State Consumer Disputes Redressal Commission
S. Anitha Kamban Nagar, Vazhapattu ... vs Dr. D. Sulochana, M.B.B.S., D.G.O ... on 18 February, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt. Vasugi Ramanan,M.A.,B.L., MEMBER I Thiru S. Sambandam, B.Sc., MEMBER II F.A.NO.18/2007 (Against order in C.C.NO.76/2004 on the file of the DCDRF, Cuddalore) DATED THIS THE 18th DAY OF FEBRUARY 2011 S. Anitha W/o. Subramanian Kamban Nagar, Vazhapattu Nellikuppam Post Cuddapore District Appellant/1st Complainant Vs. 1.
Dr. D. Sulochana, M.B.B.S., D.G.O Gynecologist Sucharitha Hospital 248, Main Road, Nellikuppam- 607 105
2. Dr. D. Sulochana, M.B.B.S., D.G.O Gynecologist Sujatha Hospital 78, Nethaji Road, Manjakuppam Cuddalore-
607 001
3. The Proprietor Sujatha Scan Centre 78, Nethaji Road, Manjakuppam Cuddalore 607 001 Respondent/ Opposite parties The Appellant as Complainant filed a complaint before the District Forum against the Respondents/opposite parties, praying for a direction to pay Rs.10 lakhs alongwith compensation of Rs.1 lakh. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.24.7.2006 in COP No.76/2004.
This petition coming before us for hearing finally on 24.1.2010. Upon hearing the arguments of the counsel for appellant, this commission made the following order:
Counsel for the Appellant/Complainant: Mrs. S. Devika, Advocate Counsel for the 1 & 2 Respondents/ Opposite parties: Mr. M.C. Swamy, Advocate 3rd Respondent, served absent M. THANIKACHALAM J, PRESIDENT
1. The complainant is the appellant.
2. The complainant / appellant, being a married women, after conceivement, had consulted the 1st opposite party, from 23.2.2002, and in the course of the treatment, when the scan was taken in the 4th month, at the request of the 1st opposite party, in the 3rd opposite party scan centre, the complainant was informed, the baby is well developed, and the complainant has to be very careful, since it is the first delivery. While taking continuous treatment, the complainant was given antenatal card, and thereafter also, on various dates, after consultation, as instructed by the 1st opposite party, the complainant had taken treatment, medicine strictly.
3. On 15.3.2003, when the complainant had been to the 1st opposite party, for checkup, since it was 10th month, she advised to take scan, in order to fix the actual date of delivery, and accordingly a scan was taken. The 1st opposite party informed, on seeing the scan, that the baby has not developed fully, and at the time of delivery, there is a possibility of affecting the uterus, and therefore the complainant has to go to big hospital, such as Jipmer, for treatment. The 1st opposite party, failed to inform the underdevelopment of the baby, at the time of taking the scan, in the 4th month, which should be construed as negligent act, as well deficiency of service.
4. On 4.4.2003, the complainant was admitted in Jipmer Hospital, where a premature baby was taken out by LSCS. Because of the negligent act, the complainant was compelled to carry the pre-matured baby, and she had given all the hope, that the baby is well developed, which is proved to be otherwise. In the 3rd opposite party, there no trained radiologist, and that is also one of the reason, for not taking proper scan, exposing the proper growth of the baby, at the relevant period. For the deficiency committed by the opposite parties, viz.
in not taking proper scan, not advising properly, allowing the baby to grow upto delivery, under developed, thereby causing not only physical strain, but also mental strain to the complainant, the opposite parties are liable to pay a total sum of Rs.11 lakhs as compensation, under two heads, as prayed in the prayer column, in addition to a sum of Rs.5000/- as cost.
5. The opposite parties, admitting that they have given treatment to the complainant, as well had taken the scan, resisted the complaint, interalia contending, that even on 19.2.2002 itself, the complainant came to her and got her first pregnancy of two months aborted, that on 29.5.2002, when she came for general treatment, she was treated, that again on 26.7.2002, she came to the 1st opposite partys hospital for aborting the second pregnancy, did not abort, despite treatment, thereafter on 26.9.202, when she came for consultation, she was advised, that continuing the pregnancy is not desirable, and however in order to ascertain the position of the baby, obstetric scan was taken, which does not disclose bi-parietal diameter, doubting anencephaly, and the advise of this opposite party to come with second scan, and x=ray, was not followed by the complainant, whereas she came on 16.10.2002, informing, that she want to have the baby, and without no other go, this opposite party treated the complainant, for pregnancy, that only after examining her lower abdomen on 23.3.2002, it was noticed, there was doubt regarding the formation of the head, and its position, advising the complainant to go to Jipmer hospital, in which treatment, there was no negligent or deficiency in service, and for the anencephaly, the complainant herself is responsible, for that fact, no deficiency or negligent act could be attributed upon the opposite parties, thereby, praying for the dismissal of the complaint, denying other averments also.
6. On behalf of the parties, except the complainant (PW1), and the 1st opposite party (RW1), no other witnesses have been examined, though on the side of the complainant 9 documents were exhibited, and behalf of the opposite parties, two documents were exhibited.
7. The District Forum, assessing the evidentiary value of the above said materials, came to the conclusion, that the complainant has failed to establish that the 1st opposite party has given wrong treatment, or suppressed the growth of the child, thereby coming to the further conclusion, that there was no deficiency of service, on the part of the opposite parties, that too, based upon certain decisions, as indicated in the order, resulting dismissal of the complaint, on 24.7.2006, which is under challenge, in this appeal on various grounds.
8. The complainant, though had claimed that she had conceived first time, which ended in tragedy, as proved by the 1st opposite party, it is not so. As revealed by Ex.B1, which is spoken by RW1, also preceeded by sworn affidavit, the complainant had undergone abortion on her own on 19.2.2002. Only thereafter, when she conceived second time, the complainant approached the 1st opposite party for treatment, on 23.2.2002 or 29.5.2002, as the case may be. As seen from Ex.A3, according to RW1, only from 26.9.2002 alone, the complainant came to her, for the treatment of pregnancy, though she had come to her for other kind of treatment. As per the affidavit filed by the 1st opposite party, when the complainant came to her on 26.7.2002, she was in the preliminary stage of pregnancy, and when she opted for abortion, RW1 advised against the same, not accepted by the complainant. Therefore, it is the case of the 1st opposite party, she gave medicine/ tablets, for abortion, and despite this fact, abortion had not taken place, according to RW1, she had given injection also, which has also not yielded any desired result to the complainant. Thus, it is the further case of the 1st opposite party, only from 26.9.2002, she treated the complainant for pregnancy, in order to have proper delivery, after the development of the baby. The evidence so given by the 1st opposite party in the affidavit, is not challenged by the complainant, during the cross examination, except suggesting that Ex.B1 was prepared for the purpose of this case, in which suggestion, we find no substance, since there induced abortion, as indicated in the prenatal card given to the complainant, by the 1st opposite party, as seen from Ex.A3 itself. Therefore if anything had happened to the fetus, at the time of the attempted abortion, which was the voluntary act of the complainant, we feel accusing the opposite party may not be correct, legally sound, and that does not mean, that the 1st opposite party is relieved from her duties, and obligation as a prudent doctor, to advise her patient, what should be the steps taken further. Knowingly or unknowingly, in this case, the child developed, unfortunately the skull portion was not fully covered/ developed, resulting anencephaly, and the same was fully noticed by the 1st opposite party only on 15.3.2003, thereby she advised her to go to Jipmer, where delivery had taken place.
9. Though the complainant would contend that there was abortion, removal of the baby, but document does not disclose the same, and infact PW1 herself admits, that there was no caesarian. It is the further case of the complainant, as if, because of the pre-matured/ underdeveloped, delivery of the baby, her future pregnancy was also affected, which is proved to be false by her own admission of, since thereafter also she conceived, delivered a baby as admitted. Therefore, it is incorrect to say, as if the complainant had no opportunity, for conceiving once again, and for that kind of mental agony, she should be compensated to the extent of Rs.10 lakhs is imaginary. Having failed to have a baby, matured in nature, leveling negligence act and deficiency, as said above, an unsuccessful complaint came to be filed, resulting this appeal.
10. The learned counsel for the appellant argued, that the opposite parties, especially 1 and 2, have failed to detect anencephaly, at the appropriate time, though had taken scan, which should be construed as deficiency in service, not considered by the District Forum. A further submission was made, that as a prudent doctor, 1st opposite party should have advised the complainant, as well as informed the deformity in the fetus, and in that case complainant would have avoided the continuance of pregnancy, since failed, that should be taken as deficiency in service.
A final submission was made, that the 3rd opposite party, has not taken proper scan, having qualified radiologist, and that is the result, probably not disclosing the deformity in the fetus, for which, all the opposite parties should be held jointly and severally, since the 3rd opposite party scan centre is also owned and possessed by the 1st opposite party, admittedly. Elaborately, on the above three points mainly, a submission was made, that the District Forum has failed to consider all these facts, in its proper sense, despite the fact the negligent act of the 1st opposite party is proved, which should be rectified by this commission.
11. Per contra, it is the submission of the opposite parties, that though the 1st opposite party had advised the complainant, to come and meet her, with second scan, she failed to do so, that the 1st scan, since taken at 13th week, there was no possibility of seeing the defect in the fetus, which cannot be taken as negligent act, or scan was taken by unqualified person, that the complainant having opted for abortion second time, despite advise, if anything had happened to the baby, that should be the invitation of the complainant, for which the opposite party cannot be held responsible. Thus elaborating the above points, seeking aid from the documents, a submission was made, the order of the District Forum requires to be approved.
12. It is an admitted fact, that the complainant had taken treatment with the opposite parties, including taking of the scan. The first scan was taken on 26.9.2002 (Ex.A4), when the fetus was 13 weeks old. This report, appears to have been signed by the 1st opposite party herself, if not it is not known who had signed this report, since it is not even said, the signature is as that of radiologist or ultrasonography scientist.
The impression according to Ex.A4 was single live Intra Uterine Gestation of Gestational Age 13 to 14 weeks.
A note was also incorporation in the report, that the above said imaging finding, should be correlated with clinical findings, thereby informing that the image impression is not the ultimate result, whereas, subject to confirmation. After Ex.A4-scan, though the 1st opposite party would contend, that she had advised the complainant, to take second scan, admittedly no scan was taken till 15.3.2003, and we find no indication also in Ex.A3, about the advise given by the 1st opposite party, to take the second scan, for clarification or ascertaining the position of the baby in the womb. The second scan was taken on 15.3.2003, by the same scan centre viz. 3rd opposite party. The impression was Single Live Intra Uterine Gestation of Gestational Age:38 to 39 weeks, anencephaly. Before the scan was taken, when the complainant was examined by the 1st opposite party, she doubted about the development of the child, and its head position, and thereafter alone, scan and x-ray was advised to be taken, resulting Ex.A5 and A8. A submission was made, as if on 26.9.2002 itself, anencephaly was doubted, and accordingly entry was made in Ex.A3, which submission appears to be based upon incorrect information or particulars, whereas the entry found regarding query, anencephaly, must be made only after 12.3.2003, probably based upon Ex.A5 and A8, though date is not noted, against the said entry on the right side of the antenatal card. Therefore, it is not possible to say, as rightly urged on behalf of the appellant, that the complainant was informed about the defect in the child, but the complainant alone failed to follow the instruction. This alone, will not take us to the conclusion, that the 1st opposite party should have committed negligent act. In this context, we have to see, what is anencephaly, and what point of time, this could be identified accurately.
13. The learned counsel for the opposite party, relied on a passage in the Text Book of Radiology, second edition, by David Sutton, wherein we find the following passage:
The foetus can usually be visualized radiographically at about the 16th week of gestation, although occasionally visualization is obtained two or three weeks earlier. Early visualization is assisted by a bone free projection of the pelvis in which the tube is angled 15o towards the feet thus showing the pelvic cavity clear of any incursion of the bony walls. In obese patients the foetus may not be identifiable till about the 20th week. Thereafter absence of foetal parts is a certain indication of the absence of normal pregnancy.
The foetus at an early stage appears as a series of fine clacific opacities; the skul vault, ribs and limb bones are seen as linear opacities and the spine as a series of dots. At this early stage only parts of the skeleton may be seen and a full visualization of cranium, thorax, spine and limbs is not to be expected.
Since the foetus is a particularly at risk from radiation in the part of pregnancy, radiology is no longer used to confirm pregnancy.
Occasionally the radiologist is called upon to exclude pregnancy in cases of diagnostic difficulty, such as suspected hydatiform mole.
Thus it is seen, exposing the foetus to radiation, was not advisable frequently, and the full development could be seen at about 16th week of gestation, i.e., only after 4 months.
14. Anencephaly is defined as Anencephaly is a defect in closure of the anterior neural tube characterized by complete or partial absence of the forebrain, overlying meninges, skull and skin and the Pitfalls is also noted, which reads If the head is deep in the pelvis and no endovaginal probe strdy is done, the defect may be overlooked and the absence of the skull though to be a technical problem. On the other hand it is the submission of the learned counsel for the appellant, placing reliance upon a passage in ultrasonography in Obstetrics Gynecology, wherein it is said anencephaly can be diagnosed as early as 12th week of gestation .
By going through the above said two medical literature, and considering the details available in the literature, relied on by the learned counsel for the opposite party, we feel, it may not be possible always, to diagnose anencephaly at 12th week, or 13th week, and it could be well determined and seen, only at 16th week, or so, though there may be exemptions of 12th week diagnosis also, depending upon the growth of foetus. In this case, he complainant is a known abortion case, and she attempted to abort this child also, but failed. Therefore, it may not be possible, to detect anencephaly at 12th week, as disclosed in the first scan report, and on that basis, whether the radiologist signed in the report or not, whether the 3rd opposite party had the qualified person or not, we cannot find fault with the report, or the doctor, as if in the 12th or 13th week itself, the 1st opposite party failed to detect anencephaly and failed to advise the complainant, and that should be construed, as negligent act, leading to deficiency in service.
14. In the proof affidavit, as well as while giving evidence, RW1 has specifically stated, that though she had advised the complainant to take second scan, and come for checkup, the complainant came to her only on 16.10.2002, without taking scan, insisting that she should possess the foetus, because of that alone, she continued the treatment. Admittedly, even as per the case spoken by RW1, there was an attempted abortion, and therefore there is nothing wrong in believing the evidence, given by RW1, that she should have advised for the second scan, which the complainant failed, because of the poverty or otherwise. Therefore, as of routine, the 1st opposite party gave treatment for pregnancy, since she had no occasion to know about the undergrowth of the foetus, developing anencephaly inside, till 23.2.2003. On 23.2.2003, when the complainant was examined by the 1st opposite party, though she had written FH good, doubted about the head. Only thereafter i.e., on 12.3.2003, the 1st opposite party advised the scan, which revealed anencephaly. Because of the obstetric problem, of the head position of the foetus, the 1st opposite party advised the complainant, to go to Jipmer Hospital where she gave birth to a baby by normal delivery, and for the improper growth, or not forming the skull formation, we cannot find fault with the 1st opposite party. Only at the instance of the complainant, we feel that too considering the conduct of the complainant, as indicated above, having failed in her attempt, to abort the 2nd conceivement, she carried a baby, which unfortunately failed to develop, because of the effect of the medicine or otherwise, and for this unfortunate happenings, we feel the opposite parties cannot be held responsible, as rightly held by the District Forum.
15. The learned counsel for the appellant, inviting our attention to the guidelines, issued by the Medical Council of India, regarding the maintenance of records, as well as certain rulings by the National Commission, urged, that there was no proper maintenance of record by the 1st opposite party, and that should be construed as negligent act. Though the records are not prepared in the prescribed form, we cannot say, that the 1st opposite party failed to maintain the record altogether, and infact Ex.A3 is the record maintained by the 1st opposite party for the complainant. Similarly, for the scan also, reports are given.
When there was no possibility for the scan, as seen from the medical text, to disclose the anencephaly, the decision relied on by the learned counsel for the appellant, in 1 (2009) CPJ 243 (NC), may not be applicable to the facts of this case. In the case involved, in the above decision also, the scan centre failed in diagnosing scan correctly, though three scans were taken and reports were given. Based upon the number of scan and it was not properly reported, when there was a possibility to know, suffering of the baby from deformity, not detected, it is held that should be construed as negligent act, which is not the case before us.
Therefore, on fact, the ruling is not applicable.
16. It is the settled principles, that the initial burden is upon the complainant to prove, that the opposite parties have committed negligent act or deficiency in service, which is not made out here. In the complaint, it is specifically stated, as if the Jipmer doctors have informed the complainant, that how the doctors have given treatment for headless baby, for 10 months. If that is so, the proper person to speak about the negligent act committed by the 1st opposite party must be the Jipmer doctor, who treated the patient, at the time of delivery atleast, not examined. Except PW1, the complainant, no other expert evidence also let in. We find it very difficult, to apply the doctrine of res ipsa loquitor also in this case. On other hand, a qualified doctor viz. the 1st opposite party, had spoken about the treatment given by her, and how her advise was not followed, and in the absence of contra evidence, to doubt about its veracity, we are inclined to accept her evidence, and the scan report also, which cannot be termed as improper report, or a report taken by the unqualified person, or something like that. The District Forum, though not analysed in detail the above facts, for the reasons assigned by us supra, for the baby, not growing properly, resulting anencephaly in medical treatment, we cannot attribute the medical negligence, on the opposite parties, if at all it should have happened because of the inherent defects, invited by the complainant, by abortion. For the above said reasons, the appeal deserves to be rejected.
17. In the result, the appeal is dismissed, confirming the order of the District Forum in O.P.No.76/2004 dt.24.7.2006. There will be no order as to cost in this appeal.
S.SAMBANDAM VASUGI RAMANAN M. THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Medical