Haryana

Panchkula

CC/63/2018

AJAY KUMAR - Complainant(s)

Versus

BATRA DIAGNOSTIC CENTRE - Opp.Party(s)

SANDEEP SHARMA

14 Sep 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                               

Consumer Complaint No	:	63 of 2018
Date of Institution	:	03.11.2018
Date of Decision	:	14.09.2023

 

 

Sh. Ajay Kumar s/o Sh. Amarjeet  r/o village Behar, Kot Tehsil & District Panchkula, Haryan`Qwe4r55t7a.

    ..….Complainant

Versus                                                                  

1.     Batra Diagnostic Centre through Dr. Dev Batra M.D.Radio- Diagnosis Address SCO No.129, Sector-5, Panchkula.

2.     Dr.Dev Batra M.D. Radio-Diagnosis at Batra Diagnostic Centre    SCO-129, Sector-5, Panchkula.

3.     Dr. Harbans Gupta M.D.Pathology PGI at Batra Diagnostic Centre       SCO-129, Sector-5, Panchkula.

4.     The Oriental Insurance Company Limited, #4E/14, Azad Bhawan,       Jhandewala Extension, New Delhi-110055.

                                                                      ……Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

Before:              Sh. Satpal, President.

                         Dr. Sushma Garg, Member.

                         Dr. Barhm Parkash Yadav, Member. 

 

For the Parties:   Sh.Sandeep Sharma, Advocate for the complainant.

                         Sh. Nitin Sood, Advocate for OPs No.1 to 3.

                         Sh. Amit Kundra, Advocate for OP No.4.

                         

                       

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant’s wife, namely Smt.Sarika, having pregnancy of 19 week, got conducted her ultrasound sonography test(hereinafter referred to as USG) on 29.03.2017 by paying a sum of Rs.1,450/- in cash to OPs No.1 & 2. After examination, the complainant’s wife and the fetus, the OPs had assured that the fetus was, normal and that there was no abnormality of any kind in the fetus. The X-ray films and X-ray report was also given to complainant’s wife on 29.03.2017 itself by OPs stating that fetus was normal and there was no abnormality of any kind. Upon OP’s asking, the complainant and wife approached the OPs in 35^th weeks of her pregnancy for USG for F-Wellbeing (Level-I) on 24.07.2017, which was conducted by Ops, in lieu of a sum of Rs. 650/-, paid by the complainant. Again the complainant and his wife were assured by OPs that Fetus was normal and that there was no abnormality in the fetus. It is stated that, on 02.08.2017, the complainant’s wife, namely, Mrs. Sarika gave birth to a baby, namely, Nikunj at Government Hospital Sector-6, Panchkula. The complainant as well as his wife were shocked to see the face of the newly born baby as he was found having the abnormality of cleft lip and cleft palate. The treating Doctor told the complainant that the newly born baby would not be able to speak, drink and eat food properly in future. It is stated that the OPs, being a professional and M.D.Radio-Diagnosis and M.D. Pathology PGI respectively, were legally bound to inform the complainant about the correct status of the fetus i.e. about the abnormality of the cleft lip and cleft palate. After examining the fetus on 29.03.2017 and thereafter, on 24.07.2017, the abnormality of cleft lip was detectable in the ultrasound test during 19^th week of pregnancy. If Ops had given the correct report, then at least complainant and his family members would have been mentally prepared and made arrangement qua caring of baby with special needs. A notice was issued on 12.03.2018 to OPs, which was declined by them. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss and mental agony, harassment; hence, the present complaint.                                                                                                                              

2.Upon notice, the OPs No.1 & 2 appeared through counsel and filed written statement contesting the complaint by raising preliminary objections qua the present complaint is not maintainable; estopped by his own act and conduct; no locus-standi; the complainant does not fall under the category of consumer; no jurisdiction; the complainant suppressed true material facts and there is no expert report on record. It is stated that there is no medical negligence or deficiency in services on the part of the OPs nor the OPs have used any unfair trade practice. It is stated that the OP No.2-Dr. Dev Batra, is a well qualified M.D. in Radio-Diagnosis, having adequate experience in his field for the last more than two decades and is duly registered under the rules applicable. The OP No.2 is an alumnus of Guru Nanak Dev University, Amritsar. The OP No.2 is running his own Diagnostic Centre for more than two decades and has successfully preformed his duties. The OP No.2 has a vast experience and excellent skills as Radio-Diagnosis and is expert in Radio-Diagnosis. It is admitted that the complainant alongwith his wife, namely, Mrs. Sarika(pregnant-19 weeks) visited the Batra Diagnostic Centre(OP No.1) for the first time on 29.03.2017 for ultrasound sonography test(USG Level-II) and as per  test report, no congenital malformation was detected. It is submitted that the complainant  along with his wife, namely, Mrs.Sarika(pregnant-35 weeks) visited the Batra Diagnostic Centre(OP No.1) for the second time on 27.07.2017 for ultrasound  sonography test(USG Level-II) and as per test report, no congenital malformation was detected. It is admitted that the wife of the complainant, namely, Mrs.Sarika gave birth to a baby boy on 02.08.2017 with the congenital abnormality of cleft lip and cleft palate. It is submitted that No such abnormality was detected at the time of above mentioned tests due to the non-detectable nature of the abnormality at the time of pregnancy.  It is submitted that not all abnormalities can be detected by ultrasound examination. Ultrasound is not a perfect depiction of the foetus and the scan result cannot be 100% conclusive. It is often difficult to examine some foetal areas. It is submitted that the detection rate as per ultrasound is very low i.e. less than 18/30% of abnormality of cleft lip and cleft palate. It is submitted that the status of fetus was not reported as normal as alleged. It is submitted that the ultrasound was done on the patient-Sarika with due diligence and care and to the best of knowledge, experience by the Ops No.1 & 2 and there was no negligence on the part of the OPs No.1 & 2 and as such there was no medical negligence/deficiency in services on the part of the Ops No.1 & 2. It is also submitted that there is no expert opinion of any competent doctor/Medical Board showing that the scans were not conducted  as per the medical norms or the Batra  Diagnostic Centre was not properly equipped. Therefore, the complainant failed to prove either the medical negligence or deficiency in service on the part of the OPs No.1 & 2. It is submitted that Mrs. Sarika was not legally entitled to termination of her pregnancy on 29.03.2017 as alleged. Further no notice date 12.03.2018, was ever received by the Ops as alleged and thus, it has been prayed that there is no deficiency in service on the part of the OP No.1 and the complaint is liable to be dismissed.

                Upon notice, the OP No.3 appeared through counsel and filed written statement contesting the complaint by raising preliminary objections qua estoppels; no locus-standi; the complainant does not fall under the category of consumer. It is submitted that there is no medical negligence or deficiency on the part of the OP No.3. It is stated that  the OP no.3- Dr. Dev Batra, is a well qualified M.D. in Pathology  from PGI and having  adequate  experience in his field  for the last more than two  decades  and is duly  registered  under the rules  applicable. The OP No. 3 is working as a Pathologist in Batra Diagnostic Centre, SCO No.-129, Sector-5, Panchkula.  It is stated that the OP No.3 though is a employee in Batra Diagnostic Centre, Sector-5, Panchkula, but the OP No.3 is a Consultant Pathologist(M.D. Pathology) and further the patient, namely, Mrs. Sarika has never  visited  the OP no.3  nor she was ever treated/ diagnosed at any point of time. Further, the patient Sarika has not got done any pathological tests from Batra Diagnostic Centre and as such, the OP no.3 has unnecessarily been impleaded as party in the present complaint.

                On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.3 and as such, the complaint of the complainant is liable to be dismissed.

                Upon notice, the OP No.4 appeared through its counsel and filed written statement contesting the complaint by raising preliminary objections mentioning that there is not even iota of evidence to suggest  the negligence  of the doctor and the diagnostic centre. It is submitted that the medical negligence can only be imputed if the doctor lacked necessary skill or adopted a procedure not being followed by his fraternity and in the instant case, there is hardly any ingredient which can be brought to light to impute negligence on the part of the doctor and by the diagnostic centre.  It is submitted that, in any case, the OP No.4 being the insurer can only be held liable for the professional error/ negligence and not for any culpable negligence committed by the doctor of the diagnostic centre. Further, the insurer can only be held liable to the extent of amount covered in the professional indemnity. In the instant case, the insured(OP No.2) has taken  professional indemnity doctors policy from the OP No.4 but there is absolutely no negligence in conducting the tests. It is submitted that the Commission has no pecuniary jurisdiction to entertain the present complaint. It is submitted that the complainant has failed to submit, along with the complaint, any opinion from the Medical Experts, which could point out the alleged deficiencies in services, having been rendered to the complainant and the neonatal baby of the complainant.  It is admitted that OPs No.1 & 2 has been insured for the period from 01.11.2016 to 31.10.2017 vide policy no.272200/48/2017/15675, who has indemnified the OP No.2, in case, of any claim/compensation payable by OP No.2 i.e. Dr.Dev Batra, M.D. Diagnosis Centre. So, there is no deficiency in service on the part of the OP No.4 and prayed that the complaint is liable to be dismissed against it.   

3.The Learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-19 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OPs No.1 & 2 has tendered affidavit as Annexure R-A along with documents as Annexure R-1/1 to R-1/4 and closed the evidence. The learned counsel for OP No.3 has tendered affidavit as Annexure R3/A into evidence and closed the evidence. The learned counsel for the OP No.4 has tendered affidavit as Annexure R4/A along with documents as Annexure R4/1 into evidence and closed the evidence.

4. We have heard the learned counsels for the parties, and gone through the entire record available on file including written arguments filed by the complainant, Ops No. 1 to 3, OP No.4, minutely and carefully.

5. During arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as also in the affidavit(Annexure C-A) of the complainant, contended that the OP’s had conducted  the ultrasound of Mrs. Sarika on 29.03.2017 & 24.07.2017 in very negligent, deficient and causal manner, by keeping the complainant and his wife in dark about the congenital abnormality of cleft lip and cleft palate in the fetus and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

6.On the other hand, the OPs No.1 & 2 has contested the complaint by raising several preliminary objections as well as on merits.  The learned counsel for OP No.1 & 2, during arguments, reiterated the objections as raised in the written statement and contended that complaint is liable to be dismissed on the ground of estoppel; the complainant has no locus standi; the complainant is not a consumer.

                The aforesaid objections raised by the learned counsel on behalf of the Ops No.1 & 2 are rejected as it has not been clarified by Ops as to how the complainant is estopped by his act and conduct to file the present complaint. Further, the plea that the complainant is not a consumer and that he has no locus standi is also not tenable as he had availed the services of the OPs No.1 & 2 by making the payment of Rs.1,450/- on 29.03.2017 and Rs.650/- on 24.07.2017 and thus, he is a consumer of the Ops and he has every locus-standi to file the present complaint.

7.On merits, the learned counsel on behalf of OPs No.1 & 2 has argued that the Op No.2 is a well qualified doctor, MD in radio-diagnosis and having vast experience. It is contended that the ultrasound test of the patient, namely, Mrs Sarika, wife of complainant, was conducted by the Ops No.1 & 2 with due diligence, observing proper care and precautions and thus, there was no medical negligence or deficiency of any kind in any manner on the part of Ops No.1 & 2. It is contended that the congenital abnormality of cleft lip and cleft palate was not detectable because of the nature of the same and also the detection rate qua the same abnormality is very low i.e. less than 18% as per medical literature. The learned counsel, in support of his contentions has placed reliance on medical literature, which is given as under:-

Fetal Malformations: Diagnostic Accuracy

Ref.No.1:-   Diagnostic Ultrasound 5^th edition 2018 Author Carol Rumack                        and Deborah Levine, Chapter 28, Page 1030.

Ref No.2:-   British Journal of Plastic Surgery

                   Principal Diagnosis of Cleft Lip and Palate by D.Shaikh, N.S.                         Mercer, K. Sohan*, P. Kyle* and P.Soothill.

Ref No.3:-   Donald School Textbook of Ultrasound in Obstetrics and                               Gynecology 3^rd edition 2011 Chapter 34 page no.602.

                Concluding the arguments, the learned counsel has prayed for dismissal of the complaint being frivolous, baseless and meritless.

8.The OP No.3 has contested the complaint on the ground that the complainant’s wife, namely, Mrs.Sarika was never treated or diagnosed by him at any point of time. During arguments, the learned counsel for OPs No.1 to 3 reiterated the averments as made in the written statement as also in the affidavit Annexure R-3/A and contended that no deficiency can be attributed qua OP No.3 as he is a pathologist, against whom, no allegations of any kind of deficiency has been leveled and thus, prayed for dismissal of the complaint being frivolous, baseless and meritless.

9.The learned counsel on behalf of OP no.4 reiterated the averments as made in the written statement and contended that no liability can be imposed on OP No.4 as there was no medical negligence on the part of OPs No.1 & 2 and thus, prayed for dismissal of the complaint qua OP No.4.       

10.Admittedly,  the congenital abnormality of cleft lip and cleft palate of the fetus was not reported by OPs No.1 & 2 vide USG Level-II report dated 29.03.2017(Annexure C-1) and USG for F wellbeing level-I dated 24.07.2017(Annexure C-5). It is also an admitted factual position that the baby was born having the congenital abnormality of cleft lip and cleft palate.

11.The defence taken by the OPs No.1 & 2 is that the congenital abnormality was of non detectable nature and that the detection rate of the congenital abnormality of cleft lip and cleft palate of fetus as per ultrasound test is extremely low i.e. below 18%.

12.Without going into the controversy of detection rate of the said abnormality through USG test, it is essential to look into the fact as to whether the ultrasound test in question on 29.03.2017 and 24.07.2017 were conducted by OPs No.1 & 2 with due diligence observing proper care and precautions.

13.The issue involving detection of congenital abnormality of fetus as per USG test came up for discussion before the Hon’ble NCDRC in C.C. no. 221 of 2010  titled as Anil Dutt  & Ors. Vs. Vishesh Hospital & Ors.,  decided on 16.05.2016, wherein several factors, were reported by the experts, having bearings on the results of the USG Test, which are enumerated in para no.23 as under:-

23.The sensitivity of obstetric USG is dependent on various factors like:-

i.        The quality of equipment used for the examination by the        Radiologist.

ii.       The type of congenital anomaly and the prevalence of such      anomaly. A higher prevalence congenital anomaly is detected more   easily than one which is rarer.

iii.      Gestational age. i.e. the age of the fectus.

iv.      Position of foetus. This is critical. If the foetus is lying on one side,    the Radiologist can record impression only of that side which is visible.         It is not possible to change the position of the foetus in order to image the hidden part.

v.       Maternal body habitus.

vi.      Amount of amniotic fluid.

vii.     The time spent for the Ultrasound examination.

14.Now, we advert to the defence version and find that it has no where been claimed therein that the USG machine employed during the test on 29.03.2017 & 24.07.2017 was of best and superior quality, having latest/updated version of technology. The Ops No.1 & 2 are silent qua the quality of equipment used by them during the USG test on 29.03.2017 & 24.07.2017.

15.Since the abnormality of cleft lip was on the face of the fetus i.e. on its outer part & not on its hidden/internal parts, it was easily detectable, if the OP No.2 had been vigilant and had conducted the USG test with due care and attention. Further, the USG report dated 29.03.2017 is silent qua the facial status of the fetus. Though, the fetal position was reported vide said report as “free floating” but the facial status of the fetus was not mentioned. It is also not the case of OPs No.1 & 2 that the facial status of the fetus was not captured or scanned in the ultrasound machine or it was hidden.

16.Further, we have no clue as to the time spent by OPs No.1 & 2, while conducting the said USG test level-II on 29.03.2017 as the same was not mentioned.  In case, the OP No.2 was not satisfied or cleared about the status of the face of the fetus on 29.03.2017, it was his moral, ethical and professional duty to ask the complainant and his wife to undergo the said test for another date. However, the OP no.2 neither conveyed the actual status of the face of the fetus on 29.03.2017 nor asked Mrs.Sarika to visit him again for ultrasound.

17.Similarly, the OP No.2 vide his report dated 24.07.2017 (Annexure C-5) had reported that there was no congenital abnormality in the fetus. Again, the OP no.2 had preferred not to mention the duration during which the said test was conducted. The said report dated 24.07.2017(Annexure C-5) is also silent qua the facial status of the fetus. It is not the case of the OP no.2 that the facial part of the fetus was lying on the hidden side.

18.Now, we deem it proper to mention here that a woman undergoes severe physiological and psychological changes during her pregnancy and as such, she approaches a diagnostic centre either of her own or on the advice of a doctor; thus, she has legitimate right to know the exact health status of her fetus. As such, a heavy duty/responsibility is cast upon every diagnostic center and the radiologist to conduct the ultrasound test in a very dedicated and diligent manner observing all necessary precautions. In the present case, Mrs.Sarika got conducted her first Ultrasound test on 29.03.2017 as per asking/on the advice of the Primary Health Centre, Village Kot(PHC Kot) and on 24.07.2017, she got her test conducted on the advice of OP No.2. In our considered opinion, the OPs No.1 & 2 had conducted the ultrasound test on both the occasions i.e. 29.03.2017 and 24.07.2017, adopting a very casual approach, in a negligent and careless manner. The observations made by the Hon’ble NCDRC in C.C. No.221 of 2010 titled as Anil Dutt  & Ors. Vs. Vishesh Hospital & Ors. vide its order dated 16.05.2016 are fully applicable to the facts of the present case, wherein the radiologist and the hospital were held deficient and negligent in conducting the test of the fetus, as they had failed to report  about the missing of one hand and one kidney in the fetus.

19.The principle of Res-ipsa-loqiutor is squarely applicable in this case as negligence on the part of OPs No.1 & 2 is prima facie evident. The Hon’ble State Commission, Punjab in the C.C.No.62 of 2014 titled as Yashmeen Kaur Vs. Moga Medicity(Multispecialty Hospital)  decided on 03.05.2017 vide para no.25 observed as under:-

        The maxim ‘res ipsa loquitur’ is used to describe the proof of facts which are sufficient to support an inference that the opposite party was negligent and thereby to establish a prima facie case against it. It is not a presumption of law, but a permissible inference, which Commission/Court may draw, if upon all the facts, it appears to be justified.  It is invoked in the circumstances, when the known facts relating to negligence consists of the occurrence itself or where occurrence may be of such a nature as to warrant an inference of negligence. The maxim alters neither the incidence of onus nor the rules of pleading.

20.As per above said principle i.e. Res-ipsa-loqiutor, the onus was upon the OPs No.1 & 2 to prove that they had taken all due and reasonable care so as to repel/rebut the charge of negligence against them.

21.In view of the discussion made above, we may safely conclude  with reasonable degree of certainty that that the OPs No.1 & 2 had failed to exercise due care and skill while performing USG in question and thus, the Ops No.1 & 2 are liable, jointly and severally, to compensate the complainant for their negligent and deficient services. 

22.The OP No.3 being pathologist has not been found to have provided any services to Mrs. Sarika; so, no deficiency can be attributed against him. Moreover, the complainant has also not alleged any specific deficiency on his part so the complaint is dismissed qua OP No.3.

23.Since the OP No.2 was insured with OP no.4 i.e. Oriental Insurance Co.Ltd. vide insurance policy no.272200/48 so the OP No.4 is liable to compensate the complainant jointly and severally.

24.In relief, the complainant has claimed a compensation of Rs.10,00,000/-  on account of mental agony and harassment suffered by him. Further, a compensation of Rs.33,000/- has also been claimed as litigation charges.

25.The Hon’ble NCDRC vide case(supra) has made detailed observations regarding the factors, which are relevant  to be considered while awarding  compensation. For the sake of clarity and convenience, the para no.37 of the Hon’ble NCDRC vide case(supra) is reproduced as under:-

                “Number of factors needed to be considered while awarding compensation. It is true that, for all parents and grandparents, birth of a child is a joy, a wonder and a renewal of hope. But, one of the most devastating, life-changing events for parents is finding out their child suffered anomalies like loss of whole hand and single kidney. Parents often go through stages of grief, caring for a such child negatively impact the physical and mental health of parents and caregivers. Many parents experience significant depression, fear and anxiety, which may have a devastating effect on the whole family. These feelings are often suppressed due to embarrassment, shame or guilt. Many families suffer a financial burden when they have a child who has a birth defect due to a variety of factors. The child needs artificial limb and regular physical, occupational therapy, this can create debilitating financial strain which can stigmatize the child who has a birth defect. Many parents live with a sense of isolation particularly, if their birth defect child is rare and there is little support. This can cause significant anxiety in social settings and even lead distressed parents to further isolate themselves”.

26.Bearing in mind the aforesaid factors, a compensation of Rs.3,00,000/-(Rs. Three Lakhs) to the complainant would be just, reasonable and proper so as to meet the ends of justice and accordingly, the OPs No.1, 2 & 4, jointly and severally, are directed to make the payment of sum of Rs.3,00,000/-(Rs.Three Lakhs) to the complainant. Further, the OPs No.1,2 & 4 are directed to pay a sum of Rs.5,500/- to the complainant as litigation charges.

27.  The OPs No.1,2 & 4 shall comply with the directions/ order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1,2 & 4. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance. 

Announced on: 14.09.2023

 

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President

 

 

CC.63 of 2018

Present:             Sh.Sandeep Sharma, Advocate for the complainant.

                        Sh. Nitin Sood, Advocate for OPs No.1 to 3.

                        Sh. Amit Kundra, Advocate for OP No.4.

                                         

 

                       Arguments heard. Now, to come upon 14.09.2023 for orders.

Dt.05.09.2023

 

 

 

        Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                       Member                            Member                         President

 

Present:             Sh.Sandeep Sharma, Advocate for the complainant.

                        Sh. Nitin Sood, Advocate for OPs No.1 to 3.

                        Sh. Amit Kundra, Advocate for OP No.4.

                                       

                                Vide a separate order of even date, the present complaint is hereby dismissed against OP No.3 and is hereby partly allowed against OPs No.1, 2 & 4 with costs.

                         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.14.09.2023

 

 

       Dr.Barhm Parkash Yadav       Dr.Sushma Garg             Satpal

                       Member                            Member                         President