Haryana

StateCommission

CC/100/2017

HAZEL - Complainant(s)

Versus

AADHAAR HEALTH INSTITUTE - Opp.Party(s)

PARMINDER SINGH

12 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                                                Consumer Complaint No.100 of 2017

                                                Date of Institution: 06.11.2018

                                                      Date of Final Hearing: 12.12.2022

Date of pronouncement: 04.05.2023

 

Hazel minor through natural guardian Sumit Kumar S/o Shiv Kumar, R/o H.No.40, Mittal Lahoriya Chowk, Hisar,Tehsil and Distt. Hisar.

…..Complainant

Versus

1. Aadhaar Health Institute, Tosham Road, Near Sought Bypass Crossing, Hisar 125005 through its Head of Institute Dr.Vikram Jain.
2. Vinita Jain, C/o Health Institute, Tosham Road, Near Sought Bypass Crossing, Hisar 125005.
3. Promila Sharma C/o Health Institute ,Tosham Road, Near Sought Bypass crossing, Hisar 125005.
4. Oriental Insurance Company Ltd through its Branch Manager, 4 E/14, Azad Bhawan Jhandelwalan Ext., New Delhi, Delhi 110055.
5. United India Insurance Co. Ltd. through its Branch Manager, Branch Office-080102, 16-M, Gole Market Mahanagar, Lucknow 226006, Uttar Pradesh.

…..Opposite Parties

CORAM:    S.P.Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Ms.Simarpreet Kaur, Advocate for thecomplainant.

                   Mr.Munish Kapila, Advocate for the opposite party Nos.1 to 3.

                   Mr. D.C.Kumar, Advocate for the opposite party No.4.

                   Mr.NitinGupta,Advocate for the opposite party No.5.

 

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

          Minor complainant Hazel has filed this complaint through her father and natural guardian Mr.Sumit Kumar alleging interalia that as Hazel’s mother Ms. Loveleen Kaur was on family way and was carrying her (complainant) she her mother used to consult Ops doctors on regular basis. However, her mother got down with urine infection, so she approached the Ops No.1,2 & 3 hospital and doctors and during her treatment she gave birth to complainant Ms. Hazel on 17.03.2016. However, complainant happened to be a premature child with gestational age of (24-26) weeks and grossly underweight i.e. 860 gms. Owing to these two reasons the new born was kept in premature case unit and her mother used to meet her baby complainant to breast feed her in the designated place. Since, mother of the complainant recovered from her own problems so she was discharged after few days whereas complainant being under weight and having born pre-mature was kept in the pre-mature case unit till 05.05.2016. Even while her stay, Ops assured her parents that complainant was fit and fine and has been improving well and finally at the time of her discharge (05.05.2016) advised her parents to come for follow up and for vaccination. Following these directions her parents took her to the Ops hospital on 18.05.2016 for the first occasion and thereafter on 18.07.2016 and again on 21.08.2016. However, in the meantime, parents of the complainant noticed some unusual behavior of the complainant and suspected some disability in her eye sight. This is how just to clear their doubts, her parents took Hazel-complainant to Gitanjali Eye Hospital on 25.07.2016. In the said hospital when her parents disclosed that she was born pre-mature and weighed only 860 gms. then doctor over there immediately suspected her to be suffering from visual inability and asked about conducting of the ROP screening during her stay in the Ops hospital. During examinations, complainant was found to be a case of stage-V of retinopathy because of the lapse on the part of Ops hospital and concerned doctor under whose case and caution she remained admitted for seven weeks from 17.03.2016 to 05.05.2016. In fact, as per the clinical practice and protocol if a child is born within 28 weeks of gestation  with a body weight of less than 1200 gms., then the testing has to be done within 2-3 weeks of the age of the new born to identify AP/ROP. The responsibility of organizing of ROP screening lies with the pediatrician/neonatologist. The first screening was mandatory to be performed not later than 4 weeks or 30 days of life of the infant. But in the case of complainant, Ops committed gross medical negligence by non performing the ROP screening. After Geetanjali hospital parents of complainant immediately took her to Grewal Eye Institute Chandigarh, where after carrying out some investigations it was found that there was a remote chance of her getting back the vision of her eyes. Similar opinion was expressed by Dr. Dogra of PGI, Chandigarh and also advised her parents to take her to LV Prasad Eye Hospital, Hyderabad. After coming to know about all these developments as to how complainant having born pre-mature within 28 weeks of gestation weighing 860 gms,and then her having remained admitted in pre-mature birth care unit for seven weeks and also being subjected to blood transfusion for three occasion and also being given oxygen support throughout her stay without ROP screening that the concerned doctor over there also expressed absolutely no hope or chance of restoring her vision. This is how it was due to sheer negligence on the part of OP doctors in ignoring to get her ROP screening done at the appropriate stage of her life that now complainant has been doomed to live in the world of darkness throughout her life. Before concluding, complainant also alleged that when her mother got her own treatment for urine infection just before her birth Ops charged them Rs.9500/- and afterwards Ops again charged them of Rs.6,00,000/- for her stay in OP hospital and besides this, she also demanded Rs.85,00,000/- by way of compensation along with interest @ 12% p.a. w.e.f 17.03.2016, litigation expenses Rs.1,10,000/- any other relief what Court may deem fit.

2.                Ops No.1 to 3 while filing their joint but separate written statements have alleged that this complaint being wholly misconceived, unwarranted and palpably not maintainable qua OP No.1 to 3 in as much as there was no negligence on the part of doctors of OP No.1 (Hospital). Likewise, there was no question of any unfair trade practice being adopted on their part either. In fact, present complaint has been a flagrant abuse of process of law filed with oblique motive to harass, malign and blackmail the Ops. Ms. Loveleenkaur, mother of complainant was admitted in the OP No.1 hospital on 17.03.2016 following which she delivered an extremely premature and grossly low body weight baby girl on 18.03.2016. After this development baby was attended very well in the neonatal ICU till she was discharged on 05.05.2016. At the time of discharge OP No.2 has personally counselled her parents in detail that the baby should be immediately taken for ROP screening by a qualified ophthalmologist at the earliest. However, OP No.2 was shocked to see when parents of complainant had brought her for follow up on 16.05.2016 without getting ROP screening done and therefore while expressing her anguish in this regard. OP No.2 again insisted upon her parents for getting the complainant screened for ROP and even thereafter also her parents were repeatedly advised to get the abovesaid examination done at the earliest. It was quite surprising to see as to how the parents of complainant could afford to ignore and overlook the above stated advise simply for one pretext or other and postponed that they would get it done at Chandigarh. Thereafter, again on 23.07.2016, when parents of complainant had brought her for vaccination or something like that since at that occasion also when the baby was not screened for ROP then in routine examination, OP No.2 happened to notice wide raffle in her eyes and even at that occasion, OP No.2 again strongly told her parents as to why they were not taking their responsibilities towards their child seriously and finally it was only on 25.07.2016 when they ultimately (parents of complainant) had relented and have taken the complainant for ROP screening to some ophthalmologist. This entire sequence of things clearly indicates as to how the parents of complainant were totally non-complaint towards repeated advice rendered to them by OP No.2, which otherwise is also apparent from the prescriptions which were issued to the parents from time to time. Parents of the complainant have willfully concealed these prescriptions which would show as to how they have very conveniently ignored welfare of their child and have been squarely responsible for loss of her eyesight. It was only just to avoid owning up their own negligence that now they have started blaming the Ops alongwith other hospital authorities. Continuing further, it was also averred that the complainant was discharged from OP No.1 hospital while she was of 32 weeks of her age, but appropriate age for ROP is 34 weeks. For all these reasons, parents of the complainant were rightly advised to take baby to ophthalmologist for ROP screening and the urgency for this test was also highlighted clearly before them. Even otherwise also ROP is a continuous process where retina of the eyes  of baby is examined regularly after intervals to ascertain whether the same is present and even to find whether the same has progressed or regressed. These facts clearly show that there has been no deviation by various doctors working with OP No.1 hospital from a acceptable and recognized medical protocol. As a matter of fact, complainant has failed to produce even an iota of evidence or any material to show that there has been any such negligence whatsoever on the part of Ops. On the contrary, it is the parents of complainant who have concealed various prescriptions which were issued from time to time while prescribing ROP screening for the baby. Further it was also averred that IPD bill for the baby from 18.03.2016 to 05.05.2016 came out to be Rs.1,60,818/- out of which Rs.5,518/- was given as a discount and the net amount paid to the hospital by the parents of complainant was Rs.1,55,300/-. Likewise, mother of the complainant Ms. Loveleen Kaur who remained admitted with OP No.1 from 17.03.2016 to 19.03.2016 was also looked after well and a total sum of Rs.10,000/- was incurred for her treatment for which she was charged Rs.9,500/- after deducting Rs.500/- as discount therein. Besides this, other averments of the complainant were also denied emphatically and ultimately prayer for dismissal of this complaint was made.       

3.      O.P.No.4 filed separate reply.  It was submitted that On 17.03.2016, mother of the complainant was admitted in the hospital due to urine infection.  It was denied that hospital has charged Rs.6 lacs   from the complainant.  No such notice has been received by the answering respondents.  All types of due precautions have been taken by the hospital in caring the child after her birth as per the books in such cases of pre mature babies with less weight.  The hospital was vinsured with the answering insurance company  for a sum insured of Rs.50/- lacs effective from 04.01.2016 to 03.01.2017.  Thus there being no medical negligence on the part of the OP No.4.

4.      OP No.5 filed separate reply.  It was submitted that Dr. Vinita  Jain i.e. OP No.2 was insured from the answering OP No.5 i.e. United India Insurance Co. under professional indemnity doctors policy valid from 07.09.2015 upto 06.09.2016. It was further submitted that if in case, the insured doctor is held negligent by this Commission, the liability of the answering OP shall be strictly governed by the coverage, terms and conditions of the insurance policy in question.  It was further submitted that answering OP shall also be entitled to retable apportionment of liability held, if any other insurance policy is found held by insured doctor at that time. No prior notice was received by the answering OP from the insured doctor with regard to the alleged treatment and loss thereof if any, therefore answering OP was not liable to pay any compensation.

5.                When the complaint was posted for recording evidence of the parties, learned counsel for the complainant has tendered into evidence affidavit as Ex.CA and CB to be read as a part of statement of complainant alongwith other documents Ex.C-1 to Ex.C-27 and closed the evidence.

6.                On the other hand, head of institute Dr.Vikram Jain on behalf of OP No.1 tendered into evidence affidavit as Ex.OP-1/A alongwith documents Ex.OP1/1 to Ex.OP1/4 and closed its evidence.
7.                OP No.2-Dr.Vanita Jain has tendered into evidence affidavit as Ex.OP-2/A alongwith documents ExOP-2/1 to Ex. OP-2/11 and closed her evidence.

8.                OP No.3-Dr. Pramilla Sharma has tendered into evidence affidavit Ex.OP-3/A alongwith documents Ex.OP-3/1 to Ex.OP-3/4.

9.                Learned counsel for the OP No.4 has tendered into evidence affidavit of Shri Satish Katyal, Authorised Representative  Ex.OP-4/A alongwith documents Ex.OP-4/1 and closed it.

10.    The arguments have been advanced by Ms.Simarpreet Kaur, learned counsel for the complainant as well as Mr. Munish Kapila, Advocate for the OP Nos.1 to 3, Mr. D.C.Kumar, Advocate for OP No.4 and Mr. Nitin Gupta, Advocate for OP No.5. With their kind assistance entire record including documentary evidence as well as whatever the evidence led during the proceedings by the parties has also been perused and examined.

11.    While opening their arguments learned counsels for the complainant recounted as to  how while mother of complainant was expecting her, she suffered urine infection  and approached Ops as she even in the past, she used to consult the doctors available over there. This is how, while she was being treated for this infection she delivered complainant who was lateron named Hazel with 24-26 weeks of gestational age and 860 gm of body weight. After this development complainants’ mother was discharged in routine on 19.03.2016 whereas baby was kept in neonatal ICU on account being premature and grossly under weights. During complainant’s stay in this ICU of Ops she was administered blood transfusion thrice and also subjected to oxygen support. Continuing further,  learned  counsel for complainant also pointed out that although as per medical protocol she happened to be pre term baby with very low body weight yet she was not subjected to ROP screening while  she was 2/3 weeks of age and was admitted in Ops neonatal ICU for seven weeks at a stretch.  In fact Ops altogether ignored of getting complainants for ROP screening for evaluating the progression or regression of her retina.  However in order to cover up this lapse on their part, the concerned doctor OP2 simply mentioned it in the discharge summary advising her parents to get it done at their own end.  But this examination should have been got arranged by the Ops itself and as a result thereof complainant has ended up loosing her vision for all times to come. Therefore, OPs should be  held liable for such a glaring lapse on their part and be made to pay for compensation as prayed for in the prayer clause.

12.    On the other hand learned counsel for Ops have argued that complainant remained admitted in Ops hospital till she was of 32 weeks of age but the requisite screening was to be carried out at the age of 34 weeks and that is whey at the time of her discharge mother of complainant was very well explained about the urgency involved in this regard and was clearly advised to get it done from some optholomogist at the earliest. However her parents did not appreciate this requirement and did not do the needful. Further it was also argued that after discharge when complainant was brought to Ops hospital for follow up on 17.05.2016 and OP2 found that the ROP screening was not got done, she again highlighted the immediate need for the same and again mentioned in the prescription giving it top most priority. Likewise everytime whenever complainant used to be taken to Ops without this screening Ops used to express her anguish at the utter disregard to her advice by complainants parents in this regard. Ultimately it was only on 25.07.2016 when parents relented and took her to eye specialist where complainant was found to be a case of stage N of ROP as by that time her retina stood completed detached and there was virtually no hope of getting her vision restored. This is how it was not for any lapse on the part of Ops doctors rather it was only for the in action or total disregard to the repeated advice by her parents that she is unable to see at all. So now just to cover up their own fault, that complainant has been made to file this complaint at their behest to extort money for undue enrichment.  Even otherwise Ops also blamed parents of complainant to be the author of their own wrong and sought dismissal of this complaint.

13.    At the very outset, it is significant to note that contesting parties are not at variance with each other  so for as most of the facts involved in this case. It is admitted case of the parties that complainant was born in Ops hospital on 18.03.2016 at a gestational age of 24-26 weeks with her body weight of 860 gm.  It is also not disputed the owing to her preterm birth and with  extremely  low body weight, she remained admitted in Ops hospital under care and caution of its doctors for seven weeks till 05.05.2016.  It is also not in dispute that during her above stated stay in neonatal ICU she was administered blood transfusion thrice and remained on oxygen support throughout.  It is also true that at the time of discharge on 05.05.2016,  OP2 clearly mentioned in discharge summary thereby advising parents to visit some optholomogist for ROP screening of the new born. It is also evident that this advice of oP2 was taken by the parents lightly as they had ignored to take complainant to optholomogist for ROP screening till 25.07.2016 for the first occasion.  With all these facts acting in the background the sole question which fall for adjudication is whether this screening should not have been done or at least initiated which complainant was still admitted in OPs hospital. Putting it differently could this examination be postponed after she was discharged at the age of seven weeks. Well to arrive at the appropriate conclusion of this question we need to visit various observations or opinions published in medical journals on this topic brought on record by both of the parties. Well conclusion of these clinical practice guidelines about retinopathy of prematurity can be summerised as follow:-

“.       Retinopathy of prematurity (ROP) is emerging as one of the leading causes of preventable childhood blindness in India.

.         Screening for ROP should be performed in all preterm neonates who are born< 34 weeks gestation and/or <1750 grams birth weight; as well as in babies 34-36 6/7 weeks gestation or 1750-2000 grams birth weight if they have risk factors for ROP.

.         The first retinal examination should be performed not later than 4 weeks of age or 30 days of life in infants born> 28 weeks of gestational age. Infants born<28 weeks or <1200 grams birth weight should be screened early, by 2-3 weeks of age, to enable early identification of AP-ROP.

.         The retinal findings should be classified and documented based on the international classification of Retinopathy of prematurity guidelines (ICROP).

.         Follow up examinations should be based on the retinal findings and should continue until complete vascularization or regressing ROP is documented or until treated based on the ETROP guidelines.

.         Laser Photocoagulation delivered by the indirect ophthalmoscopic device is the mainstay of ROP treatment.

.         The responsibility of recognition of infants for screening lies with the pediatrician/neonatologist.

.         Communication with the parents regarding timely screening for ROP, seriousness of the issue, possible findings and consequences is extremely important.”

“As per the various literature  and standard protocol and guidelines the new born at less than 32  weeks gestation of age or less than 1500 grams in weight, should have been screened for ROP at 3-4 weeks of age. The babies  who are born before 28 weeks of gestation age and are less than 1000 grams in weight are at higher risk of Aggressive posterior ROP and required to be screened within  2-3 weeks from their birth. The aggressive posterior is most dangerous and is an uncommon, rapidly progressive and sever form of ROP. That has previously been referred to as (Rush disease).  It usually occurred in the smallest, most immature infants.  If untreated, it usually progresses to stage V ROP. It occurs in posterior location of retina.  It may not progress through classic stages 1-3 before retinal detachment occurs. It may appear as a flat network of neovascularization at the junction between vascularized and a vascular Retina.  The diseases advance in severity in five stages. When the diseases are allowed to progress to stage Vth and the retina become funnel shaped leading to blindness.”

14.    However the minor complainant was found to at added risk on account of her having born after her having gestational age of less than 28 weeks coupled with her body weight being less than 1000 grams and also being subjected to blood transfusion and oxygen support as in these cases there was 80% chances of damage to her eyes. So precisely the complainants case happened to be aggressive posterior ROP in which the body need to be screened within 2-3 weeks after birth.  However as admitted no such procedure of screening was resorted to by OP Nos.1 to 3 and these Ops discharged her on 05.05.2016 while advising her parents to keep the baby in isolation with complete hygienic conditions. Of course at the time of discharge the parents of complainant were also advised to go ahead with ROP screening as well which was also repeated at later occasion also.  However since complainant was at added risk as discussed above so in her case this screening should have been initiated preferably after her attaining 2-3 weeks of the age. It is quite surprising as to how and why Ops could afford to ignore this must do procedure despite the new born having remained under their treatment for as many as seven weeks at a stretch.Infact most precious and actual time of subjecting complainant to this screening stood clearly wasted by concerned doctors of OP hospital due to sheer inaction which could never be recalled.  Even it was not the case that these Ops were not aware of the situation under which complainant took birth as a preterm and grossly under weight baby who after birth was kept in neonatal ICU or seven weeks.

15.    Moreover it was also well known to these Ops that the infant was also administered blood transfusion and oxygen support as well since all this must have been done as per these very Ops directions. It is quite surprising as to how these Ops played havoc with  the most valuable right of vision of complainant.  Although Ops tried to redeem their position as they happened to direct parents of complainant to consult some optholomogist to arrange for ROP screening but perhaps right of vision  of complainant had already been lost. It is anybody’s guess if her parents would have acted on the advice of doctors promptly then may be there could have been a different situation  but nevertheless the appropriate time to get through this exercise or procedure had already lost.  Although there is dispute between both the parties that at the time of discharge parents were clearly disclosed about this procedure to be undertaken immediately as alleged by OPs but controverted by complainant’s parents but Ops should have realized that actual time for this all important screening had already gone by much earlier and inevitable had already happened and the act of Ops directing her parents at the time of her discharge was only a cover up to save their own skin.

16.    Once we have already concluded that it was for the negligence on the part of the treating doctors that complainant was doomed for her entire rest of life, we proceed to think about awarding compensation to complainant. Though any amount of compensation can never said to be sufficient to address her sufferings even remotely what to talk of adequately but still we need to perform this duty.  Well we can  broadly enumerate certain heads under which the quantum can be allocated such as these heads can be categorized as under:-

          i.        Education

          ii        sustainance

          iii       Attendant charges

          iv.      Marriage

          Taking up all these heads one by one, well so far education of complainant  is concerned as we all know that these days the world at large has already become sensitive about the needs of specially abled people but taking a judicial notice of the facts and circumstances as these exist in our country is concerned still a lot has to be done here. It is very welcome step of our country that some sort of reservation has also been provided for visually impaired candidates. Infact our endeaver should be that any such child should not any such feeling that  they are less than any one else. Further separate dedicated institutions have been set up to  cater to their needs in the education sector. But again such facilities are not available every where. So in case complainant wants to get sort of education she will need to spend to fulfill her wishes in this regard. Hopelessly earmarking a sum of Rs.10,00,000/- (Ten lacs only) for this aim will be sufficient. 

17.    Moving ahead, and coming over to next head of sustainace again it is not sure that who out of the  complainants family will be coming forth to sustain her thoughout her life because after all everyone has to meet his or her maker and someone has to be there to support her. Therefore it will be very nice if complainant has something  to fall back upon. Therefore we allow another sum of Rs.15,00,000/- (Fifteen Lacs only) toward this head.

18.    Further as we all understand that owing to certain avoidable lapses the complainant has become special child so she is in need of some attendant who can guild her and assist her in her all day-to-day activities. As we all know all such services carry a price tag. So far that reason we award sum of Rs.5,00,000/- (Five lacs only) under this head.

19.    Coming over to next head of marriage well again may be because of this handicap the choice of complainant for choosing her life partner might have been restricted but still we wish that she should go ahead get herself married whenever she happens to find a soul mate.  Therefore propriety demands that some money should  definitely be allowed for this pious ceremony. As such we allow another compensation of Rs.10,00,000/- (Ten lacs only) under this heading.  

In view of the above, we allow the complaint and granting compensation on account of education, sustainance, attendant charges and marriage to the complainant, which is as under:-

          i.        Education                               Rs.10,00,000/-

          ii        sustainance                           Rs.15,00,000/-

          iii       Attendant charges               Rs.5,00,000/-

          iv.      Marriage                                 RS.10,00,000/-

Adding up the quantum of compensation under all these above heads the total comes up to be Rs.40,00,000/- (Forty lacs only). This amount when paid will be kept in the shape of fixed Deposit with some nationalized Bank in the name of complainant and the proceeds of the same may be released to her on her attaining the age of majority alongwith interest.Since the O.P.Nos.1to 3 were insured with the O.P.No.4 for a sum of Rs.50,00,000/-, the O.P.No.4 is directed to pay Rs.40,00,000/- to the complainant alongwith interest @ 9% p.a. from 17.03.2016 till realization. In addition, the complainant is also entitled of Rs.25,000/- (Twenty Five thousand only)  as litigation charges.  However  as O.P.No.5 has insured some other hospital which is not at all in dispute with no allegations attributed to it as such OP No.5 stands absolved of its liability of any kind. In case, there is a breach in making payment within the stipulated period  of  45 days, in that eventuality, the complainant would further be entitled to get the interest @ 12% per annum, for the defaulting period.   It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable. 

20.                       A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

21.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

22.              File be consigned to record room.

 

Pronounced on 04.05.2023

 

                                                                             S.P.Sood

                                                                             Judicial Member                                                                                     Addl. Bench               

 

 

 

 

S.C Kaushik,

Member   

Addl. Bench