BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President, 2. M.N.MANOHARA, B.A., LLB., Member, 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, ORDER Complaint No.MDF/C.C.No.106/2008 Order dated this the 20th day of April 2009 COMPLAINANT/S 1. Sri.M.D.Sathisha S/o Devegowda, 2. Smt.Nandini W/o M.D.Sathish, 6th Cross, Chaya Nilaya, V.V.Nagara, Kallahalli, Mandya City. (By Sri.Yogananda., Advocate) -Vs- OPPOSITE PARTY/S 1. Dr.Poornima, Krupa Nursing Home, 2nd Cross, Subhashnagara, Mandya. (INPERSON) 2. Dr.Kusuma Jayaram, Ramakrishna X-ray Centre and Scanning Centre, V.V.Road, Mandya. (By Sri.A.Sunil Kumar., Advocate for O.P.2) Date of complaint 22.10.2008 Date of service of notice to Opposite parties 19.11.2008 Date of order 20.04.2009 Total Period 4 Months 1 Day Result The complaint is dismissed. In the circumstances of the case, there is no order as to costs. Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986 claiming compensation of Rs.18,00,000/- alleging medical negligence against the Opposite parties. 2. The case of the Complainants is that the Complainants are husband and wife having married about 6 years and the 2nd Complainant became pregnant for the second time during October 2007 and she was regularly undergoing medical check up through the 1st Opposite party. The 2nd Complainant underwent scanning on 04.01.2008 and scanning was done by 2nd Opposite party and the report given by the 2nd Opposite party was always normal. On the basis of the scanning, heart beat of the 2nd Complainant and also the baby in the womb 1st Opposite party was assuring that the baby is alright and nothing to worry. Though, the 1st Opposite party after medical check up assured normal delivery, but on 05.06.2008, 1st Opposite party suggested delivery through cesarean and consent of the 1st Complainant was also taken. The 2nd Complainant on 05.06.2008 gave birth to a female child. On the very same day, the 2nd Complainant also underwent tubectomy. After the birth of the baby was under the constant care and monitoring by the nursing home authority. After administering necessary vaccine to the baby, 2nd Complainant was discharged assuring that the health condition of the baby is normal and advised 2nd Complainant to come to the Nursing Home for regular check up and vaccination for the baby. After 3 days, the baby developed breathing problem. The 1st Opposite party examined the baby, but did not evince any kind of interest. Then, the complainant consulted Dr.Mohan Kumar, Children Specialist and he suggested to admit the child to B.G.S. Apollo Hospital, Mysore, since the condition of the baby was serious. So, the complainants took the baby and admitted to B.G.S. Apollo Hospital, Mysore and after subjecting the baby for scanning for 3 times, advised that the baby is having major heart problem and advised to take to Narayana Hrudayalaya, Bangalore. On 14.06.2008, the baby was admitted at Narayana Hrudayalaya, Bangalore after medical check up diagnosed the disease as Congenital Heart Disease and the baby was operated on 24.06.2008 by repair of interrupted aortic arch by end to side anastomosis, repair of AP window, re-implantation of RPA to MPA and division and suturing of PDA, direct closure of ASD. The baby was discharged on 25.07.2008. The complainants have spent Rs.2,25,000/- for medical expenses, apart from Rs.75,000/- as incidental expenses. Since, 2nd Complainant was under regular check up through the 1st Opposite party, the 1st Opposite party ought to have diagnosed the problem and informed the complainants. On account of the gross negligence on the part of the 1st & 2nd Opposite parties, the ailment could not be diagnosed earlier. Thus, there is clear deficiency of service on the part of the 1st & 2nd Opposite parties. Therefore, the present complaint is filed. 3. The 1st & 2nd Opposite parties were served with notices and they have filed versions separately. 4. The 1st Opposite party has pleaded that the complaint is vexatious, groundless and vengeance for financial gain and to blackmail and mentally torture. The complainant has accepted the service of the 1st Opposite party from past 5 6 years without protest. The 1st child of the complainants is alive healthy, delivered under 1st Opposite party. What is the obvious fault of the 1st Opposite party is not pleaded. The 1st Opposite party has exercised higher degree of skill and care expected of a specialist, during pregnancy and delivery of the second child of the 2nd Complainant. The 1st Opposite party is highly qualified with M.D., Degree of Mysore University and well experienced more than 21 years in the field of Obstetrician and Gynecology. Congenital heart disease of the foetus, mentioned in the complaint are not caused by deficiency in service of the obstetrician and the diagnosis of the said disease does not come under the purview of obstetrician. As a specialist, 1st Opposite party has exercised highest degree of skill and care at all times, when the 2nd Complainant came for antenatal checkups and delivery, they are blood, urine and scanning details of which have been entered in the antenatal cards and discharge summary and during surgery, the opinion of pediatrician was taken and pediatrician has discussed with the complainants and with consent the tubectomy was carried out. The 2nd Complainant was referred for sonography and on 04.01.2008, 2nd Complainant has undergone scanning and it shows 17 weeks baby. It is the sonologist to comment on the ultra sound findings and obstetrician job is to convey the report. The scanning will be advised to confirm the pregnancy presentation, age of the foetus, movement, diameter of the head and other bony markings any detectable congenital anomalies, weight, condition of the placenta liquor. The 2nd Complainant has also undergone scanning on 14.04.2008 and further, the 2nd Complainant has undergone another scan at 36.5 weeks, but the reports have not been enclosed. After regular checkups, as indicated, antenatal card, the patient was advised to get admitted for Elective Caesarian Section Operation on 04.06.2008. 2nd Opposite party has issued scanning report and report was normal. Denying the allegation of normal delivery and later subjecting to cesarean delivery, the 1st Opposite party has pleaded that first child was delivered by cesarean section, indicating the C.P.D. next delivery will also be cesarean. At the time of discharge, both mother and child were in good health. At the time of delivery of the child, pediatrician was called and seen the child that clearly mentioned that no congenital anomalies and instructed to give some medications. The complainants have made false and irrelevant allegations. The 1st Opposite party has not committed any deficiency in service. The Obstetrician cannot diagnose the congenital heart disease. The 1st Opposite party has not committed deficiency in service or any medical negligence. The complainants are not entitled to any claim and complaint is filed misusing the Consumer Act and to blackmail and terrorise the doctors and it is necessary to direct the complainants to pay cost of Rs.10,000/- for unnecessary dragging to the Consumer Forum. 5. The 2nd Opposite party has filed version denying that the 2nd Complainant was regularly undergoing scanning once in 2 3 months. The 2nd Opposite party has given the scanning report on 04.01.2008 only and other allegations are not known to the 2nd Opposite party. The 2nd Opposite party has got experience and knowledge and she is running Ramakrishna X-ray and Scanning Centre from the last 18 years. The 2nd Opposite party usually conducts routine obstetric scan and does not have any kind of facilities to conduct foetal echo-cardiography, this foetal echo-cardiography is usually done on specific advise of Gynecologist and not otherwise and this echo-cardiography is not advised in usual course, while doing routine obstetric scan only. In case of previous history of such congenital anomalies as stated by the patient or if directed by the Gynecologist this test will be done. At the time of 17 weeks of the pregnancy question of detecting congenital cardiac anomalies does not arise at all. At that stage, the heart will be only 1.3 x 1.7 cms and it is too small in size to take up any of the congenital cardian anomalies. The report given by 2nd Opposite party on 04.01.2008 is perfectly correct and no deficiency of service or negligence can be attributed on such report. When a routine obstetric scanning is done only if four chamber view is not to be seen or is abnormal, then usually the radiologist suggests for echo-cardiography. In this case, 4 chambers view was normal. This rare cardiac anomaly cannot be traced in an usual routine obstetric scan. In ultra sound scan this cardiac disease could not be detected in normal routine obstetric scan. Several anomalies are subsequent developments in post natal stage and the complainant has filed to harass Opposite party and to make unlawful gain. Therefore, the complaint is liable to be dismissed. 6. During trial, the 1st Complainant and 4 medical witnesses are examined and they have produced the documents Ex.C.1 to C.38. The 1st & 2nd Opposite parties have filed affidavit and the documents. At the time of arguments, in spite of several opportunities, complainants and their advocate remained absent. 7. We have heard the Opposite party side. We have perused the records. 8. Now the points that arise for our considerations are:- 1. Whether the 1st Opposite party has committed medical negligence in not detecting congenital heart disease of the foetus in the womb of 2nd Complainant? 2. Whether the 2nd Opposite party has committed medical negligence in giving ultra sound scanning report? 3. Whether the complainants are entitled to compensation sought for? 4. What order? 9. Our findings and reasons are as here under:- 10. The undisputed facts are that the complainants are husband and wife having married 6 years ago and out of wedlock, 2nd Opposite party has given birth to male child who is now aged more than 5 years. The 2nd Complainant again became pregnant for the second time during October 2007 and the 2nd Complainant was regularly undergoing medical check up through 1st Opposite party and she was subjected to scanning with 2nd Opposite party and the 2nd Complainant was admitted for deliver on 04.06.2008 and on 05.06.2008, the 2nd Complainant underwent cesarean delivery by consent giving birth to female child. 11. The grievance of the complainant is that though the 2nd Complainant was regularly undergoing scanning once in 2-3 months and first scanning is on 04.01.2008 and 2nd Opposite party reported that the scanning report is normal and even 1st Opposite party was assuring that baby is alright, after discharge from the hospital, the baby developed breathing problem and after consulting Dr.Mohan Kumar, Child Specialist took the baby to B.G.S. Apolla Hospital and baby was subjected for scanning for three times and advised that the baby is having major heart problem and advised to take the baby to Narayana Hrudayala, Bangalore and baby was admitted to Narayana Hrudayala, Bangalore on 14.06.2008 and diagnosed the disease as congenital heart disease and the baby was operated on 24.06.2008 by repair of interrupted aortic arch by end to side anastomosis, repair of AP window, re-implantation of RPA to MPA, division and suturing of PDA, direct closure of ASD. The baby was discharged on 25.07.2008. According to the complainants, due to the negligence of 2nd Opposite party by not giving proper scanning report and negligence of 1st Opposite party in not detecting heart disease of the foetus in the womb of the 2nd Complainant, the Opposite parties have committed medical negligence. 12. The 1st & 2nd Opposite parties have denied the same. Apart from the oral evidence of the 1st Complainant, the complainants have examined four medical witnesses to prove the case of negligence namely CW.2 Dr.Harish Kejriwal, a Pediatrician of B.G.S. Apollo Hospital, Mysore, CW.3 Dr.Keshava Murthy V. Cardiologist of Apollo B.G.S. Hospital, Mysore, CW.4 Dr.Shivaprasad, Radiologist and CW.5 Dr.Karthi G.A. of Narayana Hrudayalaya Bangalore are examined. The complainant has produced the treatment records of Narayana Hrudayalaya Ex.C.1 to C.8, bills from Ex.C.9 to C.19, discharge summary Ex.C.22, Ex.C.23 cardiology OP case paper, discharge letter Ex.C.24, operation note Ex.C.25, CD Echo-cardiography report Ex.C.26, CT angiogram study of Aorta and pulmonary arteries Ex.C.27, chest radiograph Ex.C.28, Echocardiography report Ex.C.29 & C.30. The complainant has also produced Apollo B.G.S. Hospital treatment records Ex.C.33 and reference letter to Narayana Hrudayalaya Ex.C.31, Hospital bill Ex.C.32, antenatal card issued by 1st Opposite party marked as Ex.C.35 and the scanning report Ex.C.36, C.37 and C.38 issued by 2nd Opposite party are produced. 13. According to the 1st & 2nd Opposite party, they are specialist in their respective field i.e., Obstetrician and Radiologist having vast experience in the field and have not committed any medical negligence and congenital heart disease of the baby of 2nd Complainant could not be detected by 1st Opposite party as obstetrician and even 2nd Opposite party by scanning report. 14. Now, the 2nd Complainant under treatment of 1st Opposite party a Obstetrician, delivered the female child on 05.06.2008 by elective caesarian section operation with consent of the 1st Complainant being a husband. According to the complainants, after 3 days, the baby developed breathing problem and when approached 1st Opposite party did not show any kind of interest, then after consulting Children Specialist Dr.Mohan Kumar they took the baby to B.G.S. Hospital, Mysore and after advise he took the baby to Narayana Hurdayalaya and there congenital heart disease of the baby was diagnosed and operation was done on 24.06.2008. So, the treatment in B.G.S. Apollo Hospital and Narayana Hrudayalaya, Bangalore cannot be disputed. 15. Now the crucial question is whether 2nd Opposite party as a Radiologist who took the scanning of womb of the 2nd Complainant and issued the report as per Ex.C.36 to C.38 has committed medical negligence in giving false report without diagnosing the heart disease of the fetus and whether 1st Opposite party being a Obstetrician failed to detect the heart disease of the fetus in the womb of 2nd Complainant during regular check up. Complainants have not examined Dr.Chandrashekar, Children Specialist. Though the complainant has examined 4 medical witnesses, if we read the evidence of those 4 witnesses, CW.4 the Radiologist from Apollo Hospital and CW.5 the Radiologist from Narayana Hrudayalaya, Bangalore have clearly deposed that in routine scanning, the abnormalities of aorta pulmonary heart disease cannot be find out, only simple disease of heart like whether four chambers of the heart are there or not can be find out. In Ex.C.38 scanning report it is mentioned that the fetus pulse rate is normal. In the case of congenital heart disease of the fetus, other problems may be or may not be developed and usually any problem will not arise to mother in case of congenital heart disease of the foetus. It is not possible for obstetrician to diagnose the congenital heart disease of the foetus. CW.4 Dr.Shivaprasad, Radiologist from Apolla B.G.S. Hospital, Mysore has specifically deposed that congenital heart disease cannot be diagnosed by routine obstetric scanning. If a pregnant woman is referred for routine scanning, the radiologist will scan only four chamber view of the heart. If there is any problem in four chamber of the heart the radiologist will refer for fetal echo-cardiography. The scanning report Ex.C.36 to C.38 (given by 2nd Opposite party) reveal that all the four chambers of the heart of the fetus are normal, to find out the congenital heart disease of the fetus, only a trained radiologist in echo-cardiography of the fetus can detect and not all and he has also deposed that the complex congenital heart disease of this child has been diagnosed at Narayana Hrudayalaya by conducting angiogram and C.T. angiogram. Since, there are no abnormalities in the fetus of heart problem in the scanning report Ex.C.36 to C.38, there is no necessity to refer the patient for fetal echo-cardiography. So, the cardiologist from Narayana Hrudayalaya and Apolla B.G.S. Hospital Mysore have not at all supported the case of the complainant about the negligence of 2nd Opposite party Radiologist, wherein their evidence proves that the congenital heart disease cannot be detected in simple ultra sound scanning and since the four chambers of the heart of the fetus were normal, there is no necessity to suspect the heart disease and to refer to the echo-cardiography and the complex congenital heart disease was diagnosed at Narayana Hrudayalaya and C.T.Angiogram. Even CW.2 Dr.Harish Kejriwal, Pediatrician of Apollo B.G.S. Hospital, Mysore who treated the baby and on taking echo-cardiography found heart disease and this heart disease will not reveal any changes of health of the mother or the fetus. The heart beat of the fetus in the womb can be observed by ultra-sound scanning and scanning report reveal the normal heart beat and according to him, one in out of thousand case this type of complex heart disease would occur. He has specifically deposed that an obstetrician cannot diagnose any heart disease of the fetus by clinical examination. In low risk pregnancy fetal echo-cardiography will not be advised. Even C.W.3 Dr.Keshava Murthy, Cardiologist of B.G.S. Apollo Hospital, Mysore has specifically deposed before the birth of the child, seriousness of the heart problem cannot be find out and only by echo-cardiography, the heart disease can be find out. In this case, the problem has occurred in the heart and also the great vessels of the heart only in one out of thousand fetus. By routine ultra sound scanning, the problem in the heart vessels cannot be find out and even heart disease cannot be find out. Therefore, these four medical witnesses have not at all supported the case of the complainant that 1st Opposite party as obstetrician has committed medical negligence in not detecting heart disease of the fetus in the womb of the 2nd Complainant and even the evidence adduced will not support that 2nd Opposite party has conducted medical negligence in giving the scanning report without detecting the congenital heart disease. So, the cumulative effect of the evidence adduced in this case clearly established that the congenital heart disease in the fetus is very rare case i.e., one out of thousand and can be detected only by echo-cardigraphy, angiogram and C.T. angiogram not by ordinary ultra sound scanning which revealed only the presence of the four chamber of the heart and heart beat and deformity in the chambers if any and rate of heart beat. We do not find any false report given by 2nd Opposite party nor any negligence committed by 1st Opposite party Obstetrician. Merely because, the complainant has spent thousands of rupees for surgery in Narayana Hrudayalaya, the 1st & 2nd Opposite parties are not responsible for the rare disease of congenital heart disease of the fetus which cannot be detected by Obstetrician or by Radiologist doing ultra sound scanning only. Therefore, the complainants have failed to prove that 1st & 2nd Opposite parties have committed medical negligence. 16. The complainants have sought for Rs.18,00,000/- as compensation. According to the complainant, they spent Rs.2,25,000/- for treatment and Rs.75,000/- for other incidental expenses. As per the bill, they have paid Rs.20,000/- to B.G.S. Apollo Hospital, Mysore (Ex.C.32) and in Narayana Hrudayalaya Hospital bill is for Rs.34,000/- and they have paid as per Ex.C.7, they have also purchased some medicines as per Ex.C.13 to C.18 nearly Rs.12,000/- and accommodation expenses of Rs.8,000/- and Rs.2,000/- in Ex.C.9 towards diet food for the baby. The expenses spent to save the baby by the complainants cannot be attributed to the negligence of 1st & 2nd Opposite parties. Therefore, the complainants are not entitled to compensation as the medical negligence is not established at all by the complainants. 17. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. In the circumstances of the case, there is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 20th day of April 2009). (PRESIDENT) (MEMBER) (MEMBER)
