would do, or
doing something which a prudent and reasonable man
would not do.
II. Negligence is an essential ingredient of the offence.
The negligence to be established by the prosecution
must be culpable or gross and not the negligence merely
based upon an error of judgment.
III. 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.
IV. A medical practitioner would be liable only where
his conduct fell below that of the standards of a
reasonably competent practitioner in his field.
V. In the realm of diagnosis and treatment there is scope
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for genuine difference of opinion and one professional
doctor is clearly not negligent merely because his
conclusion differs from that of other professional doctor.
VI. The medical professional is often called upon to
adopt a procedure which involves higher element of risk,
but which he honestly believes as providing greater
chances of success for the patient rather than a
procedure involving lesser risk but higher chances of
failure. Just because a professional looking to the
gravity of illness has taken higher element of risk to
redeem the patient out of his/her suffering which did not
yield the desired result may not amount to negligence.
VII. Negligence cannot be attributed to a doctor so long
as he performs his duties with reasonable skill and
competence. Merely because the doctor chooses one
course of action in preference to the other one available,
he would not be liable if the course of action chosen by
him was acceptable to the medical profession.
VIII. It would not be conducive to the efficiency of the
medical profession if no doctor could administer
medicine without a halter round his neck.
IX. It is our bounden duty and obligation of the civil
society to ensure that the medical professionals are not
unnecessarily harassed or humiliated so that they can
perform their professional duties without fear and
apprehension.
X. The medical practitioners at times also have to be
saved from such a class of complainants who use
criminal process as a tool for pressurising the medical
professionals/hospitals, particularly private hospitals or
clinics for extracting uncalled for compensation. Such
malicious proceedings deserve to be discarded against
the medical practitioners.
XI. The medical professionals are entitled to get
protection so long as they perform their duties with
reasonable skill and competence and in the interest of
the patients. The interest and welfare of the patients
have to be paramount for the medical professionals."
6. Mr. Dharmadhikari, learned counsel further submitted that
the test was conducted by Dr. Satishchandra Sharma and he reported the
matter to appellant No.2, who was the Head of Pathology Department.
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After verifying the test conducted by Dr. Sharma, a report came to be
issued by appellant No.2. According to him, Dr. Sharma who was
necessary party has not been joined by Shalinibai/the original plaintiff in
the suit and therefore, the suit has failed on the ground of non-joining of
Dr. Sharma as necessary party. He further submitted that the sample was
further examined by DW-1 Dr. Ramvishal Narayandas Agrawal who also
opined about intraductal carcinoma of breast which is against the opinion
given by PW-5 Dr. Arun Raghunath Chitale. Thus, the opinion given by
appellant No.2 was re-affirmed by DW-1 Dr. Ramvishal Agrawal.
Therefore, in view of the differences in opinion given by different
doctors, the First Appellate Court ought not to have passed a decree of
damages in favour of the patient, Shalinibai. He submitted that the
decree passed by the First Appellate Court is not sustainable and seeks
setting aside of the same.
7. Per contra, Mr. Kshirsagar, learned counsel appearing on
behalf of respondent No.1 vehemently submitted that the legal heirs of
patient Shalinibai who died during the pendency of this appeal, support
the judgment of the First Appellate Court. According to him, PW-5
Dr. Arun Chitale has given reasons in support of his conclusion, whereas
DW-1 Dr. Babulal Ramniwas Agrawal examined by appellant No.2 has
simply opined that it was the case of intradcutal carcinoma of right breast.
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Therefore, the opinion that is given alongwith reasons thereto, has rightly
been accepted by the First Appellate Court. Since, the report was issued
by appellant No.2 and not by Dr. Sharma, therefore, he was not necessary
party to the suit. He further went on to submit that removal of breast is a
very serious aspect for a woman. It affects her not only physically but also
mentally and also deforms a part of the body. Therefore, the First
Appellate Court was completely justified in decreeing the suit in toto. If
anything, Shalinibai was entitled for more damages. Hence, he sought
rejection of the present appeal.
8. First, I will deal with the objection regarding the non-joinder
of necessary parties. Dr. Sharma who conducted the biopsy by examining
the tissues has not been made a party defendant in the suit since the
report is issued under the signature of appellant No.2. It is to be noted
here that, this objection was neither raised before the Trial Court nor
before the First Appellate Court. This reminds me Order 1 Rule 13 of the
Code of Civil Procedure which contemplates that all objections on the
ground of non-joinder of parties shall be taken at the earliest possible
opportunity before settlement of the issues. Though, each appellant filed
a separate written statement but none of them objected to the
non-joinder of Dr. Sharma as a party defendant in the suit. Therefore,
this objection cannot be taken at a later stage. Be that as it may, necessary
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party is a party in absence of whom, an effective decree cannot be passed.
Albeit, Dr. Sharma has not been made party defendant by Shalinibai in
the suit but the fact remains that he has been examined. Thus, the
evidence of Dr. Sharma was available before the Trial Court. Therefore, it
cannot be said that merely due to non-joinder of Dr. Sharma as a party
defendant in the suit, an effective decree cannot be passed. Therefore, I
do not find force in the argument of the learned counsel for the
appellants.
9. This takes me to the question with regard to different
opinions of two doctors on record. The First Appellate Court opined that
Dr. Chitale, who gave his opinion about the absence of malignancy
explained the procedure and sources, whereas Dr. Ramvishal Narayandas
Agrawal did not depose about manner, sources and procedure adopted by
him for examination. This gave a higher probative value to the report of
Dr. Chitale. Consequently, the First Appellate Court opined that there
was negligence on the part of the appellants.
10. With the able assistance of the learned counsels for the
respective parties, I have gone through the report of Dr. Chitale PW-5
who has given report which reads as under :
"MICROSCOPIC : Section reveal a benign lesion of medium sized
ducts which display in traluminal epithelial
proliferation with secondary lumina and double cell
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layered contour. Moderately abundant edematous
fibrous connective tissue is seen. At the periphery
in tact mammary lobules are noted. There is no
malignancy.
DIAGNOSIS : Chronic Cystic Mast it is with benign Epithelial
prolieftion."
11. Dr. Chitale has, with certainty and conviction opined that
there is no malignancy, whereas Dr. Agrawal has opined that the
possibility of intraductal malignancy cannot be ruled out. Further
Dr. Chitale has deposed about how he has examined the sample slides
under different microscopes. Thus, the manner and procedure which was
adopted is deposed by Dr. Chitale which is absent in the case of
Dr. Agrawal. More so, the patient was informed that the cancer is at stage
IV which is considered as serious. The fact that she could survive in spite
of that is also one of the factors which supports the report of Dr. Chitale.
Therefore, I see no infirmity in the order passed by the learned First
Appellate Court.
12. No doubt, there is a scope for genuine difference of opinion
and the doctor cannot be held negligent merely because his conclusion
differs from all other professional doctors as held in the case of
Dr. Chanda Rani Akhouri (supra) relied upon by the learned counsel for
the appellants. Let me state that this is not a case of diagnosis based on
experience, skill and knowledge of a doctor. The case in hand is a case of
improper reporting of histopathology report of biopsy by examining the
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tissues. One has to opine the presence or absence of malignancy and in
such a case, margin of error is rarely present. Therefore, the same will not
help to appellant No.2. So far as the appellant No.1 is concerned, he is a
physician by profession and it was obvious that after finding a cyst in the
breast, he suggested for biopsy looking at the rising cases of breast cancer.
After getting the biopsy report from appellant No.2, he has reasonably
opined for removal of the right breast. Therefore, he cannot be held liable
for damages because he acted on the very report issued by appellant No.2
as he was supposed to. Therefore, it cannot be termed as negligence on
the part of appellant No.1. Hence, the appeal of appellant No.1 succeeds,
whereas the appeal of appellant No.2 is dismissed. Accordingly, Clause
(D) of the operative order of the impugned judgment and order dated
05.08.2005 passed in Regular Civil Appeal No.149 of 2000 by the
learned First Appellate Court is modified as under :
i) The legal representatives of deceased respondent No.1 - Shalinibai
W/o Vishnu Choudhari are entitled to recover Rs.1,50,000/- from
appellant No.2.
(M. W. CHANDWANI, J.)
Tambe
Signed by: Mr. Ashish Tambe
Designation: PA To Honourable Judge
Date: 10/05/2025 16:51:18
