KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL 989/2003

JUDGMENT DATED: 19.6.2010

PRESENT

SMT.VALSALA SARANGADHARAN         : MEMBER

SRI.M.V.VISWANATHAN                          : JUDICIAL MEMBER

SRI.S.CHANDRAMOHAN NAIR                 : MEMBER

1. The Administraator(in charges),                 : APPELLANT

     Assumption Hospital, Kanhirapuzha,

    Mannarkad.

(By Adv.M/s M.V.John & T.L.Sree Ram))

                    Vs.

1. P.K.Jayaprakash,                                : RESPONDENTS

    Moochikkaladi House,

     V.H.Road, MAnnarkad.

2. P.Vijayalakshmi,

     W/o P.K.Jayaprakash,

        -do-do-

(By Adv.C.Madhavankutty & B.S.Suresh kumar)

3. Master Jayaprakkash(4months old) (died)

     Rep.by guardian P.K.Jayaprakash.

4.  Dr.Kaliyar, Sonologist,

     Ambika Nagar, ‘Nadakkavu’ Akathara,

     Palakkad.

5.  Dr.Meena, Gynecologist,

     Assumption Hospital, Kanhirapuzha.

JUDGMENT

SRI.M.V.VISWANATHAN       : JUDICIAL MEMBER

          Appellant was the 3^rd opposite party and respondents 1 to 3 were the complainants and respondents 4 and 5 were the opposite parties 2 and 1 respectively in OP.459/99 on the file of CDRF, Palakkad.  The complaint therein was filed alleging negligence and deficiency in service on the part of the opposite parties 1 and 2 in detecting the abnormality of  meningomylocele of the fetus   while doing ultra sound scanning and the subsequent treatment of the  2^nd complainant  while she was pregnant. The 3^rd opposite party was made vicariously  liable for the negligence and deficiency in service on the part of the opposite parties 1 and 2.  The complainants claimed  compensation of Rs.3,00,000/- for the negligence and deficiency in service on the part of the opposite parties.

          2. During the pendency of the complaint  in OP.459/99 the 3^rd complainant master Jayaprakash aged 4 months old died and the complainants 1 and 2 were recorded as the legal representatives of deceased 3^rd complainant.

          3. Notice in the said OP 459/99 was issued to opposite parties 1 and 3 and that the opposite parties 1 and 3 entered appearance and filed joint written version denying the alleged  negligence and deficiency in service.  They  contended that the 2^nd complainant was first  seen by the 1^st opposite party Dr.Meena on 19.11.98 and she had no complaint on that day.  Thereafter the 2^nd complainant attended antenatal clinic on two occasions, viz; 23.12.98 and 12.2.99 and on those 2 occasions  there were no indications for doing ultra sonography.  The 2^nd complainant was seen on 9.4.99  when the size of uterus was found to be larger than expected and thereby an ultra sound scanning was prescribed to rule out  multiple pregnancy or other  maternal  or fetal pathologies .  The 2^nd complainant had also  complained of vague discomforts in the lower abdominal area.  Though scanning was advised on 9.4.99, the patient did not attend for the scanning session until 21.4.99.  Ultra sound scanning was done by 2^nd opposite party Dr.Kalier, Sonologist  who  is a well qualified radiologist and ultra sinologist with very high repudiation.  The 1^st opposite party Gynaecologist had nothing to do with the sonography and she was expected to be guided by the scanning report.  In the scan report, the sonologist had reported that “no major fetal abnormalities are made out”.  The said information available in the scan report was passed on to the complainants.  Celebrated experts have opined that meningomylocele is a neural tube defect, the most difficult to diagnose by sonography.  Ultra sound scan is not a perfect or fool proof device of diagnosing fetal abnormalities.  The tragedy of the child and its parents could not have been averted by the opposite party.  The termination of pregnancy at that stage was not at all advisable.  A termination of pregnancy at 28^th week of pregnancy was dangerous to the mother as well as the child.  The 2^nd opposite party Sonologist was a freelance doctor and used to visit the 3^rd opposite party hospital only once in a week.  He was not an employee or a staff of the 3^rd opposite party.  There is no vicarious liability  for the acts and omissions of the Sonologist.  The opposite parties can not be made liable for the unforeseen tragedy occurred to the complainants.  The 3^rd complainant child is now reported to be dead and as such there is no continuing agony.  Neural tube defects are detectable in early pregnancy by assessing  maternal serum alpha feto protein and also  by amniotic fluid studies only.  But the said study involves  risk both for the mother and baby and  is not generally  done without sufficient  indications.  The opposite parties were not negligent  or  deficient in rendering service and they have  performed their duty which any  prudent and deligent medical man  would do.  It was also contended that the complainants have admitted the failure laproscopic sterilization which resulted in unwanted pregnancy and in giving birth to a mal formed baby.  The opposite parties 1 and 3 prayed for dismissal of the complaint.

          4. The 2^nd opposite party  was declared ex-parte and he remained so.

          5. Before the Forum below 1^st complainant was examined as PW1 and PW2 Dr.Pavithran, valappillikandy was examined as an expert on the side of the complainants.  3^rd opposite party, the Administrator of the Assumption hospital, Kanjirapuzha was examined as DW1.  Exts.P1 to P5 documents were marked on the side of the complainants.  No documentary evidence was adduced from the side of the opposite parties .  The case sheet maintained by the Assumption hospital, Kanjirapuzha was produced and the same was marked as P2 series on the side of the complainant.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated 3oth September, 2003 directing the opposite parties 2 and 3 to pay Rs.1,00,000/- as compensation to the complainants with cost of Rs.5000/-  with a default clause to pay interest at the rate 12% per annum from the date of the order till realization.  The opposite parties 2 and 3 are made jointly and severally liable to pay the said compensation.  The 1^st opposite party Dr.Meena was exonerated from the liability.  Aggrieved by the said order, the present appeal is filed by the 3rdopposite party Assumption hospital, Kanjirapuzha, Manarkad.

          6. We heard the learned counsel for the appellant/3^rd opposite party and respondents  1 and 2 (complainants 1 and 2)There was no representation for respondents 4 and 5. They remained absent through out the appeal proceedings.  The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He much relied on the oral testimony of PW2, the expert witness examined on the side of the complainants and argued for the position that there was  chance for missing to detect the meningomylocele by doing ultra sound scanning.  He argued for the position that there was no sort of negligence on the part of the 1^st opposite party doctor (gynaecologist) who treated  the 2^nd complainant and  there was also no negligence or omission on the part of the 2^nd opposite party, Sonologist in doing the  sonography on the 2^nd complainant.  Thus, the appellant prayed for setting aside the impugned order passed by the Forum below.  He also submitted argument note in support of his oral submissions.  On the other hand, the learned counsel for the respondents 1 and 2 (complainants 1 and 2 in OP.459/99)  supported the impugned order passed by the Forum below and prayed for dismissal of the present appeal.  He also relied on the testimony of PW2, the expert examined on the side of the complainants and submitted that the deformity or abnormality of meningomylocele could have been detected by sonography and failure to detect the same would amount to negligence and deficiency in service.  It is also submitted that the failure to detect the aforesaid abnormality resulted in causing misery and mental agony to the complainants 1 to 3 and that the  deceased 3^rd complainant child had to suffer a lot till his death.  He also relied on the testimony of PW2 that it was possible to do the medical termination of pregnancy at the stage of 7^th month of the pregnancy if the abnormality could have detected by the Sonologist attached to the 3^rd opposite party hospital.  He also submitted notes of arguments in support of his oral submissions.

          7.The points that arise for consideration are:-

          1) Whether the complainants 1 and 2 (respondents 1 and 2) in OP.459/99 on the file of CDRF, Palakkad could establish the alleged negligence and deficiency in service on the part of the opposite parties therein?

          2)Whether the Forum below can be justified in finding the opposite parties 2 and 3 liable to pay compensation to the complainants/

          3)Is there any sustainable ground to interfere with the impugned order dated 30-9-03 passed by CDRF, Palakkad in OP.459/99?

          8. Points 1 to 3:-

          For the sake of convenience, this Commission is pleased to refer the parties to this appeal according to their rank and status before the Forum below in OP.459/99.

          9. The 2^nd complainant gave birth to a child with abnormality known as meningomylocele.  PW2, the expert doctor examined on the side of the complainants has deposed that meningomylocele a congenital defect of the spinal cord (at page 3 of  deposition of PW2).  PW2 has also deposed that meningomylocele or myclomengocele is caused primarily by the failure of the neural tube to close during embryonic developments.  It is admitted by the complainants that above meningomylocele is a developmental defect of the central nervous system in which a herineal sac containing a portion of spinal cord, its meninges, and  cerebrospinal fluid protrudes through a congenital cleft in vertebral column.  Thus it can be seen that it was the ill fate of complainants 1 and 2 that child was born to them with  such abnormality.  Nobody else can be found fault with for that ill fate of the complainants.  There is no case for the complainants that the said abnormality was developed or caused to the child due to the negligence of the opposite parties .

          10. The definite case of the complainants 1 and 2 is that the opposite parties were negligent in detecting the said abnormality while doing the ultra sound scanning.  The opposite  parties 1 and 3 would contend that sonography is not a perfect and fool proof procedure to detect abnormalities in a fetus.  The complainants could not  adduce any evidence to show that the said abnormality  of meningomylocele can be detected by sonography.  PW2, the expert who was examined on the side of the complainants has categorically deposed that there is the possibility for missing the aforesaid abnormality being noticed by the sonologist.  It is true that PW2 has opined that the ideal time for doing ultra sound scanning to detect congenital abnormalities  is between 4-5 months of pregnancy.  In this case ultra sound scanning was done when the 2^nd complainant reached  her 7^th month of pregnancy.  He also deposed that there is fair chance of diagnosing any abnormality by ultra sound scanning.  He further deposed that in the ultra sound scanning if the position of the fetus is such that the lesion of the neural tube is not directly accessible for view,  the scan report will not show the lesion  and the abnormality will be missed.  It is also deposed that for several reasons the vision of any abnormality can be blocked by the organs of the fetus  and the diagnosis may be missed.  Thus, the evidence of the expert doctor would show that there was the probability and possibility for missing of the abnormality while doing the ultra sound scanning.  The aforesaid opinion given by PW2 would strengthen the case of opposite parties 1 and 3 that sonography is no a perfect procedure to detect fetus abnormalities.  The  mere fact that the 2^nd opposite party, Sonologist could not detect the abnormality of meningomylocele while doing ultra sound scanning can not be taken as a ground to hold that the Sonologist was negligent or there was deficiency in service on his part.

          11. It is to be noted that there are limitations for the expert who adopts some procedure to detect any abnormalities in the fetus.  The points to be considered are as to whether there was any lack of care and caution on the part of the expert who conducted the procedure.  The limitations in doing the said procedure can not be taken as a ground to fasten negligence or liability on the expert.  Thus, the complainants have not succeeded in establishing their case that the 2^nd opposite party, Sonologist was negligent in doing ultra sound scanning.  The Forum below has not appreciated the evidence of PW2 in its correct perspective.  The analyses of the testimony of PW2 would make it clear that there was the possibility of missing the abnormality while doing ultra sound scanning.

          12. The materials on record would show that the complainants 1 and 2 have 2 children in their wedlock and that the 2^nd complainant had undergone laparoscopic sterilization; but it ended in failure and that the 2^nd complainant became pregnant for the 3^rd time.  It can be concluded that the 3^rd pregnancy was an unwanted pregnancy.  But unfortunately the 3^rd child born with the aforesaid abnormality of meningomylocele. The complainants 1 and 2 have got a case that in case the aforesaid abnormality could be detected in the fetus at the 7^th month of pregnancy, they  could have terminated the pregnancy by doing medical termination of pregnancy. It is to be noted that PW2, the expert doctor has deposed that there can be medical termination of pregnancy at the 7^th month if the life of the mother or child was in danger.  But in the present case there was no such eminent danger to go for medical termination of pregnancy at the 7^th month of pregnancy.  It is to be noted that PW2 has also opined that abnormality of meningomylocele can also be cured.  The evidence of PW2 would give an indication that there are instances of getting that abnormality cured by treatment.  PW2 further deposed that nothing can be done for the said abnormality during pregnancy and the said abnormality can only be treated after delivery.  It is also to be noted that medical termination of pregnancy at the 7^th month of pregnancy will be having the risk.  There was no occasion to  have the medical termination of the pregnancy by taking such a risk.  The circumstances available on record would show that even if the fetus abnormality of meningomylocele was detected at that stage,  nothing could have been done effectively.  There can be no doubt that the aforesaid abnormality was an illfate and as a result of that abnormality the complainants 1 and 2 had to suffer a lot and that the said child(3^rd complainant) also suffered pain and agony.  But no one could be found fault with for the aforesaid abnormality and the resultant illfate of the complainants.  Thus, it can be concluded that due to the alleged negligence on the part of the Sonologist no specific damage was caused to the complainants; even otherwise the complainants had to suffer the consequences of the fetus abnormality.  But in the present case on hand, there is nothing on record to show that the 2^nd opposite party, Sonologist who conducted the ultra sound sonogram was at fault or there was any negligence on his part.  The evidence on record would suggest that there was the possibility of getting the abnormality missed while doing the ultra sound scanning.

          13. Ext.P2 is the treatment record produced from the side of 3^rd opposite party/Assumption hospital.  It is related to the treatment undergone by the 2^nd complainant as outpatient and inpatient in that hospital.  Ext.P2 series case sheets would make it clear that the same is also related to the treatment given to the 2^nd complainant for her previous deliveries and also the treatment in connection with the 3^rd pregnancy.  It would show that the 2^nd complainant approached the 1^st opposite party gynaecologist on 9.4.99 with complaint of some sort of discomfort in the lower abdomen.  And on examination it was found that the uterus is big for day and that the 1^st opposite party advised scan to exclude multiple pregnancy.  The definite case of the 1^st complainant as PW1 is that the scanning was done on 21.4.99.  Opposite parties 1 and 3 in their written version have also contended that the 1^st opposite party advised for scanning on 9.4.99; but the patient did not attend for the scanning section until 21.4.99. The said circumstance would give the indication that the 2^nd complainant had no serious problems during  her 7^th month of pregnancy.  This circumstance would further indicate that the complainants were also not serious about the scanning to be done immediately.  If there was any serious problem or discomfort or inconvenience for the 2^nd complainant, the ultra sound scanning should have been done on 9.4.99 itself or on the next day; that the complainants should not have extended the said procedure upto 21.4.99.  All these circumstances would justify the case of the opposite parties that there was no serious problem or discomfort for the 2^nd complainant for a further investigation in the matter. 

          14. PW2, the expert doctor has also deposed that unless there is some indication nobody would go for further investigation in the matter.  He further opined that on getting Ext.P5 scan report the Gynecologist was guided by the said scan report.  The big size of the uterus at that stage would indicate multiple pregnancy and on getting Ext.P5 scan report the doubt about multiple pregnancy was ruled out.  PW2 has categorically deposed that on getting the scan report stating “no major fetal abnormalities are made out”, the Gynaecologist need not apprehend about any abnormality for the baby or fetus.  Thus, there was no negligence or lapse on the part of the 1^st opposite party who treated the 2^nd complainant. The mere fact that abnormality could not be detected while doing ultra sound scanning can not be taken as a ground to hold that there was negligence on the part of the Sonologist.  The evidence of PW2 (expert) is sufficient enough to hold that there was the possibility of not  detecting such abnormality at the stage of 7^th month of pregnancy.

          15. The complainants 1 and 2 were not having the regular medical check up.  Admittedly the 2^nd complainant approached the 1^st opposite party Gynaecologist for the first time on 19/11/98.  It was on that day the pregnancy was diagnosed by the 1^st opposite party.  It is to be noted that on 19.11.98 the 2^nd complainant was pregnant for 3 months.  Thereafter the 2^nd complainant approached the 1^st opposite party on 23.12.98 and 12.2.99.  Thereafter she came to the 1^st opposite party only on 9.4.99.  The ultra sound scanning was done on 21.4.99.  The aforesaid behaviour of the 2^nd complainant in approaching the 1^st opposite party gynaecologist would also give an indication that 2^nd complainant was not having any such difficulties and  that is why she was not regular in having the medical consultation.  Thus, there was no compelling situation or circumstance to go for any further investigation to look into any sort of abnormality of the fetus.  It is also to be noted that the 2^nd complainant  had her previous 2 deliveries at the 3^rd opposite party hospital.  They had no complaint about the Gynaecologist attached to the 3^rd opposite party hospital.  In fact  the complainant was fully satisfied with the treatment given to the 2^nd complainant from the 3^rd opposite party hospital and that is why the complainants 1 and 2 approached3rd opposite party’s hospital for the 3^rd pregnancy also.  But unfortunately, the fetus developed abnormality and the same could not be detected  in the ultra sound scanning which was done  at the 7^th month of pregnancy.  The circumstances and evidence available on record would show there was no negligence or omission on the part of the opposite parties in not detecting the abnormality of the fetus while doing the ultra sound scanning.  But, the Forum below without any supporting material came to the conclusion that there was negligence on the part of the Sonologist.  In fact, Forum below failed to  evaluate the evidence of PW2, the expert doctor who was examined on the side of the complainants.  On a correct appraisal of the testimony of PW2, it can safely be concluded that there was no negligence or omission on the part of the 2^nd opposite party Sonologist.  If that be so, the 3^rd opposite party can not be made vicariously liable for the  alleged negligence to the 2^nd opposite party Sonologist.

          16. PW1, the 1^st complainant has categorically admitted that from the 7^th month of the pregnancy the 2^nd complainant  had the treatment in connection with her 3^rd delivery at Alma hospital; that 2^nd complainant was under the treatment of Dr.Kameppa of Alma hospital.  It is to be noted that the aforesaid Dr.Kameppa of Alma hospital had no occasion to doubt any abnormality in the fetus or baby.  The abnormality could be noticed only after the delivery of the child.  The complainants have no case that Dr. Kameppa was at fault or there was any sort of negligence on the part of Dr.Kameppa of Alma Hospital.  It is admitted by the complainants that  they approached Dr.Kameppa because of the fact that the 1^st opposite party Dr.Meera was not available at the 3^rd opposite party hospital and that the vacancy of the Gynaecologist in the 3^rd opposite party’s hospital was lying vacant.  This circumstance would also support the case of the opposite parties that there was no indication or compelling situation to go for further investigation in the matter.  It would also strengthen the case of the opposite parties that there was no serious discomfort or problem for the 2^nd complainant to doubt any fetus abnormality.  The Forum below cannot be justified in finding the opposite parties 2 and 3 liable to compensate the complainants.

          17. The forgoing discussions and the findings there on would make it clear that there was no sort of negligence or deficiency in service on the part of the opposite parties. The abnormality to the fetus was illfate of the    complainants and the opposite parties cannot be found fault with for the aforesaid fetus abnormality.  There is no dispute that the 3^rd complainant, the child died after 4 months of the delivery.  The complainants 1 and 2 were actually relieved from the   aforesaid mental agony and other sufferings.  The mere fact that the 2^nd complainant gave birth to a child with the abnormality of meningomylocele and the said abnormality caused mental agony, discomfort and sufferings to the complainants can not be taken as a ground to hold that it happened on account of the opposite parties.  In fact the 3^rd pregnancy was unwanted pregnancy and it ended in a tragedy.  There is no case for the complainants that they insisted for ultra sound scanning on an earlier occasion .  The 1^st opposite party Gynaecologist is justified in not advising sonography on an earlier occasion because of the fact there was no indication to go for scanning.  It is to be noted that taking of unnecessary scanning or X-ray is to be avoided.  The 1^st opposite party can not be blamed for not advising ultra sound scanning on an earlier occasion.  There is no evidence on record to show that ultra sound scanning is a perfect procedure and it is a fool proof procedure.  On the other hand, PW2, the Professor of Radio diagnosis, Medical college Hospital, Thrissur has given expert opinion that there is a chance for missing fetus abnormality noticed in ultra sound scanning.  If that be so, the impugned order passed by the Forum below is liable to be quashed hence  we do so.

          In the result the appeal is allowed.  The impugned order dated 30.9.2003 passed by CDRF, Palakkad in OP.459/99 is set aside and the complaint therein is dismissed.  The parties are directed to suffer their respective costs through out. 

         SRI.M.V.VISWANATHAN                           : JUDICIAL MEMBER

          SMT.VALSALA SARANGADHARAN         : MEMBER

          SRI.S.CHANDRAMOHAN NAIR                 : MEMBER

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