Haryana

Panchkula

CC/99/2015

SEEM RANI. - Complainant(s)

Versus

GERNERAL HOSPITAL. - Opp.Party(s)

MUKESH KUMAR.

17 Dec 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                            

Consumer Complaint No	:	99 of 2015
Date of Institution	:	29.05.2015
Date of Decision	:	17.12.2015

                                                                                          

Seema Rani wife of Rajnish Kumar resident of House No.1662, Sector-26, Panchkula.

                                                                              ….Complainant

 

Versus

 

1.       General Hospital, Sector 6 Panchkula through its Civil Surgeon.

2.       Government Dispensary, Sector 26, Panchkula through Medical Officer.

3.       ­Dr.Poonam Gupta, Gupta Nursing Home, # 576, Sector 16, Panchkula.

4.       Dr.Dev Batra, M.D. (Radio-Diagnosis), Batra Diagnostic Centre, SCO    No.129,  Sector 5 Panchkula.

5.       Dr.Jyotika Kapoor, MD (Medicine), Kap’s Diagnostic Centre# 1637,      Sector 4 Panchkula.

 

                                                           ….Opposite Parties

 

6.       Dr.Vikas Kaushal, Care Diagnostic Centre, in front of K-Area,       Baltana, Tehsil Dera Bassi District SAS Nagar, Mohali.

 

                                                                         ….Proforma Opposite Party

 

7.       United India Insurance Company Limited 42-C 3^rd Floor, Moolchand       Commercial Complex, New Delhi through its authorized signatory.

 

                                                           ….Opposite Party

 

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Mukesh Kumar, Adv., for the complainant. 

                             Mr.Naveen Kumar, ADA for Ops No.1 & 2.

                             Mr.Sahil Khungar, Adv., for the Ops No.3, 4 & 6.

                             Mr.Vinod Chaudhary, Adv., for OP No.5.

                             Mr.Sukaam Gupta, Adv., for OP No.7.

 

 

ORDER

 

(Dharam Pal, President)

 

1.                The discussion hereunder, relatable to the pleadings made by the parties and the pleas made during the course of hearing, would validate our feeling of exasperation at the appalling lackadaisical and unprofessional manner of conduct of the medical professionals impleaded as OPs herein. We must make equally make it clear that the role of OPs No.1 and 2 (Government Medical Professionals) would be mentioned on point of fact, though we have to advisedly refrain from recording a finding in the matter of the averment qua deficiency of services on their part due to the law-related rigour of their being out of the jurisdiction of the Consumer Forum.

2.                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that in the month of October, 2013 the complainant became pregnant. After pregnancy the complainant felt pain in her abdomen therefore; she visited the OP No.3 and paid consultancy charges. After checking the OP NO.3 advised Ultrasound and other tests and referred the complainant to OP No.4. As per the advice of the OP No.3 she got conducted Ultrasound from OP No.4 by paying its charges. After obtaining the Ultrasound report dated 25.12.2013 given by OP No.4 the complainant again visited the OP No.3 who disclosed her that the report is normal and prescribed some medicines.  Thereafter the complainant visited the OP No.3 more than 4/5 times but did not get relief; however, she had paid consultation charges on every visit to OP No.3.  On this, the complainant visited the OP No.1 paid requisite fee where the concerned doctor referred her to OP No.4 for Ultrasound for Fetus Wellbeing. The OP No.4 in its report declared the fetus approximately of 16 weeks and normal. On this report the OP No.1 advised special diet to the complainant.  When there was no improvement in the health then she visited OP No.2 in the month of May, 2014 and the concerned doctor advised Ultrasound. On 16.05.2015 the complainant visited OP No.5 and got conducted her Ultrasound. In this report the OP No.5 declared the fetus as normal in growth. On 26.07.2014 the complainant was admitted in OP No.1 due to pain where she gave birth to a handicapped child as two bones (Tibia and Fibula) were shortened lower limb bilaterally and the femur was not visualized. The complainant was discharged from the hospital on 01.08.2014 but the doctor on duty disclosed that all things would be normal with passage of time.  After few weeks, when there was no improvement in the condition of the child then she visited a Child Specialist and on his advise she got conducted X-ray and ultrasound of the minor child from proforma OP. In its report the proforma OP disclosed the following disabilities:

*     The bowl gas is excessive with air filled bowel loops herniating into the left hemiscrotum.  

*     There is absence of femur seen bilaterally with narrow cylindrical pelvis and under developed acetabulum bilaterraly-Bilateral Femoral agenesis.

*     There are two bones (Tibia and Fibula) seen in the shortened lower limb bilaterally. The femur is not visualized bilaterally.

*     There is an irregular shaped hypo echoic area with internal speckled echoes seen between the tibial end and acetabulum measuring about 20X18X9 mm on right side 20X20X10 mm on left side-Cartilaginous tissue.

*     The acetabuli are small, shallow, and more vertical bilaterally.

*     Bilateral congenital femoral aplasis.

*     It shows a large cystic diltation of the pelvicalyceal system in mid pole and lower pole region. The Parenchyma is visualized in upper pole region only with rest of it seen as a thin rim. The proximal ureter is mildly dilated in right kidney.

*     There is splitting of the sinus of fat seen in left kidney.

 

3.                Thereafter the complainant visited the OP No.1 and requested for issuance of abnormality certificate of child, as he cannot stand up at his own during his entire life, but in order to protect the skin it put off the matter on one pretext or the other. The complainant remained under treatment and constancy from 7^th week of the pregnancy till the date of delivery of child with OP No.1 to 5 and got conducted Ultrasound, X-rays and other tests as advised by Ops No.1 to 3 after spending huge amount but none of them have disclosed the fact of abnormality of the fetus in the womb. Due to the medical negligence of Ops no.1 to 5, as being qualified doctors they did not exercise their degree of care and skill in the present case, the life of minor child Adarsh now aged 10 months has become hell and during whole life he will be abnormal child. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.  In evidence the complainant has tendered affidavit and documents Annexure CA, Annexure C1 to Annexure C21.

4.                          Upon notice, the Ops appeared and contested the complaint by filing their joint replies. Ops No.1 & 2 in their joint reply have submitted that the present complaint is  not maintainable and the complainant does not fall within the ambit of consumer as the health services in State of Haryana are provided free of costs except some nominal charge for patient card etc. As per record, patient had visited the Government Poly Clinic Sector 26, Panchkula in the month of May for Antenatal checkup. On examination the abdomen was found soft, height of uterus about 24-26 weeks, external ballotment was present. Foetal heart sound was normal and regular. As per investigations reports she was pregnant and the fetus was shown as normal as per USG dated 01.03.2014. She was examined properly and was advised Iron and Calcium.  Patient got USG done on 16.05.2014 from KAP’S Diagnoscan Centre and as per USG report the length of femur was mentioned 48.30 mm i.e. normal to that gestational age i.e. 26 Weeks 6 days + 2 weeks. As per Government instructions no consultation fee was charged from her. The patient was admitted in the hospital on 24.07.2014 and after getting her consent and properly informing her about the consequences emergency LSCS was done on 26.07.2014 and she gave birth to a male baby on 26.07.2014. He was having congenital malformation and was discharged on 01.08.2014. The complainant did not apply for the issuance of disability certificate. Moreover, it has been issued to those who applied and appeared before the Board. It is further submitted that doctor can clinically diagnose in Antenatal examination only fundal height of the uterus whether it is corresponding to that gestational age, presentation of foetus, foetal heart sounds etc. Congenital malformation cannot be detected or diagnosed clinically and it can only be diagnosed by USG. OP No.3 in her separate reply has submitted that patient had never complained of pain therefore, she was never prescribed any pain killer. Patient was advised Level-II USG to rule out congenital anomalies in baby at proper time but patient came with the report of USG Level-I. She was again explained and stressed about the importance of USG Level-II for detecting congenital anomalies but she did not do so despite advising the same again and again. After that her 6 month of pregnancy patient lost to follow up and never came back to OP No.3. The OP No.3 has done her duties diligently, prudently with utmost care and caution in treating the said patient.   OP No.4 in his separate reply has submitted that he has not committed any negligence while providing treatment. The patient had come for routine ultrasound examination on 25.12.2013 for the first time. During ultrasound a fetus measurement was only 11 mm having gestational age of 7.3 weeks and at that stage only cardiac activity was visualized. On 01.03.2014 the patient came for routine (Level-1) ultrasound for fetal well-being. After ultrasound  a single viable fetus of 16 weeks gestational age was revealed. On 01.03.2014 the patient had consulted the OP No.3 where she had advised Level II ultrasound at 18 weeks but the patient did not do so. The patient is herself responsible for the outcome as she did not follow the medical advice for investigation of Level II ultrasound. Level II ultrasound scan is performed at 18 to 20 weeks when the fetus is large enough for an accurate survey of the fetal anatomy. After the fetus’s heartbeat is checked the main purpose of this scan is to check fetus’s anatomy for normality. A thorough examination of the fetus’s brain, heart, spine, kidneys, organs and limbs is undertaken.  The placenta was checked for its position and measurements of the fetus are performed to ensure growth. If patient had followed the medical advice of OP No.3 and got the level II ultrasound examination and if any fetal anomalies were found, MTP was possible and legal below 20 weeks in India.  OP No.5 filed his separate reply and submitted that she has impeccable professional reputation and present complaint has been filed in order to malign the rising reputation as the complainant has not brought a shred of evidence which can impeach the professional integrity.  It is further submitted that the complainant came for ultrasound on 16.05.2014 only once and she was not under regular treatment/diagnostic follow up with the OP No.5.  The complainant was carrying a 27 weeks old pregnancy. The patient as per record came for evaluation of fetal weight etc and not for any abnormality.  The ultrasound scan is carried out in pregnancy for several indications including fetal presentation, well being, weight, dating, placental localization, fetal cardiac activity, Doppler studies, to see congenital malformation (CMF) etc. and detailed anomaly//Level II/CMF scan is one of them. Each test has a different tariff and the complainant was charged only for routine/basic/level I scan to evaluable fetal weight and well being and the patient did not opt for anomaly/level II scan done to detect abnormalities and defects. The Anomaly/CMF scan done alongwith triple/quadruple mark tests is beneficial only upto 20 weeks of pregnancy to see any congenital abnormality in the fetus so that fetus with abnormalities or congenital malformations could be terminated. Since medical termination of pregnancy is not allowed and is illegal after 20 weeks as per MTP Act and anomaly ultrasound is not beneficial for termination of pregnancy beyond 20 weeks of inception. The patient had never opted for anomaly/level II scan test only pen picture with regard to fetal growth was mentioned.  The charges for anomaly test is approximately three times higher than the routine test to evaluate fetal growth etc. OP No.6 filed his separate reply and submitted that the patient’s son namely Adarsh came to for getting x-ray and USG which was done with utmost due care and caution.  Ops No.1 to 6 have pleaded that neither there is medical negligence nor there any deficiency in service on their part. OP No.7 i.e. United Insurance India Company Limited filed its separate reply and submitted that there is no privity of contract between the complainant and OP No.7. The OP No.7 has issued professional indemnity policy vide policy No.041200/46/13/35/00004965 valid till 31.10.2014 w.e.f 01.11.2013 to OP No.4 subject to certain terms and conditions/exceptions/ exclusions etc. and the maximum limit of liability granted/covered upto Rs.10,00,000/- in respect of any one year and one accident.  Other allegations made by the complainant have been denied and a prayer for dismissal of the complaint has been made.  In evidence the Ops have tendered affidavits and documents Annexure R1/A, Annexure R1/1, Annexure R3/A, Annexure R4/A, Annexure R3/A to Annexure R3/16, Annexure R4/1 to Annexure R4/6, Annexure R6/A, Annexure R7/A, Annexure R7/1 and Annexure R7/2.

5.                We have heard learned counsel for the parties and have gone through the case file carefully and minutely.

6.                Learned counsel for the complainant has argued that in the month of October, 2013 the complainant became pregnant. After pregnancy when she felt pain in her abdomen then she visited the OP No.3 and paid consultancy charges. As per the advice of the OP No.3 she got conducted Ultrasound from OP No.4 by paying its charges. Since the ultrasound report  dated 25.12.2013 given by OP No. 4 was normal therefore, OP No.3 prescribed some medicines.  Thereafter the complainant kept on visiting the OP No.3 but did not get relief despite paying consultation charges.  On this, the complainant visited the OP No.1 paid requisite fee where the concerned doctor referred her to OP No.4 for Ultrasound for Fetus Wellbeing. The OP No.4 in its report declared the fetus approximately of 16 weeks and normal. On this report the OP No.1 advised special diet to the complainant.  When there was no improvement in the health then she visited OP No.2 in the month of May, 2014 and the concerned doctor advised Ultrasound. On 16.05.2015 the complainant visited OP No.5 and got conducted her Ultrasound and declared the fetus as normal in growth. On 26.07.2014, complainant was admitted in OP No.1 due to pain where she gave birth to a handicapped child as two bones (Tibia and Fibula) were shortened lower limb bilaterally and the femur was not visualized. The complainant was discharged from the hospital on 01.08.2014 but the doctor on duty disclosed that all things would be normal with passage of time.  After few weeks, when there was no improvement in the condition of the child then she visited a Child Specialist and on his advice she got conducted X-ray and ultrasound of the minor child from proforma OP. Learned counsel for the complainant has drawn the attention of this Forum towards the report given  by proforma OP which shows         The bowl gas is excessive with air filled bowel loops herniating into the left hemiscrotum; There is absence of femur seen bilaterally with narrow cylindrical pelvis and under developed acetabulum bilaterraly-Bilateral Femoral agenesis;There are two bones (Tibia and Fibula) seen in the shortened lower limb bilaterally. The femur is not visualized bilaterally;There is an irregular shaped hypo echoic area with internal speckled echoes seen between the tibial end and acetabulum measuring about 20X18X9 mm on right side 20X20X10 mm on left side-Cartilaginous tissue ; The acetabuli are small, shallow, and more vertical bilaterally; Bilateral congenital femoral aplasis; It shows a large cystic diltation of the pelvicalyceal system in mid pole and lower pole region. The Parenchyma is visualized in upper pole region only with rest of it seen as a thin rim. The proximal ureter is mildly dilated in right kidney; There is splitting of the sinus of fat seen in left kidney.  Learned counsel for the complainant has further argued that on this the complainant visited the OP No.1 and requested for issuance of abnormality certificate of child, as her son would not be able to stand up at his own during his entire life but to no avail. The complainant remained under treatment and constancy from 7^th week of the pregnancy till the date of delivery of child with OP No.1 to 5 and got conducted Ultrasound, X-rays and other tests as advised by Ops No.1 to 3 after spending huge amount but none of them have disclosed the fact of abnormality of the fetus in the womb. The Ops no.1 to 5 being qualified doctors did not exercise their degree of care and skill in the present case and due to their medical negligence, the life of minor child Adarsh now aged 10 months has become hell during whole life being abnormal child.

7.                Per contra, it has been argued by learned counsel for the Ops that there is no deficiency in service and medical negligence on their part and the treating doctors have exercised the decree of care and skill during the treatment of the son of the complainant.   Learned ADA for Ops No.1 & 2 argued that the patient was examined properly and was advised iron and calcium. As per USG dated 01.03.2014 the fetus was normal.  As per government instructions no consultation fee was charged from the complainant. As per USG done on 16.05.2014 the length of the femur was 48.30 mm i.e. normal to that gestational age i.e. 26 weeks 6 days + 2 weeks.  It has been further argued that the patient was admitted in hospital on 24.07.2014 and after taking her consent and properly informing about the consequences emergency LSCS was done on 26.07.2014 and she gave birth to a male child.  The patient was discharged on 01.08.2014 in healthy condition, however the son of the complainant, having congenital malformation, was discharged on 01.08.2014.  He has further argued that the complainant neither have applied for the issuance of disability certificate nor has appeared before the Board.  Congenital malformation cannot be detected or diagnosed clinically and it can only be diagnosed by USG. Learned counsel for OP No.3 has argued that patient had never complained of pain therefore, she was never prescribed any pain killer, however, she was advised Level-II USG to rule out congenital anomalies in baby at proper time but patient came with the report of USG Level-I. She was again explained and stressed about the importance of USG Level-II for detecting congenital anomalies but she did not do so despite advising the same again and again. It has been further argued that the after 6 month of pregnancy patient had never come back to her for treatment. The OP No.3 has done her duties diligently, prudently with utmost care and caution in treating the said patient.  Learned counsel for the OP No.4 has argued that he has not committed any negligence while providing treatment. The patient had come for routine ultrasound examination on 25.12.2013 for the first time. During ultrasound a fetus measurement was only 11 mm having gestational age of 7.3 weeks and at that stage only cardiac activity was visualized. On 01.03.2014 the patient came for routine (Level-1) ultrasound for fetal well-being. After ultrasound a single viable fetus of 16 weeks gestational age was revealed. On 01.03.2014 the patient had consulted the OP No.3 where she had advised Level II ultrasound at 18 weeks but the patient did not do so. The patient is herself responsible for the outcome as she did not follow the medical advice for investigation of Level II ultrasound. Level II ultrasound scan is performed at 18 to 20 weeks when the fetus is large enough for an accurate survey of the fetal anatomy. After the fetus’s heartbeat is checked the main purpose of this scan is to check fetus’s anatomy for normality. A thorough examination of the fetus’s brain, heart, spine, kidneys, organs and limbs is undertaken.  The placenta was checked for its position and measurements of the fetus are performed to ensure growth. Had the patient followed the medical advice of OP No.3 and got the level II ultrasound examination and if any fetal anomalies were found, then MTP was possible and legal below 20 weeks in India. Learned counsel for the OP No.4 has argued that since the leg of the child was in folding position in the womb therefore, it was measured as a length of femur. Though USG Level-II was advised on the person of the patient but she was unable to pay the charges of USG Level-II then USG Level-I was done on the person of the complainant. Learned counsel for OP No.5 has argued that complainant has not brought any evidence which can impeach the professional integrity.  It is further argued that the complainant came for ultrasound on 16.05.2014 only once and she was not under regular treatment/diagnostic follow up with the OP No.5.  The complainant was carrying a 27 weeks old pregnancy. Learned counsel for the OP No.5 has further argued that the patient had come for evaluation of fetal weight etc. and not for any abnormality. The ultrasound scan is carried out in pregnancy for several indications including fetal presentation, well being, weight, dating, placental localization, fetal cardiac activity, Doppler studies, to see congenital malformation (CMF) etc. and detailed anomaly//Level II/CMF scan is one of them. Each test has a different tariff and the complainant was charged only for routine/basic/level I scan to evaluable fetal weight and well being and the patient did not opt for anomaly/level II scan done to detect abnormalities and defects. The Anomaly/CMF scan done alongwith triple/quadruple mark tests is beneficial only upto 20 weeks of pregnancy to see any congenital abnormality in the fetus so that fetus with abnormalities or congenital malformations could be terminated. Since medical termination of pregnancy is not allowed and is illegal after 20 weeks as per MTP Act and anomaly ultrasound is not beneficial for termination of pregnancy beyond 20 weeks of inception. Learned counsel for the OP No.5 has further argued that the patient had never opted for anomaly/level II scan test only pen picture with regard to fetal growth was mentioned.  The charges for anomaly test are approximately three times higher than the routine test to evaluate fetal growth etc. Learned counsel for the OP No.7 has argued that there is no privity of contract between the complainant and OP No.7 as it has issued professional indemnity policy vide policy No.041200/46/13/35/00004965 valid till 31.10.2014 w.e.f 01.11.2013 to OP No.4 subject to certain terms and conditions/exceptions/ exclusions etc. and the maximum limit of liability granted/covered upto Rs.10,00,000/- in respect of any one year and one accident.

8.                Admittedly, the complainant consulted the OP No.3 on 05.12.2013 and the OP No.3 prescribed some medicines to the complainant after conducting some tests and also recommended USG for gestation and its viability on 24.12.2013 (Annexure C5). Accordingly, the complainant got the ultrasound done from OP No.4 on 25.12.2013. OP No.4 Dr.Dev Batra conducted the USG for F-WellBeing and submitted the following report (Annexure C8) :

                  

                   UTERUS:   Anteverted & anteflexed.

                                      A gestational sac is seen in the uterus.                                                                 A single foetus measuring 11 mm in length (CRL)                                               & G.A.-7.3 wks +_ 4 Ds, is seen in the G.S.

                                      F.Cardiac activity is normal.

                                      Amniotic fluid volume-Adequate.

                                      No Chroionic separation/S.C.hematoma collection                                             is seen.

                                      Cx is closed.

 

          IMPRESSION- 7.3WKS+_ 4 DS.SINGLE VIABLE PREGNANCY.

 

OP NO.3 Dr.Punam Gupta again recommended USG Level II on 01.03.2014 for Gestage its viability and any CMF. As per advice of OP NO.3 the complainant again got conducted the USG from OP No.4 on 01.03.2014. The OP No.4 vide his report (Annexure C10) observed as under:

                             U.S.G for F-WELLBEING

          A SINGLE live foetus is seen in the gestational sac

 

          Foetal position               free-floating                   F.H.R-158 bts/mt.                             Cardiac activity….                  Normal                 Tone…Normal                         F.Movements….            Normal       Amniotic fluid volume..                                                                    adequate, the largest pocket measures 36                                                   mm in depth.

 

Respiratory movements    Normal             Stomach bubble+

 

MEASUREMENTS                          E.G.A Biparietal diameter…..            33 mm        16.0+- 1 Wks.      Head Circumference                124mm       16.2+-1Wks. Abdominal Circumference       106 mm     16.2+- Wks.                      Femur Length…..                    20 mm        15.6+- Wks.   BEST ESTIMATED G.A. 16 Wks. 1 Ds. +- 1  Wks.

         

Weight 150 gms.                               Evidence of I.U.G.R Nil.                             Pl.location-Posterior & fundal           Pl.Maturityy-Gr.-1                                      PL.PREVIA. Nil.

 No sub-chorionic/retro-placental fluid collection is seen

Fetal intracranial structures, ventricles & choroids plexus appears to                 be normal.

Fetal spine, thorax & abdominal organs are normally visualized.

NO C.M.F. is detected.

Biophysical profile scoring 10

 

   IMPRESSION- 16 WKS, 1 Ds.+- WK SINGLE VIABLE PREGNANCY

 

OP No.3 prescribed the medicines after going through the report of USG conducted by Op No.4 on the person of the complainant.  In the month of May, 2014 the complainant contacted OP No.2 and as per history given by the complainant she was gravid 2. History of previous missed abortion. As per investigation reports she was carrying with her, was within normal limit and USG dated 01.03.2014 conducted by OP NO.4 shows fetus as normal wherein it was specifically mentioned that no CMF (Congenital Malformation) is detected. The OP No.2 advised iron and calcium. OP No.2 also advised USG to rule out CMF. The complainant got her USG done on 16.05.2014 from KAP’S Diagnoscam Centre (OP No.5).  According to USG issued by OP No.5 (Annexure C12) it was normal study where femur length was 48.3 mm which is normal for that gestational age.  From the material available on the case file it is clear that the complainant during pregnancy visited the Ops No.1,2 & 3 for consultation and also got done USG from Ops No.4 & 5 on the asking of treating doctors.  It is well acknowledged that ante natal checks are an extremely important and integral part of medical care during pregnancy because these help in identifying, assessing and consequently reducing the risks to both the mother and the fetus. These include the following:-

“(a) recording medical history of the mother, including her height and weight (with the weight to be taken and recorded during each ante natal visit);

(b)   full blood examination, including tests for blood group, hemoglobin (to check for anemia), Hepatitis-B, blood sugar etc.;

(c)   Ultrasound tests;

(d)   tests to check for gestational diabetes in the third trimester; and

(e)   Leopold’s maneuver in the third trimester to determine the size, consistency, shape and mobility of the fetus through palpating the woman’s upper abdomen with both hands.”

9.                As evident from a conjunctive appreciation of the pleadings made by the parties, the averments made by the complainant of her having been examined by the OPs, at different points of time, have not been controverted. It would further appear to be to own version of the OPs that the deformity ultimately found to have been in the child on birth could have been detected during the pre-delivery period only on a USG (level-II) examination. Reference, in the context, may be made to the written statements filed by OPs No.1 and 2 (Paras 8 and 9), OP No.3 (Paras 9 and 11) and OP No.4 (Para 11) wherein all of them made a categorical averment that the deformity (including the absence of femur) found by OP No.6 (Annexure C-14) could have been found out only on a Level-II USG examination.

10.               OP No.3 tried to wriggle out of the legal accountability by averring in the written statement that “Patient was advised Level-II USG to rule out congenital anomalies in baby at proper time, but patient came with the report of USG Level-I. Patient was again explained and stressed about the importance of USG Level-II for detecting congenital anomalies hence, again advised to get done the Level-II USG. But on next visit patient did not do USG Level-II”.

11.               In explicably enough, the treatment card of the complainant does not contain the advice averred to have been reiterated by OP No.3. If it patient does not follow the instructions – as averred by OP No.3, it would be required of the treating doctor to make a note of the fact on the treatment card. For OP No.3 to make an averment to that effect for the first time in the pleadings would appear to be clearly a case of an afterthought which is not acceptable at law.

12.               The stance made by OP No.3 too is not borne out by any documentation. If a patient had been advised to undergo Level-II USG examination and the patient was not agreeable to get it done, it would be appropriate – nay compulsive – for the radiologist to document that fact. It is illogical for OP No.3 to aver that the patient had again gone to OP No.3 on 01.03.2014 who “after examining the patient advised Level-II ultrasound at 18 weeks”. The twin advice on the same day by OP No.3 is not borne out by the pleadings made by OP No.3.

13.               Insofaras, OP No.5 is concerned, she too cannot escape liability. It is neither here nor there for her to allege that “Each test has a different tariff and the complainant was charged only for routine/basic/level-I scan to evaluate foetal weight and well being and the patient did not opt for anomaly/level-II scan done to detect abnormalities and defects – The answering respondent nowhere mentioned that there was no congenital malformation in foetus as the same test was never carried out by the answering respondent (as per the averment made by her, the complainant came over for ultrasound on 16.05.2014 only). It was further averred by her that she came for other evaluations “and not for any abnormality”. Reliance, in support of the averment noticed in the preceding para, was placed upon the record form Annexure R-1.

14.               It can safely be assumed that OP No.5 would not have proceeded with the ultrasound just like that. She must have gone through the treatment record of the complainant, particularly when it is the own averment by the former that the later was 27 weeks pregnant and that she came over to her for the first time. It would be expected that a medical professional with normal prudence would familiarise himself/herself with the treatment record to be in the know of her past examinations and further to find out why had the patient opted to come over to that particular radiologist for ultrasound examination for the first time. It would be particularly so when OP No.5 is an M.D. in Medicine.

15.              Generally, it is expected from a professional person that he/she should show a fair, reasonable and competent degree of skill and it is not required that he should use the highest degree of skill. It has been held in a catena of judgments given by the Hon’ble Apex Court and the Hon’ble National Commission in cases of medical negligence that a reasonable degree of care and attention is expected from the medical professionals while handling such cases.  In the present case pregnancy of the complainant, treatment taken by her from Ops No.1 to 3 during pregnancy and delivery of male child is not disputed but the material available on the case file clearly shows that the doctors who have conducted the USG on the person of the complainant have not done their duties with care and diligence because the photographs of the male child Adarash (Ex.C21) placed on the file clearly reflect missing of femur bone but in the reports given by OP No.4 & OP no.5 there is mentioning of femur bone length of 20 mm and 48.3 mm. Though the OP No.4 had taken a plea that at the time of USG the fetus was in folding position in the womb and mistakenly the length of leg was measured as femur length but this plea is not enough to make a hole in the proven case of the complainant.  Regarding the fetal position, it was not appropriate at the time of ultrasound, it was the duty of ultra-sinologist to repeat the scan, when the fetal comes to right position. It is known fact that fetal position usually changes enough in 30 to 45 minutes at 18 to 20 weeks to obtain of scans plants. The Ops No.4 & 5 have failed to explain that who they have measured the length of femur despite the fact that it was missing as is evident through X-ray Infantogram (Annexure C14) issued by OP No.6 where it has been mentioned that There is absence of femur seen bilaterally with narrow cylindrical pelvis and under development acctabulum bilaterally- Bilateral femoral agencies. It is the duty of the ultrasound centre to satisfy that there was no lack of care and diligence. The ultrasound centers are institutions, people expect better and efficient service, if the same fails to discharge their duties, it is the Incharge of ultrasound centre who has to justify and any kind of negligence will not absolve him of his responsibility.  We are in no doubt that when a patient who goes to a physician or diagnostic or radiologist, does not expect a wrong diagnosis leading to further mental agony and tension. Hon’ble Supreme Court of India in case titled as Post Graduate Institute of Medical Education and Research, Chandigarh Vs. Jaspal Singh & Ors., III (2010) SLT 608 has laid down that “the failure to perform the duties with reasonable competence amounts to negligence.”  In the present case it is clear that due to medical negligence the complainant and her family would have to suffer throughout life because the complainant gave birth to a handicapped child as two bones (Tibia and Fibula) were shortened lower limb bilaterally and the femur was not visualized.  It is strange that Ops No.4 & 5 have done ultrasound on the person of complainant for three times but failed to detect the CMF.  Hon’ble Supreme Court of India in Nizam Institute of Medical Sciences Vs. Prasanth S Dhanaka & Ors rightly sensed and quoted in para 39, that;

“At the same time we often find that a person injured in an acceded leaves his family in greater distress, vis-vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is however, more pitiable and the felling of hurt, helplessness, despair and often destitution endures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity.”

 From the above, it is clear that femur would not have developed/vanished in a day or so. The version of the complainant that the Ops have failed to explain how the femur developed/vanished all of a sudden. Another surprising factor which this Forum has noticed that the OP No.5 (Dr.Jyotika Kapoor) has done USG on the person of the complainant. Dr.Jyotika Kapoor is MD (medicine) and she is not competent to do the USG. It can be done only by the Radiologist. She has not placed any documents on file that she possessed the qualification to do the USG.

16.              For the reasons recorded in the earlier paras of this judgment, we are of the opinion that he present complaint deserves to succeed and we would allow the complaint in favour of the complainant and against OPs No.3, 4, 5 and 7. The Ops are directed as under: -

 

        a)     The OP No.3 shall pay the amount of Rs.2,00,000/- to the complainant.

        b)    The Op No.4 shall pay the amount of Rs.5,00,000/- to the complainant.

        c)     The Ops No.5 and 7 shall pay the amount of Rs.5,00,000/- to the complainant. The OP No.7 is the insurer of the Op No.5 and hence Ops No.5 and 7 are jointly and severally liable.

        d)    The liable Ops shall also pay a sum of Rs.1,50,000/- (OP No.3 shall pay Rs.30,000/-, Op No.4 shall pay Rs.60,000/- and Ops No.5 & 7 shall pay Rs.60,000/-) as compensation for mental agony and harassment.

        e)     The liable Ops shall also pay a sum of Rs.11,000/- (OP No.3 shall pay Rs.3,000/-, Op No.4 shall pay Rs.4,000/- and Ops No.5 & 7 shall pay Rs.4,000/-) as cost of litigation.

       

17.               The liable OPs shall comply with this order within a period of 60 days from the date its communication comes about. However, in default thereof, the complainant will be entitled to recover the said amount from the abovesaid Ops alongwith interest @ 12% per annum for entire period of default.

                   It is further directed to the Ops that the entire decretal amount mentioned at point a, b and c be paid in the form of fixed deposit in Nationalized Bank till the minor child attain the majority. However, the complainant shall be entitled to withdraw the interest amount for the welfare and up keeping of the minor child. A copy of this order shall be forwarded, free of cost, to the parties to the complaint.

 

Announced

17.12.2015    S.P.ATTRI        ANITA KAPOOR        DHARAM PAL

                       MEMBER                  MEMBER                     PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.  

 

 

                                            

                                                DHARAM PAL                                                                                         PRESIDENT