Premier Health centre, Dr.Vijay radiologist V/S P.Sathyanathan - Consumer Court Case

Tamil Nadu

North Chennai

CC/108/2017

P.Sathyanathan - Complainant(s)

Versus

Premier Health centre, Dr.Vijay radiologist - Opp.Party(s)

Lakshmi rathan

23 Sep 2022

ORDER

Complaint presented on :30.06.2017 Date of disposal :23.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

PRESENT: THIRU. G.VINOBHA, M.A., B.L. : PRESIDENT

TMT. KAVITHA KANNAN,M.E., : MEMBER-1

THIRU V. RAMAMURTHY, B.A.B.L., PGDLA : MEMBER II

C.C. No.108/2017

DATED THIS FRIDAY THE 23^RD DAY OF SEPTEMBER 2022

P. Sathyanathan,

S/o. B. Palani,

61/1, Muthammal Koil Street,

Ayanavaram,

Chennai-600 023

Mrs.Parameswari (Alias) Eswari,

W/o. P. Sathyanathan,’

61/1, Muthammal Koil Street,

Chennai-600 023.

.. Complainants

..Vs..

Premier Health Centre,

Registered Office at :

Represented by its Head of the Centre,

312, Konnur High Road (Near Noor Hotel),

Chennai-600 023.

Dr. Vijay (Radiologist)

Premier Health Centre,

B-Block, ½,Second Square,

Anna Nagar, Chennai-600 102. ..Opposite parties.

Counsel for the complainant : R. Lakshmi Ratan and 3 another,

Counsel for opposite parties : B. Mohan and 2 another

ORDER

THIRU. V. RAMAMURTHY, B.A., B.L., PGDLA, MEMBER II

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 prays to directing the Opposite parties to pay a sum of Rs. 1,00,000/- towards cost of medical expenses incurred by the complainants due to the deficiency in services provided by the opposite parties and Rs. 19,00,000/- towards compensation for mental agony, loss of life and hardship due to the negligence and deficiency in service of the opposite parties.

1.THE COMPLAINT IN BRIEF:

The 1^st and 2^nd complainants are husband and wife and the 2^nd complainant was pregnant and delivered a baby on 01.07.2015 with Spina Bifida and the baby died within 8 days of birth due to Spina Bifida. The 2^nd complainant was initially consulting Dr. Revathi Gunasekaran during the Ist trimester of her pregnancy and she took an ultrasound of the pelvis on 16.01.2015 at the 1^st opposite party health centre at Anna Nagar Branch and a single live intrauterine gestation corresponding 16-17 weeks was reported and it did not reveal any defect in the health of foetus. In the scan report a detailed obstetric evaluation was also recommended. Due to the proximity to their residence the complainants decided to consult at Ayanavaram Family Welfare Centre which would be convenient to the complainants to consult the doctors as and when required. The complainants undertake regular monthly check up and the doctor informed that pregnancy was progressing smoothly, and the health of 2^nd complainant and foetus were good. The complainants did not connect to healthcare industry, they totally relied on the doctors at Ayanavaram Family Welfare Centre and doctors and technicians of 1^st Opposite party Health centre. The complainants again during the Second Trimester took an ultrasound scan on 28.02.2015 at the opposite party health centre and it was performed by 2^nd opposite party. In the report dated 28.02.2015 it was stated “Foetal spines appear normal”. The 2^nd opposite party while handing over the report, did not give any reason to be worried and did not give any advice regarding any anomaly in the health of the foetus. Hence the complainants therefore saw no reason to panic and trusted the accuracy of the reports provided by the opposite parties. Until the previous day from the complainants childbirth there was no reason to believe that the foetus was abnormal. The doctors at Ayanavaram Family Welfare Centre asked the 2^nd complainant to take the third ultrasound on 29.06.2015 since the delivery was getting delayed and, she had complained of stray pains. The Ist complainant took the 2^nd complainant to Quality Scans at Peravallur, Chennai. The complainants to their shock, found that the ultrasound report was abnormal and stated that the foetus had open spina bifida. The complainants state that open spina bifida is a condition that would be visible during the Second Trimester or 20^th week of the pregnancy and state that the ultrasound dated 28.02.2015 must have revealed the same. The ultrasound scan is required to be done during the Second Trimester or in the 20^th week of pregnancy which is required to evaluate the growth of foetus and to ascertain any defect in the organs of the baby. The complainants submit that had the 2^nd opposite party been diligent in providing service and in his observation, the actual defect in the spine would have been visible and the complainants would have had an opportunity to save the life of their child. The opposite parties have been negligent and overlooked the same by giving a report stating that foetal spines appear normal which is contradictory to the fact that the baby had a Spina Bifida. The complainants immediately rushed to Ayanavaram Family Welfare Centre on 30.06.2015 and they were referred to another doctor in a bigger state-run hospital viz. Egmore Maternity Centre and there also reported that the foetus had open spina bifida. The doctors at Egmore Maternity Centre advised the 2^nd complainant to admit immediately and labour was induced to give birth to the baby. The 2^nd complainant gave birth to the boy on 01.07.2015 at 11.05 p.m. and the baby had been taken to NICU. The doctors had explained to the complainants that the baby had spina bifida and the chances of survival for the baby was very low. As anticipated by the doctors, the baby passed away 8 days after its birth. The complainants submit that 1^st and 2^nd opposite parties owed a duty of care to their clients/patients and by committing breach of their line of duty, the complainants have lost their child. This disaster could have been averted during the pregnancy itself. The actions of opposite parties constitute deficiency of service and the complainants have been subjected to severe mental agony, financial loss and hardship and hence issued a legal notice to opposite parties on 25.07.2016 claiming Rs.20,00,000/- as damages for cost of medical and compensation. There was no response / reply from the opposite parties. Hence this complaint.

2.WRITTEN VERSION FILED BY OPPOSITE PARTIES IN BRIEF:

The 1^st opposite party is a Diagnostic Laboratory and 2^nd opposite party is a qualified radiologist practicing independently and also attached to different Diagnostic Laboratories including 1^st opposite party. The opposite parties denies all the allegations made in the complaint as false, incorrect completely devoid of merit and unsustainable and put the complainants to strict proof of those averments except those that are specifically admitted. The opposite parties submit that 2^nd complainant had visited their laboratory at Anna Nagar branch on 16.01.2015 for an ultrasound scan of pelvis and it reveals that a single live intrauterine gestation corresponding 16-17 weeks noted. The opposite parties submits that the scan taken on 16.01.2015 was only a pelvis scan as was referred by Dr. Revathi Gunasekaran and not an ‘Obstetric Scan’. An Obstetric scan is a scan which is done on the specific referral of a qualified medical practitioner with instructions to report on the features of the foetus and it is a detailed scan process than the pelvis scan which was done on the 2^nd complainant on 16.01.2015. The opposite parties further submits that the identification of the ‘Intrauterine Gestation’ – Pregnancy was only an incidental finding but even in this report the 2^nd opposite party has shown due diligence in clearly noting that the ‘Intrauterine Gestation’ requires ‘follow up and detailed Obstetric Evaluation’. The opposite parties submit that have no direct knowledge about the averments in Para 5,6 & 7 of complaint. With respect to averments in Para 8, the opposite party admits only to the extent that the complainants visited their laboratory on 28.02.2015. The remaining facts averred though partly correct are misleading. The opposite parties submits that they were very diligent in conducting this scan which was on ‘Obstetric Scan’ and in the report the various specific features of the foetus which were seen by the second opposite party during the scan have been faithfully noted down. The Scan report furnished also noted the features which could not be seen during the scan. The opposite parties states that the very nature of these tests namely ultrasound depends on the way the sound waves are reflected from the patient’s body back to the diagnostic machine and the accuracy of the finding is heavily dependent on the physiological structure of the patient. For example if the patient is obese or if there is abnormal fat deposits in the area to be scanned, variations in the reflection of sound waves cannot be ruled out thus making it difficult to detect certain features during the scan. The opposite party submits that no effort is spared in providing quality scan reports with maximum possible accuracy to their patients at the same time no warranties or guarantees are possible to be handed out to for 100% accuracy in all cases due to various factors stated above. The opposite parties have no direct knowledge with respect to averments in para 9 & 10 of complaint. The opposite parties submits that averments in para 11 & 12 of the complaint though partially correct with respect to the possibility of detecting the medical condition “spina bifida” during the ultrasound scan of a foetus during its 20^th week, the other averments are denied as false and misleading. As stated above the detections of various anomalies in a foetus are dependent on various other factors and non-detection of any particular condition cannot be pinned down to any negligence or deficiency on the part of opposite parties. The opposite parties submits that photographs of the fetal scan were also provided to the complainants along with the scan report wherein special features noted have been clearly marked out in those photographs furnished. The opposite party denies that complainants child had died due to the condition of spina bifida or this medical condition was the major cause of death. The opposite parties states that it is seen from the entries of Institute of Obstetrics and Gynecology, Egmore that the child had suffered from multiple serious and life threatening medical complications like “imperforate anus”- anus cavity being in closed condition, which if not corrected immediately by surgery could be one singular cause of death of child. Further they contended that the condition of spina bifida is very much treatable and many children born with this anomaly survive and continue to live upon proper treatment. The opposite partis also states that no treatment or correction of the condition spina bifida is possible at foetal stage and any treatment for this condition must be done only after the birth of the child. Further they alleged that complainants have discharged from the hospital against medical advice, and it is not known what kind of treatment was provided to the child until the death. The opposite parties further states that obstetric scan on the foetus was done on 28.02.2015 which is the 22^nd week of her pregnancy and any possibility of an abortion at that stage even if advised by her doctor on the possible detection of the anomaly spina bifida or any other life-threatening anomaly was ruled out on account of the bar under the Medical Termination of Pregnancy Act which bars all abortions beyond the foetal age of 20 weeks. The opposite parties submits that the complainants would have suffered greater trauma had they come to know that the foetus of second complainant was suffering from such serious anomalies at that early stage as then the second complainant who had to undergo the trauma and mental agony of undergoing the entire period of her pregnancy until delivery with the knowledge of the fact that the chances of survival of her foetus during or after delivery was very low. The opposite parties submits that the name of the 2^nd complainant given during the scans done by the opposite parties and the name found in the scan report filed by the complainants purported to be taken during 38^th week from another diagnostic centre as well as the hospital records of the IOG, Egmore substantially differ. Further Scan taken during 38^th week cannot be compared with scan taken on 22^nd week because the foetus is substantially grown and more developed and all its features are much more pronounced. The opposite parties have no direct knowledge with respect to averments in para 13,14 & 15 of complaint and the averments in para 15 to 21 are denied as false. The opposite parties submits that in any case no deficiency or negligence has occurred on the part of opposite parties and hence prayed to dismiss the complaint.

3. POINTS FOR CONSIDERATION:

1. Whether there is any negligence and deficiency in service on the part of the opposite parties as alleged in the complaint?

2. Whether the complainant is entitled to the reliefs prayed in the complaint. If, so to what extent?

Complainants had filed proof affidavit and Ex.A1 to A9 were marked on the complainant side. The Opposite parties had filed written version, proof affidavit and Ex.B1 was marked on the opposite party side. Both side parties filed written arguments and arguments of counsels also heard.

4. Point No.1:-

5. According to complainants that open spina bifida is a condition which would be visible during the second trimester or 20^th week of pregnancy and the ultrasound dated 28.02.2015 must have easily revealed the same. The test in second trimester is required to evaluate the growth of foetus and to ascertain any defects in the organ of the baby. The complainants state that opposite parties had been diligent in providing service, the actual defect in the spine would have been visible, the complainants would have had an opportunity to save the life of their child. The complainants states that the opposite parties were negligent and not adhered to the reasonable standard of care and without thoroughly reading the ultrasound images and they had mentioned that the foetal spines appear normal despite the foetus having open spina bifida. Due to the breach of line of duty by opposite parties the complainants have lost their child and this could have been averted during the pregnancy itself. The actions of opposite partis constitute deficiency of service and hence the complainants have been subjected to severe mental agony, financial loss and hardship because of negligent actions of opposite parties.

6. The 1^st opposite party is a Diagnostic Laboratory and 2^nd opposite party is a qualified radiologist. The opposite parties admitted that the 2^nd complainant visited their laboratory on 16.01.2015 for an ultrasound scan of pelvis. Based on the scan, the report was given to complainants that a single live intrauterine gestation corresponding 16-17 weeks noted which was admitted by complainants. The opposite parties in their averments states that only a pelvis scan as was referred by Dr. Revathi Gunasekaran was taken and not an ‘Obstetric Scan’. An Obstetric scan is a scan which is done on the specific referral of a qualified medical practitioner with instructions to report on the features of the foetus and it is a detailed scan process than the pelvis scan which was done on the 2^nd complainant on 16.01.2015. But the opposite parties failed to file the prescription issued by Doctor to prove that the patient was referred to the centre only for taking Pelvis Scan. The opposite parties further states that the identification of the ‘Intrauterine Gestation’– Pregnancy was only an incidental finding but even in this report the 2^nd opposite party has shown due diligence in clearly noting that the ‘Intrauterine Gestation’ requires ‘follow up and detailed Obstetric Evaluation’. The above findings are evident in Ex.A1 and on the complainants side there is no dispute in this regard.

7. The complainants for the follow up, visited again the opposite parties Diagnostic Laboratory on 28.02.2015 for another ultrasound scan during her Second Trimester, wherein an ultrasound was performed for the 2^nd complainant on her 22^nd week of the Pregnancy by the 2^nd opposite party. The opposite parties admitted the above visit. The complainants in their averments states that the ultrasound report dated 28.02.2015 mentioned “Foetal spines appear normal” as found in Ex.A2. The complainants further states that apart from handing over the report to the complainants, the 2^nd opposite party did not give any reason for the complainants to be worried and not advised anything regarding any anomaly in the health of the foetus and hence the complainants saw no reason to panic and trusted in the accuracy of the reports provided by the opposite parties. Till the previous day of child’s birth there was no reason to believe that the foetus was abnormal. As advised by Doctor in Ayanavaram Family Welfare Centre, the complainants had gone for third ultrasound scan to Quality Scans at Peravallur, Chennai and shocked to see the findings “Foetus had open spina bifida”. Immediately they rushed to Ayanavaram Family Welfare Centre and they also confirmed the same and advised to admit immediately and the complainant gave birth to a boy on 01.07.2015 at 11.05 p.m. and the baby had been taken to NICU. Since the baby had open spina bifida, the survival of baby was very low and as anticipated the baby passed away 8 days after its birth on 08.07.2015. The allegations of the complainants are the opposite parties were not diligent in conducting this scan which was an ‘Obstetric Scan’ and the 2^nd opposite party along with other personnel in the Ist opposite party had been negligent in providing their services and have failed to pay attention to the defect while reading the scan.

8. Whereas the opposite parties contended that they were very diligent in conducting this scan which was on ‘Obstetric Scan’ and in the report the various specific features of the foetus which were seen by the second opposite party during the scan have been faithfully noted down. Again, the opposite parties failed to file the prescription issued by Doctor. The Scan report furnished also noted the features which could not be seen during the scan. The opposite parties further states that the very nature of these tests namely ultrasound depends on the way the sound waves are reflected from the patient’s body back to the diagnostic machine and the accuracy of the finding is heavily dependent on the physiological structure of the patient. For example if the patient is obese or if there is abnormal fat deposits in the area to be scanned, variations in the reflection of sound waves cannot be ruled out thus making it difficult to detect certain features during the scan.

9. It is observed from the Ex.A2 the Obstetric Scan report of the opposite parties that “Fetal spines appear normal”. At the same time, there is another remark by the opposite partiesin the report stating, “Posterior fossa structures could not be brought into view”. No doubt the opposite parties reported faithfully the various specific features of the foetus which were seen by the second opposite party during the second scan but how they reported that Foetal spines appear normal without viewing the Posterior fossa structures. These two elements are contrary to each other. The opposite parties stated lame excuses like these type of tests depends on the way the sound waves are reflected from the patient’s body back to the diagnostic machine and the accuracy of finding is heavily dependent on the physiological structure of the patient and if the patient is obese or if there is abnormal fat deposits in the area to be scanned, variations in the reflection of sound waves cannot be ruled out thus making it difficult to detect certain features during the scan. If really certain features were not visible during the second scan the opposite parties ought to have advised the complainant suitably to go for a specialised scan procedure to see visibly the various parts of foetus. But they have failed to do so which is dereliction of duty and care on their part. The opposite parties in their averments stated that photographs of the foetal scan were also provided to the complainants along with the scan report wherein special features noted have been clearly marked out in those photographs furnished. The opposite party denies that complainants child had died due to the condition of spina bifida or this medical condition was the major cause of death. The opposite parties states that the entries of Institute of Obstetrics and Gynecology, Egmore marked as Ex.A4 that the child had suffered from multiple serious and life threatening medical complications like “imperforate anus”- anus cavity being in closed condition, which if not corrected immediately by surgery could be one singular cause of death of child. Further they contended that the condition of spina bifida is very much treatable and many children born with this anomaly survive and continue to live upon proper treatment. The opposite partiEs also states that no treatment or correction of the condition spina bifida is possible at foetal stage and any treatment for this condition must be done only after the birth of the child. Further they alleged that complainants have discharged from the hospital against medical advice, and it is not known what kind of treatment was provided to the child until the death. The opposite parties further supplement that obstetric scan on the foetus was done on 28.02.2015 which is the 22^nd week of her pregnancy and any possibility of an abortion at that stage even if advised by her doctor on the possible detection of the anomaly spina bifida or any other life-threatening anomaly was ruled on account of the bar under the Medical Termination of Pregnancy Act which bars all abortions beyond the foetal age of 20 weeks. The opposite parties further adding that the complainants would have suffered greater trauma had they come to know that the foetus of second complainant was suffering from such serious anomalies at that early stage as then the second complainant who had to undergo the trauma and mental agony of undergoing the entire period of her pregnancy until delivery with the knowledge of the fact that the chances of survival of her foetus during or after delivery was very low.

10. The opposite parties finally disputing the scan report taken from Quality Scans on two aspects. One is the name of the 2^nd complainant is mentioned as Eswari and the second one is the photographs annexed to this report dated 29.06.2015 have not distinctly marked out the sighting of the Spina bifida and other features. With regard to name of 2^nd complainant it is a common feature that the name is spelt in shorter versions and in this case the 2^nd complainant name is Paramasewari and it was shortly reported as Eswari. Hence. We find that the same is immaterial and there is no disputes with regard to identity of the person examined. Regarding the dispute of the report, open spina bifida was reported but the opposite parties disputing that sighting of spina bifida and other features are not marked in the photographs. It is evident from Ex. A4 reports of Ayanavaram Family Welfare Centre that the doctors confirmed the presence of open spina bifida and the child was also born with open spina bifida. Hence there is no dispute on the above said points.

11. The opposite parties to strengthen their views referred a medical literature Ultrasound ObstetGynecol 2005 which is marked as Ex.B1 – Difficult Scan Question – DISQ 3: Failure to diagnose a fetal anomaly on a routine ultrasound scan at 20 weeks:

In most cases the diagnosis of clinically significant fetal anomalies is quite straightforward, but evidence suggests that false-negative results occur regularly. For example, EUROCAT quotes a detection rate for spina bifida of only 68%, whilst a recent systematic review reports a detection rate for AVSD of just 42%.
Some 62% of our expert panel stated that it is not negligent to miss such a lesion. A further 24% said that it was not negligent to miss small spina bifida provided there is documented evidence of normal intracranial anatomy (absence of head signs). Only 4/29 experts felt that such an anomaly should always be detected.

12. On the other hand from the Ex.A3, it is observed that the Scan report by Quality Scans clearly reported against spine as “Open Spina bifida with 6x3.8 cm meningomyelocele seen at lumbosacral region”. Though the opposite parties contended that 22 weeks report cannot be compared with 38 weeks report as per medical literature which were marked as Ex.A8 and A9, the Open spina bifida is well visible by 20th week itself. The opposite parties in their written arguments stated that the “Posterior Fossa Structures could not be brought to view” would have alerted the complainant’s and their obstetrician and further instructed the patient to go for one more round of scanning specifically in this region to rule out spina bifida that was not done by the opposite parties. Apart from this there was a disclaimer in the report that ‘Cosmetic fetal anomalies cannot be ruled out’. Hence it was on the obstetrician of the complainant to instruct the Radiologists after seeing this report if the Obstetrician wanted any further specific inputs based on further scan after few days of development of the foetus. The above said averments given by the opposite parties as stated supra are just only to escape from the liability and responsibility cast upon the opposite parties and the same will not hold good.

13. According to complainants that Open Spina Bifida is a condition that would be visible during the second trimester or 20th week of the pregnancy. The ultrasound during the second trimester or in the 20^th week of pregnancy is required to evaluate the growth of Foetus and to ascertain any defect in the organs of the body. The opposite parties in their written version (Para 8) have admitted that possibility of detecting the medical condition “Spina Bifida” during the ultrasound scan of a foetus during the 20^th week. The complainants on their side referred the following medical journals which are marked as Ex. A8 and Ex.A9 on their side:

Journal of Foetal Medicine published by Springer India:

The second trimester targeted scan is done between 18 and 20 weeks.The primary objective of the Second Trimester is to do a detailed anatomical evaluation of the foetus and to maximise the detection of anomalies that may be present at this stage.Since this scan is primarily meant for exclusion or diagnosis of foetal anomalies, it is important that a thorough examination of foetus is done during this period.The second trimester targeted scan is essential to ascertain about clinical examination of the foetus.A through and a detailed study should done.

Targeted imaging is the most crucial step during the second trimester scan.A detailed examination of the foetus is done in a systemartic and reproductive manner.The rule of three approach entails visualizing three anatomical landmarks in each part or plane of section of the foetus and its environment.At the end of the examination, one must be able to declare with confidence, the following three aspects:

The foetus is structurally normal for this period of gestation
Major abnormalities have been detected or excluded
A suspension of an anomaly is raised.,

Medical Article – Spina Bifida and blessing of pre nataltesting : A review in Journal namely Biomedical Research (2017) Vol.28, Issue 8:

Prenatal surgery : Pregnant mother’s uterus opened surgically and surgeons repair the baby’s spinal cord in inter uterine surgery, which is done before the 26^th week of pregnancy.While women are still pregnant and the baby is still in uterus it may be healthier to repair spina bifida defects.

14. From the above, it is observed that Open Spina Bifida can be detected during Second Trimester and it is curable if detected earlier and as per Ex.A9 medical literature treatment can be given for the same by inter uterine surgery while the baby is still in the uterus on the spina Bifida defects can be thus rectified but and due to the opposite parties negligence and not exercising due care, it was wrongly reported as Foetal spines appear normal. When Posterior fossa structures could not be brought into view, they could have gone for another scan or advanced scan instead of reporting Foetal spines appear normal. This misinformation only prevented the complainants from further investigations and to seek other remedies. To cover up the negligence and to shirk their responsibility, the opposite parties are giving lame excuses such as ultrasound depends on the way of sound waves from patient’s body to diagnostic machine and the accuracy of finding is heavily dependent on the physiological structure of the patient, Scan photographs were given to complainant, Open Spina bifida was not a cause of death of child, the child had imperforate anus, discharge against medical advice, open spina bifida can be treated after birth, no treatment or correction of the condition spina bifida is possible at foetal stage and the complainant could have undergone severe trauma and mental agony had it been known at 20 weeks of pregnancy etc.

The counsel for complainants place reliance upon the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Anil Dutt& Another Vs Vishesh Hospital and Others (CC 221 of 2010) order dated 16^th May 2016 and the facts of the case are similar to this present case:

“According to OPs, in any case, even if, by some stroke of luck, the anomalies in the foetus had been detected during the routine ultrasound, it would not have made any difference whatsoever to the outcome, as neither the pregnancy could have been lawfully terminated as MTP Act by then nor could any treatment have been given. In the present case, both the scans were done after 20 weeks age and hence the option of elective MTP was not available to the mother. But, there is no force in such contention. It should be borne in mind that, termination or continuation of pregnancy is the choice of pregnant women i.e mother. The OPs are trying to find lame excuses on this point. In fact, in the above case it was held that OP 2and 3 failed to detect absence of one limb and kidney in the foetus; it was the act of carelessness, and breach in the duty of care. It is a negligence and deficiency on the part of OP2 and 3. It is true, MTP is not permissible in India after 20 weeks of pregnancy, but the wrong diagnosis about well-being of foetus, shattered the dream of parents. After delivery of anomalous baby, it made severe impact and caused mental agony to the parents and the grandmother.

15. It should be borne in mind that, Foetal USG is the most important tool to provide prenatal diagnosis of foetal anomalies. The standard obstetric ultrasound examination includes documentation of arms and legs. The detection of limb abnormalities may be a complex problem if the correct diagnostic approach not established. The prenatal diagnosis and the management of limb abnormalities involve a multi disciplinary team of obstetrician, radiologist/sonologist, clinical geneticist, neonatologist, and orthopaedic surgeons to provide the parents with the information regarding aetiology of the disorder,prognosis, option related to the pregnancy and recurrence risk for future pregnancies. Had the anomaly been detected the parents would have been referred to a tertiary foetal medicine unit for further investigations which would have revealed the presence of other anomalies in addition to the abnormalities of the foetal limbs. The existence of two serious anomalies would have resulted in the pregnancy being terminated.

16. Further it was observed in the above case that both the OPs stated that, routine scan will take only 5 to 10 minutes and for the targeted scan there should be specific requisition from the referring consultant. We are rather confused with such frivolous argument. The doctor is bound by ethical obligations to examine patient thoroughly with all his competence. Therefore, the radiologists should not shirk away from their responsibility and professional obligations. No doubt the referring gynaecologist, Dr. Indira Vyas mentioned only ‘Obstetric USG, confirmduration of pregnancy’. It won’t mean that radiologist adhere to those words in strict sense. It is the duty of every prudent sonologist to study USG in detail. In the instant case, it was a 2nd trimester scan, the OP-3was aware of it. As per medical literature, Foetal body measurements is helpful, it reflect the gestational age and size of the foetus. Even for the routine scan Sonologist measures;

a) Crown rump length (CRL)

b) Head Circumference (HC)

c) Bi-parietal diameter (BPD)

d) Abdominal Circumference (AC)

17. Therefore, even if we assume, it is true that, OP-2 and 3 have performed routine Obstetric Scan only,they must have observed and taken measurements of head, limbs and the spine. The Abdominal Circumference (AC) will certainly give clue about abdominal organs and the kidney. As per their own submissions, if OP 2 and 3 that because of tucked position of the foetus, they have not seen the limbs, thenhow both opined in their reports as “Foetal Spine, Trunk & Limbs are Normal”. Thus, it proves thenegligent and casual approach of OP 2 and 3 while performing USG. It was a dereliction of duty of care.

Hon’ble Supreme Court and this Commission in several judgments held the hospitals liablevicariously. The hospital management mainly looks in to administrative aspects. The doctors/ consultants working there are either full time or on honorary basis (part time). It is the bounden duty of all doctors working in the institute to follow Standard Operating Procedures (SOP), Rules and regulations laid down by the hospital authority. On several occasions most of the doctors ignore or take it lightly about specific administrative instructions e.g. taking informed consent, punctuality in duty timings and treatment protocolsetc. Therefore, we are of considered view, that because of negligence and deliration in duty of care, the management will dragged unnecessarily. Therefore, the liability should be imposed on errant doctors also. Keeping this view, we hold the OPs 2 & 3 also liable to pay compensation. The principle of Res-ipsa-loqiutor is squarely applicable in this case. It is for the OPs to prove that they have taken due and reasonable care expected and performed his duty diligently, as to repel the charge of the negligence against them.”

18. Based on the observations in the above said case which is similar to the facts of the present case, this commission is of the considered view that there is negligence and deficiency in service on the part of both the opposite parties and Point No.1 is answered accordingly.

19. Point No.2.

Based on findings given to the Point.No.1 since there is negligence and deficiency in service on the part of Opposite parties, Though the complainant prayed for Rs.1,00,000/- towards cost of medical expenses incurred by the complainants due to deficiency in service provided by the opposite parties the complainant has not filed any documentary proof for having incurred the amount as claimed above. As per Ex.A2 the 1^st opposite party has charged a sum of Rs.850/- towards scan charges which has to be refunded to the complainant. Hence the complainants are entitled for Rs.850/- towards scan charges. Due to negligence and not taking proper care and by giving a report with imperfect statement as discussed above the complainants herein has lost their male child within 8 days after its birth by which the complainants were put to great mental agony and hardship which cannot be explained in terms of words hence the complainants are entitled for relief of compensation of Rs.5,00,000/- towards the loss of life of the child due to negligence and deficiency in service of the opposite parties and Point no.2 answered accordingly.

In the result the Complaint is partly allowed. The 1^st and 2^ndOpposite Parties are directed to pay jointly or severally Rs.850/- towards scan charges and Rs.5,00,000/-(Rupees Five Lakhs Only) towards compensation for mental agony, loss of life and hardship. The above amount shall be paid to the Complainants within two months from the date of receipt of the copy of this order, failing which the above said amount shall carry 9% interest from the date of order till the date of payment.

Dictated by the Member II to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 23^rd day of September 2022.

MEMBER – I MEMBER II PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	16.01.2015	First Ultrasound report issued by the 1^st and 2^nd opposite parties
Ex.A2	28.02.2015	Second Ultrasound report issued by the 1^st and 2^nd opposite parties
Ex.A3	29.06.2015	Third Ultrasound report issued by Quality Scan, Peravallur along with receipt.
Ex.A4	30.06.2015	Report given by the doctors at Egmore Maternity Centre
Ex.A5	01.07.2015	Copy of Birth Certificate of deceased baby
Ex.A6	08.07.2015	Copy of Death Certificate of deceased baby
Ex.A7	25.07.2016	Copy of Legal Notice issued to the Opposite Parties by the counsel of the Complainants
Ex.A8		Journal of Fetal Medicine published by Springer India
Ex.A9		Spina Bifida and blessing of Pre-natal testing: A review in the Journel namely Biomedical Research (2017) Volume 28, Issue 8

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTY:

Ex.B1

Obstetric Journal-Spina Bifida

MEMBER – I MEMBER II PRESIDENT

Tamil Nadu

North Chennai

CC/108/2017

P.Sathyanathan - Complainant(s)

Versus

Premier Health centre, Dr.Vijay radiologist - Opp.Party(s)

Lakshmi rathan

23 Sep 2022

ORDER

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