State Consumer Disputes Redressal Commission
Rekha vs 167 Military Hospital on 18 February, 2022
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 637 of 2019
Date of Institution : 26.08.2019
Date of Reserve : 27.01.2022
Date of Decision : 18.02.2022
Rekha aged 28 years wife of Netra Pal, resident of 47/5, No.1
Area, Air Force Station, Pathankot.
(E-mail : [email protected])
....Complainant
Versus
1. 167 Military Hospital through its Medical Superintendent C/o 56
APO.
2. Lt. Col. Jayanta Kumar Biswas, AMC, CL.SPLTT (Obst. &
Gynae) 167 Military Hospital through its Medical Superintendent,
C/o 56 APO.
.....Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Mr.Rajinder Kumar Goyal, Presiding Member,
Mrs. Kiran Sibal, Member
Present:-
For the complainant : Sh.Mukal Goyal, Advocate For the opposite parties : Sh.V.K.Arya, Advocate with Col. Davinder Bhardwaj, Sr.Advisor RAJINDER KUMAR GOYAL, PRESIDING MEMBER The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short 'the Act') seeking following directions to the opposite parties:Consumer Complaint No.637 of 2019 2
a) to pay Rs.35,00,000/- as compensation for upbringing the third child which due to the negligence of opposite parties could not be aborted in time and now the complainant has to spent money for the upbringing and education.
b) to pay Rs.5,00,000/- as compensation on account of harassment, mental agony and pain;
c) to pay Rs.1.10 lakhs towards costs of litigation expenses.
2. Brief facts, as averred in the complaint are that the complainant visited opposite parties' hospital on 14.08.2018 and was diagnosed to be pregnant. The LMP was 08.05.2018 and the expected date of delivery was given as 15.02.2019 recorded in the medical card, Ex.C-1. On 26.09.2018, ultrasound examination was done and as per report, Ex.C-2 Single Life Intrauterine Gestation seen in Cephalic Presentation. Thereafter, subsequently visited the hospital as per schedule. Since the complainant was having lot of pain and uncomfort she got herself checked from a Private Clinic who conducted Ultra Sound 24.11.2018 and reported Twin pregnancy with fetus of 30 weeks 3 days gestation and another fetus of 29 weeks 1 day gestation vide Ex.C-3. Again on visit to opposite parties' hospital on 28.12.2018 another ultra sound was conducted wherein it also revealed twin line uterine in fetus vide Ex.C-4. She was admitted to opposite parties' hospital on 04.01.2019 and gave birth to twin children (two healthy male weighing about twin-1, 2.265 kg. and twin-2 weighing about 2.08 kg.) as per notification Ex.C-5. Further averred that the ultrasound Consumer Complaint No.637 of 2019 3 was done on 26.09.2018 in a casual way and the attending doctor could not make out that it was a case of twin pregnancy. With the negligence of the opposite parties, the complainant has to bear the expenses of one more child. Hence, the complaint filed by the complainant as prayed above.
3. Upon notice, the complaint was resisted by the opposite parties by filing written statement with the preliminary objection that the complainant is not a consumer being wife of serving Air Force Personnel holding rank of Corporal availed free medical facilities in the services hospital. Further submitted that first obstetric ultrasound was done on 26.09.2018 (at 20 weeks of gestation 4 days) but as per guidelines of Ministry of Health and Family Welfare- at least one 1st trimester obstetric ultrasound scan is recommended to confirm intrauterine pregnancy correctly dating the pregnancy and diagnosing single/multi-foetal gestation. The 18- 20 weeks level II ultrasound is primarily aimed at diagnosing gross fetal abnormalities and for serial evaluation for growth and development. Guidelines on use of ultrasonography during pregnancy issued by Ministry of Health and Family Welfare states that an obstetric ultrasound done at 19-20 weeks gestation can detect upto 94.4% of twins and not 100%. On merits, USG examination was done on 26.09.2018 and report by 'Radiologist' as single life intrauterine gestation seen in cephalic presentation agreed as a matter of fact. Further, the pain and discomfort during pregnancy is a universal phenomenon across the womanhood. The hidden twins are common in mono-amniotic pregnancies, wherein both fetus are living in the same amniotic sac. A second twin that Consumer Complaint No.637 of 2019 4 is hidden on an early USG will likely to be discovered at later stage of pregnancy after 20 weeks of anatomy USG. Further submitted that when the gestation period is on and over 20 weeks, abortion fetus is legally not permitted except on exceptional extraordinary condition i.e. continuous of pregnancy would involve a risk to the life of a pregnant woman, if child born would suffer from physical handicap/ mental abnormalities, pregnancy caused by rape, pregnancy, as a result of failure of any device or method used by any woman / her husband for limiting number of children. Therefore, the complainant could not have resorted to aborting, even if she had been informed about presence of twins during USG done at 20 weeks plus duration. As per Government of India policy, the complainant is entitled to claim Rs.27,000/- per year per child for all their children as she had given birth to twins during second delivery which was otherwise not in her control. The complainant has wrongly included respondent No.2 Lt. Col. Jayanta Kumar Biswas as there is no involvement of whatsoever kind, of said specialist in the present context. The opposite parties finally prayed to dismiss the complaint with costs.
4. The complainant filed replication to the written statement filed by the opposite parties denying all the allegations made in the written statement and reiterated the averments made in the consumer complaint.
5. The complainant in support of her contentions filed the affidavit dated 16.08.2019 along with the photocopies of documents as Ex.C-1 to Ex.C-4 & Ex.C-5(colly), whereas opposite parties in support of their contentions filed the affidavit of Sh.Ajith Consumer Complaint No.637 of 2019 5 Nilakantan, Brig., Commandant along with photocopies of documents as Annexure R-1 & Annexure R-9.
6. We have heard the learned counsel for complainant, complainant's husband in person and counsel for the opposite parties appeared on their behalf and have also carefully gone through the pleadings of the complaint, written statement, evidence as well written arguments filed by the parties.
7. Learned counsel for the complainant argued that the complainant is suffering due to negligence committed on the part of the opposite party - hospital. The doctor, in the said hospital has failed to diagnose the twin pregnancy as the ultrasound was done by him in a very casual manner, whereas the other private clinic i.e. Dr. Jeet Singh Diagnostic Centre, diagnosed twin pregnancy. Due to the negligence of the opposite parties, the complainant suffered a lot as the complainant is not in a position to give proper care to three children as the complainant belongs to a small lower family. The husband of the complainant is getting a limited salary and most of the time complainant is forced to live away from her husband. Finally, it is prayed that the complaint be allowed against the opposite parties and relief be granted as prayed.
8. Learned counsel for the opposite parties argued that the complainant is not a consumer as her husband Netra Pal, who is serving soldier holding the rank of Corporal in Indian Air Force in Air Force Station, Pathankot and is authorized for free treatment for himself and his authorized dependents. The opposite parties conducted the ultrasound as per the standard procedure and guidelines. Further argued that the lack of early and regular Consumer Complaint No.637 of 2019 6 antenatal visits and appropriately scheduled obstetric ultrasound scan can make it difficult to predict and detect the occurrence and progression of twin-to-twin transfusion syndrome. There is no negligence on the part of the opposite parties. Finally, it is prayed to dismiss the complaint being devoid of merits.
9. We have given our thoughtful consideration to the respective contentions raised by learned counsel for the parties.
10. First of all, we would like to deal with the plea raised by the opposite parties that the complainant has availed free medical services from the opposite party-Hospital being wife of serving Air Force Personnel holding rank of Corporal. Therefore, she is not a consumer as per the Act. Learned counsel for the complainant argued that complainant is being provided free medical services as part of the service benefits extended to her husband. Therefore, she is a consumer being wife of a Air Force personnel as defined under the CPA. The Hon'ble National Commission in its order in R.P. No.2840 of 2015 (Rajesh Sharma Vs. Union of India & Ors.) decided on 16.09.2016 in F.A. No.293 of 2014 observed in para 2 as under:
"Challenge in this Revision Petition, by the Complainant, is to the order dated 21.7.2015 passed by the State Consumer Disputes Redressal Commission, Haryana at Panchkula (for short "the State Commission") in FA/293/2014. By the impugned order, the State Commission has dismissed the Complaint, which had been filed by the Complainant against the Union of India, Chief of Army Staff and Millitary Hospital at Ambala Cantt, alleging medical negligence on the part of the hospital, on the ground that since the treatment provided to the deceased was free of Consumer Complaint No.637 of 2019 7 charge, the Complainant could not be considered as a "consumer" within the meaning of the Consumer Protection Act, 1986.
In view of the authoritative pronouncements by the Hon'ble Supreme Court in Indian Medical Association vs. V.P. Shantha and Ors. - (1995) 6 SCC 651 and Laxman Thamappa Kotgiri vs. G.M. Central Railway & Ors. - (2007) 4 SCC 596, we are of the opinion that the Complainant is a "consumer" and therefore, the State Commission was not justified in dismissing the Complaint on the stated ground."
11. In view of the above, we hold the complainant as consumer of the opposite party-Hospital and the plea taken by the opposite parties is not tenable.
12. As per the complaint, the complainant visited opposite party-Hospital on 14.08.2018 and was diagnosed to be pregnant. The LMP was 08.05.2018 and the expected date of delivery was given as 15.02.2019 recorded in the medical card, Ex.C-1. On 26.09.2018 an ultrasound examination was done and as per report Ex.C-2 "Single Life Intrauterine Gestation seen in Cephalic Presentation". Thereafter, she subsequently visited the hospital as per schedule given. Since the complainant was having lot of pain and uncomfort, she got herself checked from a Private Clinic i.e. Dr.Jeet Singh Diagnostic Centre who conducted ultrasound on 24.11.2018 and reported twin pregnancy with fetus of 30 weeks 3 days gestation and another fetus of 29 weeks 1 day gestation, vide Ex.C-3. Again on visit to opposite party-hospital on 28.12.2018, another ultrasound was conducted wherein it also revealed twin live intra uterine in fetus, vide Ex.C-4. She was admitted to opposite party-hospital on 04.01.2019 and gave birth to twin Consumer Complaint No.637 of 2019 8 children (two healthy male weighing 2.265 kg. / 2.08 kg as per notification Ex.C-5. Further averred that the USG on 26.09.2018 was done in a casual way that the attending doctor could not make out that it was twin pregnancy. Had it been there, she could have opted to get the same aborted as the complainant could not afford three children being small income group.
13. Now the issue is to decide whether there is any negligence of the attending doctor or not?. The complainant in her complaint has not pointed out that the attending doctor did not followed the standard medical procedure and the doctor was not well qualified. No expert report has been produced to evident medical negligence. Learned counsel for the opposite parties stated that the doctors in the opposite party-hospital are well qualified from Armed Forces Medical College, Pune. In the instant case USG was done by Dr.Manish Kumar Saha, Radiologist, who has done "Bachelor of Medicine and Bachelor of Surgery" from Maharashtra University of Health Sciences, Nashik/ Armed Forces Medical College, Pune and completed "Degree of Doctor of Medicine in Subject Radio- Diagnosis" from Delhi University as per Certificates placed in record. Therefore, the attending doctor was well qualified. As per the judgment of the Hon'ble Supreme Court in the case Civil Appeal No. 3971 of 2011 titled "Dr.S.K.Jhunjhunwala Versus Mrs.Dhanwanti Kaur & Anr." decided on 01.10.2018 it has been observed as under:
"a medical practitioner was not be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing Consumer Complaint No.637 of 2019 9 one reasonable course of treatment in preference of another. A medical practitioner would be held liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
14. As per guidelines on use of ultrasonography during pregnancy USG between 18 and 22 weeks provides some information about multiple aspects of pregnancy. Second Trimester Ultrasound Examination can diagnose upto 94.4% twin pregnancies, if done before 19-20 weeks. Col. Dr. Davinder Bhardwaj, Senior Advisor, Department of Obstetrics and Gynaecology, presently posted at 167 Military Hospital, Pathankot appeared from opposite party-hospital on 27.01.2022 and explained that the instant case falls within 5.6% of the result of the U.S.G. Further pain and discomfort during pregnancy is a universal phenomenon across the womanhood. The hidden twins are common in mon-aminotic pregnancies, wherein both fetus are living in the same amiotic sac. A second twin that is hidden on an early USG will likely to be discovered at later stage of pregnancy after 20 weeks of anatomy ultrasound. It is also possible that the two dimensional perspective of USG could catch only one embryo and the other one; which is hidden directly behind the first, is missed. It is a scientifically proven and documented fact.
15. Hon'ble Apex Court in case titled as "Senthil Scan Centre Vs. Shanthir Sridharan and another" reported in III (2011) CPJ 54 (SC) held that ultrasound is not perfect depiction of fetus and scan results cannot be 100% conclusive and hence negligence is not proved. The relevant portion of the judgment is as under: Consumer Complaint No.637 of 2019 10
"The claimant's case was entirely based on her oral assertion that the detection of the deformity was possible. There is also no evidence as to how the scan centre or the respondent no.2 did not do what ought to have been done or did something which a doctor possessing ordinary skills ought to have done. No expert evidence was let in to show that the scans conducted were not as per the medical norms or that the centre was not properly equipped. The Commissions also failed to appreciate 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......"
XX XX XX XX XX XX
XX XX XX XX XX XX
"Applying the above test recognized by precedent in this country to the case at hand we are of the view that the State Commission and so also the National Commission fell in error in holding that there was deficiency in service in as much as the centre had failed to detect the deformity with which the respondent gave birth to her child. What is significant is that the respondent-complainant had not led any expert evidence to controvert the case of the centre that the doctor who conducted the ultrasound was highly qualified and that the ultrasound was done with due care and diligence. There was also no evidence to show that the failure to detect the deformity was out of any negligence on the part of the doctor conducting ultrasound."
16. Regarding the other plea of the complainant that had the doctor identified / reported twin pregnancy in the USG done 26.09.2018 she could have opted to get the same aborted as the couple could not afford three children being from small income group, the opposite parties submitted that when the gestation period is on and over 20 weeks, abortion fetus is legally not Consumer Complaint No.637 of 2019 11 permitted except in exceptional circumstance i.e.
i) continuous pregnancy involve a risk to the life of a pregnant woman.
ii) if child born would suffer from physical handicap/ mental abnormalities.
iii) pregnancy caused by rape.
iv) pregnancy as a result of failure, if any, device or method used by any woman/her husband for limiting number of children.
17. In the instant case, the 1st USG was done at 20 weeks of pregnancy, therefore, the complainant could not have resorted to aborting, even if she had been informed about presence of twin during USG done at 20 weeks.
18. Other plea of the complainant is that the complainant could not afford three children being from small income group. As per Government of India policy, in the instant case, the complainant is entitled to claim Rs.27,000/- per child per year to all three children as she had given birth to twins during second delivery which was otherwise not in her control.
19. With regard to opposite party No.2, the complainant has wrongly included opposite party No.2 Lt. Col. Jayanta Kumar Biswas, who is a Gynecologist and in the entire complaint, nothing against opposite party No.2 has been mentioned specifically. Also, there is no involvement of opposite party No.2 whatsoever kind, in present context.
20. Sequel to the above discussions, the complainant has failed to prove any negligence against the opposite parties. Therefore, Consumer Complaint No.637 of 2019 12 the complaint is hereby dismissed being devoid of merits.
21. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER February 18th , 2022 parmod