BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE.

DATED THIS THE 8^th DAY OF JULY 2021

PRESENT

MR. RAVISHANKAR :                         JUDICIAL MEMBER

MRS. SUNITA CHANNABASAPPA BAGEWADI  :     MEMBER

                                                                                        COMPLAINT NO. 269/2010

V/s

ORDER

Mr. RAVISHANKAR, JUDICIAL MEMBER

1.      This is a complaint filed by the complainant against the Opposite Parties alleging medical negligence in not diagnosing the defect found in the baby.  Hence, prayed for compensation of Rs.93 lakhs along with other expenses.

2.      The averments in the complaint are as hereunder;

It is the case of the complainant that during June 2008 she had conceived for the first time and after 1 ½ months, it was terminated as per the advice of Opposite Party No.3.  Subsequently, after next four months from the date of medical termination of pregnancy, she again conceived and approached the Opposite Party No.1 hospital and consulted Opposite Party No.4 doctor on 12.12.2008.  After consultation, she was advised to take certain prescriptions.  Later, the complainant was under periodical visit and accordingly she has taken the prescriptions dt.12.12.2008, 03.02.2009, 18.02.2009 and 12.05.2009.  Further, the Opposite Party No.4 doctor advised the complainant to undergo required investigations and as per the prescription of Opposite Party No.4, the Opposite Party No.3 conducted necessary medical investigation such as ultra sound scanning, blood test, urine test etc.  The complainant had been medical check-up by Opposite Party No.4 at Opposite Party No.1 hospital.  As a part of detailed test, the obstetric ultrasound test was conducted upon the reference of Opposite Party No.4 on 03.01.2009 at 5^th day of 7^th week of pregnancy by Opposite Party No.3 and the report was issued which shows that the condition of foetus is normal.  Thereafter, the second obstetric ultrasound test was conducted on 03.02.2009 at 11^th week 6^th day of pregnancy and the report was issued by Opposite Party No.3 stating that the condition of foetus was very much normal.  Thereafter, again on 18.02.2009 the third scan was conducted at 14^th week of pregnancy at Opposite Party No.1 hospital and Opposite Party No.3 gave a report stating that no obvious anomalies was found in foetus and the foetus is normal.  Further they noticed that the complainant is suffering from “Grade II Placenta Previa”(Posterior and to Right) and advised to visit Opposite Party No.4.

3.      The complainant further alleged that again on 13.04.2009 the 4^th obstetric ultra sound scan was conducted at 21^st week 5^th day of pregnancy at Opposite Party No.1 hospital upon the reference of Opposite Party No.4 and test was conducted by Opposite Party No.3 who again gave a report stating that no obvious anomalies found in foetus and further stated that the complainant again suffering from “Grade II Placenta Praevia” (Posterior and to Right).  Thereafter, on 12.05.2009 other related tests were conducted in Opposite Party No.1 hospital.

4.      On 12.06.2009 the 5^th scan was conducted at 2^nd day of 30^th week and the Opposite Party No.3 has wrongly observed that the “Placenta previa has developed from grade-II (posterior and to right) to grade-III (posterior and to left) from earlier stages” causing more serious in nature.  The Opposite Party Nos. 3 & 4 have negligently advised the complainant without appreciating the condition of the complainant and without exercising reasonable care and skill.  Further they have advised that there is a threat to the life of the complainant and she should take advice from higher hospital for further treatment.  Accordingly, on advice of the Opposite Party No.3 & 4, the complainant was immediately rushed to M/s Gopala Gowda Shanthaveri Memorial Hospital, T. Narasipura Road, Nazarbad, Mysore 570 010 wherein they have verified the records available and the doctors in the said hospital i.e., Gynecologist Dr. Latha and Radiologist Dr.Naveen have pointed out that it is a clear case of wrong diagnosis.  Later they have confirmed vide obstetric scan report dt.23.07.2009 that the complainant is not suffering from any placenta previa and the foetus was hale and healthy.  The said report did not indicate the anomalies of foetus for its hands and foot since the same cannot be diagnosed during the third trimester.

5.      Subsequently, one more obstetric ultrasound scan was conducted on 06.08.2009 at M/s Gopala Gowda Hospital at 6^th day of 38^th week of pregnancy which confirms that there is no placenta previa and the foetus is hale and healthy, but, due to wrong diagnosis from Opposite Party No.3 & 4, the complainant unnecessarily rushed to M/s Gopala Gowda Hospital with difficulty in travel taking risk against the life of the baby and the mother/complainant for treatment.  The complainant further alleged that from 08.07.2008 to 02.07.2009, the complainant was treated by Opposite Party No.1 hospital under the supervision of the Opposite Party Nos. 3 & 4.  Later she was treated at M/s Gopala Gowda Hospital, Mysore from 02.07.2009 to 20.08.2009.  On 12.08.2009 the complainant gave birth to a male baby under emergency caesarian operation at M/s Gopala Gowda Hospital.  But unfortunately, the baby had congenital anomaly of absent left forearm (Congenital anomaly means the disability acquired before birth) and the same was noted in the discharge summary dt.20.08.2009 issued by M/s Gopala Gowda Hospital.

6.      Dr. Latha, Gynecologist of M/s Gopala Gowda Hospital issued a certificate stating that the complainant has approached 34^th week of gestation, upon the advice of the Opposite Party Nos. 3 & 4 with a complaint of placenta previa type III and in due course the complainant had given birth to the physically disabled baby.  The said disabled baby birth was only due to dereliction of negligence on the part of Opposite Party Nos. 1 to 4 who have treated since conceiving the pregnancy up to 5^th scan dt.12.06.2009.  Hence, the complainant has issued a legal notice dt.02.12.2009 and 17.02.2010 to compensate the damage caused due to their medical negligence.  The Opposite Party Nos. 2 to 4 instead of compensating their negligence have replied untenably and subsequently complainant filed this complaint alleging medical negligence in not tracing out the said anomaly during the course of scanning.

7.      The complainant also issued a notice against Dr. H.B. Santhrupth, Dr. Naveen, Radiologist and Gynecologist.  Dr. Latha claiming that there is dereliction in their duty between 02.07.2009 to 20.08.2009.  After receipt of legal notice, the said hospital doctors replied stating that there is no dereliction/negligence on their part.  Anyhow aggrieved by the wrong diagnosis conducted by the Opposite Party Nos. 1 to 4, the complainant filed this complaint and prayed for compensation to the tune of Rs.93 lakhs along with other reliefs.  Hence, the complaint.

8.      After service of notice to the Opposite Parties, the Opposite Party Nos. 1 to 4 have appeared through their counsel and filed their version.  Subsequently, the Opposite Party No.5 was impleaded and notice also served on them and appeared through their counsel and filed version.

9.      The Opposite Party Nos. 1 & 2 in their version contended that the complainant had filed a false complaint alleging medical negligence on their part and claimed exorbitant compensation without any valid grounds and prayed to dismiss the complaint.  They have taken para wise reply and submit that on 12.12.2008 the complainant consulted Opposite Party No.4 for positive pregnancy test and the same was done on 03.01.2009.  She had undergone ultrasound scan, the report which reveals that everything was fine.  The expected date of delivery was given as 19.08.2009.  Thereafter, the complainant has undergone regular checkups and treatment for her pregnancy till 12.06.2009.  The complainant had undergone both clinical examination and ultrasound scan at regular intervals as is required during the abovesaid period.

10.    On 03.02.2009 the patient come with a complaint of spotting since after month.  She was advised treatment and complete bed rest.  Further on 18.02.2009 i.e. during 14^th week, there was no bleeding and scan report revealed Grade-II placenta previa and the treating doctor noted “High Risk Pregnancy”.  The patient was again seen by doctor during 16^th week and all physical examinations were normal.  She was advised Injection Tetanus Toxoid first dose, iron, calcium and supplement protein and advised to take complete bed rest.  Thereafter on 13.04.2009, 12.05.2009, 28.05.2009 all reports including physical examinations reflected normal.  On 12.06.2009 the scan report revealed single intra uterine live foetus of 32 weeks + 2 days, breach presentation, Grade-III placenta previa, covers internal OS completely.  Then immediately the patient was rushed to M/s Gopala Gowda Hospital which is having required infrastructure and advanced facilities for OBGYN care for further treatment as Placenta Previa is potentially dangerous to mother and foetus and the treating doctors felt that the patient’s condition is serious.  No gross anomalies incompatible with life as seen by ultra sound scan.  Hence, the allegation made by the complainant that Opposite Party Nos. 3 & 4 negligently advised the complainant to go to higher hospital is false.

11.    The Opposite Party further contended that the scan reports from 14^th week reveals only Placenta Previa and no anomalies as far as the foetus is concerned were found in the reports.  This is also clearly stated in the scan report dt.23.07.2009 of M/s Gopala Gowda Hospital, Mysore.  The doctors in that hospital have treated the complainant with due care and caution and they have advised the regular treatment in regular intervals.  It is also pertinent to note that in the scan report dt.23.07.2009 which was taken at M/s Gopala Gowda Hospital, there is no evidence of placenta previa.  Further, it is clarified that the placenta may go up in a later stages of pregnancy and previous placenta previa may not be so in the later stages.  The complainant had not able to appreciate and understand these medical technologies/ implications.  Without any proper knowledge, the complainant had alleged negligence on the part of the Opposite Parties.  Hence, there is no any medical negligence on their part and prayed to dismiss the complaint.

12.    The Opposite Party No.3 in their version contended that the complainant has undergone regular checkups, treatment for her pregnancy till 12.06.2009 in Opposite Party No.1 hospital and the complainant had undergone both clinical examination and ultrasound scan at regular intervals as is required during the above said period.  The Opposite Party No.3 also reiterated averments made by Opposite Party Nos. 1 & 2.  Further contended that as per the advice given by doctors at Opposite Party Nos. 1 & 2, they have taken ultrasound scan and report was submitted to the doctors for further treatment and submits that there is no any deficiency in service on their part and prayed to dismiss the complaint.

13.    The Opposite Party No.4 in their version also reiterated the averments made by Opposite Party Nos. 1 to 3 and further contended that during 14^th week, there was no bleeding and the scan report revealed Grade-II Placenta Previa and the treating doctor noted “High Risk Pregnancy” and the same was explained to the complainant with a view to make her aware and conscious to the said Placenta Previa and how in severe cases ( when bleeding is torrential ) it can be life threatening to a patient and later the foetus and also about migration of placenta and the chances for the placenta to go up gradually in later months of pregnancy and the complainant also informed about the bleeding episode can also some time cause abortion and cautioned her that she has to be on complete bed rest and accordingly, advised appropriate medication.  This Opposite Party also informed the complainant that in case of any painless vaginal bleeding which may occur in few cases to contact her immediately.  On the request made by the patient i.e. Opposite Party also issued a medical certificate for the purpose of applying for long leave and take complete bed rest.  They have explained that there may be a need for blood transfusion if at all there is excess bleeding.  Accordingly, she informed the complainant to make arrangements in the family for donors in case of any emergencies.  Further they have advised the complainant to approach higher hospital for better treatment on 12.06.2009.  However, she got booked on 02.07.2009 nearly after 20 days.  Thereafter, she gave birth to a male baby with anomaly in left hand.  Hence, submits that there is no any deficiency in service / medical negligence on their part and prayed to dismiss the complaint.

14.    The Opposite Party No.5 in their version contended that the complainant filed a complaint alleging that baby was born with congenital anomaly and the same is due to the negligence on the part of the Opposite Parties.  The complainant claimed an amount of Rs.93 lakhs towards compensation.  There is no negligence whatsoever on the part of the treating doctor and the treating doctors had detailed discussion about the condition of the patient with her husband and other family members explained the reason for referring the patient to higher centre.  Subsequently, it is very unfortunate that the baby was born with congenital anomaly disability and there is no any negligence/wrong diagnose made by Opposite Party Nos. 3 & 4.  The complainant has not filed this complaint with bonafide intentions and has filed only to grab compensation by alleging falsely on doctors who treated her.  Hence, prayed to dismiss the complaint.

15.    The complainant has filed affidavit evidence and marked documents at Ex.C1 to C36.  The Opposite Parties have also filed their affidavit evidence and also marked documents at Ex.R1 to R4.  Advocate for Opposite Party also files expert affidavit evidence of Dr. H.T. Narayana.   Heard both parties.

16.    On perusal, the following points will arise for our consideration;

(i)       Whether the complaint deserves to be allowed?

(ii)      What order?

          17.    The findings to the above points are;

                   (i)       Negative

                   (ii)      As per final order

REASONS

18.    On going through the pleadings, affidavit evidence of both parties and documents produced by the Opposite Party, we noticed that the complainant had visited at the first instance in the month of June 2008 for the first pregnancy.  As per the scan reports and as per the medical advice, the said pregnancy was aborted.  Subsequently after four months, the complainant again conceived and visited the Opposite Party No.1 hospital on 12.12.2008 wherein she was advised for certain prescriptions and confirmed the pregnancy.  Thereafter, regular check-up was conducted by the doctors at Opposite Party No.1 hospital.  It is an admitted fact that the complainant underwent a periodical and recommended scans for through check up.  As per the scan reports which were done at Opposite Party No.1 hospital says that the baby in the womb is hale and healthy.  The doctors accordingly have advised the complainant to take nutrition and required formalities.  At the stage of 5^th scan during 30^th week and 2^nd day of the pregnancy, the doctors at Opposite Party No.1 hospital have noticed that “placenta previa had developed from grade-II (posterior and to right) to grade –III (posterior and to left) from earlier stages” and gave an opinion that there may be some complications may arise and advised the complainant to take due care and also advised that if there is any threat to the life of the complainant due to this placenta previa she should be taken to higher hospital for further treatment.  Accordingly, the Opposite Party No.1 hospital has referred the complainant to M/s Gopala Gowda Shanthaveri Memorial Hospital, Mysore for further check up and treatment.  Accordingly, the complainant rushed to the M/s GGSM hospital at Mysore.  Another obstetric ultrasound scan was conducted and the report confirmed that she was not suffering from any placenta previa and the foetus is hale and healthy.  Subsequently, at GGSM Hospital, the complainant gave birth to one male baby.

19.    After birth, the complainant alleges deficiency in service/medical negligence on the part of the Opposite Party Nos. 1 to 4 for the reason that the baby was born with congenital anomaly and alleges that doctors who have treated at Opposite Party No.1 hospital had not revealed the said fact inspite of en-number of scans conducted by them and suppressed the said fact and intentionally without any placenta previa have suggested the complainant to go to GGSM Hospital in order to avoid their negligence and claims for compensation to the tune of Rs.93 lakhs.

20.    On the other hand, on going through the scan reports and scans produced by the complainant, we noticed that the Opposite Party No.4 at Opposite Party No.1 hospital have conducted and recommended the required obstetric ultrasound scan periodically.  In each scan report, there is no mention with respect to the anomaly found in the foetus.  As per the copy of the text book produced by the Opposite Party i.e. “Textbook of Obstetrics including Perinatology and Contraception Dr.D.C.Dutta who suggested that during the course of ultra sound scan the anomalies are not going to be revealed unless it is predominant anomalies such as Hydrocephalus, spina bifida, anencephaly etc., which are incompatible with meaningful life are of grave concern.  The said obstetric ultrasound scan does not reveal the anomaly found in the limbs.  Hence, submits that there is no negligence on the part of treating the complainant during her pregnancy.

21.    We have referred an en-number of medical text books with respect to the cause of anomalies found in the foetus.  The major factor for cause of anomaly is a genetical disorder and environmental factor and such anomalies were also not traced out in the ultra sound scan.  Therefore, the scan report says that the foetus in the womb is hale and healthy.  Infact the complainant also not alleged any specific medical negligence on the part of the Opposite Party Nos.1 to 4 with respect to the treatment given by them.  She only alleges that the Opposite Party Nos. 1 to 4 have sent her to higher hospital alleging placenta previa in the complainant, but, that was not traced out in the scan done at GGSM Hospital, subsequently even scan report obtained at GGSM Hospital at the 30^th week of pregnancy, they have confirmed that there is no any placenta previa.  According to the text books furnished by the Opposite Party No.4, we noticed that the placenta previa may go up at the later stages of the pregnancy.  Accordingly, they have treated.  Anyhow, it is evident from the records that the complainant has gave birth to the hale and healthy baby having anomalies in the left forearm.  We are of the opinion that giving birth with anomaly will not amounts to a medical negligence because the said anomaly was caused only due to genetical and environmental factors.  As such we found that there is no any medical negligence on the part of the Opposite Party Nos. 1 to 4 in treating the complainant during her pregnancy.  Further, the complainant had not brought any expert evidence to show that there is medical negligence on the part of the Opposite Party Nos. 1 to 4.  In the absence of such material, the complaint fails. 

22.    As far as the Opposite Party No.5 is concerned, it is only an insurance company which Opposite Party Nos. 1 to 4 obtained to indemnify any injuries cause out of treatment and loss to the hospital.  Here we noticed that the complainant is not suffered any injury during the treatment in the hospital.  Hence, the Opposite Party No.5 is in no way liable to pay any compensation to the complainant.  Hence, the following;

ORDER

The complaint is dismissed.

 Forward free copies to both the parties. 

                 Sd/-                                                                 Sd/-              

MEMBER                                           JUDICIAL MEMBER

KCS*