Error and negligence as different as chalk and cheese

  • Posted on: August 20, 2020

Is an error of judgement always considered as negligence? Legally speaking, what is the difference between an error of judgement that is not necessarily negligence and gross negligence? Judgement pronounced by the honourable Commission in the present case throws light on this crucial aspect.

Rekha, a young girl, for some unknown reasons bled from her nose. The scared mother took the child to an ENT surgeon who performed a punch biopsy of nasopharynx. The specimen was sent to a diagnostic centre for histopathology (HPE) which reported poorly differentiated nasopharyngeal carcinoma!

The patient was taken to an ENT oncosurgeon who suggested two options of hospitals where she could be treated. The mother chose one of the two hospitals where the doctors performed nasopharyngoscopy with O telescope. Much to the worried mother’s relief, the test did not reveal mass lesions in nasopharynx – Rekha did not have cancer. The doctors however advised that the child be brought again after two months for confirming the results. Rekha was taken for follow-up as advised and received treatment.

The ENT surgeon faced the furious mother’s wrath as she alleged him of wrong diagnosis and negligence.

The Commission relied on test reports and medical records and stated the following:

“The ENT surgeon’s report was not outright rejected by the ENT oncosurgeon who performed nasopharyngoscopy with O telescope. Furthermore, on the basis of clinical, MRI and laboratory reports the doctors opined that the patient has no nasopharynx cancer at the relevant time”.

“It is well settled that in cases of medical negligence, an error of judgment may, or may not be negligence, it depends upon the error. If it is an error that such a man, acting with ordinary care might have made, then it is not negligence. However, gross medical negligence will always result in a finding of negligence. In this case, the ENT oncosurgeon ruled out nasopharynx cancer at the relevant time only after nasopharyngoscopy was performed with O telescope and MRI Scan”.

“It may be a case of error of judgment but certainly it is not, in our opinion, a case of gross medical negligence”.

Did this judgement calm the mother’s anger? We hope so. But it surely maintained an honest doctor’s honour and respect.

Source: Order pronounced by West Bengal State Consumer Disputes Redressal Commission, on 13th February, 2020.