By Smt.  Beena. M, Member :-

                This is a complaint preferred   under Section 12 of the Consume Protection Act 1986.

2. Facts of the case:-  The Complainant was staying with her husband in Gulf during the year 2018.  While so she became pregnant and returned to India in the month of July.  The Complainant consulted the First Opposite Party at the third Opposite Party hospital on 13-08-2018.  Ultra Sound Scan was suggested. The scanning was done on the same day by the Second Opposite Party at the Third Opposite Party hospital.  The Complainant consulted the First Opposite Party again with the scan report.  The Complainant was told that no gestational sac was seen inside the uterine cavity, but some matter could be seen and also told that it could be a case of suspected molar pregnancy.  The Complainant was advised to undergo D&C to evacuate the uterus.  D&C was done on 15/08/2018 at the Third Opposite Party hospital.  After evacuating the uterus, the specimen was sent for biopsy.  In order to rule out molar pregnancy, Beta HCG correlation was suggested.   The Complainant was advised to consult the First Opposite Party with biopsy report.  Thereafter, she went to consult the first opposite party on 27-08-2018 with the biopsy report, Ultra sound scan report and Endocrinology report.  The Complainant’s father noted that the Ultra Sound Scan report showed gestational sac corresponding to less than 5 week.  The endocrinology report showed that Beta HCG count was 8220 mIU/mI.  Since the First Opposite Party was on leave, she consulted Dr. Gowry of the same hospital. The Complainant suspected that the doctor was trying to hide something from her.  Hence, Complainant along with her father went to Calicut and consulted a senior Gynecologist, Dr. Sumangala Devi with all the previous medical records.  The complainant was shocked to know that gestational sac seen in the uterus.  The doctor advised the complainant to take rest and take utmost care and to consult any doctor in Wayanad in case of emergency and also advised not to travel much.  Later the Complainant had taken to WIMS Hospital, Meppady with bleeding and consulted Dr. Hemalatha.  No treatment was given and the Complainant was  advised to wait for some more days and see whether the pregnancy could be preserved.  On 1-10-2018, she was admitted in WIMS hospital Meppady with profuse bleeding and abdominal pain.  The Doctor told the Complainant that there was no other option but to abort pregnancy. The complainant was discharged from the hospital on 3-10-2018. When the First Opposite Party examined the Complainant on 13-08-2018, the first opposite party suspected molar pregnancy on the basis of the Ultra scan report.  The First Opposite Party without conducting any further tests for ruling out molar pregnancy and without waiting for some more time, straight away conducted D&C to evacuate uterus.  Moreover, the First Opposite Party did not take action for further scanning to make sure that no residue has left in the uterus.  If the First Opposite Party had waited for some more time, the precious pregnancy could have been saved.  Since the First Opposite Party was fully aware that the Complainant’s first pregnancy was aborted, she should have taken extra care and caution to preserve the pregnancy. The act of the First Opposite Party has nothing but medical negligence and deficiency in service on her part.  The Second Opposite Party carelessly came to the conclusion that it was Molar pregnancy and the First  Opposite Party without conducting further test quickly suggested  D&C.  Due to the act of the Opposite Parties the Complainant lost her precious pregnancy.  The Complainant was forced to spend huge amount for treatment alone.  Complainant’s dream of becoming a mother was shattered.  Doubt has been created in the mind of the Complainant  regarding the future prospect of becoming pregnant.  All these happened because of the negligent and hasty act of the opposite parties, which amounts to deficiency in service and unfair trade practice on their part. Hence this Complaint with prayers to,

    (1)  Direct the Opposite Parties to pay Rs.1,00,000/-as compensation to the

          Complainant.

    (2)  Direct the Opposite Parties to pay Rs. 25,000/-to the Complainant

          towards hospital expenses

    (3)  Direct the Opposite Parties to grant Rs. 5,000/-towards cost of the

          proceedings.

3. After the admission of the complaint, the Commission issued summons to the Opposite Parties.  The Opposite parties entered appearance and filed version stating the following contentions. 

 4. The Opposite Party denied the averments in the Complaint and stated that the case is an ill framed, ill advised, and filed solely for the undue financial advantage of the Complainant. The Complainant consulted the First Opposite Party in the Third Opposite Party hospital on 13-08-2018 with Complaint of abdominal pain and she reported that her last menstrual period was on 17-05-2018.  The urine pregnancy test was weakly positive.  Based on clinical history and presenting symptoms, the Complainant was advised ultrasound scan and scanning was done by the Second Opposite Party in the presence of the First Opposite Party. The USG was done with reasonable care and diligence and the image study showed echogenic material in the uterus suspicious of molar pregnancy.  There was no intra uterine gestation sac identified on image study which if present would have corresponded to 12 weeks 4 days gestation age as per reported LMP. The findings as per USG were discussed with the Complainant and her bystander and she had a history of previous abortion as well. There were no visible adnexal lesions to suspect ectopic gestation at the time of scanning. Hence on the basis of proper evaluation of findings as per scan the First Opposite Party advised Dilatation & Curettage (D&C) for evacuation of ecogenic material found intra uterine. Necessary blood investigation was also sent on 13-08-2018.  The Complainant reported on 14-08-2018 with complaint of per vaginal bleeding and she was admitted for evacuation. The First Opposite Party had informed the Complainant that in view of per vaginal bleeding with findings on USG evaluation showing ecogenic mass highly suspicious of molar pregnancy without any evidence of gestational sac intra uterine or ectopic it was proper to do D&C and hystopathological evaluation.  With above stated clinical as well as USG findings, any reasonable gynecologist would suggest D&C for a patient reported with her vaginal bleeding as there was no evidence for viable intra uterine gestational sac. The complainant and her relatives voluntarily agreed and consented for D &C after fully aware of the clinical situation.  Under all care and aseptic Sterile precautions the First Opposite Party had conducted D&C on 15-08-2018 and curretings, sent for histopathology examination.  The procedure was uneventful and condition of the Complainant remained stable in post procedure period and she was discharged on 17-08-2018 with an advice for review with repeat & HCG and histopathology report. The First Opposite Party did not see the patient thereafter and she has no direct knowledge with regard to the consultation on 29-08-2018. When the Complainant reported on 29-08-2018, the First Opposite Party was on leave and in her absence Dr. Gowribai had seen the patient. It is learned from the records that the Complainant reported with complaint of slight bleeding per vagina and she brought histopathology report which showed the impression Arias Stellar Reaction and HCG done outside reported 8220 mIU/ml. The First Opposite Party being the treating doctor, the Complainant ought to have consulted her with report. The complainant’s case that Dr. Gowribai was suspected to be trying to hide something which prompted her to go elsewhere is untrustworthy of credit.  It was very obvious that there was no viable gestational sac because as per first scan, there was no sac but thick endometrium visualised echogenic material and histopathological evaluation showed it as Arias stellar Reaction. As her reported LMP was on 17-05-2018 most probably USG could have shown a nice gestation sac and a viable foetus having 12 weeks 4 days gestational age.   As per the complainant’s case USG done elsewhere on 29-08-2018 showed a sac less than 5 weeks which can hardly be accepted as a viable pregnancy and hence the case is made up on a mistaken notion that a precious pregnancy was lost by the D&C done by the First Opposite Party which is unfounded and unsustainable.  There are several factors affecting the sensitivity of ultrasound diagnosis and condition like Arias stellar Reaction identified on histopathology  cannot be a basis for alleging negligence in the diagnosis of molar pregnancy.  The finding of an intra uterine echogenic material in USG and following evidence of per vaginal bleeding and absence of gestational sac like structure pose a high probability for an incomplete abortion. The ultra sound scan cannot be 100% accurate in any circumstance and its sensitivity in diagnosis depends on several factors and a radiologist cannot be held negligent because of his conclusions differ from that of another sonological opinion.  On the basis of USG and clinical symptoms the First Opposite Party advised D&C as there was no evidence of viable pregnancy.  Further, evidence on the basis of repeat USG also does not prove a normal viable conception and hence there was absolutely no negligence or deficiency in service on the part of the Opposite Parties. The allegation that the complainant lost her child in the womb due to negligent and hasty action on the part of the First Opposite Party is highly ill motivated and hence denied. The abortion allegedly done at WIMS hospital was not necessitated by any act or omission on the part of the Opposite Parties. The averment that the Complainant had suffered loss, damage and mental stress is devoid of any substance or merit and hence denied. The Complaint is filed purely on an experimental basis without any just or sufficient cause. There was no negligence and deficiency in service on the part of the above Opposite Parties. Therefore it is prayed for dismissal of the Complaint.

5. Chief Affidavit was filed by the Complainant.  She was examined as PW1 and the documents produced were marked as Ext. A1 to A7.   On the side of Opposite Party, Second Opposite Party filed proof affidavit and was examined as OPW1, 1^st Opposite Party was examined as OPW2.  

6. Commission perused the Complaint, Version, Affidavits filed, documents marked, oral depositions of the parties and the arguments of the counsels, we raised the following points for consideration.

1)  Where there has been any deficiency in service or unfair trade practice on

      the part of the Opposite Parties?

          2)  Relief and cost?

7. On going through the pleadings, documents, and testimony of the witnesses, Commission found that the Complainant was went to the Third Opposite Party hospital, while she was carrying, consulted the First Opposite Party doctor, has taken medical tests, Ultra Sound Scan, Beta HCG, and the opposite parties had conducted D&C to evacuate uterus. There is no controversy regarding these aspects.  Therefore, there is no need for a Dispute Redressal as to the relationship between the Complainant and the Opposite Parties. The remaining question to be answered is whether there has been any breach of service, deficiency, or negligence on the part of the Opposite parties.

8. On going through Ext. A1, Discharge Summary issued by the 3^rd  Opposite Party, the date of admission is 14-08-2018, the date of Evacuation done on           15-08-2018 and the discharge date is 16-08-2018.  On perusing Ext. A6, Ultrasound Scan Report of the Pelvis, the Opposite Party No.2 suggested Beta HCG correlation to R/O molar pregnancy. Ext. A4 reveals that Beta HCG has done on 27-08-2018 as per the reference of Opposite Party No.2.  In oral examinatinon, OPW2(OP1) has deposed that ‘’13-08-2018 \mWv patient Fs¶ I­Xv. At¸mÄ pregnant BsW¶v a\-kn-embn. A§s\ ultra sound scan     sNbvXp.  Scan Report   t\m¡n-b-t¸mÄ ecogenic material I­p.  Uterine Cavity bnemWv I­X.v  AXv     Molar Pregnancy    Bbn-cn¡mw  F¶v kwi-bn-¨p”.    From the above deposition of the First Opposite Party, it is evident that she had a suspicion of molar pregnancy.

9. The First Opposite Party has also deposed that “Molar Pregnancy I­p]nSn¡p¶Xn\v  methodology D­v, AXn\mbn histo pathology test \v Ab¨p. AXv  Calicut BWv sNbvXXv.  AXn\v 10 Znhkw FSp¯p. histo pathology report  hcp¶Xn\v 2 Znhkw IqSn Im¯ncps¶¦nepw H¶pw kw`hn¡pambncp¶nÔ.

10. Histopathology test was suggested by the Opposite Party No.1 so as to ensure whether there was Molar Pregnancy.   But from the facts of the case, it is evident that D&C was done by OPW2 without waiting for getting histopathology report so as to confirm the possibility of Molar Pregnancy.  So Opposite Party No. 1 has failed to prove the urgency of doing D&C as she has stated that, histopathology report hcp-¶-Xn\v 2 Znhkw IqSn Im¯n-cp-s¶-¦nepw H¶pw kw`-hn-¡p-am-bn-cp-¶n-Ã. So, here, we are of the view that Opposite Party No.1 has failed to give reasonable care to the treatment which is expected from an ordinary prudent doctor shall do. This careless and negligent act of Opposite Party No.1 has resulted to the loss of a valuable pregnancy of the Complainant.  So there has been Deficiency in service/ Unfair Trade Practice from the part of the Opposite Party No.1 for which she is liable to compensate the Complainant.  It is come out that the First Opposite Party had done D&C prior to determining whether or not it was a molar pregnancy.    It is clear that the First Opposite Party did not take enough attention and care in this matter, and gross negligence and omission was on the side of the First Opposite party.  The case sheet is an important document in this case.  The Opposite Parties are the custodian of the records but they have not produced any documents to prove their case.   The Complainant succeeded to prove her case and the Opposite party failed to substantiate their case.  The Complainant also proved the difficulties and mental agony she sustained afterward of the treatment done by the First Opposite Party.    Opposite Party No. 1 is the employee of Opposite Party No.3 and hence Opposite Party No.3 is vicariously liable for the actions of Opposite Party No.1.  Hence, Opposite Parties No.1 and 3 are liable to compensate the Complainant.  Here Opposite Party No. 2 is the Radiologist who conducted the scan according to the need of the referring doctor. So, he is not liable for the act of the Opposite Party No.1.   Considering the facts and circumstances of the case the Commission found that the amount demanded as compensation, in this case, is not higher and a reasonable one.   All the points answered accordingly in favour of the Complainant.

11. From a detailed examination and discussion of all the aspects, it is clear that the Complainant in the above case has successfully proved the case beyond any doubt.  The Complainant is therefore entitled to a favorable order.  In the result the Complaint is allowed  with cost and

1. The Opposite Parties 1 and 3 are directed to pay jointly and severally an amount of Rs.1,00,000/-(Rupees One Lakh Only) as Compensation.
2. The Opposite Party No.1 and 3 are directed to pay Rs. 25,000/-(Rupees Twenty Five Thousand Only) jointly and severally to the Complainant as treatment expenses.
3. The Opposite Party No. 1 and 3 are directed to pay Rs. 5,000/- (Rupees Five Thousand only) jointly and severally to the Complainant as cost of the Complaint.

            Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 25^th  day of April   2023.

Date of filing: 12.12.2019

                                                                                                PRESIDENT:  Sd/-

                                                                                                MEMBER  :   Sd/-

                                                                                                MEMBER   :  Sd/-

APPENDIX.

Witness for the Complainant:

PW1.          Kalaraji. K                               Complainant.

Witness for the Opposite Parties:

OPW1.        Dr. K. Vijayakrishnan.              Doctor.

OPW2.        Dr. Radha Vijayakrishnan         Doctor Gynaecologist.

Exhibits for the Complainant:

A1.          Discharge Summary.

A2.          Treatment Record.                       dt:30.08.2018.

A3.          Transabdominal/Transvaginal Sonography Report.  dt:29.08.18.

A4.          Endocrinology Report.                dt:27.08.2018.

A5.          Histopathology Report.               

A6.          Ultra Sound Scan Report of Pelvis.  dt:13.08.2018.

A7.          Discharge Summary.         

Exhibits for the Opposite Parties:

Nil.

                                                                                    PRESIDENT :   Sd/-               

MEMBER     :   Sd/-

MEMBER     :   Sd/-