DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 12^th day of January, 2024

Present     :   Sri. Vinay Menon V., President

                   :  Smt. Vidya A., Member              

                  :  Sri. Krishnankutty N.K., Member                                 Date of Filing: 28/11/2018    

     CC/157/2018

1. Akbar

S/o.Ismail,

Palliparambil House,

Alathur, Palakkad.

2. Jisna,

W/o.Akbar,

            -  do –                                                             -           Complainants

(By Adv. Ullas Sudhakaran)

                                                                                                  Vs

1. Dr. Anies M.S., MBBS, MRCOG(UK),

Crescent Hospital,

Alathur, Palakkad.

2. M/s. Crescent Medical Centre,

Alathur, Palakkad

Rep.by its Managing Director.

(Impleaded as per order in IA 73/2021)

 3.   United India Insurance Co.Ltd.,

       P-21, Surya Complex,

       Mission High School Jn.,

       Palakkad – 678 014.

       (impleaded as per order in IA 172/2019)                        -           Opposite parties  

(O.P. 1 by Adv. V.K. Venugopalan;

 O.P. 2 by Adv. M. Alimuthu; and

 O.P.3 by Adv. P. Prasad)

O R D E R

By Sri. Vinay Menon V., President

1. Complainant’s grievance, skeletally, is that the complainants are the parents of a baby born with Gastroschisis (since deceased post filing of this complaint) while under the care of 1^st O.P. doctor in 2^nd O.P. hospital. Failure to diagnose this condition was due to the deficiency in service on the part of the 2^nd O.P. hospital. The 2^nd O.P. had no facilities to carry out any urgent remedial measures in case of such eventualities. The baby, immediately after its birth, had to be taken to other hospitals where the baby underwent surgical remedy. Subsequently, the baby succumbed to its ill health. This complaint is filed aggrieved by the alleged deficiency in service on the part of the O.P.s 1 and 2 in diagnosing the condition of the foetus during the 3 intra uterine scans, especially the 2^nd scan/targeted anomaly scan.

O.P.3 is the insurer of the 2^nd O.P. hospital.

2. O.P.1 filed version stating that the infant suffered from omphalocele which was a congenital defect and the same could be rectified after delivery. The 2^nd trimester sonography/ targeted anomaly scan did not show any abnormality. Scans are not 100% successful and there are various factors wherein a clear picture will not be available owing to physiological factors. The 1^st O.P. had taken reasonable skill, care and caution.
3. The 2^nd O.P. also filed a version similar to the one filed by the 1^st O.P. They additionally stated that the paediatrician had taken care of the child and that they had made all arrangements for transfer of the baby to a hospital with better facility.
4. Pursuant to the contents in the version of 2^nd OP, the 3^rd OP insurance company was also impleaded as an OP. They also filed written version admitting a valid policy.
5. Pleadings and counter pleadings considered, the following issues were framed for adjudication:

1. Whether the congenital abnormality occurred as a result of lack of care and reasonable caution on the part of OP1 doctor?
2. Whether there is deficiency or unfair trade practice on the part of any of the  OPs?
3. Whether the complainant is entitled to any of the reliefs sought for?

4.         Any other reliefs?

6.      (i)          Evidence comprised of proof affidavit and Exhibits A1 to A17.  Marking of Exts. A9, 10 & 11 series of bills are objected to as the counsel for O.P.3 suspected that there was duplication of bills. 1^st complainant was examined as PW1.   

(ii)     OPs filed separate proof affidavits. Exts.B1 to B4 were marked by OP2. OP3 marked Ext.B5. OP1 was examined as DW1. Cross of the witness for OP2 hospital was given up by counsel for the complainant. 

            Issue No.1

7.         The 1^st question that needs to be answered is whether the condition developed as a result of the negligence in treatment on the part of OP doctor.  It is to be noted that there seems to be a difference of diagnosis made by the OPs herein and by the experts in AIMS. As per Ext.A12 discharge summary issued by AIMS the baby is suffering from gastroschisis. Per OPs baby was suffering from omphalocele. DW1 clarified that both the conditions are similar and that the only difference is that in omphalocele there would be a sac covering the contents that have come out of the body. In gastroschisis the intestine will be in the amniotic fluid.  

8.         Whatever be the condition, what is to be considered is whether such a condition arose as a result of any deficiency in service on the part of the OP doctor. Eventhough the counsel for complainant vehemently argued that there is deficiency in service on the part of the 1^st O.P., when confronted with relevant definition of both these medical conditions, gastroschisis and omphalocele, stating that they are  congenital defects, in Stedman’s Medical Dictionary, 28^th Edition,  he withdrew his arguments in this regard.  

9.         Thus, this issue need not be considered in any detail. To that extent we hold that the defect suffered by the infant is congenital and not attributable to any deficiency in service on the part of OPs 1 & 2.  

            Issue No.2

10.       It would be advisable to consider the cases of the OPs 1 & 2 one by one for easy adjudication.

A.         Whether there is any deficiency in service on the part of OP1 :-

11.       OP1 is the consultant doctor. As already settled in Issue no.1 the defects suffered by the baby is a congenital defect. To that extent, there is no deficiency in service on the part of OP1.

12.       The next question is whether there is any deficiency in service on the part of OP1 in diagnosing the condition of the foetus. Complainant’s major grievance is that, had the  condition been identified earlier, they could have opted for a hospital with better facilities for delivery, thereby reducing the chances of sufferings of both the baby and mother.

13.       The 1^st O.P. had referred the foetus for sonography test during the first, second and third trimesters.  Off the 3 sonograph tests availed, the 2^nd one (Targeted anomaly test) was the vital one since it was during this test carried out around 20 weeks of gestation that the bodily anomalies of the foetus are being identified. The targeted anomaly scan was slated for 26/4/2017. Ext.A4 is the report. The impression shows that the foetus is normal. The sonologist is one Dr. Sushma Sreedharan. O.P.1 arrived at her findings based on the contents of Ext.A4.

14.       Therefore we hold that there is no deficiency in service on the part of 1^st OP in failing to diagnosis the gastroschisis of the foetus.

B.         Whether there is any deficiency in service on the part of OP2 :-

15.       OP2 is the hospital. During the course of proceedings, the complainant filed an application as IA 571/2022 seeking a direction to O.P. to produce of the scan report as well as the address of the sonologist, Dr. Sushma Sreedharan.  Pursuant thereto the OP2 produced the report as well as the address of Dr. Sushma Sreedharan.  

16.       It goes without saying that in the facts and circumstances of the case, the best person to adduce evidence with regard to matters pertaining to the visibility / non visibility of organs, reliability / non reliability of findings, anomalies, causes for such anomalies etc.  were Dr. Sushma Sreedharan. Even if we consider that she would adduce evidence favouring her findings, there also was another option to examine any other sonologist.

At the time of hearing, counsel for complainant had argued that the OP2 had deliberately withheld production of the photographic films associated with the sonography  pursuant to prayers in  IA 571/2022. But a perusal of the contents in IA 571/2022 would reveal that the complainant had sought for production of report alone and not for the films.  The said document was submitted by  OP2 on 21/12/2022. No further steps were taken by the complainant till date to have the photographic films brought in this commission.

We do observe that O.P. 2 could have voluntarily produced the same. But the fact remains that the complainant, being saddled with the obligation to discharge burden of proof, had not insisted on production of the films by O.P.2 at any juncture by way of an application upon which this Commission could have issued a clear order directing the 2^nd O.P. Hence, we refrain from resorting to any adverse inference regarding non-production of documents in the possession of O.P.2 at this juncture.

17.       At the time of hearing the complainant vehemently argued that the second sonography ought to have been of a longer duration and that its report wider and deeper in nature. But the complainant has failed to prove by cogent evidence that the condition suffered by the foetus was one that was easily ascertainable by a scan report.

This is not a matter wherein we can resort to judicial notice or where the facts and circumstances are ‘res ipsa locquitor’.

18.       In view of the discussion above, we hold that there is no deficiency in service on the part of the 2^nd O.P.

             Issue Nos. 3 & 4  

19.       As already held supra,  we hold that there is no deficiency in service or unfair trade practice on the part of O.P.s.

20.       Complainants are entitled to any of the reliefs sought for.

21.       In the facts and circumstances of the case parties are directed to suffer their respective costs. 

22.       Holding thus, this complaint is dismissed.

Pronounced in open court on this the 12^th day of January, 2024.    

                                                                                        Sd/-                                                                                       

                                                                                             Vinay Menon V

                                                        President

                                                             Sd/-

   Vidya.A

                       Member        

         Sd/-                                                                      Krishnankutty N.K.

                                                                                                          Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1   - Copy of ultrasonography report  

Ext.A2  –  Original reference for anomaly scan

Ext.A3   -  Cash bill dated 26/4/2017

Ext.A4  -   Copy of obstetrics – abdomen scan dated 26/4/2017

Ext.A5  –  Copy of ultra sound scan report

Ext.A6 –  Series of 15 original cash bills    

Ext.A7 –  Original discharge summary dated 31/7/2017

Ext.A8 –  Original 3 invoices

Ext.A9 –  Original of bills issued from Amrutha Institute of Medical science (AIMS)

Ext.A10 – Original of bills issued from AIMS

Ext.A11 – Series of  166 original  bills issued from AIMS

Ext.A12 – Original discharge summary dated 25/9/2017

Ext.A13 –  Original discharge summary dated 19/9/2018

Ext.A14 –  Original death certificate dated 14/3/2019

Ext.A15 – Copy of lawyer’s notice dated 12/1/2018

Ext.A16 –  Original of reply to Ext.A15 issued by OP1

Ext.A17 – Original of reply to Ext.A15 issued by OP2    

Exhibits marked on the side of the opposite party:

Ext.B1 – Copy of Compact Insurance Policy

Ext.B2 – Copy of obstetrics – abdomen scan dated 26/4/2017

Ext.B3 – Copy of entries in the department of paediatrics

Ext.B 4 – Copy of referral letter

Ext.B5 –  Same as Ext.B1

Court Exhibit:  Nil

Third party documents:  Nil

 Witness examined on the side of the complainant

PW1 – Akbar (1^st complainant)

Witness examined on the side of the opposite party:

DW1 – Dr. Anies M.S. (1^st OP)

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.