State Consumer Disputes Redressal Commission
Kusum Lata vs Dr. Raj Kumar on 3 February, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 74 of 2012
Date of institution: 5.9.2012
Date of Decision: 3.2.2016
1. Mrs. Kusum Lata w/o Sh. Sanjeev Thukral, R/o B-114, Behind
Sanskrit College, Bhadhur Chowk, Hoshiarpur.
2. Sh. Sanjeev Thukral s/o Sh. Parkash Thukral, R/o B-114, Behind
Sanskrit College, Bhadhur Chowk, Hoshiarpur.
Complainants
Versus
1. M/s Raj 3D Scans, through its Incharge Dr. Raj Kumar, Jalandhar
Road, Kamalpur Chowk, Hoshiarpur (Punjab).
2. M/s Dhami Nursing Home, Dr. Sakhpreet Dhami, Near Parbhat
Chowk, Hoshiarpur.
3. Oriental Insurance Company through its Chief Regional Manager,
SCO No. 109-11, Sector 17-A, Chandigarh
4. United India Insurance Company Limited, 54 Janpath, Cannaught
Place, New Delhi 110 001 through its Divisional Manager.
Opposite Parties
Consumer Complaint under the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the complainant : Sh. Karan Nehra, Advocate
For opposite party No. 1 : Sh. Satpal Dhamija, Advocate
For opposite party No. 2 : Sh. Ashwani Talwar, Advocate with
Consumer Complaint No. 74 of 2012 2
Sh. J.S. Chatrath, Advocate
For opposite party No. 3 : Ex.-parte.
For opposite party No. 4 : Sh. P.S. Saini, Advocate with
Sh. Parminder Singh, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Complainants have filed this complaint under the Consumer Protection Act, 1986 (for short 'Act') against opposite parties(hereinafter referred as Ops) on the averments that complainant No. 1 was conceived in September, 2011. In order to ensure trouble free delivery and proper medical care of the mother, the complainants took constant medical supervision. One Ultrasound scan was done by Op No. 1 on 11.2.2011, which does not show and does not reflect any abnormality in the conceived baby. It was an incomplete report. Otherwise the scan was to check baby measurement, which can be useful if you are unsure about the date of your last menstrual period, to check whether you are carrying more than one baby, to detect some abnormalities, particularly in your baby's head or spine, to show the position of your baby and the placenta and to check that the baby is growing and developing normally. Most hospitals will offer two ultrasound during pregnancy. The first is around 8-14 weeks and 2nd between 18-20 weeks 6 days and this scan checks for possible physical problems (abnormalities), although it cannot pick up every problem. Neither Op No. 1 nor Op No. 2 to whom the report was shown performed their duty properly. On 31.5.2011, another ultrasound was got done and at that time Op No. 2 assured that everything is Ok and they should come at the time Consumer Complaint No. 74 of 2012 3 of delivery. Complainant No. 1 was got admitted with Op No. 2 on 7.6.2011 and other ultrasound report was called for. It was got after caesarean section was performed and delivery was done. The report showed that there was significant deformity in the baby but there was poor visualization due to absent amniotic fluid. Baby had malformation of all the four limbs. The complainant, their family members and more particularly their two children were shocked to see the new born baby. Complainants confronted Op about their negligence and deficiency in service but they put lame excuses for their faults. In case deformities would have been brought to their notice at an appropriate time, they may go for abortion and the child has come to this world due to the negligence of Ops and the complainants will undergo pain and suffering as well as the child throughout their life. Accordingly, the complaint has been filed with a direction to Ops as under:-
a) "Reimbursement of Rs. 25,000/- being the approximate cost incurred on the medical care and delivery of the child;
b) Rs. 15 lakhs towards estimated loss of earnings of the complainants, as their major time would be invested in taking care of the dis-advantaged and handicapped born child.
c) Rs. 10,00,000/- as token compensation for mental agony, pain and suffering of the complainants and their two earlier children, on account of upbringing of the abnormal child.Consumer Complaint No. 74 of 2012 4
d) Rs. 50 lakhs as token compensation and damages to the born physically abnormal child, to compensate her for the fact that she won't be able to do any gainful work in her life and in fact require a constant help and support to even lead a passive life.
e) Rs. 50,000/- towards litigation costs and miscellaneous expenses.
f) Rs. 5 lakhs as punitive damages against Ops, for their gross professional misconduct and medical negligence."
2. Complaint was contested by Ops. Op No. 1 in its written reply/version took the preliminary objections that complaint is wholly misconceived, groundless, frivolous, vexatious and scurrilous and is unsustainable in the eyes of law; complainants have not approached to the Forum with clean hands and had intentionally, deliberately and wilfully have not submitted the true facts; complaint is false and baseless and is based upon unscientific laymen conjectures, misbelieves, assumptions and presumptions, which does not amount to negligence; complainant No. 1 was properly diagnosed by respondent No. 1 as per prescribed norms and general practice and never deviated from normal/prescribed line of treatment. Complainants have totally failed to explain as to how Op No. 1 was negligent at which/what stage of treatment; no cause of action has arisen against this Op; complaint is baseless and flagrant abuse of the process of law; complaint is bad for mis-joinder and non-joinder of necessary parties. The difference of opinion and institution of particular line of treatment or medicine and any error of judgment Consumer Complaint No. 74 of 2012 5 either in diagnosis or treatment cannot be termed as negligence. Op No. 1 has always maintained the highest standard of professional conduct and did not allow to be influenced merely by the motive of profit. Moreover, this Op is insured with United India Ins. Co. Ltd. through TPA Apex Insurance Consultants Ltd. for professional indemnity policy and in the unlikely event of present complaint is allowed the insurer shall indemnify this Op. Complaint is not maintainable as complainants have claimed exorbitant amount of compensation of Rs. 80,75,000/-. Complainants be advised to be relegated to the Forum with the pecuniary jurisdiction of Rs. 20 lacs and that it involves complicated questions of facts and law, which cannot be adjudicated in the summary procedure, therefore, the matter be relegated to the Civil Court. On facts, it has been stated that Op No. 2 had referred for ultrasound abdomen of the complainant. She came for ultrasound on 11.2.2011 when fetus was 23.4 weeks and observations are as under:-
"Single live intrauterine fetus of 21.6 wks size."
3. Then she again came up for ultrasound on 31.5.2011 with fetus was 40.1 weeks and growth was equivalent to 32.4 weeks and it was observed as under:-
"There is asymmetry of the fetal limbs. Fetal limbs are small in size as per gestational age. Both femur are small (Lt>RT)".
4. Pre-natal sonographis diagnosis often fails as limb length is preserved until around 22 weeks gestation and the length do not become short until after 24 weeks. Moreover, under Section 3(i) of the Medical Termination of Pregnancy Act, 1971, no pregnancy can Consumer Complaint No. 74 of 2012 6 be terminated after 20 weeks. On merits, it was again reiterated about the reports conducted on 11.2.2011 and 30.5.2011. This Op had conducted the ultrasound according to best of his professional knowledge and according to the standard medical practices. There is no deficiency in service on the part of this Op. Complaint is without merit. It be dismissed.
5. Op No. 2 in its reply took the preliminary objections that the complaint is primarily directed against Op No. 1 on account of alleged incorrect ultrasound report, when the fetus was 23.4 weeks of age but it was of 21.6 weeks size. There was no mention of Asymmetry of the fetal limbs, therefore, no negligence on the part of this Op. The 2nd ultrasound is dated 31.5.2011 when fetus was 40.1 weeks equivalent to the size of 32.4 weeks and the report is as under:-
"There is asymmetry of the fetal limbs. Fetal limbs are small in size as per gestational age. Both femur are small (Lt>RT)".
and the 3rd Ultrasound was on 7.6.2011 after the admission of the patient and LSCS was done. Medical Termination Act, 1971 prohibits termination of pregnancy after the fetus is more than 20 weeks. Moreover, this Op was insured with Oriental Insurance Co. Ltd. for the period 15.3.2010 to 14.3.2011 for a sum of Rs. 5 lacs for one mishap. There was no deficiency in service or any negligence on her part. Complaint was without merit. It be dismissed.
6. The parties led their respective evidence in support of their contentions.
Consumer Complaint No. 74 of 2012 7
7. In support of his allegations, the complainants had tendered into evidence affidavit of Mrs. Kusum Lata Ex. CA/1, CT Scan report of Raj 3D Scans dt. 11.2.2011 Ex. C-1, CT Scan report of Raj 3D Scans dt. 31.5.2011 Ex. C-2, Hoshiarpur Scanning & Diagnostic Centre report Ex. C-3, discharge card of Dhami Nursing Home Ex. C-4, Indoor Patient Record Ex. C-5, photographs Ex. C-6, payment voucher receipts Ex. C-7, photocopy of medical examination to PGI, Chd. Ex. C-8, treatment record of Amandeep Hospital Ex., C- 9, treatment record of Joshi Hospital Ex. C-10, Hub Speciality Clinic, Jalandhar Ex. C-11, Oberio Hospital, Jalandhar Ex. C-12. Op No. 1 had tendered into evidence affidavit of Dr. Raj Kumar Ex. Op-1/1. Op No. 2 had tendered into evidence affidavit of Dr. (Mrs.) Sukhpreet Dhami, MBBS, MD (Gynae) Ex. Op-2/1. Op No. 4 had tendered into evidence affidavit of Sunita Sharma, Dy. Manager Ex. Op-4/A, insurance policy Ex. Op-4/1.
Misc. Application No. 2217 of 2014
8. Alongwith the complaint, an application under Section 13 of the Act was filed by the complainant that the complaint relates to the medical negligence. Ops are medical professionals and all the qualified doctors to which the complainant had approached, showed their unwillingness to issue the medical advice against Ops. Therefore, the matter be referred to independent Medical Board.
9. No reply was filed by Op No. 1. Whereas Op No. 2 replied that there is no need to refer the matter for expert opinion as the fact of the case speaks themselves but further stated that if the Consumer Complaint No. 74 of 2012 8 Commission feels that the matter needs some expert opinion, then she had no objection for the same.
10. We have heard the counsel for the parties on the application.
11. It has been argued by the counsel for the complainants as no Doctor is coming forth to give any medical opinion, therefore, for correct decision of the complaint, the matter is required to be referred to any institution for expert opinion. Whereas on the other hand, the counsel for Ops have argued that in case both the scan reports are on the record and mainly the first report is relevant because in the second report Ex. C-2 dated 31.5.2011 abnormality was mentioned. Therefore, we have to see the correctness of the report Ex. C-1 and whether the Doctor was negligent in his report. It has been contended by the counsel for the Op that Hon'ble Supreme Court in its judgment reported in III (2011) CPJ 54 (SC) "Senthil Scan Centre versus Shanthi Sridharan & Anr." held that ultrasound is not a perfect depiction of the foetus and the scan result cannot be 100% conclusive. It is often difficult to examine some foetal areas. Difficulties may also be posed by the relative paucity of amniotic fluid in the third trimester, due to hyper flexed position of the foetus, engagement of the head or compression of some foetal parts. Therefore, in case parties have led their respective evidence and findings can be given on the basis of that evidence then it is not necessary to refer the matter to any institution for expert opinion because again the opinion of the expert will be on the basis of report Ex. C-1 and will be advisory in nature and not conclusive. Moreover, Consumer Complaint No. 74 of 2012 9 even if some short coming is found with report, the pregnancy at that time was in 23.4 week whereas medical termination prohibits the termination of pregnancy after 20 weeks. Therefore, at that stage termination of pregnancy was not possible, therefore, child was to take birth in whatever form the child was. Counsel for the complainant has relied upon the judgment of the Hon'ble Supreme Court in "Chandrakant Jayantilal Suthar & Anr. Versus State of Gujarat"
Special Leave to Appeal (Crl.) No. 6013/2015 vide which in special circumstances in a rape case, termination was allowed to be terminated by the Hon'ble Supreme Court. Whereas the facts of this case are not applicable to the circumstances of the present case. Therefore, we do not find any merit in the application to refer for expert opinion and the same is hereby dismissed. On Merits
12. Now the allegations of the complainants are that vide report dated 6.1.2011 of Op No. 2, Ultrasound FWB was recommended, which was got done by the complainant on 11.2.2011 when the fetus was 23.4 weeks after a gap of more than one month and impression taken by Op No. 1 was as under:-
"Impression: Single Live Intrauterine Fetus of 21.6 wks size."
13. In case we go through this report, the size of the fetus was of 21.6 weeks. Now the major question arises whether at that stage, the limbs of the fetus could be checked to give the report whether those were fully developed or not? The counsel for the complainant has referred to the Medical Literature Apollo Centre for Fetal Medicine, it refers to anomaly scan or level-II scan, which is Consumer Complaint No. 74 of 2012 10 done at 18-23 weeks, during which each part of the fetal anatomy is examined to see if the baby is developing normally. During the scan, the Doctor will measure part's of baby to see how it is growing. The Doctor will measure your baby's:-
"*head circumference (HC) • Abdominal circumference (AC) • Femur or thigh bone (FL) • Humeris or arm bone"
He has referred another literature of anomaly scan and baby centre. It is also called mid-pregnancy ultrasound scan when the baby is 18 weeks and 20 weeks + 6 days pregnancy. The sonographer will examine baby's organs and take measurements, specific consideration will be on baby's heart, stomach, kidneys, arms, legs, hands and feet but sonographer will not be able to count it. Missing or short limbs can be 90%. It has been further observed that about 15% scans will be done again for one reason or the other. Whereas on the other hand, the counsel for Op No. 1 has referred that in Ex. C-2 the Amenorrhea was 40.1 weeks whereas it was looking at the size 32.4 weeks. It is called as Amenorrhea and literature has been referred from Prenatal diagnosis of Achondroplasia. It has been referred as one of the most common forms of short limb dwarfism. It is usually suspected on third trimester routine ultrasound because of very shortened long bones. In 'Clinical Sonography A Practical Guide' page 487 'Achondroplasia' has been referred as under:-
"1. In the usual heterozygous form of achondroplasia, the limbs do not become short until after 24 weeks. The proximal Consumer Complaint No. 74 of 2012 11 limbs are more shortened than the distal limbs (rhizomelic shortening). The head is large, and the ventricles may be mildly dilated, as in hydrocephalus."
According to that Limb do not short until after 24 weeks.
14. No doubt that ultrasound was done at 23.4 weeks but its size was 21.6 weeks. Therefore, at that time it may not be possible to give the deformity in the limbs as claimed by the complainant.
15. A reference can be given to the judgment of the Hon'ble Supreme Court III (2011) CPJ 54 (SC) "Senthil Scan Centre versus Shanthi Sridharan & Anr." It was also a case of ultrasound but could not detect the deformity and case of medical negligence was filed. It was observed by the Hon'ble Supreme Court that ultrasound is not a perfect depiction of foetus and scan result cannot be 100% conclusive. Therefore, in case no conclusive findings can be given at the time then how Op No. 1 is negligent, in case he did not refer to any deformity in the organs of the foetus. So far as the medical literature referred by the counsel for the complainant, they are referring to anomaly scan or level-II scan whereas Op No. 1 had done an ordinary scan and gave the size of the foetus. Moreover, in the judgment referred above "Senthil Scan Centre versus Shanthi Sridharan & Anr." (supra), the negligence of the Doctor can be held as per Bolam's Test. A reference has been given to the judgment "Martin F. D'Souza v. Mohd. Ishfaq" I(2009) CPJ 32 (SC) wherein Hon'ble Supreme Court adopted the test as held in Bolam's case. Then an other judgment "Hunter v. Hanley" 1955 SLT 213 was relied upon wherein it was observed as under:-
Consumer Complaint No. 74 of 2012 12
"In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men..... The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care...."
16. Here also the Doctor has conducted the ultrasound scan to the best of his ability and there is ample scope of any general difference of opinion and even an error of judgment cannot be held to be a case of medical negligence. Moreover, as alleged in the complaint, in case at the time of 23.4 weeks, it would have been reported that there is some deformity in the organs of the foetus then the complainant may have gone for termination of her pregnancy. But as referred by Ops in their written reply under Section 3 of the Medical Termination of Pregnancy Act, 1971, pregnancy can be terminated only upto 20 weeks and after that pregnancy is not legally allowed. So far as the judgment "Chandrakant Jayantilal Suthar & Anr. Versus State of Gujarat" (supra), it was a case of rape, therefore, in special circumstances, the Hon'ble Supreme Court had allowed the termination of the pregnancy. Whereas those circumstances does not exist in the present case, therefore, even if the complainants would have come to know about any deformity in the organs of the baby, legally it was not possible for them to get the termination of the pregnancy.
Consumer Complaint No. 74 of 2012 13
17. So far as Op No. 2 is concerned, since no deformity was given in the report Ex. C-1, therefore, he could not act at that time, therefore, he could not act in either way. So far as the 2nd report is concerned, deformity was referred in the report.
18. In case we take totality of the circumstances, we are of the opinion that no case of medical negligence is made out against Ops. Complaint is without merit and is hereby dismissed with no order as to costs.
19. The arguments in this consumer complaint were heard on 27.1.2016 and the order was reserved. Now the order be communicated to the parties as per rules.
20. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member February 3, 2016. (Surinder Pal Kaur) as Member