Haryana

Sonipat

254/2014

SEEMA DESWAL W/O PARVEEN DESWAL - Complainant(s)

Versus

DR. USHA MUKHI - Opp.Party(s)

SUDESH KUMAR

19 Oct 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

               

 

                                Complaint No.254 of 2014

                                Instituted on:24.09.2014

                                Date of order:30.10.2015

 

Seema Deswal wife of Parveen Deswal,  son of Surender Singh Deswal, r/o VPO Jasor Kheri, Jhajjar.

                                                      ...Complainant.

 

                        Versus

 

1.Dr Usha Mukhi, Mukhi Hosapital and Nursing Home, Ambala road, near Bus Stand, Sonepat.

 

2.United India Ins. Co. Ltd. Branch office4 16-M Gole Market,Mahanagar, Lucknow.

                                                      ...Respondents.

 

COMPLAINT UNDER SECTION 12 OF       

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Smt. Sudesh Kumari Adv. for complainant.

           Sh.  Umesh Dahra, Adv. for respondents no. 1.

           Sh.  RP Antil, Adv. for respondent no.2.                

 

 

BEFORE     NAGENDER SINGH, PRESIDENT.

          D.V. RATHI, MEMBER.

 

O R D E R

 

          Complainant has filed the present complaint against the respondents claiming compensation to the tune of Rs.20 lacs on the grounds that there is gross negligence on the part of the respondent no.1.  The complainant is under shock of having abnormal baby and loosing her and has not recovered from such shock as yet.   The respondent no.1 has with held all the reports of ultrasound and treatment dated 30.7.2014 and she has not handed over the reports even after repeated requests.   The position of the organs of the unborn baby should have been detected through special ultrasound of level two conducted on 8.4.2014.  This ultrasound is conducted specially to check the development and position of the organs of unborn baby alongwith other complications.  But due to gross negligence on the part of the respondent no.1, she failed to detect the actual position and condition of the baby in the womb.    The respondent no.1 has advised 8 ultrasound unnecessary but to extract the money.  The complainant due to negligence services rendered by the respondent no.1 has suffered unnecessary mental agony and harassment.  So, she has come to this Forum and has filed the present complaint.

 

2.        The respondent no.1 and 2 have appeared and they filed their separate written statement.

 

          The respondent no.1 in her written statement has submitted that  the complainant approached the respondent no.1 on 4.2.2014 with 8 weeks pregnancy.   Routine ultrasound was performed which showed single live fetus of 8 weeks.   The respondent no.1 prescribed certain standard medicines which are required during the pregnancy period.    The complainant was explained that on the ultrasound scanning, all the congential anomalies cannot be detected all the times due to various technical and circumstantial reason like, gestation period, foetal position and quantity of liquor etc.   Some of the congential heart diseases may not be detected even by foetal each.  Subtle defect may not be seen in all scans.  This level II scan is a detailed time devoted anomaly scan but it does not guarantee to detect all the congential anomalies.    These facts were duly explained to the complainant and after due satisfaction, the complainant signed on the report of the aforesaid ultrasound. On 5.7.2014, the complainant was advised for ultrasound at 28^th weeks of pregnancy.  The said scanning reported single live fetus presenting at breech dorso anterior.  The foetal heart rate was examined which was normal.    On 30.7.2014, on ultrasound examination , it was found that distended loops of intestines seen outside the abdominal wall due to abdominal wall defect.    The complainant as well as her attendants were duly counseled regarding preterm baby, breech baby, FHS positive, machoneum already passed,

and after  due consultation, cesarean section was performed.  A girl baby was born.  The baby was properly handled by the Paediatrician soon after the delivery.  The baby cried soon and did not require any resuscitation after birth.  The parents were duly explained in detail in vernacular language about urgent need of referral of baby to higher centre in Paediatric Surgery deptt.   On 31.7.2014, the attendant brought the baby to the respondent no.1 saying that they did not get admission in AIIMS as no ventilator was vacant which was must.  The Paediatrician started treatment of IV fluids and dressing, given anti biotic etc.   The respondent no.1 had taken the appointment from Dr Ratan but the attendants did not give consent for admission of the baby in PGIMS Rohtak. Ultimately on 1.8.2014 at about 9.20 am the baby was declared dead due to cardiac respiratory arrest as the Paediatrician tried to revive the baby but failed to do so.  There was no deficiency or negligence in service of any kind

on the part of the respondent no.1 and thus, she should not be held responsible in any manner.  The complainant is not entitled for any relief and compensation and thus, prayed for the dismissal of the present complaint.   

 

          The respondent no.2 in its written statement has submitted that as per the version taken by the respondent no.1 in her written statement, the complainant is not entitled for any compensation since there is no negligence or deficiency in service on the part of the respondent no.1 doctor.  

 

3.        We have heard learned counsel for both the parties at length and have also gone through the entire relevant record available on the case file very carefully and minutely.

4.        Ld. Counsel for the complainant has submitted that there is gross negligence on the part of the respondent no.1.  The complainant is under shock of having abnormal baby and loosing her and has not recovered from such shock as yet.  The respondent no.1 has with held all the reports of ultrasound and treatment dated 30.7.2014 and she has not handed over the reports even after repeated requests.   The position of the organs of the unborn baby should have been detected through special ultrasound of level two conducted on 8.4.2014.  This ultrasound is conducted specially to check the development and position of the organs of unborn baby alongwith other complications.  But due to gross negligence on the part of the respondent no.1, she failed to detect the actual position and condition of the baby in the womb.    The respondent no.1 has advised 8 ultrasound unnecessary but to extract the money.  The complainant due to negligence services rendered by the respondent no.1 has suffered unnecessary mental agony and harassment.

          Ld. Counsel for the complainant has submitted some written arguable points and has also relied upon the case law titled as Malay Kumar Ganguly Vs. Dr Sukumar Mukherjee and others, Criminal Appeal nos.1191-1194 of 2005 decided on 7.8.2009 by the Hon’ble Supreme Court and case law titled as Samira Kohli Vs. Dr Prabha Manchanda and others 2008(1) CPJ 56(SC) . In the case titled as Samira Kohli, it has been held that the consent given by her mother is not a valid or real consent.  The question was not about the correctness of the decision to remove reproductive organs, but failure to obtain consent for removal of the reproductive organs as performance of surgery without taking consent amounts to an unauthorized invasion and interference with the appellant’s body.

          Ld. Counsel for the complainant has also relied upon the case law titled as Poonam Verma Vs. Ashwin Patel and others 1996(4) SCC page 322 and order dated 2.7.2014 passed by the District Consumer Forum Panchkula in complaint no.46 of 2011 titled as Prateek Gupta Vs. Dr Mrs. Renu Chakrawarty etc.

          Ld. Counsel for the respondent no.1 has submitted that the complainant approached the respondent no.1 on 4.2.2014 with 8 weeks pregnancy.   Routine ultrasound was performed which showed single live fetus of 8 weeks.   The respondent no.1 prescribed certain standard medicines which are required during the pregnancy period.    The complainant was explained that on the ultrasound scanning, all the congential anomalies cannot be detected all the times due to various technical and circumstantial reason like, gestation period, foetal position and quantity of liquor etc.   Some of the congential heart diseases may not be detected even by foetal each.  Subtle defect may not be seen in all scans.  This level II scan is a detailed time devoted anomaly scan but it does not guarantee to detect all the congential anomalies.    These facts were duly explained to the complainant and after due satisfaction, the complainant signed on the report of the aforesaid ultrasound. On 5.7.2014, the complainant was advised for ultrasound at 28^th weeks of pregnancy.  The said scanning reported single live fetus presenting at breech dorso anterior.  The foetal heart rate was examined which was normal.    On 30.7.2014, on ultrasound examination , it was found that distended loops of intestines seen outside the abdominal wall due to abdominal wall defect.    The complainant as well as her attendants were duly counseled regarding preterm baby, breech baby, FHS positive, machoneum already passed, and after  due consultation, cesarean section was performed.  A girl baby was born.  The baby was properly handled by the Paediatrician soon after the delivery.  The baby cried soon and did not require any resuscitation after birth.  The parents were duly explained in detail in vernacular language about urgent need of referral of baby to higher centre in Paediatric Surgery deptt.   On 31.7.2014, the attendant brought the baby to the respondent no.1 saying that they did not get admission in AIIMS as no ventilator was vacant which was must.  The Paediatrician started treatment of IV fluids and dressing, given anti biotic etc.   The respondent no.1 had taken the appointment from Dr Ratan but the attendants did not give consent for admission of the baby in PGIMS Rohtak. Ultimately on 1.8.2014 at about 9.20 am the baby was declared dead due to cardiac respiratory arrest as the Paediatrician tried to revive the baby but failed to do so.  There was no deficiency or negligence in service of any kind on the part of the respondent no.1 and thus, she should not be held responsible in any manner.  The complainant is not entitled for any relief and compensation.

          It is further submitted in the written arguments that level II scan is called anomaly scan or TIFA Targeted imaging fetal anomaly scan. It does not necessary mean 3D or 4D. Also 4D scan of abdominal organs is only possible when fetus is in saggital plane or Dorsoposterior view. The patient was in advanced stage of labour. Paediatrician was called to attend baby during CS. As per Paediatrician notes in doctor record baby cried immediately and did not require resuscitation or oxygen.  After counseling the attendants, paediatrician did steriled dressing and wrapped in sterile polyethylene sheet to avoid evaporation of body fluids and infection.  Attendants communicated it to shift in ambulance or own vehicle as no oxygen on treatment was required on way during transportion.  Pediatrician gave referral slip for AIIMS in case of non-admission in AIIMS.  It is wrong to say that baby had infection.  Chacha Nehru Hospital’s Doctor or LNJP Hospital’s Doctor did not write anything about infection.  Rather they took the case in OT. Had there been any infection, they would not have taken baby to OT.  Examphalous/Gastroschiasis is a type of hole in abdominal wall through which during pains after rupture of membrance mother uterus pushes the organs and also when baby cries it pushes organs outside, depending on size of defect multiple organs can come out.

          The respondent no.1 has also relied upon the literature of Gynaecology and obstetrics in support of her case.

 

5.        After hearing learned counsel for both the parties at length and after going through the entire relevant records available on the case file very carefully, we have come to the conclusion that the complainant has failed to prove the deficiency in service on the part of the respondents no.1 doctor. 

          First of all, we would like to mention here that this Forum has the deep respect and regard for the judgments of the Hon’ble Higher Courts.  The law cited by the learned counsel for the complainant is not applicable to the case in hand, because the respondent no.1 has taken the consent of the complainant as well as of her mother-in-law namely Bimla Devi.

          We have perused the ultra sound report dated 26.4.2014 which is reproduced below:-

Scan shows single live fetus presenting as breech dorso anterior at the time of scanning.  Fetal heart 157/min and aortic pulsations and limb and body movements seen under real time.

Placenta is anterior and in upper part with marginal separation seen.

Retroplacement area is clear.

Internal os is closed.

Placenta shows grade 0 changes.

NO congenital visceral or cranio spinal anomaly seen.

 

IMPRESSIOIN:  SINGLE LIVE FETUS OF SIZE 20 WEEKS 1D

     + 2 WEEKS MATURITY WITH PLACENTAL MARTGINAL SEPRATION.

 

It is also mentioned in this report that –

Please note that, on an ultra sound scanning, all the congential anomalies especially neural tube defects, intestinal of the heart, limb and chromosomal abnormalities can not be detected all the times due to various technical and circumstantial reasons like: gestation period, foetal position and quantity of liquor etc.  Some of the congenital disease may not be detected even by foetal echo (foetal echo has sensitivity of 43% specificity and predictive accuracy of 95%). Subtle defect may not be seen in all scans.  This level II scan is a detailed time devoted anomaly scan but it does not guaranty to detect all the congenital anomalies.”

 

Further we have perused the ultra sound report dated 5.7.2014 which is reproduced below:-

 

Scan shows single live fetus presenting as breech dorso anterior at the time of scanning.  Fetal heart 157/min and aortic pulsations and limb and body movements seen under real time.

Placenta is anterior and in upper part.

Retroplacement area is clear.

Internal os is closed.

Placenta shows grade I changes.

NO congenital visceral or cranio spinal anomaly seen.

IMPRESSIOIN:  SINGLE LIVE FETUS OF SIZE 28 WEEKS 1D

              + 2 WEEKS MATURITY.

 

It is also mentioned in this report that –

 

Please note that, on an ultra sound scanning, all the congential anomalies especially neural tube defects, intestinal of the heart, limb and chromosomal abnormalities can not be detected all the times due to various technical and circumstantial reasons like: gestation period, foetal position and quantity of liquor etc.  Some of the congenital disease may not be detected even by foetal echo (foetal echo has sensitivity of 43% specificity and predictive accuracy of 95%). Subtle defect may not be seen in all scans.  This level II scan is a detailed time devoted anomaly scan but it does not guaranty to detect all the congenital anomalies.”

 

          From the material available on the case file, it is minutely gathered that after the delivery of the baby, the family of the complainant have taken the baby to LNJP Hospital, Chacha Nehru Hospital and AIIMS, Delhi.  But in the above said hospitals, the family of the baby has not taken any step for getting her treated.

Ex.C12 shows that even the blood for the baby was not arranged by the family of the baby particularly when the baby was on the operation table.  Further in the document Ex.C11, it is no where mentioned that there was any deficiency or negligence on the part of the treating doctor i.e. respondent no.1.  In our view, had the family of the baby would have arranged the blood for the baby as was needed by Lok Nayak Hospital, Delhi when the baby was on the operation baby, the life of the innocent baby could have been saved.  So, for the lapsed on the part of the family of the baby, the respondent no.1 cannot be held deficient or negligent in her services while treating the complainant. 

          We have further perused the  enquiry report  submitted by Dr Adarsh Sharma, Deputy Civil Surgeon, Sonepat against the doctor of Mukhi Hospital Sonepat is available on the case file and in this report, the enquiry officer has submitted that from the opinion of Radiologist, it is clear that from the ultrasound, the disease cannot be detected 100%.  Only in 60% to 70% cases, congenital defect can be diagnose.

          So, from the above said report, it is established that the plea of the complainant that if the abnormality of the baby could have been detected by special ultra sound of level two report, then the pregnancy could have been terminated at an early stage, is not tenable in the eyes of law.  The enquiry officer in his enquiry report has mentioned that :-

          “From the opinion of Radiologist, it is clear that from

the ultrasound, the disease cannot be detected 100%.  Only in 60% to 70% cases, congenital defect can be diagnose.”

 

          So, while concluding we are of the view that the complainant has failed to rebut the contentions and submissions made in the written statement by the respondent no.1.  In our view, on the basis of the material available on the case file, the respondent no.1 doctor cannot be held deficient in her services and thus, the complainant is not entitled to get any amount of compensation from the respondents by way of present complaint and thus, we dismiss the present complaint as it has no merit.

          Certified copy of this order be provided to both the parties free of cost.

File be consigned to the record-room.

 

 

 (DV Rathi)                     (Nagender Singh-President)

Member DCDRF                       DCDRF, Sonepat

 

 

Announced:30.10.2015