Haryana

Kurukshetra

179/2016

USHA - Complainant(s)

Versus

Landmark - Opp.Party(s)

Adesh Gupta

19 Aug 2019

ORDER

BEFORE THE  DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KURUKSHETRA.

 

Consumer Complaint no. 179 of 2016.

Date of instt. 13.5.2016/ 29.6.2016. 

                                                                         Date of Decision: 19.08.2019.

 

Smt. Usha aged 26 years wife of Shri Arvind, resident of village Mansoorpur, Tehsil Radaur, Distt. Yamuna Nagar. 

                                                                ……….Complainant.      

                        Versus

 

1. Landmark Ultrasound Diagnostic Centre, Ladwa Road, Shahbad (Markanda), Distt. Kurukshetra through Dr. S.K. Arora, MBBS, DOMS, MS, (Ultrasolologist).

 

2. Dr. S.K. Arora, MBBS, DOMS, MS (Ultrasolologist), Landmark Ultrasound Diagnostic Centre, Ladwa Road, Shahbad (Markanda), Distt. Kurukshetra.

 

3. Dr. Mrs. Janak Arora, DGO, MD, Gagan Hospital C/o Landmark Hospital, Ladwa Road, Shahbad (Markanda) Distt. Kurukshetra.

 

4. United India Insurance Company Ltd. near Partap Mandi, Shahbad (M).

..………Opposite parties.

 

       Complaint under section 12 of Consumer Protection Act.            

 

Before       Smt. Neelam Kashyap, President.    

                Ms. Neelam, Member. 

                Sh. Sunil Mohan Trikha, Member                                          

Present:     Sh. Adesh Gupta, Advocate for complainant. 

 Sh. Gaurav Bansal, Advocate for opposite parties no.1 to 3.

 Sh. V.K. Garg, Advocate for opposite party no.4.   

 

           

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Smt. Usha against Landmark Ultrasound Diagnostic Centre and others, the opposite parties.

2.             It is stated in the complaint that complainant was married with Sh. Arvind in the month of February, 2012 and she has already a daughter. For the second time, she got pregnancy in February, 2015 for which the complainant remained in consultation with the op no.3 i.e. Dr. Mrs. Janak Arora. Dr. Mrs. Janak Arora is wife of op no.2 and op no.1 runs his ultrasound diagnostic centre in collaboration with Landmark Hospital with his wife. On the request of complainant, in order to find any abnormality i.e. disease/ disorder/ deformity in the child in her womb at the very preliminary stage of pregnancy, the op no.3 referred the complainant to get ultrasound from her husband’s ultrasound centre. Accordingly, the complainant on 4.5.2015 got ultrasound from the ops no.1 and 2 and they reported in column “G” in his report “Any Gross Obvious Congenital anomaly seen-NIL”. So is the subsequent two reports given by ops no.1 and 2 for which as per bill dated 2.11.2015, the op no.3 charged Rs.1050/- and Rs.350/- per ultrasound report. It is further averred that simultaneously, complainant also remained in consultation with Dr. Usha Rathi, MD (Obst. & Gynea.) City Hospitaol, Commercial Belt, Sector-17, HUDA, Jagadhari, District Yamuna Nagar till delivery and accordingly in the moth of October, 2015 with labour pain, the complainant was got admitted in City Hospital, Sector-17, HUDA, Jagadhari on 23.10.2015 and gave birth to a male child on the same day and remained hospitalized till 26.10.2016 but the complainant was stunned and cried with pain when it was disclosed that the newly born son has deformity of not having left arm below elbow. The complainant at the preliminary stage of three/four months of her pregnancy had got the ultrasound from Ops to find out any deformity in the child in the womb but the Ops gave wrong ultra sound report that there is no disorder/deformity in the child in womb and had correct ultra sound report been given by the Ops, the right time proper medical treatment would have been given. Because, the newly born child has the deformity of not having left arm below elbow, the Ops are sole responsible for the entire prospective life of the child of the complainant who is handicapped from birth and the Ops are liable to compensate the complainant to the tune of Rs.20,00,000/- at least so that the child could be cared, maintained and brought up with special care and treatment. The complainant got served a legal notice dated 18.12.2015 but the same was returned back un-served and subsequently also the complainant sent legal notices to the ops but to no effect. The complainant requested the Ops to compensate her but they did not pay any heed. Hence, it amounts to deficiency in service on the part of Ops. So, the present complaint has been moved by the complainant with the prayer to direct the Ops to pay Rs.18,22,000/-  as damages/compensation for prospective life of child of complainant and medical treatment, mental agony and physical harassment and litigation expenses.

3.            Upon notice, opposite parties appeared. Ops no.1 to 3 contested the complaint by filing written statement alleging therein that the complaint is concocted by complainant which is fabricated on false and frivolous grounds; that the complainant has concealed the true and material facts from this Forum by way of concealing the true facts; that the complainant was advised to go for level-II ultrasound from Expert Ultra-sonologist who is known as expert in the field of sonography. The level-II ultrasound facility is not available with the answering Ops, so the complainant was advised to go for level-II ultrasound; that the present complaint is bad for mis joinder and non joinder of necessary parties, which were not impleaded as party in the present complaint; that party is lady doctor Rathi of City Hospital, Sector-17, Jagadhari; that the complainant has not taken/collected/received any expert opinion as advised earlier when the complainant visited at Shahbad Markanda, who was pregnant of 14 weeks pregnancy that is why the complainant was advised to go for the examination of level-II ultra sound from Expert Ultra sonologist at the time of 18/20 weeks pregnancy, which the complainant had not followed the advice of answering Ops; that the complainant has not disclosed the report of ultra sound if advised by Dr. Mrs. Rathi of Jagadhari by any ultra sound Centre; that this Forum has no jurisdiction to try and entertain the present complaint because the cause of action had arisen at Jagadhari. The total treatment of complainant was done by Dr. Mrs. Rathi of City Hospital, Jagadhari. It is further submitted that complainant has not received any expert opinion from any expert ultra- sinologist nor she has collected the report from her Dr. Mrs. Rathi who has given the treatment till end (delivery of child) nor any report has been annexed. It is further submitted that detailed fetal anatomy may not always be visible due to technical difficulties related to fetal position, amniotic fluid volume, fetal movements and abdominal wall thickness. Therefore, all fetal anomalies may not be necessarily be detected at every examination. In the present case, the complainant was advised to go for level-II ultrasound, which is need for knowing the gross congenital anomally/defects. Remaining contents of complaint are also denied and prayer for dismissal of complaint.

4.             Opposite party no.4 in its written statement asserted that relief has been sought against the ops no.1 to 3 only and not against op no.4. It is further submitted that as per professional indemnity Dr. policy, only Dr. S.K. Arora, op no.2 is insured as Opthalomologic physician (eyes physician) and is not as ultrasonologist. Moreover, the op no.1 Landmark Ultrasound Diagnostic Centre is not insured with the op no.4, so op no.4 is not liable to pay any compensation. It is further submitted that as per written reply of ops no.1 to 3, it is clearly mentioned that op no.2 does not do ultrasound of the pregnant lady. So, it is clearly established that op no.2 has not done any ultrasound of Smt. Usha complainant. It is further submitted that from the perusal of report dated 4.5.2015 and bill dated 2.11.2015, it is clearly proved that the ultrasound, if any was conducted by op no.3 Dr. Janak Arora and not by op no.2. It is further submitted that as per the condition no.2 of the policy, indemnity applies only to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistances named in the schedule or any nurse or technician employed by the insured. So, there is no negligence on the part of ops no.1 to 3 at all and that complaint is bad for mis joinder of necessary parties and prayer for dismissal of complaint made.

5.             Learned counsel for complainant tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.C26. On the other hand, ops no.1 to 3 tendered affidavit Ex.RW1/A and documents Ex.R1 to Ex.R5 and Ex.R7 to Ex.R14. Op no.4 tendered affidavit Ex.RW2/B.

6.             We have heard learned counsel for the parties and have perused the case file carefully.

7.             Learned counsel for complainant has vehemently contended that ops no.1 to 3 gave wrong ultrasound report due to which the complainant is suffering lot of mental as well as physical harassment for which ops no.1 to 3 are liable to compensate the complainant and at the time of argument complainant and learned counsel for the complainant placed on record copy of disability certificate of child i.e Mark A. The counsel for the complainant contended that OP No.3 has given ultrasound report that there is no deformity in the child but his son have no left arm below elbow at the time of birth. The respondents are sole responsible for the entire perspective life of the child of complainant who has handicapped from the birth and Ops are liable to the compensate the complainant to the tune of 20 lakhs.

8.             On the other hand, learned counsel for ops no.1 to 3 has vehemently contended that ops are not at any fault as the complainant was advised to go for level-II ultrasound from expert ultra-sonologist  as said facility is not available with them but the complainant has not produced on record any expert opinion. He has further contended that complainant was pregnant of 14 weeks pregnancy when she visited them and all anomalies cannot be detected in a single study and it can only be detected when the pregnancy is at later stage and there is no negligence of any kind on the part of ops no.1 to 3 and prayed for dismissal of complaint. The counsel for Ops No.1 to 3 also placed on record written argument i.e Mark B.  He has also relied upon judgments reported as Martin F.D’souza Vs. Mohd. Ishfaq decided on 17.02.2009, Senthil Scan Centre Vs. Shanthi Sridharan decided on 09.07.2010 (Supreme Court of India), Prateek Gupta and Another Vs. Dr. Renu Chakravarty and Another decided on 05.10.2015 (NC) and Shameem Vs. Dr. K.Nagavalli & Others decided on 15.07.2015 (Tamil Nadu State Commission).

9.               Learned counsel for op no.4 has contended on the lines of written version and submitted that complaint is liable to be dismissed.

10.            We have gone through the rival contentions of the parties and have perused the case file carefully.

11.            In the ultrasound report dated 16.8.2016 conducted by Dr. Janak Arora i.e. op no.3 Ex.R2, it is clearly mentioned that this is a standard obstetric sonography scan and is not intended to guarantee the absence of birth defects or congenital anomalies due to technical difficulties related to fetal movements, fetal positions, liquor amount gestation age (optimal at 20-24 weeks) and abdominal wall thickness. All anomalies may not be detected in a single study. The complainant was having pregnancy of 14 weeks when she visited ops no.1 to 3 for ultrasound and she was advised to go for the examination of level-II ultrasound from expert ultra sinologist but the complainant has not placed on file any subsequent ultrasound reports to show that she followed the advice of op doctor or that she got conducted subsequent ultrasound reports to know the position of fetus and it is true that all anomalies cannot be detected in a single study i.e. at the time of 14 weeks pregnancy and same can be detected when the pregnancy is at later stage. The complainant was admitted in City Hospital, Jagadhari for delivery on 23.10.2015 and a baby boy was born to the complainant and she remained admitted in the said hospital till 26.10.2015 and in the prescription slip of that hospital Ex.CW8, no abnormality of any kind to baby boy has been mentioned by the doctor of that hospital. It is also clear from the file that no expert witness was called by the complainant to prove her case. The Hon’ble Supreme Court in case titled Senthil Scan Centre Vs. Shanti Sridharan and Another CA No.5215  of 2010 (Arising out of SLP(C)No.4525 of 2009), decided on 09.07.2010 has held as under:-

                Evidence Act, 1972, Section 45- Consumer Protection Act, 1986 Sections 2(1)(0) and (g) Medical negligence-Appellant Centre failed to detect deformity with which respondent gave birth to her child-Compensation against Scan Centre on account of deficiency as the centre did not accurately detect the deformity of a child that was in the womb- National Commission also held that the fetus had only a stump below the elbow without any forearm, and that one could not believe that such an obvious anomaly could escape the scrutiny of a specialist who is expected to observe the scan carefully- No expert evidence to show that the scans were not as per the medical norms or that the centre was not properly equipped-Held that, 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-Maternal obesity, can also make sonographic evaluation difficult at any time during pregnancy-No evidence to show that the failure to detect the deformity was out of any negligence on the part of the doctor conducting ultrasound.

The Hon’ble Tamil Nadu State Commission in case titled Shameen Vs. Dr. K.Nagavalli & Others decided on 15.07.2015 has held as under:-

        The case of the complainant is that the complainant went to the hospital run by the Ist Opposite party for regular medical check-up from 28.12.2007 in order to monitor the pregnancy and growth of the foetus. The 1^st opposite party referred the complainant to the 2^nd opposite party who referred her to the 3^rd opposite party scan centre run by her. The 1^st opposite party directed the complainant to take ultra sound Scan on 29.12.2007, 25.02.2008, 21.04.2008 and 15.06.2008 besides the routine check-up. In all these scan reports it is clearly stated that there is no detectable congenital anomaly or gross abnormality.

          The complainant delivered a boy baby with anomaly of absence of lumbar and sacral vertebrae with approximation of pelvic bones posteriorly.

          The District Forum considered the rival contentions and dismissed the complaint holding that there is no negligence or deficiency in service on the part of the Ops.

          Aggrieved by the impugned order, the complainant has preferred this appeal.

12.            The State Commission held in this case, “The District Forum has come to the right conclusion that there is no negligence or deficiency in service on the part of the Ops, based on proper reasons and the dismissed the complaint. We agree with the finding and the decision of the District Forum dismissing the complaint. There is no infirmity in the order of the District Forum and there is no merit in this appeal. In the result, the appeal is dismissed confirming the order of District Forum dismissing the complaint”.

13.            On relying upon Senthil Scan Centre Vs. Shanti Sridharan and Another CA No.5215  of 2010 (Arising out of SLP(C)No.4525 of 2009), decided on 09.07.2010 and Shameen Vs. Dr. K.Nagavalli & Others decided on 15.07.2015 as described supra dismissed this complaint.

12.            The complainant has failed to prove her case by leading cogent and reliable evidence and has also failed to prove any deficiency in service on the part of ops no.1 to 3.

13.            In view of our above discussion, we find no merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.      

  

Announced in open Forum:

Dt.: 19.08.2019.                                                  (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.