BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.64 of 2019
Date of Instt. 26.02.2019
Date of Decision: 25.09.2024
Geeta aged about 33 years w/o Umesh Kashyap, resident of House No.5-B/13 Central Town, Jalandhar Punjab.
..........Complainant
Versus
1. Principal Officer/In-Charge/Managing Director Bowery Medical Center, 73, Shaheed Udham Singh Nagar, Jalandhar.
2. Nitika Paul, Bowery Medical Center, 73 Shaheed Udham Singh Nagar, Jalandhar.
3. Dr. Nitika Paul, Advance Women Center, inside Bowery Medical Center, 73, Shaheed Udham Singh Nagar, Jalandhar.
4. Civil Surgeon, Civil Hospital, Punjab Health Systems Corporation Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Sanjeev Sharma, Adv. Counsel for Complainant.
Sh.Vikas Sood, Adv. Counsel for OPs No.1 to 3.
OP No.4 exparte.
Order
Dr. Harveen Bhardwaj, (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant became pregnant in 2017 and delivered a male baby child on 1/6/2018 under the observation of OP No.4 i.e. Civil Hospital, Jalandhar. Prior to delivery during pregnancy the complainant was being under check up of OP No.4. The complainant was also examined through Ultra sound Sonography test by OP No.4 on 9/3/2018 and observed "USG (FWB)....rule out any congenital anomaly." And in Ex. C-/the ultra sound receipt observed Ultra Sound (Foetal Well Being). On 19/3/2018, again the complainant was being examined through Ultra Sound Scan and Vide report Liquor (Amniotic Fluid, which is a liquid slightly yellowish in color surrounding the fetus in the uterus) was stated to be adequate and that time the ongoing pregnancy was observed about 26 weeks by OP No.4. Thereafter, the complainant was advised by the doctors of OP No.4 to be examined by OPs No.1 to 3. On 26/5/2018, the complainant was also examined through Ultra sound Sonography test by OPs No.1 to 3. On 1/6/2018, the complainant delivered a male child namely but the complainant was shocked that the child was born with congenital anomaly of limb reduction. There was a congenital defect with child as the right leg and right arm of the child was half than normal and there were only three fingers of left foot. The child was born with permanent disability with crippled limbs. The complainant and her husband were very much depressed since the complainant and her husband has no means to take care and maintain child for entire life and the child was to remain dependant for rest of his life. There is gross negligence and deficiency in service on the part of the OPs since the complainant was never told by the OPs that the child developing in womb will be disable one without complete limbs i.e. legs and hands. The OPs failed to observe and made the complainant aware that the fetus developing in womb was abnormal and the child will be born with congenital anomaly of limb reduction. The OPs failed to observe and made the complainant aware that there was a congenital defect with child as the right leg and right arm of the child was half than normal and there were only three fingers of left foot. The OPs failed to observe and made the complainant aware that the child will be born with permanent disability with crippled limbs. Even otherwise too, the OPs not even a single time asked or advised the complainant that the complainant should opt for other medical tests examinations rather when after birth of crippled child, the complainant approached the OPs, major record was illegally retained by the OPs to save their accountability from all the future consequences and the illiteracy and ignorance of poor complainant and her husband was exploited to maximum extent by the opposite parties by obtaining signatures on some blank Forms and papers. The complainant and her husband has no means to take care and maintain child for entire life and the child was to remain dependant for rest of his life. The complainant has suffered a lot of mental agonies, financial loss and harassment at the hands of the OPs and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a compensation of Rs.19,50,000/- for causing mental tension and harassment to the complainant and Rs.30,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, but despite service OP No.4 failed to appear and ultimately, OP No.4 was proceeded against exparte, whereas OPs No.1 to 3 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable. There is no cause of action against the answering OPs, hence the present complaint is to be dismissed. It is further averred that the matter in question is complex question of fact and law, hence this Forum is having no jurisdiction to entertain the present complaint and the complainant has not come to the Court with clean hands and has suppressed the true and material facts from this Forum. On merits, it is admitted that the complainant approached at the time of 30th week, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.
6. The complainant has alleged that she became pregnant in the year 2017 and delivered a male baby child on 01.06.2018 in the Civil Hospital, Jalandhar. On 09.03.2018, she was examined through Ultra Sound Sonography in order to rule out any congenital anomaly. She has proved on record the receipt of the Civil Hospital as Ex.C-1. The report of ultra sound has been proved as Ex.C-3. Other reports of ultra sound dated 26.05.2018 has been proved as Ex.C-4 , Ex.C-5, Ex.C-8 and Ex.C-9. The complainant has alleged that she delivered a male child and the child was born with congenital anomaly of limb reduction. There was a congenital defect with the child as the right leg and right arm of the child was half than normal and there were only three fingers of left foot. She has alleged the negligence and deficiency in service on the part of the OPs as she was never told by the OP that the child, developing in womb, will be disable and she was never made aware that the fetus, developing in womb, was abnormal and the child will be born with congenital anomaly. She has alleged the negligence on the part of the OPs as she was never informed after conducting the ultra sound scan.
7. The complaint has been contested by the OPs No.1 to 3, who have alleged that there was no deficiency in service or negligence on the part of the OPs. They have given the detail in the written statement that for fetal well being two protocols are adopted of Level-I and Level-II Scan. Since the scan was done after 22 weeks of the pregnancy, therefore, only Level-I scan was done. The enquiry was conducted by the medical board. Even the medical board did not find any negligence on the part of the OPs as the OPs have done their duty as per the protocol. The OPs were approached at the time of 30th Week and at that time scan was to see the position of the baby, only fluid around the baby and the body weight and which were seen and the report was made accordingly. He has relied upon the law laid down by the Hon’ble Supreme Court, in Civil Appeal No.5215 of 2010, decided on 09.07.2010, titled as ‘Senthil Scan Centre Vs. Shanthi Sridharan and Anr.’
8. Ex.C-3 is the Ultrasound Scan report dated 19.03.2018. As per this report the pregnancy of the complainant was 26 weeks 5 days on 19.03.2018 and liquor at that time was ‘Adequate’. Another report is dated 26.05.2018 Ex.C-8 which was done when the pregnancy was of 30.6 weeks and at that time also foetal heart was normal and liquor was adequate. The photographs have been produced on record by the complainant of the child showing that he is handicapped. Now the complainant has alleged that the OPs never informed her about the defect and abnormality in the child nor was she informed that the child is abnormal and handicapped. She has alleged the gross medical negligence on the part of all the OPs in treating her as well as her child. The definition of Medical Negligence is that ‘Medical negligence occurs when medical care providers fail to fulfill their professional obligations. Every medical provider has a duty of care they owe to patients. If they don’t fulfill that duty it may be considered medical negligence. In some cases, this will give rise to a malpractice claim — but not in all circumstances.’ The Hon’ble Supreme Court has defined the medical negligence in the case, titled as“Jacob Mathew Vs. State of Punjab and Anr.” in 2005 (6) SCC 1, wherein his Lordship held as under:-
“A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.”
9. Ex.O-5 is opinion of the Medical Board. The observation of the medical board has been given in the report Ex.O-5, in which it has been mentioned that the USG Examination of pregnant mother is done in two levels under two protocols of Level-I and Level-II. Level-I scan is done for general fetal well being which includes examination of gestational age, placenta, liquor and fetal weight. Normally it does not include detailed anatomical examination.
The Level-II scan is done for complete anatomical examination of all the system of fetus. It is done at the gestation age of 18-22 weeks because of the following reasons:-
A) all the systems of fetus are well developed at this gestation.
b) at this gestation, amount of liquor is sufficiently proportional to fetal body.
As per the opinion of the doctor, the anatomical examination beyond 22 weeks of the gestation age becomes difficult because of the proportion of liquor to fetal body mass decreases and position of the fetus becomes less favourable, therefore, generally the Level-I scan is done after 22 weeks of the pregnancy. As per the opinion of the board of the doctors since in the present case, the gestations age for level-II scan for detailed anatomical examination had crossed, therefore, the level-I scan was done by the doctors. As per the opinion, no doctor was negligent in conducting the ultrasound or giving the report.
10. The Ld. Counsel for the complainant has relied upon the law laid down by the Hon'ble National Commission in 2016(3) CPR 106, case titled as ‘Anil Dutt etc. Vs. Vishesh Hospital & Ors.’ and the Ld. Counsel for the complainant has alleged that the OPs in this case also took the same plea and defence as was raised by the OP in the case titled as ‘Anil Dutt etc. Vs. Vishesh Hospital & Ors.’, but all the pleas were rejected by the Hon'ble National Commission and the compensation was granted, but the law referred by the Ld. Counsel for the complainant is not applicable to the facts of the present case. In the case referred by the Ld.Counsel for the complainant, the USG was performed at 21 weeks of gestation and the anomaly was pre-existing. If it had been diagnosed at the 21 weeks of gestation, any treatment could have been done, but since that anomaly was not pointed out at the 21 weeks of gestation, therefore, the complainant had to continue with the pregnancy till its delivery and the Hon'ble National Commission held the OPs to be negligent and deficiency in service was found, but in the present case, the ultra sound scan was done when the pregnancy was of 26 weeks and then 30 weeks and it had crossed the period of Level-I and Level-II scan. As per opinion of the board of the doctors to see the anomaly level-I scan is done for general well being of the fetal and the level-II scan is done for complete anatomical examination at the gestation age of 18-22 weeks. As per medical literature, the anomaly scan is a prenatal ultra sound performed between 18 and 22 weeks of pregnancy. It checks on the physical development of the fetus and can detect certain congenital disorders as well as major anatomical abnormalities. In the law referred by the Ld.Counsel for the complainant, the Level-II scan for anatomical examination was done at the 21 weeks of gestation period, but in the present case, it was done at the gestation age of 26 weeks and thereafter at 30 weeks, therefore, the law referred by Ld.Counsel for the complainant is not applicable. It has been held by the Hon’ble Supreme Court in a Civil Appeal No.5215 of 2010, decided on 09.07.2010, case titled as ‘Senthil Scan Centre Vs. Shanthi Sridharan and Anr.’ 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.’ In the present case, in Ex.C-3, under the column ‘impression’ it has been mentioned that ‘the present study cannot completely confirm (1) absence of any or (2) presence of all congenital anomalies in the foetus which may be detected in post natal period.’ She got her USG in 26th week i.e. after 22 weeks of pregnancy, when the amniotic fluid around the body decreases and the position of foetus is hyperflexed whereas upto 22 weeks, the amniotic fluid is adequate and body is moving. MTP Act, 1971, prohibits MTP at 21st week of pregnancy. At the time of 26 weeks 5 days or 30 weeks 6 days, there was no cure or treatment or pregnancy could not be terminated which could have been done upto 22 weeks scan. The complainant has not led any expert evidence to prove that the doctor, who has conducted the ultrasound, was not well qualified or he did not conduct the ultrasound with due care and diligence and has acted negligently. There is no evidence to show that failure to detect the anomaly was due to any negligence on the part of the OPs. So, the complaint of the complainant is without merits and the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
25.09.2024 Member Member President
