Tamil Nadu

StateCommission

CC/18/2006

Jincy Mathew,M.S.Mathew - Complainant(s)

Versus

Dr.G.V.Kalaichelvi,G.V.K.Hospital - Opp.Party(s)

M/s.S.Devika

26 May 2015

ORDER

 

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

           

                                         BEFORE: HON’BLE THIRU JUSTICE. R. REGUPATHI,      PRESIDENT   

                                                           THIRU.J. JAYARAM                                            JUDICIAL MEMBER.

                                                            TMT. P. BAKIAVATHY                                        MEMBER. 

                                                                                           C.C.No.18/2006

                                                                         DATED THIS THE 26^th DAY OF MAY 2015.                                                                                                                                       

 

1. M.S. Mathew

 

2. Jincy Mathew,

Both residing at

No.93/63-A, Manalore House,

11 Karingalpatty Street,

Gugai, Salem – 636 006.                                       Complainants                  

                                                                    

                           Vs

1.  Dr.G.V. Kalaichelvi,

     G.V.K. Hospital,

     No.17/6, Sivanar Street,

     No.1, Trichy Main Road,

     Gugai, Salem – 636 006.

2.  G.V.K. Hospital,

     No.17/6, Sivanar Street,

     No.1, Trichy Main Road,

     Gugai, Salem – 636 006.

3.  Dr.R. Ramamurthy, D.M.R.D.,

     No.17/6, Sivanar Street,

     No.1, Trichy Main Road,

     Gugai, Salem – 636 006.                                      Opposite parties

Counsel for Complainant              :   M/s. S. Devika & T. Mohan  

Counsel for Opposite Parties 1 to 3:    Dr.B. Cheran, 

                        This complaint coming before us for final hearing on 29.01.2015 and on hearing the arguments of both sides and upon perusing the material records, this Commission made the following:

                                                                         ORDER

THIRU.J. JAYARAM, JUDICIAL MEMBER

1.       The case of the complainants as in the amended complaint is as follows:   

         The 1^st complainant met the 1^st opposite party on 15.10.2003 for treatment when she was pregnant.  The 1^st opposite party after examining her, prescribed medicines and advised her some  precautions to be adopted during the pregnancy and she continued to meet the 1^st opposite party regularly at least once in a month and she followed the advice/instructions given by the 1^st opposite party.  On 16.10.2003, the 1^st opposite party advised her to do an obstetric scan and accordingly an obstetric scan was taken on 16.10.2003 just after the first trimester of pregnancy when the gestational age of the foetus was 13 to 14 weeks and the scan report was certified by the 3^rd opposite party stating that no obvious major anomaly or congenital malformation was detected.   The 1^st complainant met the 1^st opposite party in November 2003 and the 1^st opposite party advised her to do an obstetric ultra sound scan again and accordingly an obstetric ultra sound scan of the 1^st complainant was taken on 28.11.2003 at the 2^nd opposite party hospital.  The 1^st opposite party charged Rs.250/- for the same and the 3^rd opposite party once again certified in his report dated 28.11.2003 that no obvious major anomaly or congenital malformation was detected and at that point of time the gestational age of the foetus was about 19 to 20 weeks which was well within the second trimester of pregnancy and she was treated by the 1^st opposite party until she went to her maternal home in Kerala for the delivery of the child in Attuva and the 1^st complainant was there treated by one Dr. Sasidharan at Josco Hospital at Attuva, Pandalam, Kerala.  The 1^st opposite party informed them that the expected date of delivery would be 14^th April 2004.  As the 1^st complainant did not have labour pain for a few days after the expected date of delivery she got admitted in Josco Hospital on 19.04.2004 and she was then advised to undergo caesarian section as  she did not develop labour contraction and after surgery which took over two hours where she developed complications, a boy child was delivered on 23.04.2004 and the child was found to be suffering from Hemimelia with the left forearm absent, a congenital limb anomaly.  The 1^st opposite party could not give satisfactory explanation as to why the opposite parties failed to detect the limb malformation in the ultra sound scans taken in October and November 2003.  The complainants met the 1^st opposite party several times but the opposite party was evasive and insisted upon them to return all the original records given by the 2^nd opposite party.  The opposite parties were extremely negligent in reading the ultra sound scan and opined that the child did not suffer from any major anomaly.  The 1^st and 3^rd opposite parties had misinterpreted the ultra sound scan taken in October and November 2003.  The 2^nd opposite party was negligent in taking obstetric scans which did not accurately reveal the congenital limb anomaly of the foetus both in the second and third trimester of pregnancy.

2.         The 1^st complainant has been advised to attach an artificial limb before the child completed one year of age and replace the same at periodical intervals twice every year for the first 6 years and once in every year until 18 years until the child attains full growth and movable artificial limb would be required to be fixed when the child completes 18 years and the cost of each replacement for the first 6 years would be Rs.1,20,000/- and for the next 12 years Rs.1,80,000/- and the cost of electronic limb at the age of 18 years would be Rs.5,00,000/-.  The total medical expenditure including cost of surgery, hospitalization, cost of artificial limb and physiotherapy is estimated approximately at Rs.25,00,000/-.  The complainants issued notice to the opposite parties through their counsel on 04.02.2006 calling upon them to compensate them and the opposite parties, despite having received the notice on 06.02.2006, have chosen not to respond to the same.

3.        The complainants would have opted termination of pregnancy if the opposite parties had correctly detected the limb anomaly through the ultra sound scans and they would not deliberately expose the child to the world with a permanent disability and put the child to suffering for the rest of his life.

4.     The complainants suffered intense trauma every day of their life and will continue do so every time wherever they see their child and his sufferings.   The child is deprived of many pursuits in life.  The child is subject to immense trauma and sufferings by constant medical treatment that includes surgery and hospitalization every year for the next 18 years.  The opposite parties are liable to compensate jointly and severally for the trauma and agony that they are subjected to on account of the negligence in rendering medical service and the complainants estimate this amount to Rs.10,00,000/-. 

5.           Hence the complaint praying for direction to the opposite parties jointly and severally to pay

               a)    sum of Rs.25,00,000/- towards future medical expenditure

               b)    sum of Rs.10,00,000/- towards compensation

               c)    sum of Rs.10,000/- towards cost of the complaint.   

6.            The 1^st opposite party filed version stating as follows: 

               The 1^st opposite party is a well-qualified obstetrician. The documents filed along with the complaint do not evidence any sort of negligence on the part of the 1^st opposite party.  There is no breach of duty nor any negligence on her part and she and her team have exercised good care and caution and professional skill in diagnosing, treating and doing surgery and while attending on the patient she performed her duty expected of a prudent doctor in similar circumstances.    In the complaint, there is no specific  allegation against  the 1^st opposite party.  There is no negligence on her part since it is not possible to detect any congenital anomaly through clinical examination.

7.           The 2^nd opposite party filed version stating that:

              The documents filed along with the complaint did not evidence any sort of negligence on the part of the 2^nd opposite party.  Nowhere in the complaint, the services of the 2^nd opposite party hospital were accused to be negligent and the complainant has claimed vicarious liability. 

8.           The 3^rd opposite party filed version stating as follows:

              The 3^rd opposite party is a well qualified sonologist. The documents filed along with the complaint do not evidence any sort of negligence on the part of the 3^rd opposite party and there is no breach of duty or any negligence on his part and while attending the patient he performed his duty expected of a prudent doctor in similar circumstances.  The third opposite party wishes to discuss the medical problem. An isolated amputation may be due to amniotic band syndrome, teratogen exposure or a vascular accident.  The etiology is unknown.  There have been reports associating amniotic band syndrome with maternal trauma, Oopherectomy during pregnancy, IUCD and amniocentesis.  Depending on the timing and orientation of the band, a resultant disruption of fetal organs including amputations of a limb or digit, bizarre facial or cranial clefting and thoroco abdominal schisis result.  The distribution is asymmetrical.  The etiology is hypothesized to be related to early amnion rupture, vascular disruption or an error in embryologic developments. Depending on the  time of rupture  and the disruption and the orientation of band slashing across the developing fetus, deformities occur ranging from subtle amputation, lymphedema to amputation of large portion of the fetus. Amniotic band formation would be a late and secondary event analogous to adhesion formation.  The overall incidence of congenital limb reduction deformities is estimated as 0.40 per 10.000 birth.                 

9.       Complainant filed proof affidavit reiterating the allegations and the averments in the complaint and 13 documents were filed and marked as Exhibits A1 to A13 on the side of the complainants. Proof affidavits were filed by the opposite parties 1 to 3 and no document was filed on their side.

10.            The points for consideration are :-

                1)     Whether there is negligence or deficiency in service on the

                         part of the opposite parties as alleged in the complaint?

                2)      Whether the complainants are entitled to claim

                          Compensation from the opposite parties. ?

                3)       To what relief the complainant is entitled?  

11.     POINT NOS.1 & 2:  The complainants have filed this complaint claiming compensation from the opposite parties for their negligence and deficiency in service in the medical care extended to the 1^st complainant who had conceived.

12.      According to the 1^st complainant, she met the 1^st opposite party in the 2^nd opposite party hospital on 15.10.2003 for treatment when she was pregnant and continued to meet the 1^st opposite party regularly at least once in a month to seek her advice and treatment. While so, on 16.10.2003, the 1^st opposite party advised the 1^st complainant to take an obstetric ultra sound scan to ascertain the condition of both the mother and the fetus and accordingly an obstetric ultra sound scan was taken on 16.10.2003 just after the first trimester of pregnancy when the gestational age of the fetus was about 13 to 14 weeks.  This scan report was certified by the 3^rd opposite party as detecting no obvious major anomaly or congenital malformation.  When the 1^st complainant met the 1^st opposite party in November 2003 the 1^st opposite party advised her to do an obstetric ultra sound scan once again and as per the advice of the 1^st opposite party, they took an obstetric ultra sound scan on 28.11.2003 at the 2^nd opposite party hospital. The 3^rd opposite party once again certified that no obvious major anomaly or congenital malformation was detected and then the gestational age of fetus was about 19 to 20 weeks which was well within the second trimester of pregnancy.  On 23.04.2004, she delivered a male child undergoing caesarian section and the child was affected by hemimelia (without left forearm) and the 1^st complainant could not deliver the child in a normal manner without surgery which is due to the congenital limb anomaly of the child and at the time of delivery the child was found to be resting his head on his shoulder and one side of his head was therefore not properly shaped and had the 2^nd and the 3^rd opposite parties taken proper care and had they been  diligent  and  not negligent, the  congenital  malformation of  the foetus could  have been detected and this amounts to negligence and deficiency in service on the part of the opposite parties.    

13.     It is pertinent to note that there is no medical expert’s evidence or opinion on record to decide whether there is negligence on the part of the opposite parties as alleged in the complaint and therefore we have to decide the points considering the other available evidence on record and in this regard, we place reliance on the following decision of the Hon’ble Supreme Court in the case of V. Kishan Rao – Vs – Nikhil Super Specialty Hospital & Anr.  reported in III – (2010) – CPJ-I-(SC), where it is held as follows; -   

“In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion.  This Court makes it clear that in these matters no mechanical approach can be followed by these Fora.  Each case has to be judged on its own facts.”  

It is further held;-

“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. “

14.     In the instant case, there is no sufficient evidence to decide the issue whether there is any negligence or deficiency in service on the part of the opposite party and we cannot come to proper conclusion, without the expert’s opinion or evidence.  Further the doctorine of Res-ipsa Loquitor has no application at all to the instant case.  The 1^st scan was taken on 16.10.2003 and another scan was taken on 28.11.2003 and as per the medical report of Josco Hospital (P) Ltd, Pandalam dated 8.5.2004, the child was born in their hospital on 23.4.2004 and the child was born with hemimelia, without left forearm and the delivery was not a normal one and she delivered the child undergoing Caesarian surgery.  The Discharge card Ex.A9 does not disclose anything about the complaints if any and the treatment given and only the date of discharge is given.  In Ex.A10 we find that the delivery was by way of Caesarian section and also that the boy child was born without left upper arm and which is a case of hemimelia and Ex.A10 issued by Josco Hospital do not disclose any particulars regarding the problems if any and the treatment etc.  All that we can understand from Ex.A9 and A10 is that the child was born with hemimelia and it was not a normal delivery, and the delivery was by caesarian surgery and other than these there are no required particulars to establish the negligence or otherwise.

15.     Considering the two scan reports Ex.A3 and A6 dated 16.10.2003 and 28.11.2003 taken just after the first trimester of pregnancy and the 2^nd trimester of pregnancy and the medical report Ex.A10 issued  by Josco Hospital, Pandalam, we can never come to the conclusion that there is negligence on the part of the opposite parties invoking “res-ipsa loquitor”.

 16.    Therefore we come to know that the 1^st Ultra Sound Scan was taken on 16.10.2003 and the second Ultra sound scan taken on 28.11.2003 and the child was born with hemimelia on 23.4.2004 and the 1^st complainant underwent caesarian section and we do not know anything as to what happened in the interregnum period from 28.11.2003 to 23.4.2004.  In the above circumstances we do not have any materials to decide whether there is negligence or deficiency in service on the part of the opposite party.

17.     We have to consider the version filed by the 3^rd opposite party in para-11. “ An isolated amputation may be due to amniotic band syndrome, teratogen exposure or a vascular accident.  The etiology is unknown.  There have been reports associating amniotic band syndrome with maternal trauma.  Oopherectomy during pregnancy, IUCD and amniocentesis.  Depending on the timing and orientation of the band, a resultant disruption of fetal organs including amputations of a limb or degit, bizarre facial or cranial clefting and theroco abdominal schisis result.  The distribution is asymmetrical.  The etiology is hypothesized to be related to early amnion rupture, vascular disruption or an error in embryologic developments.  Depending on the time of rupture and the disruption and the orientation of band slashing across the developing fetus, deformities occur ranging from subtle amputation, lymphedema to amputation of large portion of the fetus.   Amniotic band formation would be a late and secondary event analogous to adhesion formation.”    

18.       In the cross examination of the 3^rd opposite party / Sonologist it is stated that  “obstetric Ultra  Sound  scan is done, to  know  the  single  or twin fetus,  assessment  of  placenta,  assessment of  Amniotic fluid volume, assessment of movement of the fetus to see the pulsation in the heart and to see any obvious congenital anomaly.”

19.     In his cross examination the 3^rd opposite party further deposed that “Amniotic band formation is not always a late and secondary event and that in the second scan he did not notice any evidence of amniotic band and also the amniotic band syndrome can appear in the last trimester.”

20.     It is contended by the complainant that the 3^rd opposite party has been doing Ultra Sound Scans even before acquiring proper qualification.  We have to note that at the relevant point of time i.e., when the scans were taken in the year 2003 he was fully qualified (DMRD qualification) to do scans and so we are not concerned about this earlier performance which is not in issue.

21.      From the following medical literature regarding Amniotic Ban Syndrome we come to know as follows :

          The Three Articles on Amniotic Band Syndrome:

          ABS is a group of congenital abnormalities caused by bands of amnion (inner lining of the “ bag of Water”) that attach to the fetus.  Abnormalities result from attachment or constriction that lead to – Amputation of limbs.

          Bands may be difficult to detect by ultrasound, and are more often diagnosed by the effect they have on fetal anatomy, as in the case of missing or misshapen limbs.

          Although they might identify it at some point during a pregnancy by ultrasound, doctors often diagnose amniotic band syndrome at birth, when a physical examination of the infant reveals physical deformities that arise from the banding.

          Amniotic banding has been directly linked to various deformities in infants and amniotic banding could lead to limb amputation.

          Diagnosis of this condition is difficult before birth, as these strands are too small to be visible on ultrasound.  In many cases, amniotic band syndrome is detected through its effects       on the fetal body, like swelling, amputation, etc.  Normally, the rupture of the amnion occurs between 28 days to 18 weeks of conception, but in some cases, it can happen at a later stage too.”

22.     Fetal surgery : JYOJI YOSHIZAWA, LOURENCO SBRAGIA AND MICHAEL R.HARRISON….

          Amniotic band syndrome :

          “The earlier the band occurs, the more severe the resulting lesion.  Amniotic rupture in the first weeks of pregnancy may result in cranio-facial and visceral defects, whereas during the second trimester, the fetal morbidity ranges from formation of syndactyly to limb amputation.”

23.     Amniotic Band Syndrome : Shakeeb Mustafe Medical TGenetics Dr.Ostrowski & Professor McNally…

          “The depressing part is that no one knows for sure why the amnion ruptures early.  Also, there is no way that this can be detected, because the amnion doesn ‘t show up on ultrasound.”

Therefore Aminiotic Band Syndrome cannot be ruled out in this case and it might be the cause of hemimelia.

24.            It is contended by the 2^nd opposite party that hospital is not liable for negligence of doctors, whereas it is held by the Hon’ble Supreme Court in the following case that the hospital is also liable for the negligence of the doctors.    Savita Garg – Vs – The Director, National Heart Institute, reported in IV (2004) CPJ 40 (SC) wherein it is held as follows:

“In fact, it is the hospital who engages the treating doctor thereafter it

is their responsibility. The burden is greater on the institution/hospital  than that of the claimant.  Therefore, in any case, the hospital which is in better position to disclose that what care was taken or what medicines were administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. If the hospital fails to discharge their duties through their doctors being employed on job basis or employed on contract basis, it is the hospital which is to justify and by not impleading their doctors, will not absolve the hospital of their responsibilities.”  

25.        The complainants have further alleged that the 1^st  complainant could not deliver the child in a normal manner without surgery and developed complications which almost proved to be fatal, due to the congenital limb anomaly and the limb malformation.  There is no evidence or any affidavit on record to rely on to substantiate this contention and there is nothing to act upon Exhibits A9 and A10 which are said to be the Discharge Card and the medical report issued by Josco Hospital (P) Ltd., at Attuva, Pandalam, Kerala where delivery was conducted and we have to note that even then Ex.A9 and A10 do not reveal any information or any relevant particulars.

As already stated above it is quite significant to note that, we do not know the happenings during the interregnum period from the second trimester (second scan) till delivery i.e., from 28.11.2003 till 23.04.2004.

26.       The counsel for the opposite parties relied on the following decision of the Hon’ble Supreme Court contending that the opposite parties are not liable for negligence. Senthil Scan Centre –Vs- Shanthi Sridharan & Anr.,  III (2011) CPJ 54 (SC), wherein it is held as follows:-

          “ultrasound is not a perfect depiction of the foetus and the scan result cannot be 100% conclusive.  It is often difficult to examine some foetal areas.  Difficulties may also be posed by the relative paucity of amniotic fluid in the third trimester, the hyper flexed position of the foetus, engagement of the head or compression of some foetal parts.”

“The respondent/complainant had not led any expert evidence to

controvert the case of the Scan Centre that the doctor who conducted ultrasound was highly qualified and that ultrasound  was  done  with  due care and diligence.  There was also no evidence to show that the failure to detect the deformity was out of any negligence on the part of the doctor conducting ultrasound.”

27.     On consideration of the entire materials on record we hold that the complainants have not made out their case of negligence and deficiency in service against the opposite parties.  The Hon’ble Supreme Court has laid down in the following decision that only if the initial burden is discharged by the complainants the onus shifts the opposite parties to prove that there was no negligence or deficiency on their part.  

               Nizam Institute of Medical Sciences – Vs – Prasanth S. Dhananka and Others reported in 2009 - INDLAW SC 1047 wherein it is held that

              “in a case involving medical negligence, once the initial burden has been discharged by the complainant, by making out of a case of negligence on the part of the hospital or the doctors concerned, the onus then shifts on 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”.

28.     As stated above the complainants have not established their case of negligence on the part of the opposite parties and therefore the question of rebutting and disproving negligence by the opposite parties does not arise.  For the aforesaid reasons, we hold that the complainants have not established   their case of negligence against the opposite parties and that there is no negligence or deficiency in service on the part of the opposite parties and that the complainants are not entitled to claim compensation from the opposite parties and the points are answered accordingly. 

29.     POINT NO.3 :    In view of the findings on point Nos.1 & 2 we hold that the complainants are not entitled to any relief in the complaint and this point is answered accordingly.

30.               In the result, the complaint is dismissed.  No order as to costs.

 

P. BAKIAVATHY               J. JAYARAM                           R. REGUPATHI

      MEMBER                      (J) MEMBER                                PRESIDENT

 

ANNEXURE

List of Complainant Documents

Ex.A1      15.10.2003          Case sheet.

Ex.A2       15.10.2003          Prescription of Dr.G.V.Kalaichelvi.

Ex.A3       16.10.2003          Ultrasound scan report.

Ex.A4       27.11.2003          Blood test report.

Ex.A5       27.11.2003          Prescription of Dr.G.V.Kalaichelvi.

Ex.A6       28.11.2003          Ultrasound scan report.

Ex.A7       22.12.2003          Prescription of Dr.G.V.Kalaichelvi.

Ex.A8       25.01.2004          Prescription of Dr.G.V.Kalaichelvi.

Ex.A9       23.04.2004          Discharge summary.

Ex.A10     08.05.2004          Medical report.

Ex.A11     04.02.2006          Legal Notice.

Ex.A12     16.06.2009          Disability certificate.

Ex.A13     11.04.2011          Estimate for mechanical prosthesis.

List of Opposite Party Documents – Nil

 

P. BAKIAVATHY               J. JAYARAM                           R. REGUPATHI

      MEMBER                     (J) MEMBER                               PRESIDENT

INDEX; YES/NO

VL/D;/PJM/MEDICAL