F.A.No.1093/2008 against  C.C.No.17/2008, District Forum, KARIMNAGAR.

Between

1. Pallavi Maternity & Nursing Home,

    Rep. by Dr.C.Padmini Reddy

    H.No.7-1-153, Near Civil Hospital,

    Jagtial -505 327.

2. Doctor C.Vijay Kumar,

    H.No.7-1-153, Near Civil Hospital,

    Jagtial-505 327.

3. Indian Medical Association, A.P. Branch

    2^nd floor, IMA Building, Esamia Bazar,

    Hyderabad-500 027.

    Rep. by its Chairman (Impleaded as per

    Order in I.A.No.40/2008 dated 12-3-2008).          …Appellants/

                                                                         Opp.parties.

(Appellant No.3/O.P.3 not necessary

 Party in this appeal)

      And

Gundi Manasa W/o.Praveen

Aged about 21 years, Occ:Housewife,

R/o.Gopalaraopet (v), Ramadugu (M)

Karimnagar District.                                                 ..Respondent/

                                                                            Complainant

Counsel for the Appellants          :     M/s P.Rajasripathi Rao.

Counsel for the respondent      :     Mr.D.Devender Rao.     

QUORUM:  THE HON’BLE JUSTICE SRI D.APPA RAO, PRESIDENT.

                                            AND

                      SMT.M.SHREESHA, MEMBER.  

MONDAY, THE NINETEENTH DAY OF DECEMBER,

       TWO THOUSAND ELEVEN.

             (Typed to dictation of   Smt.M.Shreesha, Hon’ble Member)

                                                                                 ****

          Aggrieved by the order in C.C.No.17/2008  on the file of District Forum, Karimnagar, opposite parties preferred this appeal.

The brief  facts as set out in the complaint are that the complainant was under continuous prenatal care and treatment of opposite party No.1 during her pregnancy.  She was of Primi Gravida.   Her pregnancy was confirmed by the first opposite party on 10-5-2006 during her first visit and the complainant visited opposite party No.1 every month and following her advice.  On 19-12-2006, the complainant gave birth to a male child with Mild Hydrocephalous and Meningocoele, apart from that the child also had congenital abnormality of ‘Tallpus Equino Varus’ which opposite party No.1 failed to diagnose even after the birth of the child.  It is the case of the complainant that the main objective of prenatal care is to ensure normal pregnancy with delivery of a healthy baby and the first opposite party was negligent in treating her during pregnancy and monitoring the foetal well being.  The complainant submitted that the first opposite party for reasons best known neither evaluated the gestational age nor the expected date of delivery till 17-8-2006.   The complainant submitted that it is also mandatory that after confirmation of pregnancy, complete blood analysis shall be done with special emphasis to haemoglobin estimation but blood analysis for estimation of haemoglobin was done by first opposite party on 18-7-2006 i.e. 5^th month of pregnancy and Haemoglobin was reported to be 7.8 Gr%  “54% and the complainant was anaemic.  But opposite party No.1 failed to investigate the type of anaemia.  The complainant further submitted that according to approved medical practice, pregnant woman had to undergo ultrasonography atleast once in each trimester to find out foetal well being within 20 weeks of gestational age but opposite party No.1 referred her to ultrasonography on 17-8-2006 i.e. after 22 weeks.  The complainant further submitted that opposite party No.2 i.e. Sonalogist also miserably failed to detect congenital abnormalities and report the status of foetus.  The complainant also failed to diagnose to note complete “Foetal Biometry’ which will be of immense help to note the complete ‘Foetal Biometry.  The complainant submitted as the foetus was reported to be normal, she carried her pregnancy and delivered a male child with congenital abnormalities.

The complainant submitted that opposite party No.2 in his reply notice dated 4-1-2008 stated that the Gestational age of the foetus was of 20 weeks when they conducted ultrasonography and that they advised to the complainant to have a follow up  scan which the complainant alleged that the statement of opposite parties is an afterthought.  The complainant submitted that had the opposite parties detected congenital abnormalities, she would have opted for termination of pregnancy and avoided the shock, inconvenience etc.  The complainant submitted that the child died on 26-2-2007 due to the negligent treatment of opposite parties and that she paid a sum of Rs.3,000/- to opposite party No.1 towards treatment, Rs.300/- to opposite party No.2 for ultrasonography.  The complainant in her primi gravida was having lot of hopes and aspiration of her mother hood and she developed claustrophobia with an apprehension bogging her mind that she may have to bear a deformed child i.e. Teratophobia.  Hence she filed the complaint praying for a direction against the opposite parties to pay Rs.6,00,000/- towards compensation.

Opposite parties 1 and 2 filed counter denying the allegations made in the complaint.  Opposite party No.1 admitted that the complainant was under continuous prenatal care during her pregnancy and that the pregnancy was confirmed on 10-5-2006 during her first visit.  Her expected date of delivery calculated with LMP as 11-12-2006 and given medicines at each check up.  Opposite party No.1 alleged that the complainant visited for prenatal check up but did not follow meticulously the advice of opposite party No.1.  Opposite party No.1 denied that she was negligent in treating the complainant or that she did not evaluate the gestational age or the expected date of delivery till 17-8-2O06, opposite partyNo.1 also admitted that the complainant gave birth to male child  and when found that the baby had mild hydrocephalous and Meningocoele referred the baby and the complainant to a Paediatrician as such they have taken reasonable care.  Opposite party No.1 also admitted that blood analysis  was done on 18-7-2006 and haemoglobin was reported to be 7.8Gr% but denied that she failed to investigate the type of anaemia and cause of anaemia. 

Opposite parties 1 and 2 admitted that ultrasonography on pregnant woman should be done atlest once in each trimester to find out foetal well being and that the complainant underwent sonography on 17-8-2006.  Earlier also opposite party No.1 advised the complainant to undergo sonography but she expressed her financial inability to undergo sonography trimester as required and denied that they failed to diagnose congenital abnormalities  and status of foetus and submitted that there is no deficiency or negligence on their behalf and prayed for dismissal of the complaint.

Based on the evidence adduced i.e.Exs.A1 to 28 and B1 to B3 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties to pay Rs.1,00,000/- with 9% interest from the date of filing of the complaint i.e. 13-2-2008 together with costs of Rs.1,000/-.

Aggrieved by the said order, the opposite parties preferred this appeal.

The facts not in dispute are that she had taken prenatal care and treatment with opposite party No.1 and her pregnancy was confirmed on 10-5-2006 evidenced under Ex.A5 and A6.  It is the complainant’s case that she was visiting opposite party No.1 clinic every month and following her advice and Exs.A6 dated 14-6-2006, Ex.A7 dated 18-7-2006, Ex.A10 dated 27-7-2006, Ex.A11 dated 7-8-2006, Ex.A14 dated 15-9-2006, Ex.A15 dated 13-10-2006, Ex.A16 dated 21-11-2006 and Ex.A17 dated 6-12-2006 Ex.A20 is the prescription dated 19-12-2006 which evidence that the complainant  was under care of the opposite party No.1 during the entire pregnancy period.  It is also an admitted fact that on 19-12-2006 the complainant  gave birth to a male child.  Ex.A12 and A13 are dated 17-8-2006 and are the scanning reports of the male child which show a single live foetus with no gross abnormalities.  After the birth of the child, on 19-12-2006 it was found that the baby was having mild Hydrocephalous and Meningocoele.  The discharge summary, which is Ex.A21 evidences the findings and the patient was asked to attend after four weeks for follow up.  The complainant  submits that opposite party No.1 did not evaluate the gestational period and the expected date of delivery till 17-8-2006 and that even after the ultrasonography done on 17-8-2006 after twenty two weeks of gestational age, opposite party No.2 who conducted the sonography did not detect congenital abnormalities.  Foetal Biometry was not done which would have helped to know the Foetus well being.  The child died on 26-2-2007 with the abnormalities. 

The complainant  filed medical literature with respect to ultrasonography in Obesterics and Gynaecology by Peter W. Callen Page-228.  The gist of the literature states that routine songraphic scans in early pregnancy help to detect several abnormalities.  A brief perusal of this medical literature evidences that any genetic or metabolic disorder or chromosomal abnormalities or congenital abnormalities can be detected in an ultrasonography.  It is evident on the face of the record that opposite party No.1 conducted sonography after 22 weeks of gestational age on 17-8-2006 and referred the complainant  to opposite party no.2 who  failed to detect the congenital abnormalities. 

It is the case of the appellants/opposite parties 1 and 2 that the abnormality cannot be attributed to any negligence in their treatment.  The complainant  did not consume the medicines as prescribed by opposite party No.1 and the evidence of R.W.3 establishes that the treatment given by appellant/opposite party no.1 is as per the terms of normal medical parlance. 

P.W.2 , Dr.G.Venugopal Reddy, in his cross examination stated that the defect in the neural tube of the baby can be detected in the first five to six months of the pregnancy by taking ultrasonography.  It can be detected in 80% of the cases and perhaps not in the balance cases.  He had examined the baby and confirmed that the baby had abnormalities.  He also deposed that second level scanning would be done by the Sonologist if there is any doubt in the first scanning and another scan if the doctor has any doubt and he can refer to higher authorities.  The doctor C.Padmini, in her affidavit contended that O.P.2 is a qualified doctor and is a registered medical practitioner and under the rules, he can perform sonography having done a diploma in Sonography Technology course. The accuracy of routine non targeted screening is low  and the complainant  herein does not have congenital anomalies and therefore only a regular ultrasound scan was done.  It is an accidental occurrence which would happen in a small percentage of pregnancies and submits in her affidavit that  she has taken proper care and caution.  It is also from our record that R.W.2 who conducted the sonography deposed before the District Forum  stating that in the basic scan, we estimate the foetal gestational age and that the parameters which he had taken is sufficient.  Approximately gestational age was 22.4 gestational weeks as on 17-8-2006 i.e. the date of sonography.  He admitted that he did not see any abnormality at the time of conducting the scan.  He also admitted that he did not measure the transverse diameter of the ventricular atria of the foetal brain.  He did not measure the amniotic index but observed that the cerebral shape is normal.  All organs will be formed during 12^th to 16^th week in normal cases and can be detected with sonography in this period.    The sonography in the instant case was conducted in the 22^nd week.  R.W.3, Dr.A.V.Prabhakara Reddy, Radiologist deposed before the Forum that in the mid trisemester tiffa scan is advised.  There are signs and symptoms suggesting defects in central nervous system by ultrasonography. 

We rely on the judgement of the apex court in  Dr.Laxman Balkrishna Joshi v. Dr.Trimbak Bapu Godbole and Anr. reported in (1969) I SCR 2006,  In this case the death of patient was caused due to  shock resulting from reduction of the fracture attempted by doctor without taking the elementary caution of giving anaesthesia to the patient.  In this case the court discussed the duty of care a doctor should undertake

a)     A duty of care in deciding whether to undertake the case

b)     A duty of care in deciding what treatment to be given

c)      A duty of care in the administration of that treatment

In the aforementioned judgement, the apex court had clearly laid down that the doctors should undertake due care and caution and should render treatment as per standards of normal medical parlance

When the patient was identified as high risk patient, the doctor has not noted anywhere on the prescription that she had advised the complainant to undergo scanning a second time.  When the expert had deposed that in 80% of the cases, the abnormalities can be detected in ultrasonography or other wise in the third level scanning and the Sonalogist himself deposed that the organs  can be viewed in the 12^th to 16^th week and admittedly the sonography was taken in the 22^nd week and also keeping the medical literature in view, we are of the considered view that opposite parties did not detect any abnormalities of the foetus and have failed to   advice the patient to go for a second level scanning.  For the aforementioned reasons, we are of the considered view that the compensation of Rs.1,00,000/- granted by the District Forum would meet the ends of justice.  However, interest at 9% p.a. was also granted by way of damages, which we are of the considered view can be set aside as Rs.1,00,000/- towards compensation was awarded towards mental agony and also to cover the medical expenses. 

In the result this appeal is allowed in part modifying the order of the District Forum  and setting the interest portion only while confirming the rest of the order of the District Forum.  Time for compliance four weeks.

                                                           Sd/-PRESIDENT.

                                                              Sd/-MEMBER.

JM                                                          Dt.19-12-2011