Tamil Nadu

South Chennai

cc368/2007

sasidaran - Complainant(s)

Versus

balaji hospital & one another - Opp.Party(s)

m karunanithi

15 Mar 2019

ORDER

                                                                        Date of Filing  : 21.08.2007

                                                                          Date of Order : 15.03.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER

 

C.C. No.368/2007

DATED THIS FRIDAY THE 15^TH DAY OF MARCH 2019

                                 

Smruthi Sasidharan,

W/o. Mr. Suresh Balasubramanian,

F-35, Mahalakshmi Colony,

Thiruvanmiyur,

Chennai – 600 041.                                                     .. Complainant.                                                           ..Versus..

1. Dr. L. Subramanian,

Director,

Balaji Hospitals (P) Ltd.,

No.1, Lawyer Jagannathan Street,

Guindy,

Chennai – 600 032.       

 

2. M/s. Balaji Hospitals (P) Ltd.,

Represented by its Director

Dr. L. Subramanian,

No.1, Lawyer Jagannathan Street,

Guindy,

Chennai – 600 032.                                             ..  Opposite parties.

 

Counsel for the complainant                  : Mr. Karunanidhi

Counsel for the opposite parties 1 & 2  : M/s. Sampathkumar &  

                                                                   Associates & another

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.2,951/- towards compensation for medical expenses incurred and to pay a sum of Rs.1,00,000/- towards compensation for mental agony, loss and physical suffering with cost of Rs.5,000/- to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that she is a physically disabled person visited the opposite parties’ hospital since she often developed numbness on her left arm on 10.02.2007.   The complainant submits that the Duty Doctor instructed to take X-ray but she has informed that she is at the early stage of pregnancy.  The complainant submits that the X-ray has been taken without suitable and necessary precautions such as covering the abdomen and pelvic regions using lead sheet to stop radiation from affecting the foetus resulting the complainant had to terminate her pregnancy as advised by a Medical Expert.  The complainant submits that she visited another hospital viz. Bharath Hospital on 12.02.2007 for treatment of gastritis and underwent a pregnancy card test which confirmed her pregnancy.  She narrated to the doctor at Bharath Hospital about the treatment given to her for numbness in her arm at the hospital of the opposite parties.  The complainant submits that she consulted an orthopaedic surgeon accordingly and the orthopaedic surgeon informed the complainant that the numbness was due to sleeplessness and in fact cautioned the complainant that she should never expose herself to MRI or X-ray till her delivery.     The complainant submits that on February 15^th 2007 she consulted one Dr. Vasundra Thyagarajan, a gynaecologist at BM Hospital Palavanthangal and the doctor took Ultra sound scan and confirmed that the complainant was five weeks pregnant and suggested that the complainant should reconsider the continuation of her pregnancy as the foetus was still in the early stage of multiplication and an X-ray already taken would have undesirable consequences on the growing foetus.  The doctor also suggested an immediate MTP.  After hearing the suggestions and warnings from the above doctors, the complainant wanted to take one more expert opinion from Dr. Nityaa Ramamurthy of Malar Hospital, Madras.     The complainant submits that she met the doctor on 19^th February 2007 and she suggested immediate MTP and advised that any further delay would complicate the procedure as well as the consequences of abortion.  The doctor explained in detail that pregnant women should not subjected to X ray as this is a commonly known fact among the medical fraternity.    Even if the situation is grave and an X ray needs to be done, the doctor opined, the abdomen and pelvic regions should be covered using a lead sheet to stop radiation from affecting the foetus.  Thus on 21^st February, the complainant was constrained to undergo an abortion as a result of the negligence of the opposite parties.   Hence, the complainant issued legal notice to the opposite parties on 24.04.2007 seeking compensation for mental agony and loss suffered by her.  The opposite party sent a reply on 12.05.2007 denying all the facts.   The complainant submits that the pregnancy was terminated only because of the X ray that  the complainant had been forced to undergo at the opposite party hospital and this negligence of the opposite parties has caused mental agony, pain sufferings and financial loss to the complainant.  Hence, the complaint is filed.

2.      The brief averments in the written version filed by opposite parties 1 & 2 is as follows:

The opposite parties 1 & 2 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.       The opposite parties state that the complainant came to the 2^nd opposite party’s hospital on 10.02.2007 at about 12’ O clock in the midnight with the complainant of severe neck pain as outpatient.  The complainant did not inform the Duty Doctor about her pregnancy. The Duty Orthopaedic Surgeon who attended on her administered ketanor and neurobian injection.  The complainant was advised to take X-ray of Cervical Spine (Neck) AP/Lat and prescribed tablets namely Myospas Forte, Ranitin and Renerve plus and advised her to admit in the hospital for necessary further investigation and specialist opinion proves there is no deficiency in diagnosis  and  administration / prescription of drugs.  But the complainant was not willing to get herself admitted and her husband after took her back after showing the unwillingness.  The opposite parties state that the complainant went to Bharath Hospital on 12.02.2007 for the treatment related to gastritis.  There, it was confirmed that she was pregnant after conducting test.   The opposite parties state that the complainant has not produced any document related to the treatment undergone at Bharath Hospital.  The opposite parties state that the complainant and her husband never objected to take X-ray on the neck applying primary beam of minimal dosage never caused any foetal abnormality is not denied by the complainant.   There is no abnormality in foetus.  The complainant wantonly and deliberately not produced the X-ray of ultra sound.  None of the Doctors treated the complainant issued any proof that the foetus was affected due to the X-ray.   There is no medical negligence on the part of the opposite parties.  There is no deficiency in service also.   Hence, the complaint is liable to be dismissed.

3.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A9 are marked.  Proof affidavit of the opposite parties 1 & 2 is filed and no document is marked on the side of the opposite parties 1 & 2. 

4.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.2,951/- towards medical expenses as prayed for?
2. Whether the complainant is entitled to a sum of Rs.10,00,000/- compensation for mental agony and physical suffering with cost of Rs.5,000/- as prayed for?

5.      On point:-

        Both parties filed their respective written arguments.  Heard the Counsels also.  Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that she is a physically disabled person visited the opposite party hospital since she felt some numbness on her left arm on 10.02.2007.   But the complainant has not produced any record to prove that she is a physically disabled person.   Further the contention of the complainant is that the Duty Doctor instructed to take X-ray but she has informed that she is at the early stage of pregnancy.  But on a careful perusal of Ex.A1, the history of the patient / complainant reveals nothing about her pregnancy.  On the other hand, as per Ex.A3 dated:15.02.2007 speaks about early intra uterine  pregnancy proves that the allegation that the complainant disclosed the fact of pregnancy on 10.02.2007 is imaginary.  Further the contention of the complainant is that the X-ray has been taken without suitable and necessary precautions such as covering the abdomen and pelvic regions using lead sheet to stop radiation from affecting the foetus resulting the complainant had to terminate her pregnancy as advised by a Medical Expert; is not acceptable because, the complainant has not produced the alleged X-ray and the ultrascan film related to Ex.A3 & Ex.A4 before this Forum. The complainant also has not taken any steps to produce the medical literature to prove that mere taking of X-ray on neck cause and leads termination of pregnancy.  It is also seen from Ex.A3, Ultrasonogram Report, there is no mentioning about abnormality in foetus.  Further the contention of the complainant is that the said termination of pregnancy on the advice of Dr. Nitya Ramamurthy, occurred only due to the negligence on the part of the opposite parties.   Further the contention of the complainant is that the opposite parties treated the complainant with utter disregard of observing ordinary standard procedure followed in hospital namely;

“Exposure of pregnant women to sufficient doses of x-rays could possibly result in miscarriage or damage to unborn children, including malformations or development of cancer later in life.  With most x-ray procedures, relatively low levels of radiation are produced.  However, as a safety precaution, the use of x-rays in pregnant women should be avoided unless absolutely necessary.  Women who receive x-rays before realizing they are pregnant should speak to their doctors...

Unborn children are particularly sensitive to x-rays because their cells are quickly dividing and developing into different types of tissues (I/CN Pharmaceuticals 1997)...”

But in this case, admittedly, the complainant went to the opposite parties hospital with only allegation of numbness in the left upper arm alone which has nothing to do with the pregnancy in the abdomen.  Further the contention of the complainant is that

PREGNANCY AND X-RAY SAFETY

“Many x-ray examinations, such as imagining the arms, legs, head and chest, don’t involve exposing your reproductive organs or unborn baby to the direct x-ray beam.  In these cases, lead shielding can be used to block any scattered radiation.  

X-ray examinations of your abdominal area, such as the stomach, lower back, pelvis and kidneys, are more of a concern because they expose the developing fetus to the direct x-ray beam.

Scientists disagree about the exact amount of risk to the unborn child from the radiation used in x-ray examinations, but it’s believed to be small.  Yet, even small risks should not be taken if they’re unnecessary...”

In this case, there is no iota of evidence to prove that the opposite parties has taken X-ray in the abdomen area.  The complainant was advised to take X-ray only on cervical spine.  Further the contention of the complainant is that

ARE X-RAYS SAFE DURING PREGNANACY?

“X-rays are a form of radiation.  This kind of radiation is invisible.   X-rays are used to make “pictures” of the bones and organs.  They have been associated with a very small increased risk of cancer, particularly leukemia, for an unborn baby.  But the risk is very small...”

In this case, the complainant has not whispered anything about the pregnancy.   For the allegation of numbness of the left hand, the opposite party advised to take X-ray only on cervical spine has nothing to do with the abdomen and pregnancy. 

 

 

PREGNANCY AND X-RAYS

As with any aspect of medical care, joining that a patient is or could be pregnant is important information.  Pregnancy, for example, might explain certain symptoms or medical findings.

When a pregnant patient is ill or injured, the physician will carefully select medications to avoid potential risks to the developing child.  This is also true of x-rays.

While the vast majority of medical x-rays do not pose a critical risk to a developing child, there may be a small likelihood of causing a serious illness or other complication.  The actual risk depends on how far along the pregnancy is and on the type of x-ray.  Ultrasound studies, for example, don’t use x-rays and have never demonstrated any potential for risk to a pregnancy.  X-ray studies of the head, arms, legs and chest do not usually expose the baby directly to x-rays and typically the technologist who takes the x-rays will implement special precautions to ensure that the baby of a pregnant patient is not directly exposed...

In this case, the X-ray was administered only for the neck that to cervical spine.   In fact, the primary beam of X-ray was focused only on her neck and not any other part of her body below her neck much less abdomen. The dosage of X-ray was also very minimal to cause any foetal abnormality which shall not cause any damage to the foetus.  In this case also, there is no iota of evidence produced by the complainant to prove that the abnormality in foetus. 

6.     Further the contention of the complainant is that the questionnaire filed by the opposite party was duly answered by way of affidavit of Dr. Nithya Ramamurthy who issued Medical Certificate dated:21.02.2007 followed MTP (Medical Termination of Pregnancy) as per Ex.A9.  But the said Dr. Nithya Ramamurthy has not  produced any evidence to prove the said medical terminated pregnancy.  There is no record in this case necessitating MTP.  Further Dr. Nithya Ramamurthy stated the 5 weeks pregnancy of the complainant was confirmed by ultrasound as per Ex.A3 on 15.02.2007.  But there is no iota of evidence to prove the radiation affected the foetus.  Without any rudimentary evidence Dr. Nithya Ramamurthy on the presumption that radiation will harm the foetus hence termination was adviced in the interest of the foetus proves there shall be no interest on the foetus which is advised to be termination and duly terminated.  Further there is no specific answer given to the questionnaire filed by Dr .L. Subramaniam.  Dr. Nithya Ramamurthy has not produced X-ray copy of the Discharge Report prepared by Dr. Nithya Ramamurthy while undergoing medical MTP Medical Termination of Pregnancy.  Equally, several questions related to the alleged necessity of MTP has not been answered proves there is no deficiency in service. 

7.     The learned Counsel for the complainant cited the decisions reported in

AIR 1969 SUPREME COURT 128

Civil Appeal No.547/1965

Between

Dr. Laxman Balkrishna Joshi

-Versus-

Dr. Trimbak Bapu Godbole and another

Held that

          “The duties which a doctor owes to his patient are clear.  A person who holds himself out ready to give medical advice and treatment impliedly skill undertakes that he is possessed of skill and knowledge for the purpose.   Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment.   A breach of any to those duties gives a right of action for negligence to the patient.   The practitioner must bring to his task 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 if the particular circumstances of each case is what the law requires: The doctor no doubt has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency”.

&

III (2013) CPJ 104 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,

NEW DELHI

Between

Prabha G. Nair (DR.) & Ors.

-Versus-

Mohanan & Ors.

Held that

          “Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d), 21(b) – Medical Negligence – Wrong diagnosis – Forceps delivery – Fatal injury to uterus – Death of mother and baby – Deficiency in service – District Forum allowed complaint – State Commission dismissed appeal – Hence revision – Death of patient was due to not proper care and diagnosis of crucial complication – Op1 is specialist as Gynecologist and also few doctors of OP3 hospital including CMO have seen the patient but nobody suspected commonest cause of distension of abdomen by lemoperitoneum – Ops failed to diagnose rupture of uterus and treated casually for five days – As the baby was of IUGR and patient was anemic why the OP 1 did not prefer elective Cesarean Section operation and allowed vaginal delivery – Delivery of dead body also creates suspicion of negligence of OP during forceps application – Ops are liable for loss of two lives, mental agony and psychological trauma – Compensation awarded – Punitive costs @ Rs.1,00,000/- awarded”

related to wrong diagnosis, reasonable care and skill have no relevancy in this case because, admittedly, the complainant with the numbness on the left hand visited the opposite party Doctor has advised to take minimal X-ray only on cervical spine.   

8.   The learned Counsel for the opposite parties would contend that admittedly, the complainant came to the 2^nd opposite party’s hospital on 10.02.2007 at about 12’ O clock in the midnight with the complainant of severe neck pain as outpatient.  The complainant did not inform the Duty Doctor about her pregnancy.  The Duty Orthopaedic Surgeon who attended on her and treated her by administering ketanove and neurobian injection.  The complainant was advised to take X-ray of Cervical Spine (Neck) AP/Lat and prescribed tablets namely Myospas Forte, Ranitin and Renerve plus and advised her to admit in the hospital for necessary further investigation and specialist opinion proves there is no deficiency in diagnosis  and  administration / prescription of drugs.  But the complainant was not willing to get herself admitted and her husband after took her back after showing the unwillingness.  Further the contention of the opposite parties is that the complainant went to Bharath Hospital on 12.02.2007 for the treatment related to gastritis.  There, it was confirmed that she was pregnant after conducting test proves that till 12.02.2007 at the time of alleged gastritis the complainant was not aware of pregnancy.  

9.     Further the contention of the opposite parties is that the complainant has not produced any document related to the treatment undergone at Bharath Hospital proves the suppression of material facts.  Further the contention of the opposite parties is that the complainant and her husband never objected to take X-ray on the neck applying primary beam of minimal dosage never caused any foetal abnormality is not denied by the complainant.  As per Ex.A3, Ultrasonogram Report, dated:15.02.2007, the pregnancy was confirmed.   There is no abnormality in foetus.  The complainant wantonly and deliberately not produced the X-ray of ultra sound.  None of the Doctors treated the complainant issued any proof that the foetus was affected due to the X-ray.  The alleged medical certificate dated:21.02.2007 is not produced in this case except the affidavit of Dr. Nithya Ramamurthy.  There is no findings in the affidavit also.  In the list of documents filed by the complainant Ex.A9 dated:21.02.2007 reads as follows: “Had MTP as pt had exposure to x-ray”.   It was issued only for the purpose of sanctioning.  In the affidavit also, it reads as follows

      “In this connection, I have to state that the primary beam of the Xay was focused only on her neck and not on abdomen.  The dosage of X-ray was very minimal to cause any foetal abnormality.  Such a low dose single exposure for X-ray around neck region cannot cause any damage to the foetus.  The complainant did not turnup for further follow up also” proves the presumption there is no proof for such alleged abnormality in foetus.   There is no medical negligence on the part of the opposite parties.  There is no deficiency in service also.  Considering the facts and circumstances of the case this Forum is of the considered view that the complaint has to be dismissed.

      In the result, this complaint is dismissed.  No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 15^th day of March 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	10.02.2007	Copy of prescription of the opposite parties
Ex.A2	15.02.2007	Copy of cash receipt
Ex.A3	15.02.2007	Copy of Ultrasonogram receipt
Ex.A4	15.02.2007	Copy of B.M. Scan Receipt
Ex.A5	19.02.2007	Copy of Malar Hospital outpatient receipt
Ex.A6 (S)		Copy of Thulasi Medical bill series
Ex.A7	24.04.2007	Copy of legal  notice
Ex.A8	12.05.2007	Copy of reply notice
Ex.A9	21.02.2007	Copy of Dr. Nithya Ramamuthy’s Report

 

OPPOSITE PARTIES’ 1 & 2 SIDE DOCUMENTS:- NIL

 

MEMBER                                                                  PRESIDENT