Tamil Nadu

StateCommission

FA/1120/2011

SHAMEEM - Complainant(s)

Versus

Dr. K. Nagavalli - Opp.Party(s)

M/s. Sivanandan

15 Jul 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

BEFORE        Thiru. J.JAYARAM                 PRESIDING  JUDICIAL MEMBER

                        Tmt. P. BAKIYAVATHI         MEMBER

F.A.NO. 1120/2011

[Against the Order in  C.C.No. 310/2010 dated 12.10.2011 on the file of the DCDRF, Coimbatore]

DATED THIS THE 15^th  DAY OF JULY 2015

Mrs. Shameem,

W/o of Mr.Babu,

Sumithi House,

No.23, Appchi Nagar,

2^nd Street, Gongu Main Road,

Tirupur.                                                                                         ..Appellant/complainant

                                             Vs

1.Dr.K.Nagavalli

No.307, Roopa Nurshing Home,

Nataraja complex,

Easwaran Koil street

Tirupur-4

 

2. Dr.P.Kavitha Lakshmi

Pooja Scans,

415, Avinashi Road,

Near Pushpa Theatre stop,

opp. APR Stores,

Tirupur 641 602  

 

3. Pooja Scans,

415, Avinashi Road,

Near Pushpa Theatre stop,

opp. APR Stores,

Tirupur 641 602                                                                                    ..Respondents/opp.parties

 

Counsel for the Appellant/complainant       : M/s S.Sivanandam, S.Rajesh

Counsel for the 1^st Respondent/1^st op        : M/s Vincent Raj

Counsel for the 2^{nd & 3rd} Respondents/ op    : M/s B.L.Lavanya

 

This appeal coming before us for final hearing on 22.6.2015 and upon perusing the material records, this commission made the following order.

                                               ORDER

THIRU.J.JAYARAM, PRESIDING JUDICIAL MEMBER

1.         This appeal is filed by the opposite party against the order of the District Forum, Coimbatore in CC.No. 310/2010 dated 12.10.2011 dismissing the complaint. 

2.         The case of the complainant is that the complainant went to the hospital run by the 1^st opposite party for regular medical check-up from 28.12.2007 in order to monitor the pregnancy and growth of the foetus.         The 1^st opposite party referred the complainant to the 2^nd  opposite party who referred her to the 3^rd opposite party scan centre run by her.  The 1^st opposite party directed the complainant to take Ultra Sound Scan on 29.12.2007, 25.2.2008, 21.4.2008 and 15.6.2008 besides the routine check-up. In all these scan reports it is clearly stated that there is no detectable congenital anomaly or gross abnormality.

3.          On 21.4.2008, the 2^nd opposite party conducted an antenatal Ultra Sound scan and in the report it is clearly stated that no sonographically detectable congenital anomaly was found in the foetal anatomy and another antenatal ultra Sound Scan was done during the time of gestation period of 33.4 weeks  of gestational age and as per the report, there was no gross abnormality.

4.            While so, the complainant suddenly developed labour pain on 1.7.2008 and she was rushed to PSG Hospital, Peelamedu, Coimbatore.

5.            The complainant is a known case of Gestational Diabetics Mellitus (Diabetes) on insulin from 2^nd month of pregnancy. On 3.7.2008,  ultrasound scan was done and it was found that there was a condition of Lumbo Sacral spine dysgenesis/agenesis with bulky foetal thighs was reported in the findings. On 8.7.2008,  since the complainant had labour pains but due to non-progression of labour, an emergency caesarean was done to save the baby.   The complainant delivered a boy baby with anomaly of absence of lumbar and sacral vertebrae with approximation of pelvic bones posteriorly. But, later in the discharge summary issued by the PSG Hospitals, Coimbatore dated 12.7.2008, the above said disability and contractures at knee and ankle besides urinary incontinence suggestive of “Caudal Regression Syndrome” was confirmed.

6.       The Doctors of PSG Hospital, Coimbatore detected the absence of Lumbar and sacral vertebrae representing the “Caudal Regression Syndrome” which the 2^nd opposite party had failed to find out. Had the opposite parties acted with due care and diligence, the complainant could have resorted to medical termination of pregnancy. All these amount to negligence and deficiency in service on the opposite parties.

7.         According to the opposite parties, there is no negligence or deficiency in service on their part. The District Forum considered the rival contentions and dismissed the complaint holding that there is no negligence or deficiency in service on the part of the opposite parties.

8.            Aggrieved by the impugned order, the complainant has preferred this appeal.

9.      The complainant has filed the complaint against the opposite parties claiming compensation from them on account of the medical negligence and deficiency in service on the part of the opposite parties in not properly interpreting the scan reports and x-ray reports and failing to diagnose that there would be, “Caudal Regression Syndrome”.

10.       It is pertinent to note that there is no medical expert’s evidence, or opinion on record to establish the contention of the complainant that there is negligence and deficiency in service on the part of the opposite parties in the birth of the child with physical deformities.

11.         The Appellant/complainant has contended that this case can be decided in the absence of expert opinion or evidence based on the rule of res ipsa loquitur, relying on the decision of the Hon’ble Supreme Court as follows:-

         V.Krishna Rao Vs Nikhil Super Specialist Hospital & Another

         III-(2010) – CPJ – I – (SC)

    “In the opinion of this court, before forming a opinion that expert’s evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of the experts or that facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of the expert’s opinion”.    

           “In a case, where negligence is evident, the principle of res ipsa loquitur operates”

12.           On consideration of the materials on record, we are of the opinion that the case involves complicated issues which cannot be resolved without medical expert’s opinion and we can otherwise decide the contentions of both sides. Further the medical negligence or deficiency in service is not evident on the facts of the case and there are no proved circumstances to draw the inference as to negligence and in these circumstances, we cannot invoke the doctrine of res ipsa loquitur which does not apply to the facts of the case.

 13.        It is significant to note that the complainant has not specifically stated how there is negligence or deficiency in service on the part of the opposite parties and what omissions and commissions on the part of the opposite parties amount to negligence and deficiency in service. 

14.         As already stated there is no evidence on record to establish that there is negligence or deficiency in service on the part of the opposite parties. We have to note that the mere allegation leveled against the opposite parties will not go to establish negligence or deficiency in service on the part of the opposite parties and negligence cannot be presumed, but it has to be proved.

15.         In this regard, we rely on the following decision of the Hon’ble National Commission in the case of :

   1) Prabha Shankar Ojha Vs Neel Mani Rai(Dr.)

       I-(2010)-CPJ-62 (NC) wherein it is stated as follows:

     “It is by now well settled that onus of proof is on the party who alleges medical negligence. This has further been elaborated in subsequent judgments that mere statement of party is not enough. Allegation of negligence has to be proved with the help of expert medical opinion. Admittedly, in the present case, the petitioner has not brought on record any expert evidence to show as to what the doctor did was not to be done as per accepted medical practice or what he should have done as per accepted medical practice, which he failed to do”

16.     Further, admittedly, it is not the case of the complainant that the opposite parties are not qualified to handle the case, and we have to note that there is no allegation or averment that the opposite parties are not qualified or without sufficient skill.

17.     The Hon. National Commission has observed as follows in the case of

Kamla Bai Pandey vs. Dwivedi

(1) (2009) CPJ – 263 (NC)

“As per law laid down by the Hon’ble Supreme Court in the case of Jacob Mathew vs. State of Punjab & Anr. 2005 (6) SCC (1)

“It is for the complainant to prove as to what the doctor did which he should not have done or should have done and he did not do”

18.     The counsel for the respondents / opposite parties have further contended that there is no negligence or deficiency in service relying on the following decision of Hon’ble Supreme Court as held as follows:

Senthil Scan Centre vs. Shanthi Sridharan & Anr.

III (2011) CPJ – 54 (SC)

“There is no evidence as to how the Scan Centre did not do what ought to have been done or did something which a doctor possessing ordinary skill not to have done. No expert’s evidence was let in to show that the scan conducted were not as per the medical norms or that the centre was not properly equipped. The Commission also failed to appreciate that Ultra Sound is not a perfect depiction of the features and the scan report cannot be 100% conclusive”.

“The appellant / complainant had not let in expert evidence to controvert the case of the centre that the doctor who conducted the Ultra Sound was highly qualified and that the Ultra Sound was done with due care and diligence. There is no evidence to show that the failure to detect the deformity was out of any negligence on the part of the doctor conducting the Ultra Sound”.

19.     The Hon’ble Supreme Court has laid down as follows regarding the onus of proof in the case of

 

Nizam Institute of Medical Sciences vs.

Prasanth S. Dhananka & Ors.

2009 – INDLAW – SC (1047)

“In a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence” 

20.     On consideration of the entire materials on record, we hold that the complainants have not discharged the initial burden of making out their case of negligence against the opposite parties, and that the complainants have not established negligence or deficiency in service on the part of the opposite parties. Therefore, we hold that there is no negligence or deficiency in service on the part of the opposite parties.

21.     The District Forum has come to the right conclusion that there is no negligence or deficiency in service on the part of the opposite parties, based on proper reasons and has dismissed the complaint. We agree with the finding and the decision of the District Forum dismissing the complaint. There is no infirmity in the order of the District Forum and there is no merit in the appeal.

22.     In the result, the appeal is dismissed confirming the order of the District Forum dismissing the complaint. No order as to costs in the appeal.

 

    TMT.  P. BAKIYAVATHI                                                J. JAYARAM            

            MEMBER                                                    PRESIDING JUDICIAL MEMBER