State Consumer Disputes Redressal Commission
Navya Yogeshbhai Kotak vs Dr. Pritesh Pandya on 15 February, 2023
Details DD MM YYYY
Date of Judgment 15 02 2023
Date of Filing 08 01 2014
Duration 7 1 9
IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT NO. 5
CONSUMER COMPLAINT NO. 18 OF 2014
COMPLAINANT/S: YASH YOGESHBHAI KOTAK (Minor)
(Represented by father and natural guardian Yogeshbhai Tribhovandas Kotak)
101, Samruddhi Bhavan, 4th Floor,
Gondal Road, Rajkot.
VS
OPPOSITE PARTY: Dr. PRITESH PANDYA
Kalrav Children Hospital,
2nd Floor, Sapphire, Opp. KKV Hall,
150 ft Ring Road, Rajkot.
With
CONSUMER COMPLAINT NO. 19 OF 2014
COMPLAINANT/S: NAVYA YOGESHBHAI KOTAK (Minor)
(Represented by father and natural guardian Yogeshbhai Tribhovandas Kotak)
101, Samruddhi Bhavan, 4th Floor,
Gondal Road, Rajkot.
VS
OPPOSITE PARTY: Dr. PRITESH PANDYA
Kalrav Children Hospital,
2nd Floor, Sapphire, Opp. KKV Hall,
150 ft Ring Road, Rajkot.
RNM CC18&192014 Page 1 of 17
CORUM: Mr. R N Mehta, Presiding Member
Appearance: For Complainants: Mr. R V Sakaria Advocate
For Opposite Party: Mr. Ashok O Chudgar Advocate.
(By Mr. R N Mehta, Presiding Member)
[1]. Both these complaints have been presented by one Mr. Yogeshbhai Kotak in his capacity as father and natural guardian of his minor children who have suffered permanent disability due to alleged medical negligence on the part of the opponent doctor and therefore claimed compensation in each case Rs. 9250000/- together with interest and also the cost of litigation which is quantified at Rs. 25000/-. Since the opponent is common in both these complaints and cause of action is also identical and therefore both complaints have been adjudicated by this common order.
[2]. It is the case that Yash and Navya (twins) born on 8th January 2013 as premature babies at 30th week of pregnancy to Binaben Yogesh Kotak. Immediately after their birth, both these children were kept in incubator / warmer (NICU) at opponent doctor's clinic. They were discharged on 22nd January 2013 from the hospital. It is alleged that during inpatient treatment of new born children, the opponent doctor did not called expert (Neuro- Surgeon or Eye Specialist) to assess the condition of new born. It is alleged that in case of premature baby it is mandatory to have consultation of these experts to avoid the risk of ROP (Retinopathy of Prematurity). It is also further alleged that even post discharge also the children were taken to opponent doctor for follow up treatment and despite making complaint for eye problem in new born, the doctor falsely assured that everything is ok and there will not be any problem. When parents suspected some vision impairment, Dr. Chetan Hindocha was consulted on 3rd June 2013. The said doctor advised to consult Dr. Alay Banker at Ahmedabad. Both children were taken to Dr. Banker on 5/6/2013 and Dr. Manoj Bhatt of Rajkot on next day where both these doctors opined to consult Dr. Pramod Bhende. When the said doctor was consulted at Sankara Netralaya, he confirmed that both the children have developed Retinopathy of Prematurity but also opined not to intervene at that stage due to avoid risk of anesthesia. He then advised to review it at pediatric ophthalmic clinic for visual rehabilitation. Dr. Madumita Kaul also was consulted on 25/7/2013 who reported as under:
"Delay in mental areas more than motor area with poor visual cognizance: Poor reaching and inconsistent auditory cognizance."
It is alleged that had Dr. Pritesh Pandya been vigilant in providing PaO2, during incubation /warmer period, this would not have occurred. It is alleged that Dr. Pandya remained indifferent towards the complication of vital organ especially when it was within his knowledge. According to complainant, main cause of ROP is excess supply of RNM CC18&192014 Page 2 of 17 PaO2 which could have been managed by due care. It is stated that more than Rs. 300000/- have been spent towards consultation, operation, room charges, investigations charges, cost of medicines and also expenses of travelling at different locations. It is alleged that due to insufficient care minor children have suffered and also have to suffer in future as it is permanent disability and irreparable loss to children. The complainant has claimed Rs. 150000/- for medical treatment to each child, Rs.100000/- towards pain shock and suffering to each child and Rs. 9000000/- for loss of eye vision to each child. In support of the loss claimed, the complainant has placed on record literature for Retinopathy of Prematurity, case papers of Kalarav Hospital provided by opponent doctor, case summary of Dr. Manoj Bhatt, Dr. Chetan Hindocha, Dr. Alay Banker, Sankara Netralaya, Copies of pathological reports and also summary report of Dr. Madhumita Kaul.
[3]. When notice issued from this Commission, Dr. Pritesh Pandya appeared through Advocate and filed written statements in both complaints. It is contended therein that there was no deficiency in service as alleged, there was no breach of any duty as doctor and patient was treated with fair and reasonable standard of competence which is expected of a competent doctor of his class in diagnosing and treating patient. There was no omission on his part. The opponent passed his MBBS in 1999 and also had undergone and completed Diploma Course in Child health in 2002. He has been awarded Gold Medal in M B D pediatrician because of his vide experience in the field. It is stated that Mrs. Beenaben had delivered prematurely (30 week) twins on 8/1/2013 having average weight about 1.5 kg and since they had respiratory distress both these children were kept in the hospital in warmer strictly as per medical science. It is contended that it is not mandatory to invite experts of vital organ during initial period of 14 days as it alleged by the complainant. According to him, first retinal examination should be done after 3 to 4 weeks from the date of birth and he had advised for the same on 14th day, when discharge was given. It is denied that complainant had reminded at any point of time for eye problem as it canvassed. It is falsely canvassed that opponent informed them that there will not be any problem. It is stated that PaO2 is partial pressure of oxygen in arterial blood and he had supplemented oxygen with continuous monitoring of SPO2 by pulse oxymeter to prevent hypoxia which could have been fetal for children. He stated that this line of treatment is gold standard and widely accepted method of treatment. He denied that excess supply of PaO2 is the main cause of ROP. He denies that complainant had incurred expenses as claimed in the complaint. He has denied any of charges of negligence during treatment at his hospital and also for post discharge treatment and also denied liability to pay any compensation for so called negligence. He states that he had received notices from lawyer of complainants and replies thereof were given too. In short he claims no liability on his part and seeks dismissal of complaints. He has filed affidavit in support of his statement and also produced on record copies of papers pertaining to treatment rendered at his clinic, notices of complainants and its replies.
RNM CC18&192014 Page 3 of 17[4]. The complainants have filed rejoinder affidavits and categorically denied to have advised by opponent doctor for consulting ophthalmologist for screening of ROP as it claimed by the opponent doctor and also denied that he treated new born babies as per standard medical practice. It is averred that after filing of complaints, minor children were produced before competent medical authority under the control and management of Department of Empowerment with Disabilities, Ministry of Social Justice where assessment of visual disabilities were examined and certified on 19/11/2018 that children had 60 % disability. The copy of certificate is produced on record. Subsequently, the opponent doctor produced typed copy of treatment papers but objection was raised by the complainant side and submitted that the said treatment papers were never shared to complainants at any point of time. The complainant also reiterated through additional affidavit that the opponent never advised for ROP within 2 weeks after discharge or an opinion from Neuro-physician for development of children. On another hand doctor has also denied to have manipulated treatment papers. On 24/2/2021, the advocate for the complainant filed pursis to the effect that they do not want to lead further evidence and submitted written synopsis. The opponent filed evidence closing pursis on 12/3/2021 and filed written synopsis and medical literature in support of his case. The matter was adjourned frequently thereafter on one or another ground. All of a sudden, on 9/11/2022 from complainants side moved an application for cross examination of the opponent doctor. The doctor filed detail reply and objected for cross examination on the ground that both parties have already filed written synopsis and also submitted closing pursis for evidence. However, this Commission than ordered complainants to provide interrogatories and also further ordered to opponents to file reply of interrogatory questions on oath. The advocate for the complainant submitted interrogatories and doctor has replied the same on oath.
[5]. Following important statements made by opponent doctor in reply to interrogatories.
[a]. He is practicing as Neonatologist & Pediatrician since 20 years.
[b]. Children of Yogeshbhai (Yash & Navya) were admitted as indoor patient at his hospital as premature babies having low birth weight.
[c]. Papers produced by him are treatment papers whereas copies produced by complainant are mere information given to parents when treatment was going on but it cannot be termed as treatment papers.
[d]. He denies to have prepared papers subsequently.
[e]. He admits that he has never invited any child ophthalmologist to examine children in his hospital.
RNM CC18&192014 Page 4 of 17[f]. He admits that he has not supplied case papers pertaining to monitoring of oxygen therapy at the time of discharge.
[g]. He denies to have not appraised the parent of children about the risk of ROP in case of premature born baby.
[h]. He denies any negligence on his part since he has advised to consult for ROP.
From the record it is not in disputes that twin children (Yash & Navya) of Yogeshbhai were born prematurely on 8/1/2013 and since they had respiratory distress, kept at opponent's hospital till 22/1/2013. It is admitted position that up to discharge from the hospital, there was no screening of baby for ROP. Certificate placed on record suggests that both children have vision problem in both eyes.
[6]. Mr. Sakaria for complainants submitted that both these complaints have been made in the name of his children and he is representing as father and natural guardian of both the complainants. He also submitted that immediately after birth of twins, they were hospitalized at opponent doctor. He alleges that opponent doctor did not take proper care and not advised him for necessity of screening for ROP as they born prematurely. Because of this inaction /omission on his part it led to blindness to both these children and competent authority has certified 60 % disability for the same. It is also submitted that in the case papers supplied to complainant there is no mention that he had advised for consultation with eye surgeon or ophthalmic specialist for screening which is mandatory in case of premature babies. He submitted that the doctor was well within the knowledge that both children are low birth weight babies and screening of premature baby is must as per accepted medical practice. He submitted that standard procedure suggests that screening by ophthalmologist is mandatory in premature baby having low birth weight. According to him the doctor did not referred him to any specialist though follow up treatment was continued with the doctor. He submits that delayed screening had caused permanent damage to the eyes of both children. He then came to know from Dr. Manoj Bhatt, Dr. Chetan Hindocha and was compelled to consult Sankara Netralaya at Chennai. The reports and other details of treatment at Chennai etc placed on record. Thereafter Neurologist Dr. Madhumita kaul confirmed that after 5 year there would not be any possibility for improvement further. This means, child has to suffer blindness for the life now. He has submitted that he had to incur expenses of about Rs.300000/- for each child and though would not be able see normally. He submits that since child will have to suffer during whole life for which an amount of Rs. 9000000/- is quite reasonable amount of compensation which is require to be awarded in each case.
[7]. Mr. Chudgar from the opponent submits that date of birth, date of hospitalization and date of discharge are not subject matter of dispute. Therefore, it is not in dispute that both the children were hospitalized for about 14 days at opponent hospital. The medical RNM CC18&192014 Page 5 of 17 literature produced on record suggests that real effect of ROP can only be seen after three to four weeks and therefore it was not necessary for the opponent doctor to call any eye specialist at his hospital for screening. It is not in dispute that both the children had respiratory distress when brought to hospital and therefore priority should be given to human's life and which doctor did without fail. He also further submits that at the time of discharge relatives were informed about pros and cons of prematurity which includes risks of ROP. In this case, relatives were advised to consult eye specialist just to rule out probabilities of ROP. In medical science, even in case of premature baby retinopathy may / may not develop in all cases and therefore advice to relative can be said sufficient discharge of duty. The complainant has not placed on record any document to show that the treatment rendered by the opponent doctor was faulty or not up to the standard. There is no expert evidence in this regard and therefore this Court cannot act as an expert to discard the treatment given by the doctor. He submits that when the opponent doctor was served with legal notice from the complainants, the doctor replied that it is routine practice to inform, while discharging the patient, to take ophthalmic surgeon opinion for ROP and in the present case such practice was followed. Now this statement has not been dealt with when complaint was filed. But, at later point of time, in rejoinder the same has been denied. This can be said an afterthought. The treatment papers were placed on record 5/9/2014 whereas dispute with regard to these papers arisen for the first time only on 7/11/2020 when rejoinder affidavit was filed. The complainant did nothing to prove on record that case papers have been manipulated and hence the same cannot be discarded so lightly. The complainant has alleged that opponent has not taken care in administering PaO2 when put in warmer. To disprove the line of treatment regarding saturation of O2 in blood, the complainants have led no evidence either of an expert or in the form of medical literature. The treatment papers given to complainant were part of OPD treatment and just for information few details were given but it cannot be treated as indoor hospitalization record. He submits that the certificate suggests that Right eye had corneal opacity which could not have been in case of ROP. The examiner has not given clinical finding for loss of vision and though certificate has been issued. There is no mention in the certificate that ROP in which stage. Thus the certificate cannot be relied upon while determining disability and for awarding compensation on that basis. Complainant has not placed on record any proof of expenditure incurred and though claimed Rs.300000/- which is highly exorbitant. He has relied upon extract of medical literature taken from text book titled "Care of the new born" by Meharbansingh. He thus submitted that there was no negligence on the part of doctor and prayed for dismissal of complaint.
[8]. On the basis of aforesaid submissions and record, following issues arises for adjudication.
(a). Can a doctor be said guilty of negligence in these cases for not arranging screening of babies for ROP during hospitalization?
RNM CC18&192014 Page 6 of 17(b). Can doctor be said guilty of negligence if screening of ROP not arranged within prescribed period especially when patient continued consultation even after discharge from hospital?
(c) Whether doctor still can be held guilty of negligence if he had advised for ROP and not followed by patient / relatives?
[9]. All these questions can be answered properly only if risks attached to premature babies are understood correctly. To understand ROP in common parlance, it is a problem that affects the tissue at the back of the eye called the retina. The retina senses light and sends signals to the brain and as a result one can see. In case of ROP, unwanted blood vessels grow on the baby's retina. These blood vessels can cause serious eye and vision problems later. In the article "Programme, planning and screening strategy in retinopathy of prematurity" published in India Journal of Ophthalmology (2003-Vol. 51 Page 89) ROP screening program and facts are shown. Its relevant text is reproduced as under:
"Why should we screen for ROP? There are several compelling reasons to have a screening program for ROP. Firstly, the premature child is not born with ROP and retinal disease is not present at birth. Each such child has a potential for normal vision, even if the retina is immature at birth. Screening aims to identify those infants who have reached or have the potential to reach threshold ROP, which if untreated may cause blindness or visual impairment. This has medico legal implications. There are indefensible legal repercussions should an infant develop ROP and retinal detachment, but had not received eye examination. Secondly, the grief and the personal tragedy for the family are tremendous, besides the economic burden of such childhood blindness. Early recognition of ROP by screening provides an opportunity for effective treatment.
Whom Should we screen? The aim of screening premature babies for ROP is to detect all treatable neonates, with minimum expenses of time and resources. This also aims at not screening those babies who are unlikely to get a severe form of ROP. The criteria for screening babies are based on two critical factors - the birth weight and the gestational age. Other additional factors contributing to the development of ROP are also taken into consideration.
Although much has been written about the association of oxygen use and ROP, it has been found that oxygen is not the cause of ROP. On the contrary, low levels of oxygen and slow weaning from oxygen may help regression of early stages of ROP. Oxygen levels must be well monitored to ensure optimum oxygen saturation of blood since hypoxia is a factor in increasing abnormal retinal neovascularisation.
When should screening begin? A premature infant is not born with ROP. The retina is immature, but this is perfectly natural for their age. It is the post natal developments in the retinal vessels that could lead to ROP. The sequence of events leading to ROP usually takes about 4-5 weeks except in a small subset of premature infants who develops Rush disease in 2-3 weeks. Therefore routine screening should begin at no later than four weeks after the birth and possibly even earlier for infants at higher risk. We strongly recommend that one session of retinal screening be carried out before day of 30 of the life of any premature baby"
Even as per standard medical practice, detailed physical examination of new born baby should be conducted by the doctor firstly soon after the birth, secondly after 24 hours of RNM CC18&192014 Page 7 of 17 age and lastly before discharge from the hospital and it is mandatory in all cases. But if patient is having any medical illness, doctor is supposed to examine periodically as per need of time. When baby is examined soon after birth, detailed gestational assessment requires evaluation of physical features as well as neurological maturity. A baby has less than 37 weeks gestation period, it is considered as Pre-term baby. If baby has birth weight less than 1.8 kg should be transferred to newborn unit for appropriate care but if weight is less than 1.5 kg requires intensive care. In the instant case it is not in dispute that babies born were Pre-term babies and had less than 1.8 kg weight. It is also not in disputes that opponent doctor has taken care and transferred them into warmer. According to doctor both children had respiratory distress and therefore special care was necessary. It is not in dispute that there was no untoward incident during hospitalization of both babies and therefore when doctor found them stable, offered discharge from the hospital. When the discharge was given, it was 14th day of hospitalization and birth. As per medical literature produced on record from both side confirms that prematurity is one of the most common causes of blindness by an initial constriction and then rapid growth of blood vessels in the retina. Retinopathy of Prematurity is an eye disease in premature babies before 31 weeks. It is also well recognized in medical field that ROP may go away on its own as an infant grows but as the infant grows, baby should be seen by an ophthalmologist regularly because in some case, urgent treatment is needed to prevent blindness. Thus, if not treated in time, the child can have severe permanent vision loss, or even go to blind.
[10]. There are enough medical literatures available which recognizes that blood vessels in the eyes normally finish developing a few weeks before birth. An infant who is born early is exposed to many different things. Medicine, oxygen, bright lights or temperature changes might affect how an eye's blood vessels develop. Premature infants are also more likely to get ROP if they have other health problems. These problems include anemia, not enough vitamin E or breathing problems. It is in these circumstances, medical science suggests that all premature babies should be checked for retinopathy of prematurity. An ophthalmologist can see infant's eye while they are in hospital. It is also true that ROP might not be visible after several weeks immediately after birth. Therefore, premature babies are at risk as to uncertainty for ROP. In the instant case, it is admitted position that both the babies born prematurely and having less weight. Therefore it was necessary rather mandatory for the pediatrician to advice or to arrange for ROP screening. The Hon'ble Supreme Court had an occasion to adjudicate matter pertaining to ROP (V Krishnakumar vs State of Tamilnadu & ors. 2015-3-CPJ-15 (SC)) wherein report of Medical Board of AIIMS was reproduced as under:
"A premature infant is not born with Retinopathy of Prematurity (ROP), the retina though immature is normal for this age. The ROP usually starts developing 2-4 weeks after birth when it is mandatory to do the first screening of the child. The current guidelines are to examine and screen the babies with birth weight <1500 g and <32 weeks gestational age, starting as 31 weeks RNM CC18&192014 Page 8 of 17 post conceptional age (PAC) or 4 weeks after birth whichever is later. Around a decade ago the guidelines is general were the same and the premature babies were first examined at 31-33 weeks post conceptional age or 2-6 weeks after birth.
There is a general agreement on these above guidelines on a national and international level..... However, in spite of ongoing interest world over in screening and management of ROP and advancing knowledge, it may not be possible to exactly predict which premature baby will develop ROP and to what extent and why"
If these observations are kept in mind, in the instant case, weight of baby and gestation age suggests that at the time of birth both babies were premature. Under the circumstances, it is obligatory on the part of doctor, who undertakes to treat premature baby with low birth weight, especially when there is no certainty as to when ROP develops exactly, he must recommends for screening or eye examination. It is necessary for the doctor to keep constant watch on the development taking place in the eyes of infant child. As per accepted medical practice, first examination can be done within 2-4 weeks but not later by four weeks in any case. In the instant case, the children were given discharge in stable condition on 14th day of birth. Therefore, doctor cannot be held guilty of not arranging first examination within 14 days of hospitalization.
[11]. Since issues (b) & (c) are regarding post discharge treatment, it can be adjudicated with common evidence on record and therefore decided together. It is case of the complainant that even after discharge from the hospital, babies were presented before the opponent doctor for follow up treatment and this fact is not denied by the opponent. What is denied by the opponent is parents reminded him about some problem in eyes of children. It is noteworthy that legal notice was served upon to the opponent doctor by complainant prior to filing of complaint and reply thereof is also produced on record by the opponent himself. The paragraph 5 of reply reads as under:
"5. A. with reference to para 3 of the notice, I have to state that it is not true to say that your client reminded about some problem in the eyes of his children and all the times my client replied that there was absolutely no problem in the eyes any way. In fact, there was no problem found during routine check-up. Alleged problem cannot be traced during routine check-up. It is routine practice to inform, while discharging the patient, to take ophthalmic surgeon opinion for ROP; in the present case such practice was followed.
B. No alleged problem could be traced at the time of discharge or during check-up period."
From the above reply it is rather admitted fact that the babies were presented for routine check-up before the opponent doctor. It is also established from the above reply that the opponent doctor was aware of probabilities of ROP but according to him there was no such development observed during follow up treatment. The treatment papers produced by the complainant shows that follow up consultations were done on 25/1/2013, 28/1/2013, 4/2/2013, 11/2/2013, 18/2/2013, 23/2/2013, 1/3/2013, 29/3/2013, 29/3/2013, 29/4/2013, 29/5/2013, 28/6/2013. The case paper mentions that weight have been RNM CC18&192014 Page 9 of 17 measured on all these days. These un-disputable documents prove that both babies were under continuous treatment for about five months. The complainant had placed on record a consultation paper of Dr. Manoj Bhatt dated 3/6/2013 wherein Dr. Bhatt had suspected that both children have stage five ROP in right eyes and stage four ROP in left eyes and therefore he advised to consult Dr. Bhende. On 3/6/2013, Dr. Chetan Hindocha also had examined Yash which makes it clear that parents were serious about eye problem. On 10/6/2013 babies were presented before Dr. Bhende and his report shows retinopathy of prematurity retrolental fibroplasias in both eyes and regressed ROP. Dr. Madhumita Kaul gave her report (Dt.25/7/2013) after examining patient where in it is mentioned that delay in mental areas more than motor areas with poor visual cognizance. Therefore it can be said that all these doctors have made assessment shortly after the treatment rendered by the opponent doctor and they found problems in eyes. It is also to be noted that last visit to opponent doctor is dated 28/6/2013 and on that day only weight is mentioned i.e. 7.00kg. This shows even on that day he did not find probabilities of ROP when all other doctors have seen it. Thus, if the opponent had been vigilant, he would have certainly noticed the visual problems in both premature babies.
[12]. It is submitted by the opponent doctor that it is usual practice to inform relatives while discharging patient, to take ophthalmic surgeon opinion for ROP and the said practice has been followed in this case also. In support thereof the doctor relies upon indoor hospitalization record produced by him. The complainant has submitted these papers are manipulated. Without going into much detail about the genuineness of these treatment papers, in this set of case papers there is no detail with regard to post discharge follow up treatment rendered to patient. The case record submitted by the complainant bears stamp of date of consultation and also weight recorded by the staff. In none of these papers, it is stated that the doctor has asked/advised for eye examination. Presuming for the sake of argument, that four weeks considered as appropriate time for eye examination for ROP, then also patients were brought to doctor even after completion of four weeks but there is no such advice. If the opponent doctor was really serious about probabilities of ROP at the time of discharge from the hospital, obviously he would have ask and certainly insisted for the same. When patients were under his care even during follow up treatment, he could have arranged at his clinic for examination of eyes of babies which is not done in this case. It is understood that once having discharged patient from the hospital, with advice to do something, obviously doctor cannot be made liable for not following the said advice, but, when patient continues even with follow up treatment, it becomes bounden duty of the doctor to insist for compliance of his own advice and if patient or relatives deny or refuse to follow the same, the doctor should make a specific note in the record and should sign it. No such entries have been made in the case papers pertaining to follow up treatments in these cases. Moreover, it is also not even case of the opponent doctor that complainants have suppressed any such treatment papers. So far relationship between doctor and patient is concerned, ordinarily, it continues and ends on the date RNM CC18&192014 Page 10 of 17 when patient voluntarily stops to visit doctor or on the reference given by doctor to consult another doctor or patient is cured. It is not even case of the opponent doctor that he had asked for arrangement of examination or screening of children at his hospital especially after discharge from the hospital and there was denial from the complainant side. When the relatives had continued treatment with opponent doctor, it can be presumed that they are having faith in the line of treatment opted by the doctor. In such circumstances, being medical professional and because of his competency, it is expected from him to foresee risk involved and therefore he should take all appropriate action for the benefits of patient under his care. On the contrary, the opponent doctor replied that there was no problem found during routine check-up. The burden is upon doctor to prove it by cogent evidence. The clear statement suggests that either he might have made this casual statement to save his skin from the liability or he himself had undertaken responsibility to diagnose ROP which was in fact subject matter of ophthalmologist! In fact, it is a matter of common knowledge that examination of disease related to eye is subject matter of province of ophthalmic doctor / surgeon which requires specialized skill and use of specialized equipments for the same. An ophthalmologist can assess the condition of patient better and make appropriate analysis of the probability of risk involved therein. The opponent doctor being pediatric practitioner was not supposed to make assessment /screening himself or he ought to have arranged or insist for assessment by ophthalmic surgeon.
[13]. There is yet another way of looking. It is clear from the above referred report of experts that baby never born with ROP which has relevance with growth of gestation period. Needless to mention here that it had been scientifically established and also referred by many scholars in their reports or research work that lesser the gestation period higher the risk involved for development of ROP. It is also stated in the report that it cannot be said perfectly on the date of birth that which baby would suffer from ROP meaning thereby post birth growth in the eyes of child takes place is important and therefore growth is required to be monitored regularly is the necessity. "Time" is important factor and therefore it can easily be said that "timely assessment" and "timely diagnosis" would be beneficial to new born baby. The literature produced by doctor on record is also important which reads as under:
"The outlook for uncomplicated premature babies is comparable to the babies born after full maturity. In fact, several renowned and famous people, who were born premature, grew up to become world leaders and intellectuals.... The parents of premature children therefore should not feel despondent because there is enough historical evidence that their infants have a bright future and he may grow up to become an intellectual giant.
Prognosis for survival is directly related to the birth weight of the child and quality of the neonatal care. Over three fourth of neonatal deaths occur among low birth weight babies. Therefore, in countries with high incidence of LBW babies, neonatal mortality is likely to be higher. The risk of neurodevelopment handicaps is increased 3 fold for LBW babies and 10 fold RNM CC18&192014 Page 11 of 17 for very LBW babies (<1500g). The prognosis for mental development is good if the baby had not respiratory distress syndrome, hypoglycemia or hyper-bilirubinemia. Their physical growth correlates better with their conceptional age rather than the age calculated from the date of birth. Preterm AFD babies catch up in their physical growth with term counterparts by the age of 1 to 2 years. Long term follow up studies infants with a birth weight of 1500 g and less have revealed 15 to 20 percent incidence of neurological handicaps in the form of cerebral palsy, seizures, hydrocephalus, micro-cephaly, blindness (due to ROP), deafness and mental retardation. There is high incidence of minor neurological disabilities in the form of language disorder, learning disabilities, behavior problems, attention deficit, hyperactivity disorder requiring specialized support for education."
In the said book, Chapter 25 titled as "Miscellaneous Condition" wherein retinopathy of prematurity is discussed. Medical literature also suggests that even supply of oxygen can contribute to development of ROP. So far screening is concerned it reads as under:
"At lower gestational ages, large areas of retina are avascular and is vulnerable to develop abnormal vascular proliferation due to large number of triggering factors. The clinically detectable fundal changes of ROP are seen after 4 to 6 weeks of birth. All infants with a birth weight of < 1500 g or gestational age of < 32 weeks should be screened by a pediatric ophthalmologist with indirect ophthalmoscope. More mature infants should also be screened if they had suffered from severe RDS or apneic attacks and received prolonged oxygen therapy or assisted ventilation. After the initial screening at 4-6 weeks of age or post conceptional maturity of 32-34 weeks the subsequent screening is done after every 2 weeks until retina is completely vascularised up to ora serrata. When ROP is diagnosed, the frequency of examination depends upon the severity of the progression of disease. Infants are examined more frequently until their retinopathy regresses and full maturity of retinal vessels is achieved or until they reach a threshold for treatment"
Early detection can save further damage since ROP is described in following stages.
"Stage-1 ROP: Demarcation line. A whitish line is visible between the normally vascularised retina and the peripheral retina in which there are no blood vessels.
Stage-2 ROP: Visible ridge. The demarcation line develops into a ridge, with height and width, between the vascular retina and peripheral retina.
Stage-3 ROP: Blood vessels in the ridge. Blood vessels grow and multiply and are visible in the ridge.
Stage-4 ROP: Subtotal retinal detachment. Vitreoretinal surgery may be indicated.
Stage-5 ROP: No treatment is usually possible".
Thus, all these materials suggests that if baby is examined at an early point of time of developing ROP, there are more chances of better treatment initially to save vision of the child. It is also noteworthy that stage one and two do not require immediate treatment.RNM CC18&192014 Page 12 of 17
But when stage three starts, doctor should be alert and start treatment. In the instant case, even presuming for the sake of argument that doctor has examined and there was no problem as it canvassed by him (although there is no proof), he failed to repeat screening and as a result it reached to stage 5 in right eye and stage 4 in left eye of both children remains unanswered. Although Mr. Chudgar has submitted that report shows opacity which cannot be in case of ROP. However, the doctor has not placed on record any proof or material in this regard. The opponent doctor has to place on record concrete material which suggests that ROP also can spread even after three/four months and when he saw patient there were no signs of ROP even up to five months! No such report or literature has been placed on record led me to believe that doctor missed to inform the parents about developing ROP or he had used his own skill to diagnose, trace passing the system of medicine, and wrongly entered into shoe of pediatric-ophthalmologist. He thus failed to work diligently. It has also been canvassed that opponent doctor did not monitored supply of oxygen but there is no evidence. At this juncture in absence of any such evidence doctor cannot be held guilty of negligence on presumption that he did not monitor supply of oxygen. It is now well established by the series of judgments of Hon'ble Supreme Court that so long as a doctor follows a practice acceptable to the medical profession of the 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 doctor facing proceedings has followed. When it comes to the failure of taking precautions, what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extra ordinary precautions which might have been prevented the particular happening cannot be the standard of judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case. In the instant case, the doctor has not performed his part of duty with reasonable care and thus failed to satisfy that he did as per standard medical RNM CC18&192014 Page 13 of 17 practice. Therefore it squarely falls within the scope of an act which can be described as carelessness on his part. It is therefore held that the opponent was not diligent in his work and can be labeled with negligent and liable to pay damages.
[14]. Both parties have relied upon a judgment of Hon'ble Supreme Court in the matter between Maharaja Agrasen Hospital Vs Master Rishabh Sharma (2020-1-CPJ-3(SC)). The basic principles enumerated in that judgment has already been considered and mentioned herein above therefore no further detail discussion is necessary.
[15]. Since both the children complainants have suffered because of ROP and it is permanent disability for vision is now established fact. The complainant has claimed Rs.9000000/- for each baby for the loss of vision but how this figured arrived is not clear. From the complainant's side no efforts have been made to quantify damages. Even details pertaining to parents' financial status is also not disclosed which can help to ascertain life style of the sufferer children. It is not in dispute that they shall have to suffer life-long and all these happened because of negligent act on the part of the opponent and therefore entitle for adequate compensation from the opponent. In Lata Wadhwa vs State of Bihar (2001-8-SCC-197) the Hon'ble Court had an occasion to appoint Retired Chief Justice V Y Chandrachud to examine matter of assessment of compensation to victims and report received was discussed in Civil Appeal No. 9858 of 2013 (Radhakrishna & another vs Gokul & others ) as under:
"So far as the award of compensation in case of children is concerned, Shri Justice Chandrachud has divided them into two groups, the first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs. 50000/- has been held to be payable by way of compensation, to which conventional figure of Rs. 25000/- has been added and as such to the heirs of the 14 children, a consolidated sum of Rs. 75000/- each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children who died on the fateful day and having found their contribution to the family at Rs. 12000/- per annum. 11 multiplier has been applied, particularly, depending upon the age of the father and then conventional compensation of Rs. 25000/- has been added to each case and consequently, the heirs of each of deceased above 10 years of age, have been granted compensation to the tune of Rs. 157000/- each. In case of the death of an infant, there may have been no actual pecuniary benefits derived by its parents during the child's lifetime. But this was 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 RNM CC18&192014 Page 14 of 17 lived. This principle was laid down by the House of Lords in the famous case of Taff Vale Rly vs Jenkins and Lord Atkinson said thus: "... all that is necessary is that a reasonable expectation of pecuniary benefit should be entertained by the person who sues. It is quite true that the existence of this expectation is an inference of fact - there must be a basis of fact from which the inference can reasonably be drawn; but I wish to express my empathic dissent from the proposition that it is necessary that two of the facts without which the inference cannot be drawn are, first, that the deceased earned money in the past, and, second, that he or she contributed to the support of the plaintiff. These are, no doubt, pregnant pieces of evidence; and the necessary inference can, I think, be drawn from circumstances other than and different from them."
In Sarla Verma vs D T C (2009-6-SCC-121) Hon'ble Supreme Court referring judgments reported at 1996-4-SCC-362 and 1994-2-SCC-176 made following observations.
"Assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanate from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula/legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be result of adjudication to arrive at just compensation."
All these judgments suggest that endeavor should be made to put the claimant to the pre- accidental position and in judging whether the compensation is adequate, reasonable and just, monetary compensation is required to be arrived at on the principle of restitution-in- integram. It is most important in the instant case because beneficiaries are minor children and they have no earning income. It is equally true that during the whole life they have to remain dependent on others even for their daily activities and to meet with their daily needs for the entire life. The parents must be under great mental agony and they will have to suffer lot for growing of both these children. Special kind of education, special kind of training to live normal life and specialized transportation facilities etc. would be necessary for about long period. All these would cost heavily. As on date the children might have been reached to 10 years and initial sufferings of child cannot be measured in any specific monetary terms particularly when their precious childhood they cannot enjoyed with this limitations. Difficulties faced by the parents should not be underestimated. This is not the case where simple multiplier method like motor accident cases would be applied to arrive at specific amount. On another hand this is not even fetal RNM CC18&192014 Page 15 of 17 case and disability is towards vision only. I do not want to go into details of how authority has arrived at the percentage of disability since Mr. Sakaria has agreed that disability assessed is that of organ and it would be fair enough if it is further reduced to fifty percent of the disability assessed by the authority considering body as a whole. Cost of living and education increasing day by day and to provide assistance to both child, naturally an attendant would be necessary for which salary of a person would additional expenditure for the parents. Even to ascertain whether children are suffering from eye problem, the parents have consulted many doctors and might have spent hefty amount towards treatment. Although, the complainant have not placed on record any bills of any doctors but it can safely be assumed to Rs. 100000/- for each child. It should not be gone out of sight that both these children had breathing distress at the time of birth and therefore kept in warmer and it must have costed heavily. Keeping in mind, all future treatments cost, inflation rate, provisions regarding fetal accidents etc. I am of the opinion that an amount of Rs. 1000000/- to each child would be adequate and fair compensation to the children in the facts and circumstances of this case. It is also necessary to pay compensation for suffering and mental tension and agony which is quantified at Rs. 100000/- for each case. Thus, each child would be entitled to Rs. 1200000/- (Rs.1000000 compensation + Rs.100000 towards treatment cost + Rs. 100000/- compensation for harassment and agony for this period). To meet with inflation in future, i would suggest little higher rate of interest than present rate of fixed deposit i.e. 10 % on the aforesaid amount from the date of complaint.
[16]. It is also necessary to make proper arrangement of disbursement of this fund to protect the interest of minors. [a]. On the amount being deposited, Rs. 750000/- to be invested in fix deposit of nationalized bank or in postal scheme or in infrastructure bonds to earn sizable interest jointly in the name of child with parent initially for the period till child attains the age of maturity and bank will not allow any loan or withdrawal of this amount without permission of this Commission. [b]. The amount of Rs.450000/- to be paid to parents to meet with expenditure incurred and for regular expenditure for growing child.
From the above discussion, I pass the following order.
RNM CC18&192014 Page 16 of 17ORDER In complaint no. 18 of 2014:
The complaint no. 18 of 2014 is hereby partly allowed.
The opponent is directed to pay the sum of Rs. 1200000/- to Minor Yash (out of which Rs.750000/- to be invested in long term investment instruments mentioned herein above and balance to be paid over to parent for and on behalf complainant) together with 10 % interest from the date of complaint.
The opponent is liable to pay cost of Rs. 25000/-.
The aforesaid order is required to be complied within 60 days failing which it shall carry 12 % interest from 1st May 2023.
In Complaint no. 19 of 2014 The complaint no. 19 of 2014 is hereby partly allowed.
The opponent is directed to pay the sum of Rs. 1200000/- to Minor Navya (out of which Rs.750000/- to be invested in long term investment instruments mentioned herein above and balance to be paid over to parent for and on behalf complainant) together with 10 % interest from the date of complaint.
The opponent is liable to pay cost of Rs. 25000/-.
The aforesaid order is required to be complied within 60 days failing which it shall carry 12 % interest from 1st May 2023.
The office is directed to keep original copy of this order in Complaint no. 18 of 2014 and copy thereof is also to be placed in Complaint no. 19 of 2014.
Pronounced in open court on this 15th February 2023.
Mr. R N Mehta Presiding Member.RNM CC18&192014 Page 17 of 17