Complaint filed on: 24-07-2014

                                                      Disposed on: 20-07-2016

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM,

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.101/2014

DATED THIS THE 20^th DAY OF JULY 2016

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT,

SRI.D.SHIVAMAHADEVAIAH, B.A. LLB, MEMBER

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -

                                                Kempanarasaraju

                                                S/o. Narasimhamurthy,

                                                Aged 39 years, residing at

Maramma Temple Road,

Shanthinagara, Tumakuru

(By advocate Sri.R.Omkarappa)

V/s

Opposite parties:-            

1. The Proprietor,

THS Diagnostic Centre, IMA complex, Town hall circle,

Tumakuru

(By Advocate Sri.Ramesha.S.)

2. Dr.Arundhathi,

Gynecologist, Vijaya Hospital, Tumakuru

(In-person)

ORDER

SMT.PRATHIBHA. R.K, PRESIDENT

        This is a complaint filed by the complainant against the Opposite parties No.1 and 2, under Section 12 of the Consumer Protection Act, 1987. The complainant prays to direct the OPs to pay a sum of Rs.7,00,000=00 with 12% interest as compensation from the date of complaint, till the date of realization of the entire amount, in the interest of justice and equity.    

2. The brief facts of the complaint is as under.

          The complainant submits that, the complainant’s wife and daughter are having good health and his wife became pregnant for the second child. The complainant’s wife Smt.Amrutha has visited the 2^nd OP for check-up and the 2^nd OP i.e. Dr.Arundhathi has advised the complainant for scanning at the 1^st OP’s Diagnostic Centre on 17-11-2013. The complainant’s wife went for scanning on the advice of 2^nd OP to the 1^st OP diagnostic center. The 1^st OP diagnostic center discloses that, the complainant’s wife and fetus are normal in their health conditions.  Again on 13-1-2014 and 7-5-2014 the wife of complainant had visited the scanning before the 1^st OP diagnostic center on the advice of 2^nd OP, both scanning reports denotes that, the mother and fetus were in healthy conditions. The complainant further submitted that, after the birth of male baby, the baby went for Renal scanning on 19-5-2014 at St. John’s Medical College Hospital, Bengaluru and medical impressions are as under: “Non-visualized left kidney, Right hydronephrosis, Cystic structure in the lower pole of right kidney? Dilated tortuous ureter. Further evaluation not done due to excessive bowel gas, suggested further evaluation”. The complainant further submitted that, the complainant’s child went for ultrasound scan before the Victoria Hospital and BMC & RI, Bengaluru and medical impressions are as under; “Right side hydronephrosis with cortical cyst as mentioned above, Non visualization of left kidney, Prominent bowel loops with echogenic contents (IMPACTED FECES). The complainant submitted that, the impression made by both hospitals, he has totally contravened with the report given by the 1^st OP diagnostic center as such the 1^st OP diagnostic center has totally failed to give proper service to the complainant. Hence the Ops no.1 and 2 are jointly and severally liable for punishment for their negligence act. The complainant has spent a sum of Rs.7,00,000=00 to take proper medical treatment to his son. The Ops have committed negligent act in treating the complainant’s wife and not properly diagnosed. The Ops have committed the deficiency in their service.  Hence the complainant has come up with the present complaint.

          3. In response to the notice, the Ops No.1 and 2 put their appearance and filed separate version.

          4. The 1^st OP has filed his version and pleaded that, the complaint is not maintainable either in law on or on facts and it is liable to be dismissed. The complainant has no locus-standee to file the present complaint against the Ops and this OP never render any service to the complainant. All the averments made in the complaint are denied as false and it is admitted that, the 1^st OP has taken all the standard care and done the scan and along with report referred back to referred doctor. The said scan report stated that, the first scan, mother had horse shoe kidney, same has reported in writing. At the nine month of her pregnancy abnormal findings are detected, reported and informed to the referring doctor. The said scanning report which was done at nine month pregnancy, because of extensive bowel gas of the fetus limits the visualization and assessment of the kidneys  further evaluation was suggested.  As per the standard medical books speaks that, a) Ultra sound is a noninvasive investigative modality which uses high frequency sound waves. The reflected waves from the tissues of the patient are reconstructed to the display the image. b) It is important to know that, all anomalies cannot be detected in the ultrasound, as it is has got limitation in the imaging. The 1^st OP further submitted that, in the scanning report of the St. John hospital and Victoria hospital do not contradict the OP’s report and the said reports confirmed the diagnose done by the 1^st OP. The complainant has suppressed the real facts and filed the alleged complaint against the 1^st OP for grabbing the money from the Ops. The 1^st OP further denied that all the allegations made in the complaint and the same is not maintainable. Hence it is prayed to dismiss the complaint against this OP, in the interest of justice and equity.

          5. The 2^nd OP has filed her version and pleaded that, Mrs.Amrutha has come to Vijaya Nursing Home for her antenatal checkups on her own. Accordingly she has done antenatal checkups and advised timely investigation like routine blood examination, obstetric scanning as a part of antenatal checkups and prescribed antenatal medications. The 2^nd OP submitted that, her routine antenatal checkup report showed that Mrs.Amrutha is VDRL positive, she has been treated antenatal and she gave history of one miscarriage of her second pregnancy in the third month. Hence advised the complainant to prevent from miscarriage and advised for scanning to prevent her from abortion and on scan report dated 17-11-2013 it was stated as normal. Thereafter advised her anomaly scan at 20^th week i.e. on 13-1-2014 the anomaly scan reports of THS diagnostics showed no anomalies. Further the 2^nd OP has advised the third trimester scan even in that scan report has not revealed renal anomaly, instead on telephone Dr.Anand, Radiologist, of 1^st OP THS diagnostics has informed the 2^nd OP on telephone about increased “echogenic foci” in the large intestine of the fetus and suspected imperforate anus and suggested post natal scanning and further evaluation of the baby after delivery. The 2^nd OP further submitted that, she being only a Gynecologist read the scan report and correlates with her clinical examination findings. The anomaly scan report and clinical examination did not show any alarming findings. Thereafter the complainant did not turn up for checkup suddenly after few days some people rushed and created nuisance in front of patients and their main complaint was if she had told the renal anomaly at 5^th month, they would have gone for MTP. The 2^nd OP further submitted that, at the nine month finding of fetal anomaly, MTP cannot be exercised as it is against the MTP Act 1971. Hence the 2^nd OP prayed for dismissal of the complaint.  

6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced documents along with complaint. On the other hand, one Dr.Anand, who being the authorized person of 1^st OP diagnostic center has filed his affidavit by way evidence and one Dr.Arundhathi.D, who being the 2^nd OP and Obstetrics and Gynecologist at Vijaya Hospital, Tumakuru has filed her affidavit by way of evidence and produced documents. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides in between line.  

7. So from the averments of the complaint of complainant and version of the Ops no.1 and 2, the following points arise for our consideration as under.

1. Whether there was deficiency in service on the part of the OPs as alleged by the complainant?
2. What order?

8. Our findings on the above points are;

          Point no.1: In the negative

          Point no.2: As per the final order below.  

REASONS

9. Point Nos.1 to 2: On perusal of pleadings, versions of Ops, evidence and documents of both parties, it is an admitted fact that, the complainant’s wife Smt.Amrutha was regularly going to 2^nd OP hospital for her antenatal checkups, and 2^nd OP had referred the complainant’s wife to the 1^st OP diagnostic center for scanning. The 1^st OP diagnostic center Dr.Anand.S.H, and Dr.Banuprakash.S. had done the obstetric Ultra Sonography scanning for the complainant’s wife in 11 weeks, 20 weeks and 35 weeks on 7-11-2013, 13-1-2014 and 7-5-2014 respectively and produced Obstetric Ultra Sonography report of complainant’s wife Smt.Amrutha, it is marked as Ex.CW1 to CW6. In Ex-CW5 scanning report dated 7-11-2013 in the impression column it is stated that “single live intrauterine gestation corresponding to 11 weeks 1 days suggested anomaly scan in 18-22 weeks. Lower poles of maternal kidneys are fused s/o horse shoe kidneys”.   Further in Ex-CW3 scanning report dated 13-1-2014, in the impression column it is stated that “20+weeks size single live intrauterine gestation noted with variable presentation during scan, no obvious detectable congenital anomalies seen”. Further in Ex.CW1 scanning report dated 7-5-2014, it is stated that “Focal dilatation of the few bowel loops with echogenic contents within and Anus is visualized and appears normal in caliber. Needs post natal follows up USG and in the impression column, 35+weeks size single live intrauterine gestation noted with Cephalic presentation during scan. No obvious detectable congenital anomalies seen to the extent visualized”.

10. Thereafter, after the birth of male baby of Smt.Amrutha, the baby was referred to the St. John’s Medical College Hospital, Department of Radiology for scanning, Dr.Arun George, Consultant Radiologist has done the scanning of the complainant’s baby on 19-5-2014 and it is marked as Ex-CW11, in the impression column, it is clearly mentioned that “Non-visualized left kidney. Right hydronephrosis. Cystic Structure in the lower pole of right kidney-? Dilated tortuous ureter and further evaluation not done due to excessive bowel gas. Suggested further evaluation”.  

11. Thereafter, the baby of Smt.Amrutha admitted to the Department of Paediatric Surgery, Victoria hospital, Bengaluru admitted on 20-5-2014 under pediatric surgery and discharged on 24-5-2014, it is marked as Ex-CW13.  The Department of Radio Diagnosis and Imaging, Victoria hospital, Bengaluru Dr.B.R.Nagaraj, Professor and HOD of Radio Diagnosis has done the scanning and in his scanning report dated 26-5-2014 in the impression column it is stated that, “right side hydronephrosis with cortical cyst as mentioned above. Non visualization of left kidney. Prominent bowel loops with echogenic contents (Impacted feces)”, it is marked as Ex-CW9.

12. On the two scanning reports, it is clear that, the baby of Smt.Amrutha, does not have left kidney and right kidney hydronephrosis. Cystic Structure in the lower pole of right kidney. But the 1^st OP diagnostic center scanning report dated 7-5-2014, i.e. 35+ weeks it is mentioned that, “the Foetal spine, stomach, bladder and kidney of baby were normal. Focal dilatation of the few bowel loops with echogenic contents within. Anus is visualized and appears normal in caliber. Needs post natal follow up USG”, it is contrary to the Victoria hospital Bengaluru and St. John’s Medical College Hospital, Bengaluru.

13. The 1^st OP in his version and as well as in the written argument stating that, in Callen textbook limitation of ultrasound chapter in the 3^rd, 6^th and 9^th months detection rate of anomalies by ultrasound is 16 to 74% only out of 100 babies. The 1^st OP is also produced textbook chapter 1, table 1-2 of Callen textbook of ultra sound. Further the 1^st OP submitted that, if the kidney is really defective there is a chance to reduce the liquor (water around the fetus) due to decreased urination. There is no reduction of liquor surrounding the fetus and urine bladder is functioning normally due to kidney function. Hence it is impossible to see whether one kidney is functioning or two kidneys are functioning with above surrounding circumstance. The 1^st OP further submitted that, in the ultra sound waves images that, the kidney is normally functioning, excreting urine and the said urine is flowing to the urinary bladder therefore presumed that the kidney is functioning in normal condition.

14. The contention of complainant is that, if the Ops no.1 and 2 had given reports stating that, there is a problem in the kidney of the baby, they would have gone for termination of pregnancy. The Ops have not diagnosed the problem of the baby, hence the complainant has spent Rs.7,00,000=00 for treatment of the baby. Admittedly the baby of complainant having kidney problem, the Ops have not diagnosed the problem in the 5^th and 9^th months of pregnancy.  Further the 2^nd OP submitted that, if we detect the anomaly scan after 20^th weeks, we cannot terminate, it is against the Medical Termination of Pregnancy Act-1971.

15. Further the complainant has produced the copy of scanning reports of St. John’s Medical College Hospital, Bengaluru, Victoria Hospital, Bengaluru & Vikram APKON diagnostics, Tumakuru and these three scanning reports were after baby was born. But the complainant has not produced any expert opinion or 2^nd opinion scanning report to prove his case that, anomaly can be detected in the 5^th and 9^th month of pregnancy. Further, the complainant has also not approached the Karnataka Medical Council (KMC) and obtained any opinion with regard to the negligence set to have been committed by the OPs. Therefore, in the absence of any such technical report, this forum cannot comment or accept the contention of the complainant.   

16. Further the 1^st OP submission that, limitation of ultrasound only anomalies 16 to 74%, anomalies can be detected out of 100 babies. Hence, there is no negligence and deficiency of service on the part of the OPs and as such we are inclined to come to the conclusion that, the oral and documentary evidence of OPs placed before the forum are more believable trustworthy. So from the discussion made hitherto, we hold that, the complainant has become unsuccessful in proving this point with believable material evidence that the OPs are negligent and there is deficiency of service on the part of the OPs in not diagnosed properly and according, we answer this point in a negative.            

          18. In view of our negative finding on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the forgoing reasons, we proceed to pass the following order.

ORDER

          The complaint filed by the complainant is hereby dismissed. No cost.

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and typed by him/her, then corrected and pronounced in the Open forum on this, the 20^th day of July 2016).

MEMBER                       MEMBER                       PRESIDENT