NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
CONSUMER CASE NO. 221 OF 2010
 
1. ANIL DUTT & ANR.
R/O. 101 Shreyas Deep Apartment, 4 Sanghi Colony, A.B. Road
Indore
2. BABY SIMI
Through Her Mouther/Natural Guardian Ms. Anju Dutt, W/o Sh. Anil Dutt, R/O 101 Shreyas Deep Apartment, 4, Sanghi Colony, A.B.Road
Indore
...........Complainant(s)
Versus 
1. VISHESH HOSPITAL & ORS.
A.B.Road, Near Geeta Bhawan Chauraha
Indore - 452001
M.P.
2. DR. KAUSHALENDRA SONI
B Block Arvindo Hospital & Institute 503 Akansha Appartments Ujjain Road
Indore
3. DR. G.S. SALUJA
170 G- Vishnupuri Extn
Indore
4. -
-
5. -
-
...........Opp.Party(s)

BEFORE: 
 HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
 HON'BLE DR. S.M. KANTIKAR, MEMBER

For the Complainant :
Mr. Ankit Jain, Advocate
For the Opp.Party :
For Opposite Party No.1 : Mr. N.L. Ganapathi, Advocate
For Opposite Party No. 2 : Dr. M.C. Gupta, Advocate
For Opposite Party No. 3 : Mr. J.P. Malviya, Advocate

Dated : 16 May 2016
ORDER

DR. S.M. KANTIKAR, MEMBER

The Greek playwright Sophocles writes as, “It is a painful thing to look at your own trouble and know that you yourself, and no one else has made it.”

 “Don’t Shift Responsibility and Blame”  it is the situation   frequently come across that,  how some people not only refuse to accept responsibility when they’ve made a mistake, but they even shift the blame onto someone else…!!  Hippocratic Oath hastens the moral conduct of physicians, assuming the respect for all human life, even the unborn.

 

Complaint: The Facts:

1.       This is the complaint of alleged medical negligence filed by Mr. Anil Dutt and   Baby Simi through mother Mrs. Anju Dutt against the Opposite Parties, Vishesh Hospital as OP1, two other radiologists Dr. Kaushalendra Soni as OP2, and  Dr. G.S. Saluja as OP3, respectively, working at Vishesh Hospital.

2.       The facts that, Mrs. Anju Dutt, the wife of complainant No.1 (herein referred as a “patient”) was pregnant and was under consultation of Dr. Indira Vyas, a Gynaecologist. She advised for ultrasonography (USG) to ensure well-being of child, it was done on 20.01.2009 by Dr. G.S.Saluja, the OP3, and reported it as intrauterine 20 weeks and 6 days gestational age, with no abnormal findings.  The “Foetal Spine, Trunk & Limbs are Normal”. On the basis of the said report Dr. Indra Vyas continued her regular treatment and check-ups. After 3 months, i.e at 32 weeks of pregnancy, on 22.04.2009, 2nd USG was performed by OP2 Dr.Kushalendra Soni. It was reported as 32 weeks 01 day( + 2 weeks) “ Severe Oligohydramnios” and the  “Foetal Spine, Trunk & Limbs are Normal”.

3.       The allegation of complainants is that, both the doctors, OP2 and OP3 are qualified Radiologists/Sonologists, but due to casual approach, negligence and lack of care towards the patient, gave wrong reports at both occasions, which resulted into serious consequences. On the basis of 2nd USG report, Dr. Indra Vyas continued the treatment till May, 2009. Thereafter, patient went to Devas where she remained under treatment in Devas Hospital from Dr. Shakuntala Jadhav, a Gynaecologist and Obstetrician. On 18.05.2009, patient gave birth to a female baby which was found not fully developed. New-born’s left arm and kidney were missing and even lungs were not completely developed. The foetal weight was 1500 gm. only, instead of 2500 gm. Thus, it was medical incompetence and gross medical negligence. Patient approached Dr. Maheshwari, Child Specialist at Devas District Hospital, he advised to consult various experts. Also expressed that on account of wrong USG reports, no proper treatment was given for mother and child before birth, hence, the child did not develop fully.  Therefore, the doctors expressed need for surgery in future for   her neck and spine because of fused spinal cord. Child may have increased chances of paralysis. As the baby had a single kidney, there are chances of renal failure in near future. In this regard complainant produced expert opinion from Dr. R. K. Sharma, a Forensic Medicine expert.

4.       It is further alleged that, due to wrong report, the patient did not go for MTP (medical termination of pregnancy) as per law under MTP Act. It was anxiety, agony and distress to the parents. Further, the grandmother of the child, Smt. Kala Dutt suffered severe heart attack after seeing the deformity in the new-born baby. She underwent by-pass surgery, it caused expenses of Rs.2.5 lacs at Fortis Hospital, New Delhi. Presently, the grandmother is under physiotherapy, incurring regular expenses.

5.       Therefore, for alleged medical negligence, Smt. Anju Dutt/ patient lodged an FIR on 08.06.2009 at Police Station, Palasia, Indore. She also filed a Consumer Complaint on 26.11.2010 before this Commission under Section 19 of the Consumer Protection Act, 1986 against the OPs 1,2 and 3 for claiming compensation of Rs.1,50,00,000/-.

Defense:

All the OPs filed separate written versions and respective affidavit evidences. They denied any negligence during USG procedure and reporting. One Dr. Chaitanya Puranik, a Consultant Radiologist (as RW-2) filed an affidavit evidence.  

6.       Defense by Dr.Rajesh Kasliwal (for OP-1):

On behalf of Vishesh Hospital (OP-1), the Managing Director Dr. Rajesh Kasliwal (RW-1) filed a written version and affidavit evidence. OP-1 raised preliminary objections on maintainability of the complaint as a highly exaggerated compensation without any justification. He denied the negligence during USG procedure or wrong diagnosis in the instant case. Regarding ultra-sonographic diagnosis of Amelia (absence of one limb) and Unilateral renal agenesis (absence of one kidney) Dr. Rajesh Kasliwal (RW-1) sought two expert opinions, (i) the Indian Radiological and Imaging Association IRIA.  Professor Dr. Kishore Taori, Head of Department of Radio-diagnosis, Government Medical College, Nagpur                      (Ex.RW1/10) and (ii) Expert panel report from Department of Radiology MGMMC and MY Hospital, Indore (Ex RW1/5). Also filed a Final Closure report of police from Judicial Magistrate in Indore.(Ex RW1/6). Also, produced a hospital brochure (RW1/2) reflecting the medical and diagnostic facilities available. He submitted that, accredited the OP-1 hospital is accredited for Radio diagnosis course (DNB) from January 2008 to December 2013. The accreditation is given by the National Board of Examinations. (Exhibits RW1/3 and RW 1/4).

7.       Defense by Dr. G. S. Saluja (OP-3): ( w.r.t. 1st USG report)

Dr. Saluja submitted affidavit, that he is having thirty years’ experience in radiology, including sonography. He admitted that, he has performed the USG scan for the patient on 20.01.2009, as per requisition from Dr.Indira Vyas to confirm duration of Pregnancy. ( Annexure R1/ page 44). Hence, he had conducted basic/routine sonography following standard procedures with due diligence. He further submitted that, organ imaging is largely dependent upon position of foetus and to recognise absence of structure that ordinarily could be visualized with most difficulty. Routine ultrasound is the most basic form of prenatal examination and lasts only for about 10 minutes during which the position of foetus cannot be changed to view it from sides. Every qualified radiologist and gynaecologist is fully aware of the inherent limitation of such USG. During the USG performed by him, the foetus was lying on its side, with upper limbs tucked underneath, it was impossible to see that any limbs were missing nor was there any reason to assume or suspect so. The congenital anomaly suffered by the child rather very rare and extremely difficult to detect even with repeated examinations with the best expertise and modern equipment. The routine scan cannot detect such anomalies, it needs advanced targeted or anomaly scan. It should be advised by a treating doctor because; the radiologist/sonologist will not simply perform it on his own. In this context, he produced Exhibit R3/3, a medical literature (from Callen’s book). Therefore, he cannot, in any manner, be held liable for malformations and congenital defects occurred in the child. The police also closed the case registered by the complainant.

8.       Defense by Dr. Kaushalendra Soni (OP-2): ( w.r.t.  2nd  USG report)

OP-2 denied negligence, submitted that the USG was advised by Dr. Indira Vyas for the gestational age, therefore it was done for that purpose only, and collected charges for the same only. OP2 had performed an obstetric scan. Normally, targeted scan is not carried out after the 2nd trimester of pregnancy. The purpose of an obstetric scan is to ascertain the general growth pattern and gestational age of the baby. In a small proportion of cases, gross malformations may also be detected. He further submitted that, the type of examination depends upon which examination is requested by the gynaecologist concerned.

9.       OP-2 further submitted that, the scan performed before 20 weeks, if shows a serious congenital malformation, then there is an option for the mother to terminate the pregnancy as per the provisions of the MTP Act, 1971. The Act does not permit MTP after 20 weeks gestational age. In the present case, the gestational age was more than 20 weeks and hence the option of elective abortion was not available to the patient/mother. Therefore, The complainant’s allegation is wrong. The instant complainant is misconceived; it is not based on facts and is against the basic principles of medicine. In fact, the expert opinion is also supports, OP’s view that it was not negligence.

10.     Affidavit evidence of Dr.Puranik (RW-2)

Another Consultant Radiologist, Dr. Puranik (RW-2) of OP-1 hospital, submitted that, as per 2nd USG report, dated 23.4.2009, it was “32 weeks gestation with IUGR( Intra-uterine Growth Retardation)” and “severe oligohydramnios”. Thus, it indicates severe lack of amniotic fluid around the foetus and foetal abnormalities.   According to USG ,the gestational age was found to be 32 weeks 01 day (+2 weeks)  with compared to 35 weeks 0 day according to patient’s last day of the last menstrual period (LMP). The weight of the baby was assessed to be 1522 gm. Due to oligohydramnios the limbs were not visualised properly.

11.     OPs in their support, filed three expert opinions from

i) Department of Radiodiagnosis, MGM Medical College and MY Hospital, Indore. ii)          Professor Dr. Kishore Taori, Head of Department of Radio-diagnosis, Government Medical College, Nagpur and  iii) Dr. Rahul Adaval, Consultant radiologist. OPs relied upon medical literatures and texts from “Ultrasonography in Obstetrics and Gynecology” by Peter V Callen, 4th edition (Annx R2/2) and “Diagnostic Ultrasound” by Carol ( Annx R2/3). The OPs filed following medical literature and documents:-

(i)        Rumack’s Textbook of Diagnostic Ultrasound (third edition) page No.1041-42 – It states that the detection rate varies from 14-85% depending upon various factors,

(ii)       Donald School of Ultrasound in Obstetrics And Gynaecology page No.113 – The overall sensitivity (detection rate) calculated from several studies carried out during the period 1980-1991 in a total of 52,295 patients was 52.9%.

(iii)     The largest available study, called the RADIUS study, found that the detection rate before 24 weeks age was only 16.6%.

(iv)      Rumack’s Textbook of Diagnostic Ultrasound (third edition) page No.1043—Not all abnormalities can be detected and the accuracy is variable. Patients should be made aware of this fact. There is also risk of over-interpretation and of missing diagnosis.

(v)       Textbook of Ultrasound (4th edition) by Callen, Page 224—The most difficult part of ultrasound examination is to recognize the absence of a structure that ordinarily could be visualised, such as a missing portion of an extremity,

(vi)      Textbook of ultrasound (4th edition) by Callen, pages7 and 221—Lack of amniotic fluid limits proper visualization of the foetus during sonography.

Argument:

12.     Arguments on behalf of Complainant:

The learned counsel Mr. Ankit Jain, for complainant reiterated the submissions made in the complaint. The counsel brought our attention to the   opinion of forensic expert Dr. R. K. Sharma, who opined it was a gross negligence. Therefore, the complainants deserve compensation as prayed. With regard to compensation to the victim as well as her parents, the counsel relied upon the judgment of Spring Meadows Hospital Vs. Harjot Ahluwalia, case (1998) 4 SCC 39 wherein, the Hon’ble Supreme Court held that the parents of the child having hired the services of the hospital are also the consumers within the meaning of Section 2(i) (d) and (ii) and they would also be entitled to award of compensation due to negligence of the opposite parties to the complainant.

13.     Arguments on behalf of Opposite Parties:

The counsel Mr. J. P. Malviya for OP-3 denied about the casual approach during USG reporting. OP-3 followed standard USG procedures. Counsel argued on maintainability. Counsel further, stated that the complainants claimed Rs.5,00,000/- towards the treatment of the grandmother of the child, who does not come under the definition of ‘consumer’. Thus, prima facie, it is clear that complainants have no claim whatsoever, with respect to the aforesaid sum of Rs.1,13,00,000/-. It is highly exaggerated and arbitrary one. He relied upon the case Pankaja Sharma Vs. Dr. C. M. Bhagat & Ors., II (2010) CPJ 271 NC and Ratna Ghosh & Ors. Vs. Dr. P. K. Aggarwal, II (2010) CPJ 204 NC.  The commission failed to refer this complaint to the medical committee before admission, as in the Martin D’Souza’s Case I (2009)CPJ 32 SC,  in which observed by Hon’ble Supreme Court as ;

            Whenever a complaint is received against a doctor or hospital by the consumer fora (whether District, State or National) or by the Criminal Court then before issuing notice to the doctor or hospital against whom the complaint was made the Consumer Forum or Criminal Court should first refer the matter to a competent doctor or committee of doctors, specialized in the field relating to which the medical negligence is attributed, and only after that doctor or committee reports that there is a prima facie case of medical negligence should notice be then issued to the concerned doctor/hospital.

 

14.      Counsel further submitted that USG is an indirect imaging method. Detection of congenital anomalies depends upon various factors beyond control of radiologist, who merely interprets the results. The organ imaging is largely dependent upon the position of the foetus and the most difficult pathological observation is to recognize the absence of structure that ordinarily could be visualized. In the instant case,  as the organ was tucked (hidden) during the scan and the remaining observations were normal, the same was also presumed to be normal and reported, as such.

15.     The counsel further raised objections on the expert opinion given by           Dr. S. K. Sharma, that, he is not a qualified expert in radiology or sonography. It is wrongly concluded that “Dr. G.S. Saluja and Dr. K. Soni have failed to provide reasonable skill to detect congenital malformation which was their basic duty while doing sonography. It amounts to gross medical negligence as per Supreme Court judgment.” The counsel submitted that, it was not a basic duty of OP 2 & 3 “to detect congenital malformation” when the patient was not referred by a gynaecologist in that context. They performed an obstetric ultrasound and not a target scan. Thus, Dr. R.K. Sharma has given a knowingly false expert opinion to subvert the course of justice, it is in violation of the Code of medical ethics, therefore, OP reserves his right to complain to the MCI against him. Also the complainant and Dr. R.K. Sharma are liable under IPC chapter XI for giving false evidence. The counsel prayed to issue necessary directions for prosecution of the complainant in terms of section 195 of the CrPC.   The counsel put reliance upon the Hon’ble Apex Court Judgments in M/s. Senthil Scan Centre Vs. Shanthi Sridharan & Anr., III (2001) CPJ 54 (SC) and Martin F. D’Souza Vs. Mohd. Ishfaq, I (2009) CPJ 32 (SC) and prayed for dismissal of the complaint. 

Findings/Observations:

16.     It is not mandatory that, before admission of medical negligence complaint, each and every case to be referred to the medical board. Our view dovetails from  the decision in V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 CTJ 868 (SC) (CP), Hon’ble Supreme Court had  discussed elaborately about need of expert opinion with reference to  IMA vs VP Shanta (1995) 6 SCC 651 and JJ Merchant’s case (2002) 6 SCC 635 that,

34. The decision in Indian Medical Association (supra) has been further explained and reiterated in another three judge Bench decision in Dr. J. J. Merchant and others vs. Shrinath Chaturvedi reported in (2002) 6 SCC 635.

35. The three Judge Bench in Dr. J. J. Merchant (supra) accepted the position that it has to be left to the discretion of Commission “to examine experts if required in an appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. The only caution required is to follow the said procedure strictly.” [para 19, page 645 of the report] [Emphasis supplied]

36. It is, therefore, clear that the larger Bench in Dr. J. J. Merchant (supra) held that only in appropriate cases examination of expert may be made and the matter is left to the discretion of Commission. Therefore, the general direction given in para 106 in D’Souza (Supra) to have expert evidence in all cases of medical negligence is not consistent with the principle laid down by the larger bench in paragraph 19 in Dr. J. J. Merchant (supra).

37. In view of the aforesaid clear formulation of principles on the requirement of expert evidence only in complicated cases, and where in its discretion, the Consumer Fora feels it is required, the direction in paragraph 106, quoted above in D’souza (supra) for referring all cases of medical negligence to a competent doctor or committee of doctors specialized in the field is contrary to the principles laid down by larger Bench of this Court on this point. In D’souza (supra) the earlier larger Bench decision in Dr. J. J. Merchant (supra) has not been noticed.

38. Apart from being contrary to the aforesaid two judgments by larger Bench, the directions in paragraph 106 in D’souza (supra) is also contrary to the provisions of the said Act and the Rules which is the governing statute.

 

17.     Discussion on Expert Opinions:

In the instant case, four expert opinions are available ( para 12 supra). We have perused those opinions.

18.     Dr. R. K. Sharma’s opinion, (Ex.P-2) is filed in support of the complainants. The relevant text is reproduced as below; 

          On examination of above facts, the following conclusion can be safely drawn

(i)        Smt. Anju Dutt was referred for first sonography at 18-20 weeks on advice of treating gynaecologist as per current medical practice to rule out congenital malformations. It specifically looks for all parts of external body development, development of kidneys, stomach, heart, lungs, urinary bladder, etc.. It is very essential as if some congenital malformation is detected then mother can be suggested for medical termination of pregnancy as per MTP Act.

(ii)       The radiologist Dr. G. S. Saluja failed to detect any congenital malformation and specifically mentioned that foetal body and limb movements are normal.

(iii)     Even in second ultrasound, Dr. K. Soni failed to note any congenital malformation and mentioned foetal spine, trunk and limbs are normal.

My opinion

In view of the above mentioned facts, it is clear that Dr. G. S. Saluja and Dr. K. Soni have failed to provide reasonable skill to detect congenital malformation which was their basic duty while doing sonography. It amounts to gross medical negligence as per Supreme Court judgment.

19.     Opinion of Dr. Kishore Taori, Head of Department of Radio-diagnosis, Government Medical College, Nagpur (Ex.RW 1/10):-

 As per his opinion the opposite party at both times performed routine obstetric USG. The routine obstetric USG is a basic growth scan which is done to assess the growth of the fetus, gestational age.  The radiologist will also report any patent congenital anomaly like anencephaly (i.e. absence of head) without any intensive effort to discover fetal abnormalities.  Whereas an anomaly scan is a targeted scan done specifically to discover fetal abnormalities, on the specific advice of referring doctor.

According to Dr. Taori,

the comment of “Fetal spine, trunk and Limbs are normal” in both the reports seems to be more of a routine reports programmed into the computer. However such assertions of normalcy of the said structures are not correct to state in the routine scan.

The act appears to me as act of “omission” than “commission” and cannot constitute as “negligence” by any stretch of imagination.

20.     Dr. Taori’s comments on Dr.S.K.Sharma’s Forensic Expert Report that;

“Dr. R.K.Sharma who is a Forensic Expert, has overstepped in expression regarding ultra sound science as he is not qualified and acquainted with the technology of ultrasound.  The expert finally opined that both the First Report and the Second Report have been given after following the procedure which is usually followed for a Routine/Growth obstetric USG.  The gestational age has been correctly assessed based on the biparietal diameter (BPD), femur length (FL), and abdominal circumference (AC).  Both the Reports would be acceptable to any qualified and experienced Radiologist as he would know the norms and limitations of a Routine obstetric scan.  Limitations in imaging modalities cannot be considered as negligence or carelessness on the part of Vishesh Hospital or the Radiologists involved.

Thus, according to Dr. Taori, any amount of detailed study by ultrasonography, may miss the congenital anomaly at the expert hands and cannot amount to negligence with availability of even ultra-modern equipment.

21.     The joint opinion given by a committee of three experts from the Department of Radio diagnosis, MGM Medical College and MY Hospital, Indore dated 22.04.10 (Ex.RW1/5) is;

 the ultrasound examination carried out by the OP 2 and 3 showed two abnormalities, namely, severe oligohydramnios and IUGR (Intra-uterine growth retardation). It mentions “That sonography is a tomographic technique and the best sonographic plane is always desirable. But however, sonologists cannot control maternal body habitus, time of examination, amount of liquor of foetal position which may dramatically alter the ability to diagnose foetal anomaly. It is not always possible to detect all congenital abnormalities”.

The  committee put reliance upon Callen’s book and opined that it is not always possible to detect all congenital anomalies. The routine ultrasound examination which can detect anomalies of structures like fetal head, heart, abdomen, skeletal dysplasias, polyhydramnios or oligohydramnios, placenta previa or abruption placenta.  The incidence of Amelia is 0.15/10000 live births (British study). The incidence of congenital anomalies of the kidneys and ureter is 1 in 1200 and the incidence of MCDK is 1 in 3600. Severe oligohydramnios results in compression of foetus marked crowding of fetal parts and poor definition of foetal interfaces. Therefore, congenial anomaly of the urinary tract may be difficult to diagnose during first and early second trimester.

22.     A Consultant Radiologist Dr. Rahul Adaval, (Ex.R/1) gave his expert opinion in favour of OP-2.  Its summary is reproduced below”

“SUMMARY-

 The USG dated 22.04.2009 was a third trimester USG which is not meant for detecting congenital anomalies. No. MTP can be done at this stage even if anomalies are detected. The purpose of a third trimester USG is to help in obstetric management of the case. The USG showed gross oligohydramnios. The proper management in such case in the hands of the treating doctor includes repeated scans once or twice a week. This was not done. The procedure and technique of doing the sonography is correct in this case. The sonographic findings have been correctly reported within the inherent limitations described above. There is no evidence of any negligence on the part of ultrasonologist.”

23.     After going through the evidence of OPs and the three expert opinions on behalf of OPs, we are rather surprised that, all three have categorically opined that, it was a routine obstetric scan. The obstetric USG is not fool-proof in detection of foetal malformations. The sensitivity of obstetric USG is dependent on various factors like:

(i) The quality of equipment used for the examination by the Radiologist.

(ii) The type of congenital anomaly and the prevalence of such anomaly. A higher prevalence congenital anomaly is detected more easily than one which is rarer.

(iii) Gestational age, i.e., the age of the foetus.

(iv) Position of foetus. This is critical. If the foetus is lying on one side, the Radiologist can record impressions only of that side which is visible. It is not possible to change the position of the foetus in order to image the hidden part.

(v)  Maternal body habitus.

(vi)  Amount of amniotic fluid.

(vii) The time spent for the Ultrasound examination.

 

24.     It appears that, the doctors are often reluctant to testify against their colleagues (as the "conspiracy of silence"), hence it is difficult to find an unbiased expert willing to testify against a negligent doctor or label the care as substandard. The opinion of Dr. R. K. Sharma, who is a Forensic Expert is acceptable.  We are not more convinced with the three expert opinions on behalf of OPs, because it is silent about procedural lapses of OP 2 and 3 who issued reports casually as limbs are normal. It means either OPs had not seen it or it was wrongly diagnosed.  Experts relied upon Routine OBG Scan Vs Targeted Scan, but silent about the ethical obligations of Sonologist.  We would like to quote few examples, if a pathologist while doing differential WBC count from the peripheral blood smear, and if he microscopically finds malarial parasite or any abnormality; he is ethically bound to reveal it to the referring physician even if it was not asked for. Pathologist should not conceal the crucial finding for the want of charges.     

25.     Furthermore, we have perused the two requisition/prescriptions slips given by Dr. Indira Vyas, a Gynaecologist which was issued to Smt. Anju Dutt to undergo USG. The 1st prescription (undated) is “for an obstetric USG to confirm duration of pregnancy”, whereas   the 2nd prescription dated 22.04.2009, is for “Obst-USG”. Therefore, in pursuant of it, the OP 2 and 3 performed routine Obstetric USG.

26.     We have gone through the text book “Ultrasonography in Obstetrics and Gynecology, by Peter Callen and got the following information;

  • The patient and the referring obstetrician should be made aware that during the standard ultrasound examination, although many abnormalities may be detected fortuitously, more subtle lesions are likely to be detected only when the foetus is known to be risk for a specific malformation.Anatomic malformations are likely to grow during pregnancy just as the foetus does; a defect seen at birth may have been too small to be detected earlier in pregnancy.Finally, it is important for sonologists to know the limits of their expertise.  If a malformation is suspected, and the examiner has had little experience with the abnormality in question, the case should be referred to a more experienced examiner. Only in this way all patients be served best.

  • Fetal position is extremely important.The posterior elements of the fetal spine may be clearly imaged with the foetus in a prone or decubitus position but are difficult to image when the foetus is supine.Similarly, the extremities are imaged to excellent advantage when floating freely in the amniotic fluid.  The same extremity tucked under the foetus will be quite difficult to image.

  • Despite these potential problems, foetal skeletal structures remain the earliest and most readily recognised.       CITI0000003

27.     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, we are unable to clap any significance with such frivolous submissions. 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, OP 2 and 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.

28.     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 is not established.   The prenatal diagnosis and the management of limb abnormalities involve a multidisciplinary 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.

29.          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, confirm duration 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-3 was 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)

 

30.     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, then how both opined in their reports as  “Foetal Spine, Trunk & Limbs are Normal”.   Thus, it proves the negligent and casual approach of OP 2 and 3 while performing USG. It was a deliration of duty of care. 

31.     Hon’ble Supreme Court and this Commission in several judgments held the hospitals liable vicariously. 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 protocols etc. 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.

32.     The principle of Res-ipsa-loqiutor is squarely applicable in this case.   The case of V. Krishna Rao (Supra), Supreme Court observed that, where negligence is evident the principle of Res-ipsa-loqiutor operates and the complainant does not have to prove anything, as the things (rest) prove itself, and in a case where this principle operates, 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.

33.     The act of OPs, was it a medical negligence or deficiency in service?

As per Bolam’s Test (1957) 1 WLR 582), in the instant case, the OP 2 and 3 failed to exercise the reasonable degree of  care and skill during performing USG. To succeed Medical negligence claim the patient/complainant has to prove three elements, whereby a duty of doctor’s care is owed to a patient and as a consequence of a breach of that duty, the patient suffers injury.

As long ago as 1838 Chief Justice Tindal articulated the principle that survives to this day:

Every person who enters into a learned profession undertakes to bring to the exercise of it a reasonable degree of care and skill. He does not undertake, if he is an attorney, that at all events you shall gain your cause, nor does a surgeon undertake that he will perform a cure; nor does he undertake to use the highest possible degree of skill. There may be persons who have higher education and greater advantages than he has, but he undertakes to bring a fair, reasonable, and competent degree of skill.

          A similarly Lord Chief Justice Hewart who once stated that:

If a person holds himself out as possessing special skill and knowledge .... [he undertakes] to use diligence, care, knowledge, skill and caution in administering the treatment   .The law  requires a fair  and reasonable  standard  of care and competence.

34.       This case is very peculiar one. The deficiency in service/ breach in duty is proved against OP 2 and 3, but the anomaly was not due to the breach of duty. There is no causa causans, because the anomaly was pre-existing.  The USG was performed at 21 weeks of gestation; it is unfortunate that, even if it was diagnosed, there was no treatment or any cure except the termination of pregnancy (MTP). But,   MTP Act 1971 prohibits, MTP at 21st week of pregnancy. Hence, the patient has to continue the pregnancy till its delivery.  The complainant has not impleaded Dr.Indira Vyas as a necessary party, also not produced any report to show that,  any USG was performed before 20 weeks was wrong.  

35.       According to Jacob Mathews case (Supra) this could be termed as breach of duty due to negligent act. Keeping in view and the circumstances, it amounts to medical negligence, hence due to carelessness and deficiency in service. Both OP2 and 3 failed to discharge their duty with care and caution. Without careful examination, they have reported “Foetal Spine, Trunk & Limbs are Normal”.  It’s an unethical and casual approach on both the occasions. It was a short cut and unscientific approach. It gave false hope to the mother and family members that, “all is well” , everything was right with her child. The parents’ hopes and dreams  are so shattered, when they found the anomalous baby delivered, which will have serious impact on the mother and the child all along, till they are alive.  

36.     Unethical Practice:

Hippocratic Oath hastens the moral conduct of physicians, assuming the respect for all human life, even the unborn. Medical profession is one of the oldest professions of the world and is the most humanitarian one. Inherent in the concept of any profession is a code of conduct, containing the basic ethics that underline the moral values that govern professional practice and is aimed at upholding its dignity.

The OPs stated that,  General Obstetric scan can be done within 5-10 minutes and costs about Rs. 600/- whereas  Focussed or target scan     needs a special higher end sonography machine and also special expertise on the part of the examiner, takes 1-2 hours or may need two or more sittings and also  costs  much higher, about Rs. 2000/-. The OP-1 produced hospital brochure and information about hi tech facilities available there. Despite such facilities the OPs were careless. It clearly establishes the commercial motive of the OPS rather than ethical practice. It is well settled that, during Genreal Obstetric Scan, the doctor will look for and take foetal measurements (para 30 supra). Therefore, how can one miss the limbs?

Compensation:

 

37.     Number of factors needed to be considered while awarding compensation.  It is true that, for all parents and grandparents, birth of a child is a joy, a wonder and a renewal of hope.  But, one of the most devastating, life-changing events for parents is finding out their child suffered anomalies like loss of whole hand and single kidney.  Parents often go through stages of grief, caring for a such child negatively impact the physical and mental health of parents and caregivers. Many parents experience significant depression, fear and anxiety, which may have a devastating effect on the whole family. These feelings are often suppressed due to embarrassment, shame or guilt.  Many families suffer a financial burden when they have a child who has a birth defect due to a variety of factors. The child needs artificial limb and regular physical, occupational therapy, this can create debilitating financial strain which can stigmatize the child who has a birth defect.  Many parents live with a sense of isolation, particularly, if their birth defect child is rare and there is little support. This can cause significant anxiety in social settings and even lead distressed parents to further isolate themselves. 

38.     In fact, Loss of dependency by its very nature is awarded for prospective or future loss. In this context, Lord Atkinson aptly observed in Taff Vale Rly. Co. v. Jenkins MANU/AG/0452/1912 as follows:

In case of the death of an infant, there may have been no actual pecuniary benefit derived by its parents during the child's lifetime. But this will not necessarily bar the parents' claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived

 

In Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr  case (1998) 4 SCC 39, Hon’ble Lordships observed as follows:

" Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."

 

39.     Therefore, on the basis of forgoing discussion, complaint is partly allowed, with   the direction to OPs (1,2 and 3) to pay a sum of Rs.15,00,000/-  jointly and severally to the complainants. It is further directed that, the OPs shall deposit entire amount in a fixed deposit, in any nationalised bank, in the name of the child and the regular periodic interest accrued on it, be paid to the mother, till the baby attains 21 years. The order shall be complied with within 6 weeks, from the date of receipt of this order, otherwise, it will carry interest @ 12% per annum, from today (the date of pronouncement), till realisation. There shall be no order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge.

 
......................J
J.M. MALIK
PRESIDING MEMBER
......................
DR. S.M. KANTIKAR
MEMBER