DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 24th day of June, 2024
Present : Sri. Vinay Menon V., President
: Sri. Krishnankutty N.K., Member Date of Filing: 23/03/2021
CC/62/2021
Vineetha C.R.,
W/o.Dhanesh,
C/o.Ramakrishnan Nair,
Kunnumpuzhaku House,
Perunkandur, Thrissur – 680 581. - Complainant
(By Adv. V. Shanmuganandan)
Vs
- Dr. Mini N.M.
Gynaecologist & obstetrician,
The Palakkad District Co-Op. Hospital &
Research Centre Ltd.,
No. P878, Court Road, Palakkad.
- Dr. S. Ravikumar,
Radiologist & Sonologist,
The Palakkad District Co-Op. Hospital &
Research Centre Ltd.,
No. P878, Court Road, Palakkad.
- The Managing Director,
The Palakkad District Co-Op. Hospital &
Research Centre Ltd.,
No. P878, Court Road, Palakkad. - Opposite parties
(OPs 1 & 2 by Adv. V.K. Venugopalan;
OPs 3 by Adv. S. M. Unnikrishnan)
O R D E R
By Sri. Vinay Menon V., President
- Based on a wholesome appreciation of the relevant facts and evidence, the complainant is the mother of one baby who was born with congenital disabilities like bilateral anophthalmus with partial callosal agenesis and sellar cyst, which prevents normal growth of the child, once delivered. Further the infant suffered from total blindness. Per complaint pleadings, delivery of such a child could have been avoided, had the first OP conducted anomaly test during the 20th week of pregnancy.
Subsequent to filing of this complaint, the infant died on 24/9/2021.
2. OPs 1 to 3 filed similar versions stating that an anomaly scan is not 100% foolproof and only 70 to 80% of deformity could be detected. Further, the other scans conducted showed no deformities. The complainant had her LMP on 17/9/2019 and all antenatal checkups were carried out as per protocols. The OPs were careful since the complainant had one child and history of one abortion. Further, anomaly scan was carried out on 6/1/2018 by around the end of first trimester. Minute anomalies may not reflect in anomaly scan. The complainant’s condition was not so critical and an indication as to advise level 3 scanning and the complainant did not have any other findings.
OP2 filed version detailing the findings in the scan reports. He has also stated that as per routine clinical practice anomaly scan in usually done around 20 to 24 weeks. By the time scanning was carried out on 1/3/2018, the gestation age was about 20 to 24 weeks and the findings were normal.
3. The following issues were framed for consideration:
- Whether there is any deficiency in service / medical negligence in ordering routine scan rather than anomaly scan?
- Whether the complainant is entitled to any of the reliefs sought for?
- Any other reliefs?
4. (i) Documentary evidence of complainant comprised of proof affidavit and Exhibits A1 to A35. Complainant was examined as PW1.
(ii) O.P.s filed proof affidavits. There was no documentary evidence.
(iii) OP1 & 2 were examined as DW1 & DW2 respectively.
Issue No.1
5. The major complaint of the complainant is seen summarized in paragraph 6 of the complaint. It states that detection of the brain defect was due to the negligence on the part of OPs 1 & 2 at the proper time and proper manner. Further, in her deposition, the complainant has stated in page 2 of her deposition, in lines 3 to 8, that she has no case that the deformity caused as a result of any medical negligence. Her only grievance was that the delivery could have been prevented. Hence the major task that this Commission faces is to ascertain whether the anomaly scan was taken at the proper period and the reliability of such a scan to discern the anomalies of the foetus. In order to ascertain the dispute involved, this Commission has to answer the following questions:
1) When should the anomaly scan be carried out?
2) Whether the anomaly scan is reliable?
6. Before going to a discussion, it is necessary to schedule the relevant dates and incidents:
Sl. No. | Date | Particulars | Remarks |
1. | 19/09/2017 | Last Menstrual Period | |
2 | 04/02/2018 | 20 weeks gestation | Ideal period for anomaly scan |
3 | 16/12/2017 | 1st trimester scan (Ext.A1) | No abnormalities detected |
4 | 06/01/2018 | 2nd scan (Ext.A2) | Anomaly scan taken before ideal period (NAD) |
5 | 01/03/2018 | 2nd trimester scan | Normal scan taken. Anomaly scan not taken |
1) When should the anomaly scan be carried out ?
7. It is the complainant’s case that though the anomaly scan was carried out, scanning was taken at a much earlier stage than the recommended period of 20 weeks, thereby preventing any detection of anomalies.
8. LMP of the complainant was on 17/9/2017. It can be seen that 20 weeks from LMP comes to 4/2/2018. Even though no medical records are produced to prove the apt period for carrying out anomaly test, the necessity for such medical journal are not required in view of the NB clause seen at the bottom of Exts. A2, A3 & A4. Exts.A2 to A4 are copies of ultra-sonogram reports(obstetrics) of scanning carried out at various stages of pregnancy. At the bottom of the said 3 reports the following notice is printed.
“N.B.: All congenital anomalies cannot be detected sonographically. Detection of congenital anomalies depends on period of gestation (ideal 20 - 24 weeks), liquor volume, foetal position, maternal obesity etc. at the time of scanning”.
9. Doctor who carried out the USG procedures was examined as DW2. His deposition with regard to anomaly scan is as follows:
Page 2 lines 15 to 18 “ 19-20 ആഴ്ച കൂടി നടത്തുന്ന scan ആണ് fetal anomaly scan എന്ന് പറഞ്ഞാല് ശരിയല്ല. അത് 18 മുതല് 22 ആഴ്ചയില് ആണ് ചെയ്യുന്നത്”.
10. Ext.A2 is the anomaly scan. It is dated 6/1/2018. At the bottom of Ext.A2, there is a direction for USG Anomaly Scan on 1/3/2018. But we can’t come to a conclusion that this is an advice for taking USG Anomaly Scan, since this part was not proved by any supporting or clarificatory evidence. As can be seen from the schedule above, this anomaly scan was taken much earlier to the 18 – 22 weeks of ideal period.
11. Ext.A3 is the scan taken on 1/3/2018. But this is not an anomaly scan.
10. From a reading of the contents in Exts.A2 to A4 and the deposition of DW2 we can reasonably come to a conclusion that anomaly test has to be done between 18 to 22 weeks so that the ideal results of detecting anomalies can be availed.
2) Whether the anomaly scan is reliable
11. (a) In order to answer this question also reliance can be made upon the notice reproduced supra in paragraph 8. Best results can be availed when scanning is conducted around 18 to 22 weeks. Now we have to consider how effective they are. Statement made under Exts. A2 to A4 itself make it clear not all congenital anomaly can be identified.
(b) DW2 has in his deposition in page 3, line 4 stated that a USG scan gives only a perfection of 70 to 80 percentage. It can be seen that though not all anomalies can be detected, USG still is an undisputed method for scanning and availing data with regard to the functioning of the human body. Same goes with regard to foetus also.
12. In view of the findings above we hold that carrying out of a normal USG scan, when anomaly scan ought to have taken, is a negligence on the part of OP 1. It was incumbent on the part of the treating doctor i.e. OP1 to verify the nature of the USG taken when a report is produced before her. She had a duty to verify her prior records before going for a conclusion with regard to foetal condition by relying on Ext.A3 dated 1/3/2018 alone. Even though no conclusion can be arrived at as to who made the decision to take a normal USG, fact remains that OP1 had duty to verify the records available with her.
13. Having failed to verify the records, we hold that the 1st O.P. has failed to exercise due diligence and that she has failed to exercise reasonable care expected of an experienced doctor of her stature. There is negligence on the part of the 1st OP in failing to notice that the scan taken on 1/3/2018 was not an anomaly scan.
Issue No. 2
14. Complainant has sought for a compensation of Rs.1 crore along with incidental expenses. We do admit that having a child with congenital defects that would prevent its natural growth and living is painful for everyone, especially so for a loving parent.
15. The sole mistake on the part of OP1 is the failure to note that the USG scan dated 1/3/2018 was only a normal scan and not an anomaly scan. Nothing untoward happened to the foetus because of the conduct of the 1st OP.
16. Complainant’s only case is that had the anomaly been detected in time they could have aborted the child. Presently the child is no more. She died during 2021.
17. The complainant would have been entitled to a higher compensation for the expenditure related to the child had she been alive. But in the present circumstances, the complainant is entitled only for negligence failure to note that the USG scan dated 1/3/2018 was only a normal scan and not an anomaly scan.
Issue No. 3
18. Based on the discussions and observations above we allow the complaint in part as herein below:
1) OP No.2 is absolved off all liabilities.
2) There is negligence on the part of OP1. OP3 is vicariously liable.
3) A compensation of Rs.2 lakhs is ordered as payable to the complainant by OPs 1 & 3
jointly and severally.
4) A cost of Rs.50,000/- is payable by OPs 1 & 3 jointly and severally.
Pronounced in open court on this the 24th day of June, 2024.
Sd/-
Vinay Menon V
President Sd/-
Krishnankutty N.K.
Member
APPENDIX
Exhibits marked on the side of the complainant
Ext.A1 - Copy of USG report dated 16/12/2017
Ext.A2 - Copy of USG report dated 6/1/2018
Ext.A3 - Copy of USG report dated 1/3/2018
Ext.A4 - Copy of USG report dated 28/5/2017
Ext.A5 - Copy of prenatal second trimester screening summary dated 12/1/2018
Ext.A6 - Copy of patient details
Ext.A7 - Copy of prescription dated 10/2/2018
Ext.A8 - Copy of prescription dated 7/4/2018
Ext.A9 - Copy of prescription dated 24/10/2018
Ext.A10 - Copy of prescription dated 16/12/2018
Ext.A11 - Copy of prescription dated 25/6/2018
Ext.A12 - Copy of UGC prescription dated 6/1/2018
Ext.A13 - Copy of lab report dated 11/6/2018
Ext.A14 - Copies of 14 cash receipts
Ext.A15 - Copy of discharge summary dated 18/9/2018
Ext.A16 - Copy of birth certificate
Ext.A17 - Copy of MRI Scan of Brain & Orbits
Ext.A18 - Copy of casualty registration card.
Ext.A19 - Copy of hospital records of B/o Vineetha
Ext.A20 - Copy of peripheral smear report dated 9/8/2018
Ext.A21 - Copy of colour doppler echocardiography report dated 9/8/2018
Ext.A22 - Copy of USG report dated 23/4/2021
Ext.A23 - Copy of referral letter dated 13/6/2018
Ext.A24 - Copy of lab report dated15/9/2018
Ext.A25 - Copy of lab report dated 12/5/2018
Ext.A26 - Copy of test results dated 12/6/2018
Ext.A27 - Copy of observation record dated 15/8/2018
Ext.A28 - Copy of consultation records dated 9/7/2018
Ext.A29 - Copy of lab report dated 9/7/2018
Ext.A30 - Copy of 6 cash bills from Trinity Hospital
Ext.A31 - Two Original OP cards with Psychological evaluation for Vineetha
Ext.A32 - Two Original OP cards Psychological evaluation for Dhanesh
Ext.A33 - True copy of Death Certificate
Ext.A34 - Copy of certificate of disability
Ext.A35 - Copy of Aadhar Card of B/o Vineetha
Exhibits marked on the side of the opposite party: Nil
Court Exhibit: Nil
Third party documents: Nil
Witness examined on the side of the complainant:
PW1 – Vineetha (Complainant)
Witness examined on the side of the opposite party:
DW1 – Dr.Mini (OP1)
DW2 – Dr.Ravikumar (OP2)
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.
