IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present:
Hon’ble Mr. Bose Augustine, President
Hon’ble Mr. K.N. Radhakrishnan, Member
Hon’ble Mrs. Renu P. Gopalan, Member
CC No. 68/13
Thursday the 29th day of September, 2016
Complainant : Ratheesh Rajan,
Eruppechira House,
Athirampuzha PO, Kottayam.
(Adv. Manu.J.Varappally)
& Saneesh Kunjunju))
Vs.
Opposite parties : 1) Dr. P.V. Sebastian,
Unity Scan & Diagnostic Centre
Medical College ICH Road,
Gandhinagar PO, Kottayam.
(Adv. M.C.Suresh
2) Administrator,
Unity Scan & Diagnostic Centre,
Medical College ICH Road,
Gandhinagar PO, Kottayam.
3) Dr. Nazneen M.K,MBBS,DMRD
Unity Scan & Diagnostic Centre,
Medical College ICH Road,
Gandhinagar PO, Kottayam.
(OP 2&3 Adv.M.C.Suresh)
O R D E R
Hon’ble Mr. Bose Augustine, President
The case of the complainant filed on 1-3-13 is as follows.
This complaint is filed against the opposite parties alleging medical negligence. The complainant’s wife Resmi was pregnant and she consulted as Senior Gynecologist at Medical College Hospital, Kottayam. After examination, the said doctor advised for check-up after one month. And the wife of the complainant take complete rest. As per the advice of the doctor on 20-10-12, they approached the Unity Scan & Diagnostic Centre, the 2nd opposite party, for scanning, it was done by Dr. Nazneen M.K, the 3rd opposite party and they reported that it as intrauterine 20 weeks and 1 day gestational age. The said report was signed by the 1st opposite party. The said report was showed to the doctor and the doctor intimated that there was no abnormality and there was no problem to the foetus, which is stated in the scanning report. And also the doctor intimated that no medicine is necessary at this stage and advised to visit after two months for check-up after next scanning. After that the complainant showed the said scan report to a doctor known/ familiar doctor, he also intimated that there was no abnormality is noted in the scan report and also informed that the details of the foetus can be understood after 16 weeks. Thereafter on 12-12-12 they conduct scanning with the 2nd opposite party and they issued a report stating that the foetus is having 27 weeks and 5 days growth. The said report was also showed to the concerned doctor at MCH Kottayam, when she visited for check-up as per the advice of the doctor and the said doctor intimated that as per the scanning report the foetus is complete/full healthy and there was no problem. According to the complainant after getting knowledge about the pregnancy he had provide proper care to his wife. And she was eat quality food, fruits and other nutritious foods along with iron tablets as per the direction of the doctor. Thereafter in 12th December the complainant’s wife was admitted at MCH due to some difficulties and 1st January she gave birth of a premature baby with congenital below knee amputation right leg, congenital absence of two toes of the left leg and absence of little finger of left hand. According to the complainant, the defects were not detected in scanning due to the negligence of the opposite parties, if it was detected, it could have been cured with medicines, it was told by the treating doctor. And the said act of opposite parties amounts to deficiency in service. Hence this complaint filed claiming Rs.10,00,000/- as compensation.
The opposite parties filed version contenting that the complaint is not maintainable. According to the 1st opposite party, he is a paid employee in the Unity Scan &Diagnostic Centre, 2nd opposite party and he did not see or examine the complainant at any point of time. According to them the alleged scanning on 20-10-12 and 12-12-12 was done by Dr.M.K.Nazneen, attached to the 2nd opposite party scanning centre and the reports bear her signature. The complainant’s wife Resmy came to the 2nd opposite party Scan centre on
20-10-12, as referred by Dr. Soly P.Mathew, on her 20th weeks of gestation for scanning. Her LMP was reported on 1-6-12 and expected date of delivery was on 8-3-13. Ultra Sound creates a two dimensional image of the three dimensional baby and in pre-natal testing ultra sound results cannot be relied as 100% accurate. It was clearly noted in the scan report and USG finding concluded single alive intra uterine pregnancy of 20 weeks of gestation age. The complainant’s wife again came up for repeat scanning on 12-12-12 on 27th weeks of gestation. As per report it was found that amniotic fluid was very less and movement of the foetus was decreased. If amniotic fluid around foetus is less and movement is decreased, the sensitivity of ultrasound diagnosis of and foetal anomaly will also be compromised. In such a condition the foetal anomaly of limbs could not be visualized even by repeated examination. Sensitivity of diagnosis is less due to factors like obesity of the patient, oligohydramnios and decreased foetal movements etc. Ultra sound is not a perfect depiction of the foetus and the scan result cannot be 100% conclusive. The factors like paucity of amniotic fluid, the hyper flexed position of the foetus, engagement of the head or compression of some foetal parts pose difficulty in examining some foetal areas. Maternal obesity is also a factor which makes sonographis evaluation difficult during pregnancy. According to the opposite parties the 1st scanning was on 20-10-12, the complainant’s wife was in her 20th gestational week and at that stage a medical practitioner cannot legally advice medical termination of pregnancy as per the provisions of Medical Termination of Pregnancy Act. At the time of second scanning she was at her 27th weeks of gestation and termination of pregnancy was not at all possible evenif any anomaly was detected as per scanning. The complainant’s case that anomaly like lower limb deficiency could be corrected with medicines as told by the treating doctor is not sustainable. The congenital limb deficiency could not be cured with any medicines during antenatal period. Furthermore the complainant is wilfully suppressing facts regarding his wife’s early antenatal consultation, treatment advise and investigations. The birth of the baby with lower limb deficiency was not caused due to any act or omission on the part of the opposite parties. Even if anomaly like limb deficiency is detected after 20 weeks of gestation age, it cannot be avoided or cured by any means rather birth of the baby with said anomaly must happen. According to the opposite parties they exercised utmost care and caution in conducting radiological examination of the complainant’s wife and there is no negligence or deficiency in service on their part. And they prayed for dismissal of the complaint with cost.
Points for considerations are:
- Whether there is any deficiency in service on the part of opposite parties?
- Relief and costs?
Evidence in this case consists of the proof affidavit of the complainant’s Power of Attorney Holder, wife, 1st opposite party and 3rd opposite party. And the deposition of the complainant’s power of attorney holder as PW1 and Ext.A1 to A4 documents
Point No.1
The complainant alleged deficiency in service on the part of opposite parties in the scanning conducted by his wife during pregnancy period and thereby she gave birth of a premature baby having many disabilities. It was not detected in scanning due to the negligence of the opposite parties, if it was detected it could have been cured with medicines, it was told by the treating doctor. So thereby he had suffered mental pain, sufferings and loss. According to the 1st opposite party he did not see or examine the complainant at any point of time. Ext.A2 and A3 is the scan report. In Ext.A2 and A3 report, the 1st opposite party’s name is printed. But no where in Ext.A2 and A3 report seen the signature of the 1st opposite party. On the basis of the name of the 1st opposite party appears in the Ext.A2 and A3 scan report, we cannot simply say that it was issued by the 1st opposite party or 1st opposite party had given declaration. Admittedly the complainant’s wife underwent scanning after completing 20 weeks of gestation and as per Ext.A3, scan report dated 12-12-12 there was oligohydramnious with decreased foetal movements. According to the complainant the defect of the foetus was not detected in the scanning due to the negligence of the opposite parties, if it was detected it could have been cured with medicines, it was told by the treating doctor. According to the opposite parties the ultra sound results cannot be relied on 100% accurate and it was clearly noted in the scan report. In Ext.A2 and A3 documents, it is noted that sonological diagnosis is not always 100% accurate. The other contention of the opposite parties that the 1st scanning report, Ext.A2, it is noted that single line intrauterine pregnancy of 20 weeks and 1 day age,if the defect is detected in scanning at that stage a medical practitioner cannot advice termination of pregnancy. As per section 3(2)(b) of The Medical Termination of pregnancy Act 1971, “Pregnancies may terminated by registered medical practitioners, where the length of the pregnancy exceeds 12 weeks but does not exceed 20 weeks, if not less than two registered medical practitioners are of opinion, formed in good faith that (i) the continuance of the pregnancy would involve a risk to the life of the pregnant women or of grave injury to her physical or mental health or (ii) there is a substantial risk that of the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped”.
According to the complainant if the anomaly like lower limb deficiency is detected, it could have been cured through medicines, it was told by the treating doctor. No evidence has been adduced by the complainant to prove that congenital limb deficiency can be cured with medicines. Furthermore the complainant has not adduce any expert evidence to prove that congenital limb deficiency could be cured through medicines or the complainant has not proceeded to examine the doctor who had told this fact to him.
The Hon’ble Punjab State Commission in Appeal No.492/2012 [reported in 1 (2015) CPJ 20 (Punj)] has considered similar dispute of foetal abnormality not disclosed in ultra sound report and held that it can be an error of judgement which cannot be said to be a case of medical negligence. Further found that ultra sound was conducted at the advance stage of pregnancy at which termination of pregnancy was not possible.
The Hon’ble Supreme Court in Appeal No.5215/2010 [reported 111(2011) CPJ 54(SC) ]held that ultra sound is not a perfect depiction of foetus and scan result cannot be 100% conclusive. Negligence not proved. Based on the above discussion in our view, in this case complainant miserably failed to prove by expert evidence that there is any negligence on the part of opposite parties in the scanning or to prove that failure to detect the deformity was on account of any negligence on the part of the 3rd opposite party, doctor, who conduct the ultrasound or the birth of the baby with lower limb deficiency was due to any act or omission on the part of opposite parties. Point No.1 is found accordingly.
Point No.2
In view of the findings in Point No.1 complaint is dismissed. No cost is ordered.
Pronounced in the Open Forum on this the 29th day of September,2016.
Hon’ble Mr. Bose Augustine, President Sd/-
Hon’ble Mr. K.N. Radhakrishnan, Member Sd/-
Hon’ble Mrs. Renu P. Gopalan, Member Sd/-
Appendix
Documents of complainant
Ext.A1-Power of Attorney
Ext.A2-Scan report dtd 20/10/12
Ext.A3-Scan report dtd 12/12/12
Ext.A4-Photocopy of Standing Disability Assessment Board Certificate
By Order,
Senior Superintendent
