DOF.31.7.04

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the  2^nd    day of  May   2010

C.C.No.172/2004

Sheena Rjeevan,

Thazhe Palyodan House,

Near Undalloor Kadavu,

P.o.Pinarayi

(Rep. by Adv.K.Gopakumar)                                       Complainant

1.Dr.Venugopaln,MD,DGO,

   Josgiri Hospital &Ultra Sound

   Scan Centre,Thalassery 670 101

2. Dr.Rathika Srikumar DMRD,

   Josgiri Hospital &Ultra Sound

   Scan Centre, Thalassery 670 101

   3. Managing Director,

   Josgiri Hospital &Ultra Sound

   Scan Centre, Thalassery 670 101

  (Rep. by Adv.P.Mahamood for Ops 1 to 3)                           Opposite party

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to pay Rs.5, 00,000/- as compensation together with the cost of these proceedings.

            The case of the complainant in brief is as follows: complainant approached 1^st opposite party and consulted for her antenatal treatment. After the confirmation of pregnancy she had been under the treatment of 1^st opposite party. Ultra sound scanning was done in the fifth month of pregnancy as advice him, from the 3^rd opposite party hospital. The scan report (3.1.04) showed that no obvious major congenital anomaly is seen and minor cardiac disorder can not be excluded. 1^st opposite party gone through the report and informed the complainant that nothing was wrong with the child in the womb. Thereafter complainant has been consulting with 1^st opposite party regularly. 2^nd scanning was done on 20.4.04 during her ninth month of pregnancy as advised by1st opposite party. It was done from Ultra Sound scan centre of 3^rd opposite party and in the said report also no anomaly is seen for the child. It is clearly reported that no obvious major congenital anomaly is seen for the child and minor cardiac disorder cannot be excluded. But she delivered a child on24.4.04 weighing 500 gms with both upper limbs deficient in length. The child is suffering from phocmelia which should have been detected earlier by scanning. In both scanning reports it is seen the child is only suffering from a minor cardiac anomalies. But now the child is suffering from Cyanotic heart disease, which is a major heart complaint and a major surgery is required for curing the defects. But the deficiency in the limb length cannot even be corrected by any mode of tratment. For the treatment of the heart disease a surgery form a super speciality hospital is necessary and estimated cost for such a complicated surgery is about 3 to 4 lakhs. Immediately after delivery the husband of the complainant met 1^st opposite party and on enquiry about deficiency 1^st opposite party admitted that it was failed to detect sufficiently earlier either because the sinologist over looked to note the same from the Ultra sonogram or due to some defects of the scanning machine. On further enquiry complainant came to understand that the opposite party failed to read the Ultra Sonogram properly. The 1^st opposite party had even told this complainant that he had not even gone through the Ultra sonogram but on the report. It is her 2^nd delivery and she has got much concern about the future of the female child born with deficient limbs. Had the deficiency was informed to her in the earlier stage of pregnancy she could have resorted to medical termination of pregnancy and there by avoid a tragedy. The opposite parties are expected to note the deficiency and inform the same to the complainant. The act of the opposite parties shows the carelessness and irresponsibility. Being a female child the complainant is much worried about the future of the child. The child will be incapable of doing its day today needs without the support of the parents. The mental agony and sufferings caused to the complainant and her family cannot be assessed in monetary terms. Opposite parties denies the entire contentions in the reply notice. The complainant’s dreams were shattered by the birth of handicapped child. It is as a result of negligence on the part of opposite parties. Hence this complaint.

            Pursuant to the notice opposite parties entered appearance and filed version. Opposite parties 1 and 2 field version jointly and 3^rd opposite party separately denying the main allegations of complainant.

            The contentions of opposite parties 1 and 2 in nutshell are as follows: The complainant came to the hospital for antenatal check up on 10.9.03 and continued treatment under him. Her LMP was on 30.7.03. The first delivery of the complainant was also managed in the same hospital under the supervision of 1^st opposite party about 5 years back and she had a full term normal vaginal delivery. Her second pregnancy ended in an abortion. In the instant case, the first opposite party had done all the relevant investigation and examinations which are indispensable in antenatal check up including ultra sonogram. The first ultra sonogram was done on3.1.04 by the second opposite party with good care and attention. The report was given after a careful ultra sonographic study and no major congenital anomaly could be seen, but at the same time, minor cardiac anomalies could not be ruled out. Relying on the USG report, opposite party had given the complainant all necessary medications and immunization. A second ultra sonogram was done on 2.4.04by 2^nd opposite party. No major anomaly was seen. But it was mentioned minor or cardiac anomalies could not be ruled out. Complainant came on 23.4.04 with labour pain. On examination all the parameters of the mother and foetus were within normal limits. The condition of the complainant had been closely monitored by the first opposite party due to obesity of the complainant coupled with the USG report indicating of a large For Date baby. The indicating of CPDand fetus distress was clearly explained in details to the complainant and her relatives. A written informed consent was also obtained and an emergency C/D was done under all aseptic precautions and care. Unfortunately, the delivered baby had shortening of forearms of both the upper limbs. The upper arms were unaffected. The complainant was discharged on2.5.04 with a proper advice for treatment at a higher centre. The opposite parties 1 and 2 had exercised utmost care and caution in the treatment of the complainant including the diagnosis byway of ultra sonogram. The averments of complainant that no obvious congenital anomaly is seen and minor cardiac disorder cannot be excluded are not correct and hence denied. The said reports had clearly mentioned that minor or cardiac abnormality cannot be excluded and not that minor cardiac anomaly cannot be excluded. The allegation of the complainant that the 1^st opposite party had informed complainant that nothing is wrong with the child is false and looked up with ulterior motive. No such assurance was given because the ultra sound study need not detect all defects of the baby. The weight of the baby was not 500 gms but 3.5kg. The averment that the child is suffering from phocomelia is completely false. The averment that the child’s upper limbs were deficient in length is not fully expressive of the true picture of the child. The terms phocomelia means a congenital anomaly in which the proximal part of the limb is absent and the distal part being directly attached to the trunk. In the instant case the infant’s proximal part of the upper limb was shortened. This fact is of importance in this case. In an Ultra sound evaluation of a foetus, the proximal portions of the upper limbs are better visualized than the distal portions. In the instance case the proximal portions of the upper limbs were normal and the distal portions alone shortened and therefore difficult to detect in an ultra sound scan. In case of patients who are obese, it is very difficult to see al the parts of the foetus. The complainant was obese and the difficulty was also explained to her. The USG reports depend upon various factors like the position of fetus, liquor quantity abdominal wall thickness and movement of the fetus etc. Therefore the new mention about phocomelia which was not present in the lawyer notice is purposefully incorporate in an attempt to make it falsely appear that the first and second opposite party had missed out some thing which is easily appreciated. In any case the alleged heart disease is a congenital anomaly and was not due to any action of the2nd opposite party. The averment that opposite party admitted ht the deficiency was failure of detecting sufficiently earlier either because the  sinologist over looked to note the same from the Ultrtasonogram or due to some defect of the scanning machine, is false and baseless. The allegation that the opposite party failed to read the ultra sonogram properly is also false. The allegation that if the deficiency was informed to her in the earlier stage of pregnancy, she could have resorted to medical termination of pregnancy (MTP) is also made without any basis. Ultra sonogram reports are reliable only 85% and all congenital anomalies cannot be detected. The first Ultrasound scan is done in the 5th month of pregnancy. A congenital anomaly even if detected at the 5^th month of pregnancy cannot be a ground of termination of pregnancy because it is well past the age allowable to do MTP. There is no negligence on the part of opposite parties 1 and 2. Complainant is not entitled to get any compensation. The complaint is frivolous and vexatious. Hence to dismiss the complaint.

            3^rd opposite party field version separately. 3^rd opposite party contended as follows: Complainant came to hospital on 10.9.03for her antenatal check up and continued her treatment. Her LMP was on 30.7.03. Her first pregnancy managed by1st opposite party 5 years back from this hospital itself. 2^nd pregnancy ended in an abortion. In the instances the 1^st opposite party has done all relevant examination and investigations. The first ultra sonogram was done on 3.1.04 by  2^nd opposite party. The report was given after a careful Ultra sonographic study and no major congenital anomaly could be seen, but at the same time, minor or cardiac anomalies could not be ruled out. Relying on the UGC a report the 1^st opposite party had given the complainant all necessary medications and communisation. Second ultra sonogram was done on 20.4.04. Complainant came with labour pain on 23.4.04. On examination all the parameters of the mother and fetus were within normal limits. The conditions of the fetus and the mother were closely monitored. On 24.4.04 she again had labour pain and the examination revealed fetus distress. The indication of CPD and fetal distress were clearly explained in details to the complainant and her relatives. A written informed consent was also obtained and an emergency caesarean section was done. Unfortunately, the delivered baby had shortening of forearms of both the upper limbs. The upper arm\s were unaffected. The complainant was discharged on 2.5.04 with a proper advice for treatment at a higher centre. There was no deficiency in service on the part of opposite parties. The averment that the scan report of 3.1.04 reported that no obvious congenital anomaly is seen and minor cardiac disorder cannot be excluded is not correct. The said report had clearly mentioned that minor or cardiac abnormality cannot be excluded and not that minor cardiac anomaly. First opposite party had not informed that nothing is wrong with the child. There was no such offer. The weight of the new born child was 3.5 kg. and not 500 gms. The child suffering pneumonia is false. The infants’ proximal part of the upper limb was normal and only the distal part of the upper limb was shortened. It was difficult to detect it in an ultrasound scan. In the lawyer notice there was no mention about pneumonia. Dr.Venugopal and Dr.Rithika Sreekumar are well qualified and experienced doctors. Since there is no deficiency the complaint is liable to be dismissed.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled to get the relief as prayed for?

3. Relief and cost.

            The evidence consists of oral evidence of complainant as PW1 and Exts.A1 to 7 marked on the side of the complainant and the oral evidence of DW1 and Exts. B1and B2 on the side of opposite parties.

Issue Nos. 1 to 3

            Complainant adduced evidence by filing proof affidavit in tune with the pleadings. Admittedly she had her antenatal check up and treatment by 1^st opposite party Dr.Venugopal. Her first ultra sonogram was taken on the advice of Dr.Venugpal on her fifth month of pregnancy from 3^rd opposite party by Dr.Rathika the second opposite party. Complainant in her affidavit stated that there were no obvious major congenital anomaly found in the scanning reports dated 3.1.04. She says that the report was shown to1st opposite party and he assured that there was nothing wrong with the child in womb and due prescribed certain medicines. She continued treatment under him and second ultra sonogram was taken on her 9^th month of pregnancy and no anomalies were found in 2^nd report also. The main case of the complainant is that she delivered a child weighing 500 gms with both upper limbs deficient in length and is suffering from phocmelia, which should have been detected earlier. On examination of both scanning reports it was only stated that the child was suffering from only a minor cardiac anomalies. But now the child is suffering from cyanotic heart disease. Deficiency in limb length cannot be corrected by any mode of treatment. It is required 3to4 lakh rupees for the surgery of heart disease from a super specialty hospital. Complainant further alleges that had the deficiency was informed to her in the early stage of pregnancy she could have resorted to medical termination of pregnancy to avoid the tragedy.

            The opposite parties by version and proof affidavit in tune with their pleadings contended that the report was given after a careful ultrasonographic study wherein no major congenital anomaly could be seen, but at the same tie, minor or cardiac anomalies could not be ruled out. DW1 further contended that second ultra sonogram was done on 20.4.04 by her with all necessary care and attention and no major anomaly was seen. Minor or cardiac anomalies could not be ruled out and the same was mentioned in the report. Complainant came to the hospital on 23.4.04 with labour pain. She was closely monitored by Gynecologist. The examination by the gynecologist revealed fetal distress. The indication of CPD and fetal distress were clearly explained in detail to the complainant and her relatives by 1st opposite party.  PW1 also stated that in   emergency caesarean system was done by the gynecologist under all aseptic precautious and unfortunately the delivered baby had shortening of forearms both upper limbs. Ext. B1 case records of Josgiri Hospital, Thalassery goes to show that the caesarean system as done after obtaining written consent of the patient and her mother.

            It can be seen that the complainant had taken under gone antenatal treatment by Dr.Venugopal. During the 5thmonth of pregnancy 1st opposite party advised USG ultra sound scanning and it was done from opposite partyNo.3 by Dr. 2^nd opposite party. Complainant says that the scan report was shown to 1st opposite party doctor and he told to the complainant that there was nothing wrong with the child. Ext.A1 is the ultra sound scan report dated 3.1.04. Ext.A1 that “No obvious major congenital anomaly seen. Minor and Cardiac anomalies cannot be excluded”. It was also written fetal movements and cardiac activity well seen. During 9^th month also scanning was done with same result of no obvious major congenital anomaly. But she delivered a female child weighing3.5 gms with both upper limbs deficient in length.

            What was the possible remedy in the instant case to avoid the unfortunate event? Was it due to the result of any sort of undoing or as a result of deficiency in service on the part of opposite party? The complainant’s main case is that  if such an anomaly was  informed to her earlier in her  early stage of pregnancy, she could have terminate the pregnancy to avoid the present  embarrassing situation. It is an admitted fact that first ultra sound scan was done in her fifth month of pregnancy. That shows even if the correct position if reported in the scan report, this remedy of termination of pregnancy was not possible at the 5^th month of pregnancy since it is well past the age allowable to do MTP. Then arose another question whether any form of treatment could have corrected such an anomaly during pregnancy. No evidence placed before us to come into conclusion that such treatment was possible. Complainant could not prove that neither termination of pregnancy nor corrective treatment for the congenital deformity was possible in the instant case. If the opportunity of medical termination was possible or else the treatment for congenital deformity had been proved possible, the entire situation would have been different. Any how, the cause of congenital anomaly in the present case is not due to any act or omission of opposite parties. Under such situation it is not at all justifiable to attribute deficiency of service on the part of opposite party. Hence we are of opinion that complainant could not make out a  successful case. Thus the issues 1 to 3 are found against complainant.

            In the result, the complaint is dismissed. No order as to costs.

                        Sd/-                     Sd/-                             Sd/-   

            President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1 & 2. .Copy of ultrasound scan report of complainant dt.3.1.04 and 20.4.04.

A3.Copy of the letter issued by OP 1.

A4.Copy of colour Doppler echocardiography report issued from co.op.Hospital, Tly.

A5..Copy of the notice sent to OPs.

A6 &7.Reply notices.

Exhibits for the opposite party:

B1. & B2.Case record of complainant and her baby maintained by OP

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party

DW1.Dr.Venugopaln.P.R

DW2.dr.Rethika Srikumar                                /forwarded by order/

                                                                        Senior Superintendent

Consumer Disputes Redressal Forum, Kannur.