Tamil Nadu

South Chennai

CC/488/2007

Rahmath Fathima, - Complainant(s)

Versus

Dr. C.E. Vasundra - Opp.Party(s)

S.Parthasarathy

09 Mar 2018

ORDER

                                                                                                                           Date of Filing  : 18.10.2007

                                                                          Date of Order : 09.03.2018

 

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNAI (SOUTH)

2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

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

                 TMT. K. AMALA, M.A. L.L.B.                                          :  MEMBER-I

      DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

CC. NO.488 /2007

FRIDAY THE 9^th  DAY OF MARCH 2018                                               

 

Rahmath Fathima,

W/o. Mr. Mohameed Nazeer,

No.1, 3^rd Main Road,

Seethammal Extension,

Alwarpet,

Chennai 600 018.                                                     .. Complainant

 

                        ..Vs..

 

1. Dr.C.E.Vasundra,

Consultant Obstetrician & Gynecologist,

No.8, VOC Colony, II Main Road,

(Behind Ram Theatre),

Kodambakkam,

Chennai 600 024.

 

2. Dr. Kailasanathan,

Dr. Kailash Ultrasound Clinic,

AB-146, 3^rd Main Road,

Anna Nagar,

Chennai 600 040.

 

3. M/s. New India Assurance Company Ltd.,

No.114, Kutcherry Road,

Mylapore,

Chennai 600 004.                                          ..  Opposite parties.

 

Counsel for complainant         :  M/s. S. Parthasarathy     

Counsel for opposite party-1  :  M/s. Anand, Abdul & Vinodh

Counsel for opposite party-2  :  M/s. N.A.Nissar Ahmed & another

Counsel for opposite party-3  :  M/s. Ashok Rajaraaman

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 seeking direction to pay a sum of Rs.1600/-, Rs.900/- towards medical expenses and also to pay a sum of Rs.10,00,000/- being compensation for mental agony and Rs.1000/- towards cost of the complaint.

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

          The complainant submit that  on 4.6.2007 the complainant undergone Urine Pregnancy Test with Pathologist viz., M/s. Diagnostic Services, T.Nagar, Chennai on her own interest and the result of the test seems to be positive and was taken to the 1^st opposite party for medical check up on 15.6.2007.    The 1^st opposite party also after examination prescribed some medicines and also advised  to undergone sonogram and medical tests  on 17.6.2007.   The complainant had undergone Sonogram of Pelvis test  went for early pregnancy with an assistance of 2^nd opposite party being a Consultant Radioloist & Sonologist.   The 1^st opposite party after physically checking up the complainant opinioned as “Missed Abortion”  and advised the complainant for evacuation by prescribing some medicines for consumption. The complainant was put to great mental agony shock and surprise as per the advise of the 1^st opposite party  and report of the 2^nd opposite party.  Hence the family members of the complainant decided to go for second opinion with other Obstetrician and Gynecologist to confirm the report given by the 1^st opposite party and again medical tests namely early pregnancy IST Trimester scanning at M/s Bharat Scans  on 18.6.2007.  Accordingly M/s. Bharat Scans have given an opinion that the complainant as “early intrauterine gestational sac corresponding to 5 weeks and suggested review after  2 weeks to confirm fetal pole and its viability”.    Thereafter on 2.7.2007 the complainant again undergone medical tests ; The radiologist at M/s.  Bharat Scans has given an opinion report as “Single live intrauterine gestation corresponding to 7 - 8 weeks. Further the complainant state that if the complainant underwent evacuation based on the report and  advise of the 1^st and 2^nd opposite parties the complainant will be deprived of a most valuable healthy first child gestation in her womb  as well as may cause great mental agony due to the chances of conceiving a baby again in future.    Further the complainant state that the 1^st opposite party given letter dated 17.6.2007 to the complainant addressing the Duty doctor, Best  Hospital, to admit the complainant on 18.6.2007 at 9.00 a.m.  for evacuation and advised to remit a sum of Rs.6,000/- towards consulting fees which establishes the unfair trade practice of the 1^st opposite party.   Therefore the complainant issued legal notice dated 12.8.2007 for which the 1^st and 2^nd opposite parties sent reply dated 5.9.2007 and 9.9.2007 respectively with untenable contentions.     As such the act of the opposite parties amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence this complaint is filed.  

2. The brief averments in the written version filed by the 1^st  opposite party is as follows:

The  1^st opposite party deny each and every allegations except those that are specifically admitted herein.   The 1^st opposite party submit that the complainant visited the clinic of the 1^st opposite party on 15.6.2007 with complaints of discharge, PV Associated with lower abdominal pain.  The complainant had also produced Urine test positive for pregnancy, taken elsewhere, since the complainant was also complaining of spotting and her periods were delayed by 8 weeks and the mouth of the uterus was closed, all this indications suggested abnormal condition of pregnancy leading to threatened abortion.  However the 1^st opposite party had prescribed the following medicine chorio life 5000 IU, Duphastan, Folvite for safeguarding the fetus and to continue the pregnancy.  The 1^st opposite party physically examined the complainant and suggested to take a sonogram of the pelvis for viability of the fetus as routine procedure.   On a perusal of the Ultra sound report given by the 2^nd opposite party it was evident that the Uterus was bulky and that the sac was empty and no fetal echos were present.   The impression given by the 2^nd opposite party sonologist was “bighted ovum (Missed abortion) with a gestational period of 6 weeks”.  Hence this opposite party after going through the ultra sound report which clearly suggested missed abortion had suggested evacuation of the fetus immediately since any delay could cause (1) severe bleeding PV (2) Amniotic fluid embolism which could be life threatening to the complainant.   Further the 1^st opposite party stated  that on 15.6.2007 all essential investigations including urine albumin and sugar, HB %, Blood sugar, Blood group, Rh Typing, VDRL, HBs Ag and HIV  test were taken so as to assess the general condition of the patient and as routine antenatal check up for continuation of pregnancy.   Further the 1^st opposite party state that Ultra Sonogram taken by the complainant at Bharat scans on the very next day after taking the scan with 2^nd opposite party also suggested that  fetal pole was not visualized and cardiac activity was not made out.   Hence there is no deficiency in service on the part of the 1^st opposite  party and the complaint is liable to be dismissed.

3. The brief averments in the written version filed by the 2^nd  opposite party is as follows:

The  2^nd  opposite party deny each and every allegations except those that are specifically admitted herein.   The 2^nd  opposite party submit that  it is true that this 2^nd opposite party performed sonogram of pelvis test on the complainant on 17.6.2007.  The test revealed an empty gestational sac.  without any foetal pole and cardiac activity.   The sac did not correspond to the period of amenorrhoea and the complainant had bleeding pv and hence this opposite party gave a test report with his finding “blighted ovum six weeks”.   Even according to the complainant the repeat ultra sound scan performed on the very next day i.e. 18.6.2007 revealed early intrauterine gestation of five weeks.  The viability was confirmed only on 2.7.2007. Therefore the complainants case  could have been multiple pregnancy where the first sac got aborted and the 2^nd sac which was not visible at the time of ultra sound test on 17.6.2007 started growing.  The other allegations in the complaint are not related to this opposite party and hence  as such this opposite party has no comments.  Hence there is no deficiency in service on the part of the opposite  parties and the complaint is liable to be dismissed.

4. The brief averments in the written version filed by the 3^rd   opposite party is as follows:  

The  3^rd opposite party deny each and every allegations except those that are specifically admitted herein.   The 3^rd  opposite party submit that it is an insurance company in which the 2^nd opposite party insured against the professional risk vide policy No.712300/36/06/34/00000001.   The 2^nd opposite party is a Radiologist who conducted a Scan upon the complainant on 17.6.2007.   The  grave allegation in the complaint is against the 1^st opposite party for the deficiency of medical service in prescribing abortion of a healthy fetus.   Hence there is no cause of action against 3^rd opposite party arosed and 3^rd opposite party  cannot be made liable under the Consumer Case.   Further the contention of the 3^rd opposite party is that to constitute medical negligence – three quintessential elements must coalesce or co-exist (1) Duty to take care 2) Failure to attain that care 3) Damage caused to the complainant as a result of breach of duty.   In this case there is nothing about the 3^rd element is in existence.  Hence there is no damage that has been caused to the complainant.   The complaint is pre-mature as the cause of action for laying a claim has not arisen.  Hence there is no deficiency in service on the part of the opposite  parties and the complaint is liable to be dismissed.

5.   In order to prove the averments of the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A10 marked.  Proof affidavit of the opposite parties filed and Ex.B1 to Ex.B8 document marked on the side of the  opposite parties.

6.      The points for consideration is :

1. Whether the complainant is entitled to a sum of Rs.2500/- towards medical expenses as prayed for ?

2. Whether the complainant is entitled to a sum of Rs.10 lakhs towards mental agony with cost as prayed for?

7.  POINTS 1 & 2:

        Both parties filed their respective written arguments.   Heard the opposite party counsel also.  Perused the records (viz) complaint, written version, proof affidavit and documents.    The complainant pleaded and contended that on 4.6.2007 the complainant undergone Urine Pregnancy Test with a Pathologist viz., M/s. Diagnostic Services, T.Nagar, Chennai on her own interest and the result of the test seems to be positive vide Ex.A1 and was gone to the 1^st opposite party for medical check up on 15.6.2007.    The 1^st opposite party also after examination prescribed some medicines and also advised  to undergo sonogram and medical tests.   On 17.6.2007   the complainant had undergone Sonogram of Pelvis test went for early pregnancy with an assistance of 2^nd opposite party being a Consultant Radioloist & Sonologist as per Ex.A3.   The 1^st opposite party after physically checking up the complainant opinioned as “Missed Abortion”  and advised the complainant for evacuation by prescribing some medicines for consumption as per Ex.A4. The complainant was put to great mental agony shock and surprise as per the advise of the 1^st opposite party  and report of the 2^nd opposite party.  Hence the family members of the complainant decided to go for second opinion with other Obstetrician and Gynecologist to confirm the report given by the 1^st opposite party and again medical tests namely early pregnancy IST Trimester scanning at M/s Bharat Scans  on 18.6.2007 as per Ex.A5.  Accordingly M/s. Bharat Scans have given an opinion that the complainant has “early intrauterine gestational sac corresponding to 5 weeks and suggested review after  2 weeks to confirm fetal pole and its viability”.    Thereafter on 2.7.2007 the complainant again undergone medical tests Ex.A6 report as “Single live intrauterine gestation corresponding to 7  - 8 weeks”.    On 22.9.2007 the complainant undergone medical scanning test viz. Trimester Scan report Ex.A7 which says that  “Single live intrauterine gestation corresponding to 19 to 20  weeks’ proves that the opinion and diagnosis  of 1^st and 2^nd opposite parties on the basis of Ex.A2 and Ex.A3 for evacuation of the complainant’s viable fetal amounts to medical negligence. 

8.     Further the complainant contended that if the complainant underwent evacuation based on the report and  advise of the 1^st and 2^nd opposite parties the complainant will be deprived of a most valuable healthy first child gestation in her womb  as well as may cause great mental agony due to the chances of conceiving a baby again in future.    Further the complainant contended that the 1^st opposite party given letter dated 17.6.2007 to the complainant addressing the Duty doctor, Best  Hospital, to admit the complainant on 18.6.2007 at 9.00 a.m.  for evacuation and advised to remit a sum of Rs.6,000/- towards consulting fees establishes the unfair trade practice of the 1^st opposite party as per Ex.A4.   Hence the complainant issued legal notice Ex.A8 dated 12.8.2007 for which the 1^st and 2^nd opposite parties sent reply dated 5.9.2007 and 9.9.2007 as per Ex.A9 & Ex.A10 respectively with untenable contentions.   The complainant is claiming a sum of Rs.2500/- towards medical expenses and compensation of Rs.10 lakhs with cost.

9.     The learned counsel for the 1^st opposite party would contend that the 1^st opposite party is a qualified and well experienced M.D.D.G.O. of Madras Medical College of the year 1980 and worked at various medical college for 28 years and voluntarily retired as Superintendent in charges of R.S.R.M. Hospital, Chennai in the year 1998.   The Ex.B1 and Ex.B8 are the service records. Further the contention of the 1^st opposite party is that on 15.6.2007 the complainant visited the clinic with complaints of discharge, PV, Associated with lower abdominal pain and produced a Urine test report which tested positive for pregnancy.   The complainant also complaining of spotting, and her periods were delayed by 8 weeks and the mouth of the uterus was closed; all such indications suggested abnormal condition of pregnancy leading to threatened abortion.   Hence the opposite party had prescribed the following medicines Chorio Life 5000 IU, Dubagest (100) and Folvite for safeguarding the fetus and to continue the pregnancy and also prescribed folic acid tablets for the brain development of the fetus.    The 1^st opposite party also suggested to take a Sonogram of the pelvis for viability of the fetus as routine procedure.  The said capsule Dubagest is natural micromised progrestrone which is used for saving the fetus and continuation of the pregnancy as per medical literature  Ex.B1 & Ex.B2.   Further the learned counsel for the 1^st opposite party contended that the impression given by the 2^nd opposite party sonologist was “Blighted ovum (missed abortion)( with a gestational period of 6 weeks).   Hence the 1^st opposite party suggested evacuation of the fetus immediately since any delay could cause severe bleeding or and amniotic fluid embolism which could be life threatening to the complainant.    The said contention is not acceptable because admittedly the 1^st opposite party is a Doctor shall physically checked up the complainant and after perusing the Sonogram shall come to the conclusion; only on the basis of Sonogram arriving such conclusion may leads to diagnosis medical negligence.   Further the contention of the 1^st opposite party is that on 15.6.2007 all essential investigations including urine albumin and sugar, HB %, Blood sugar, Blood group, Rh Typing, VDRL, HBs Ag and HIV  test were taken so as to assess the general condition of the patient and as routine antenatal check up for continuation of pregnancy.   Further the contention of the 1^st opposite party is that Ultra Sonogram taken by the complainant at Bharat scans on the very next day after taking the scan with 2^nd opposite party also suggested that  fetal pole was not visualized and cardiac activity was not made out.    But on a careful perusal of Ex.A6 it is seen that “ Single live intrauterine gestation corresponding to 7-8 weeks present.”  Further  the contention of the 1^st opposite party is that as per Ex.B6 medical  literature it is  mentioned as follows:

Threatened Abortion : The clinical diagnosis of threatened abortion is presumed when any bloody vaginal discharge or bleeding appears during the first half of pregnancy.   It is an extremely common place occurrence, and one out of four or five women has vaginal sporting or heavier bleeding during early gestation. Of those women who bleed in early pregnancy, approximately half will abort.  The bleeding of threatened abortion frequently is slight, but it may persist for days or weeks.

10.    But in this case complainant approached the 1^st opposite party on 15.6.2007 (i.e.) only after intrauterine gestational age of six weeks.  Further the learned counsel for the 1^st opposite party contended that the complainant has not taken any steps to prove the alleged medical negligence of the opposite party by way of expert evidence and cited a decision reported in   

2010 (3) MWN (Civil) 329

 

          IN THE SUPREME COURT OF INDIA

V. Kishan Rao

..Vs..

Nikhil Super Speciality Hospital and another

 

(B)  CONSUMER PROTECTION ACT,1986 (68 OF 1986) – Medical Negligence – Expert opinion – Necessity of –When Fora under Consumer Protection Act must come to a conclusion that case is complicated enough to require opinion of an expert or that members of Fora cannot resolve matter without assistance of an expert before forming an opinion that expert evidence is necessary – Fora also not bound by such opinion of expert  evidence is necessary – Fora also not bound by such opinion of expert witness in every case – Held, requirement of an expert opinion should not be mechanical but on facts of individual case which would prevent burdening of efficacy of remedy under Act and also rendering remedy illusory in many cases. 

 

 

But on a careful perusal of the records, facts and circumstances of the case this forum is of the considered view that the legal terms is squarely applicable. 

Supreme Court of India

Samira Kohli

..Vs..

Dr. Prapha Manchanda & Anr

Case No. Appeal (Civil) 1949 of 2004

 

The learned counsel for the 2^nd opposite party would contend that he performed Sonogram of pelvis test on the complainant on 17.6.2007 the test report revealed “empty gestational sac.  without any foetal pole and cardiac activity.  The sac did not correspond to the period of amenorrhoea and the complainant had bleeding pv and hence this opposite party gave a test report with his finding “Blighted ovum six weeks”.   But on a careful perusal of Ex.A5 the Sonogram report of Barth Scan reveals that “ early intrauterine gestational sac corresponding to 5 weeks;”  proves the allegation of empty gestational sac is an imaginary one.    Further the contention of the 2^nd opposite party is that ultra sound scan performed n the next day i.e. 18.6.2007 revealed” early  intrauterine gestation of five weeks”. “The viability was confirmed only on 2.7.2007” could have been multiple pregnancy where the first sac got aborted and the 2^nd sac which was not visible at the time of ultra sound test on 17.6.2007 started growing.  But none of the report of the 2^nd opposite party stated anything with regard to the multiple pregnancy in the sac of the complainant.   Further the contention of the 2^nd opposite party is that the opposite parties never advised  the complainant to undergo evacuation of  foetus and on the other hand performed only scan test and gave scan report.   The physical clinical examination  of the 1^st opposite party rendered the opinion evacuation of foetus has nothing to do with the function of this 2^nd opposite party.  There is no negligence on the part of the 2^nd opposite party, cannot be acceptable because Ex.A2 report is absolutely silent with regard to the contentions raised in the written version proves the cherished afterthought leading deficiency in service.   

11.    The contention of the 3^rd opposite party is that it is an insurance company in which the 2^nd opposite party insured against the professional risk vide policy No.712300/36/06/34/00000001 as per Ex.B7.   The 2^nd opposite party is a Radiologist who conducted a Scan upon the complainant on 17.6.2007 as per Ex.A2 report.   The  grave of allegation in the complaint is against the 1^st opposite party for the deficiency of medical service in prescribing abortion of a healthy fetus.   Hence there is no cause of action against 3^rd opposite party arosed and 3^rd opposite party  cannot be made liable under the Consumer Case.   Further the contention of the 3^rd opposite party is that to constitute medical negligence – three quintessential elements must coalesce or co-exist (1) Duty to take care 2) Failure to attain that care 3) Damage caused to the complainant as a result of breach of duty.   In this case there is nothing about the 3^rd element is in existence.  Hence there is no damage that has been caused to the complainant.   The complaint is pre-mature as the cause of action for laying a claim has not arisen.   But on a careful perusal of Ex.A2, Ex.A5 and Ex.A6 it is apparently  seen that the report of the 2^nd opposite party regarding fetus resulting to the instruction of 1^st opposite party for evacuation which caused great mental agony is proved.   Considering the facts and circumstances of the case this forum is of the considered view that the opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.2500/- towards medical expenses and also shall pay a  sum of Rs.5,000/- towards compensation for mental agony with cost of Rs.5,000/- and the points are answered accordingly.

         In the result the complaint is allowed in part.  The  opposite parties 1 to 3 are jointly and severally liable to pay a sum of Rs.2500/- (Rupees Two thousand and five hundred only) towards medical expenses  and shall pay compensation of Rs.5,000/- (Rupees Five thousand only)  for mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainant.

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

Dictated  by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 9^th   day of March 2018. 

 

MEMBER –I                       MEMBER-II                              PRESIDENT.

COMPLAINANT SIDE DOCUMENTS:

Ex.A1-  4.6.2007   -  Copy of Urine Pregnancy test.

Ex.A2- 15.6.2007  - Copy of Prescription of the 1^st opposite party.

Ex.A3- 17.6.2007  - Copy of Sonogram of Pelvis Test and opinion

Ex.A4- 17.6.2007  - Copy of Advise of the 1^st opposite party

Ex.A5- 18.6.2007  - Copy of early Pregnancy IST Trimester Scanning and opinion

Ex.A6- 2.7.2007    - Copy of early pregnancy IST Trimester Scanning and opinion.

Ex.A7- 22.9.2007  - Copy of OB 2/3 Tremester Scan Report.

Ex.A8- 12.8.2007  - Copy of legal notice.

Ex.A9- 5.9.2007    - Copy of reply notice.

Ex.A10- 9.9.2007  - Copy of reply notice.

 

OPPOSITE  PARTIES SIDE DOCUMENTS:   

Ex.B1-                - Copy of Medical literature from Systopic company.

Ex.B2-                - Copy of literature Williams.

Ex.B3-                - Copy of  Medical literature of Oxford Hand book

Ex.B4-                - Copy of Medical literature from A Passage through abortion

Ex.B5-               - Copy of Medical literature “Role of Ultra sound”

Ex.B6-                - Copy of Medical literature Williams obstetrics 21^st Edition.

Ex.B7-                - Copy of the Appellant’s MD certificate.

Ex.B8-                - Additional written version of opposite parties.

 

MEMBER –I                       MEMBER-II                              PRESIDENT