Sri Kamal De, President

          This is a case over alleged medical negligence on the part of the OPs.

          Briefly the case of the Complainant is that on 02-06-2015, she underwent U.S.G. test at the clinic of the OP No. 2.  It was reported in the U.S.G. report, prepared by the OP No. 1 that, there was a single intrauterine live foetus of 26 weeks (+) maturity in unstable lie with regular cardiac pulsations and normal intrauterine movements.  The Complainant was treated by the concerned Gynecologist on the basis of said U.S.G. report.  On 31-08-2015, the Complainant got admitted at Swarupananda Nursing Home, Egra under Dr. S. Samanta for the purpose of delivery of her child.  Notwithstanding the USG report mentioned that she was carrying a single intrauterine live foetus, however, to the utter surprise of everyone, it turned out to be twin dead conjoint IUD matured male babies.  It is alleged that the OP No. 1 performed U.S.G. test negligently for which exact position and actual number of the foetus did not get properly reflected in the USG report.  It is asserted that had the exact position of the foetus been reflected properly in the U.S.G. report, the Complainant and the attending doctors could have taken proper step to ensure safe delivery. Holding the OPs responsible for her mental/physical pain and agony, as also that of unnecessary expenditure towards treatment cost, Complainant has filed this case.

            Case of the OP No. 1, on the other hand, is that he is an experienced Radiologist and an Asst. Professor of MMCH and is rendering medical service for the last 22 years.  The Complainant, aged 21 years, was brought to the OP No. 2 clinic on 02-06-2015 in pregnant condition for an ultrasound examination, prescribed by one Dr. S. Samanta.  It is claimed that, the ultrasound examination (USG of Foetal Profile) was duly done by him following internationally accepted medical vis-à-vis legal guidelines as enumerated by the law of the land.  On examination, it was duly found and reported that, “Ultrasound examination of gravid uterus reveals single live foetus with regular cardiac pulsations and normal intrauterine movements. Foetus is in unstable LIE at the time of examination.  No gross congenital anomalies could be seen in the present position of the foetus”.  All other permissible foetal parameters like Biparietal diameter, abdominal circumference, femur length, estimated foetal age, foetal weight and heart rate were also duly measured which was suggestive of a single life foetus.  It is further stated that detection of conjoined twins, i.e., babies joined face to face, may sometimes become impossible from a certain position of the foetus, where one baby is completely shaded by another as it might have happened in the case of this conjoined twins.  As other foetal parameters were found to be normal, so it was duly noted that, “no gross congenital anomalies could be seen in the present position of the foetus”.  It is also stated that the USG report is only a professional opinion and is not at all the diagnosis and such report is always required to be clinically correlated.  The OP No. 1 further contended that either the treating and operating doctor or the patient party, on their own volition could have opted for another USG report at any point of time during the pregnancy, even on or before 31-08-2015, when the patient was operated for LUCS.  This OP stoutly denied any sort of medical negligence on his part in interpreting the imaging finding and sought for dismissal of the case.

               OP No. 2 also contested the case and filed its WV denying inter alia all the materials allegations of the Complainant.  It is stated that the clinic only provides professional opinions, based on the findings and vital parameters, as could be measured through medical equipments and machines operated by well experienced and skilled Radiologists and operators.  According to this OP, the Complainant has not brought any specific allegations against the functioning or performance of the USG machine of the clinic nor the clinic or its staff has been accused of billing exorbitant sum for conducting the USG test.  It is claimed by this OP that ultrasound examination was duly done by the concerned Radiologist following internationally accepted medical and legal guidelines.  Like the OP No. 1, it too denied any liability for the delivery of dead conjoined twins and passed the buck upon the treating and operating doctors and patient party for such development.

            Since the controversy boils down to preparation of alleged wrong USG report, let us see whether the same construe a case of medical negligence, or not.

Decision with reasons

            We have seen the USG report.  It reads as under:-

Foetal parameters are as following:-

Placenta: Plcenta lies at fundo-posterior wall of uterus having grade I maturity. Upper segment.

Liquor: Liquor volume is adequate.   MVP: 4.8 cm.

Internal OS: Internal OS is closed.

U.Cord: Normal 3-vessels cord with central placental insertion.

EDD by U.S.G.: 05/09/2015.

I M P R E S S I O N

• Single intrauterine live foetus of 26 weeks (+) maturity in UNSTABLE LIE with regular cardiac pulsations and normal intrauterine movements.
• Fundo-posterior wall, with grade I matured placenta.
• Adequate liquor”.

            Complainant was admitted at Swarupananda Nursing Home under Dr. S. Samanta for the purpose of delivery of her child.  Complainant gave birth to twin conjoined dead IUD male babies on 31-08-2015. Complainant has accused the OPs of generating false/wrong USG report on 02-06-2015.  It goes to show that within two months of undergoing USG examination whereof it was detected that the Complainant was carrying single live baby, the patient gave birth to twin conjoined dead babies. 

            Significantly, at the time of undergoing USG, the Complainant was 26 weeks (+) pregnant. It is hardly believable that although the Complainant reached such advanced stage of pregnancy, presence of conjoined foetus escaped the attention of concerned Radiologist. The USG report is pretty clear in its findings that the patient was carrying only one foetus at the time of examination though actually, twin foetus already grew up in the womb of the patient. 

            Since treatment plan is chalked out by the attending physician on the basis of findings of clinical examination, evidently, the Complainant was subjected to wrong treatment for two long months during the critical period of her pregnancy.  In our considered opinion, OPs cannot abdicate their responsibilities for such utter irresponsible act.

As imaging technologies and clinical procedures have become more varied, complex, and sophisticated, Radiologists have adopted new technologies and modalities of care that benefit patients and support the entire healthcare system.  As such, the expertise of Radiologists is central to safe, effective, timely and cost-effective care.  The core competence of Radiologists is their integrated clinical knowledge and radiological expertise which is critical to ensure that patients receive quality imaging and appropriate imaging-guided treatments that actively contribute to the diagnosis and management of their illness.  The full clinical role of Radiologists encompasses, but is not limited to, providing important positive observations and pertinent negative observations in a relevant summary with a concise differential diagnosis.  Radiologists oversee the clinical journey of a patient from access to appropriate imaging modalities, patient interaction before and after imaging, to communicating the knowledge gained.  Radiologists are often the ‘behind the scenes’ doctors who play a pivotal role in patient care, utilizing their general clinical and specialist radiological knowledge and skills in order to provide expert care for patients referred to them, whether it is for diagnostic tests or treatment. Radiologists are responsible for the oversight of all components of medical imaging, and overall medical care of their patients.

Radiology and Radiologists are central to patient care.  Quality of care has been defined by Hillman as “the degree to which health services for individuals and populations increase the likelihood of desired health outcomes and are consistent with current professional knowledge.  Specifically with regard to diagnostic imaging and image-guided treatment, quality is the extent to which the right procedure is done in the right way, at the right time, and the correct interpretation is accurate and quickly communicated to the patient and referring practitioner.  The goals are to maximize the likelihood of best health outcomes and to satisfy the patient”. 

            In the present case, the OP No. 1 reported on 02-06-2015 that the patient was carrying single intrauterine live foetus of 26 weeks (+) maturity.  However, on 31-08-2015, the patient gave birth to twin dead male babies – a clear manifestation of the fact that the USG report was wrong/false/defective.  We find it unconvincing that about two months ago, when the Complainant already attained 26 weeks (+) of pregnancy, that the foetus of two babies was not readable in the USG report.  Indications are ripe that either there was fault in taking the ultrasound (USG of Foetal profile) or in reading it.  It seems quite strange that heart beats of two babies in the womb could not be noticed by the OP No. 1 notwithstanding the patient was at such decisive/advanced stage of pregnancy. It clearly indicates casual approach on the part of the OP No. 1.

            Curiously, the OP No. 1 on dock squarely blamed the USG machine for such wrong diagnosis stating that the said machine was not up to date/calibrated.  True, the OP No. 2 has not placed on record any documentary proof to prove such allegation wrong/baseless, thereby giving enough credence to the allegation made by the OP No. 1.  Be that as it may, even if for the sake of argument it is assumed that the validity period of said machine indeed expired when USG was done on the patient/Complainant, that also does not absolve the OP No. 1 of his professional obligations given the fact that if he was indeed aware of such fact, he ought to have sounded out due caution to the OP No. 2 beforehand.  There is, however, nothing on record to show that he made any such endeavour.  The conduct of the OP No. 1 falls vastly short of the standard of probity expected of any responsible Radiologist. May be the OP No. 1 did not take money from the Complainant directly.  However, being the author of the faulty report, he must swallow the bitter pill.

            OP No. 2 has sought for dismissal of the case against it on the ground that no specific charge has been brought up against it by the Complainant.  As noted hereinabove, the OP No. 2 has not placed on record any document to nullify the accusation of the OP No. 1 who has candidly revealed during cross-examination that the concerned USG machine was not up to date/calibrated. Even for argument’s sake if it is presumed that there was no substance in the allegation of the OP No. 1, then also OP No. 2 would be vicariously responsible for such goof up/wrong reporting insofar as the report was prepared by its own Radiologist.  The Complainant was charged Rs. 500/- for such test.  Therefore, she had a legitimate right to get correct report which the Radiologist of OP No. 2 failed to ensure.  Therefore, the OP No. 2 would also be held squarely responsible. Both the OPs, we think, have contributed to the negligence – the deficiency in service is shared by both man and machine.

            It is argued from the side of the OPs that there is no expert opinion in this case.  So, the case cannot be decided simply on the basis of documents on record.  We feel that expert opinion is necessary where there is any iota of doubt about the negligent act of concerned doctor/health care facility.  However, where the slackness of concerned doctor/technician/diagnostic centre is palpable like broad daylight, there hardly remains any compelling need to seek expert opinion.   The solemn observation of Hon’ble Supreme Court in the matter of V. Kishan Rao vs. Nikhil Super Speciality Hospital (Civil Appeal No. 2641 of 2010) carries immense significance – ‘In a case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself.  In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence’.   

            We think that the Complainant has been able to establish the medical negligence on the part of the OPs by providing cogent documentary proof before us. As the Complainant got to know from the USG report that she was carrying single foetus, predictably she was mentally prepared to give birth to a single baby.  Against this backdrop, one can imagine the shock she endured at the operation table.  As she had no prior inclination, she could not prepare herself for two babies from health point of view also.  The birth of two babies required extra clothes and supplementary arrangement for the second baby.    

            Negligence has been defined by the Hon’ble Apex Court in its celebratory judgment in the case of Jacob Mathew v. State of Punjab & Anr. III(2005) CCR 9 (SC), where their Lordships have been pleased to held that, “Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and reasonable man would not do”. A professional may be held liable for negligence on one of the two findings: either he was not in possession of the requisite skills which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess.  The standard to be applied for judging whether the person charged has been negligent or not, would be that of an ordinary competent person exercising skill in that profession. We think that the OPs are guilty of medical negligence as they miserably failed to impart requisite professional skill with reasonable competence and as such, they must compensate the Complainant. Considering the gravity of negligence, we feel inclined to pass the order as below.

Hence,

ORDERED

            that C. C. no. 90/2015 be and the same is allowed against the OPs on contest.  OPs are directed to pay jointly and severally, in equal proportion, within 40 days hence, a sum of Rs. 2,00,000/- to the Complainant together with a litigation cost of Rs. Rs. 5,000/-, i.d., Complainant is at liberty to execute this order in accordance with law in which case, OPs would be liable to pay interest @ 8% p.a. over Rs. 2,00,000/- from this day till full and final payment is made.