State Consumer Disputes Redressal Commission
1. B. Dilip Reddy S/O.B. Sunder Reddy, vs 1. Rainbow Childrens Hospital & ... on 19 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL FORUM Telangana Complaint Case No. CC/257/2013 1. 1. B. Dilip Reddy S/o.B. Sunder Reddy, Aged about 28 Years, Indian, Occ:Private Service, R/o. H.No.16-2-751/C/4/A/117, Road No.2, Tirumala Hills, Asmangadh Malakpet, Hyderabad-500 036. 2. 2. Smt. B. Nikhitha Reddy, W/o. B. Dilip Reddy, Aged about 27 Years, Indian Occ: Husewife, R/o. H.No.16-2-751/C/4/A/117, Road No.2, Tirumala Hills Asmangadh, Malakpet, Hyderabad-500 036. 3. 3. Master B. Nirav Reddy, AGed about 1 year being minor Rep. by his father & natural guardian B.Dilip Reddy S/o. B. Sundar Reddy, Aged about 28 Years, Indian, Occ: Private Service, R/o.H.No.16-2-751/C/4/A/117, Road No.2, Tirumala Hills, Asmangadh, Malakpet, Hyderabad-500 036. ...........Complainant(s) Versus 1. 1. Rainbow Childrens Hospital & Perinatal Centre, Plot No.22, Raoad No.10, Banjara Hills, Hyderabad-500 034, Rep. by the Managing Director, Dr. Ramesh Koncharla. 2. 2. M/s. Rainbow Childrens Medi Care Pvt. Ltd., P.No.6-2-621/A, Plot No.22, Road No.10, Banjara Hills, Hyderabad-500 034. Rep. by the Managing Director, Dr. Ramesh Komcharla. 3. 3. Dr. Shruthi Kesi Reddy M/s. Rainbow Hospitals, Plot No.22, Road No.10, Bnjara Hills, Hyderabad-500 034. 4. 4. Dr. Sujatha Jagadeesh, Radiologist, M/s. Rainbow Hospitals, Plot No.22, Road No.10, Banjara Hills, Hyderabad-500 034. 5. 5. Dr. Lakshmi Kiran Sistla, Consiultant in Fetal Medicine M/s. Rainbow Hospitals, Plot No.22, Road No.10, Banjara Hills, Hyderabad-500 034. 6. 6.Dr. Gayatri, Consultant in Fetal Medicine M/s. Rainbow Hospitals, Plot No.22, Road No.10, Banjara Hills, Hyderabad-500 034. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE B. N. RAO NALLA PRESIDENT HON'BLE MR. Sri. PATIL VITHAL RAO JUDICIAL MEMBER For the Complainant: For the Opp. Party: Dated : 19 Jan 2018 Final Order / Judgement BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF TELANGANA : AT HYDERABAD CC NO. 257 OF 2013 Between : B.Dilip Reddy S/o B.Sundar Reddy Aged about 28 years, Occ: Private Service Smt B.Nikhitha Reddy W/o B.Dilip Reddy Aged about 27 years, Occ: Housewife Master B.Nirav Reddy Aged about one years being minor Rep. by his father and Natural Guardian B.Dilip Reddy S/o B.Sundar Reddy Aged about 28 years, Occ: Private Service All areR/o H.No.16-2-751/C/4/A/117 Road No.2, Tirumala Hills, Asmangadh Malakpet, Hyderabad-500 036 Complainant A N D Rainbow Children's Hospital & Perinatal Centre Plot No.22, Road No.10, Banjara Hills, Hyderabad-500034, rep. by the Managing Director Dr.Ramesh Kancharla M/s Rainbow Childrens Medi Care Pvt Ltd., P.No.6-2-621/A, Plot No.22 Road No.10, Banjara Hills, Hyderabad-500034 Rep. by the Managing Director Dr.Ramesh Kancherla Dr.Shruthi Kesireddy M/s Rainbow Hospitals, Plot No.22, Road No.10, Banjara Hills, Hyderabad-500034 Dr.Sujatha Jagadeesh, Radiologist, M/s Rainbow Hospitals Plot No.22, Road No.10, Banjara Hills Dr.Lakshmi Kiran Sistla Consultant in Fetal Medicine Plot No.22, Road No.10, Banjara Hills Dr.Gayatri Consultant in Fetal Medicine M/s Railbow Hospitals, Plot No.22 Road No.10, Banjara Hills, Hyderabad -500034 Opposite parties Counsel for the Complainant M/s V.Gourisankara Rao Counsel for the Opposite parties M/s Srinivas Iyyengar QUORUM : HON'BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT & SRI PATIL VITHAL RAO, MEMBER
FRIDAY THE NINETEENTH DAY OF JANUARY TWO THOUSAND EIGHTEEN Oral Order : (per Hon'ble Sri Justice B.N.Rao Nalla, Hon'ble President) *** The complaint is filed under section 17 (1)(a)(i) of the Consumer Protection Act, 1986 by the Complainant to direct the opposite parties to pay Rs.97,52,760/- towards fitting prosthesis to the complainant no.3 with interest @ 12% per annum from the date of the complaint; to reimburse the medical expenses of Rs.89,250/-; to pay compensation of Rs.1,00,000/- and costs of Rs.25,000/-.
2. The case of the complainant in brief is that during the course of periodical checkup and examinations, the complainant no.2 had prenatal scanning for four times on the advice of opposite party no.3. The first prenatal screening/scanning report dated 14.03.2012 was issued by opposite party no.4 stating that it was normal the second scan report dated 20.04.2012 was issued by opposite party no.5 clearly informing that both hand were visible. In the third scan report dated 06.06.2012 was issued by opposite party no.6 clearly stating that " no obvious fetal structural defects" were observed. The fourth scan report dated 31.08.2012 was issued by opposite party no.5 stating that there was "good interval growth". All the reports of scanning were shown as normal without any medical problem to the complainant no.2 and to her baby in womb. While so the complainant no.2 was admitted in the opposite party no.1 hospital on 18.10.2012 for delivery. On 18.10.2012 itself the complainant no.2 delivered a male child i.e., the complainant no.3. The parents were shocked to see that there was a deformity in the right hand of the child whereas all the earlier reports shown as normal. The opposite party no.3 informed the complainants' no.1 and 2 that such deformity of the right hand was possible due to amniotic bands and advised future follow ups with hand surgeon for rehabilitation and future management. The complainants no.1 and 2 in all paid a total sum of Rs.89,250/- to the opposite party no.1 towards prenatal examinations, investigations, delivery charges etc. On 20.11.2012 the complainant no.2 issued a legal notice to the opposite partyno.1 demanding to pay compensation for not taking reasonable care and skill in the diagnosis of the fetus and giving wrong reports and loss valuable time for correcting the deformity in the right hand of the complainant no.3. The opposite party no.1 gave a reply stating that there was no fault on their part in issuing the investigation report and that there are possibilities for erroneous reports even as per medical journals and as such they are not liable to pay any compensation.
3. The complainants no.1 and 2 consulted various doctors and learnt that M/s Otto Bock Health Care India Pvt Ltd., Secunderabad has expertise in the treatment of prosthesis and they diagnosed the complainant no.3 as suffering from RT trans Radial amputation (Congenital). He was prescribed to be fitted " Right Trans Radial cosmetic prosthesis contains cosmetic hand with cosmetic glove". The complainants no.1 and 2 opted to get proper treatment to the right hand of the complainant no.3. M/s Ottobock gave an estimate for a sum of Rs.97,62,760/- stating that the complainant no.3 the cosmetic prosthesis can be used with stages of the age and that the equipment are to be imported from Germany. Had the opposite parties diagnosed the deformity of the right hand of the complainant no.3 during the prenatal scan reports through necessary surgical intervention the deformity could have been rectified. Due to deficiency in service rendered by the opposite parties all the complainants have been put to serious inconvenience, hardship and mental agony apart from irreparable financial loss. Hence, the complaint with reliefs as stated in paragraph no.1 supra.
4. Opposite party no.1 filed its written vision which was adopted by the rest of the opposite parties resisting the case of the complainant and contended that only four scans were done during the entire pregnancy which shows great discretion on the part of the treating doctor as scans were advised only when necessary. The first scan was done on 14.03.2012, 7 weeks into pregnancy. The purpose of the scan was to ascertain if there is a gestational sac and that it is rightly placed within the uterus and to rule out ectopic pregnancies that could be life threatening. The scan would also establish whether the pregnancy is viable and pregnancy is single/multiple and advise on planning for appropriate care accordingly. The second scan was done on 20.04.2012, 12 weeks into pregnancy. The purpose of this scan was to ascertain the risk for chromosomal abnormalities in the fetus and based on specialized measurement of parameters. The fetus was allocated a "low risk" for chromosomal abnormalities and although the scans disclaim complete accuracy on this count, it is heartening to see that the baby after birth showed no signs/symptoms suggestive of a chromosomal abnormality so far.
5. The role of the preliminary scan for structural assessment has been recently recognized and shows that doctor's commendable effort to check the fetal structure and reported everything accurately. When the opposite parties no.3 to 6 stated "both hands visible", it was described having seen two hands at the time of the scan. In this condition, the hands are mobile in almost all planes and directions, it is not impossible to mistake the same hand at two different positions as two different hands. Antenatal scans of living and moving fetuses have limitations to accuracy. It is due to these limitations most scan centers attach long disclaimers at the end of the scans such as "all fetal abnormalities cannot be picked up by ultrasound scans. Detection of fetal anomalies depends on fetal position, penetration of ultrasound waves through maternal abdomen, gestational age of the fetus etc. Some abnormalities develop as the fetus grows and some congenital problems present only postnatal". Technical limitation of the scan cannot be equated to negligence by the doctors/opposite parties.
6. The third scan was done on 06.06.2012, 19 weeks into pregnancy. During the san all parts were seen in detail and the limitations with checking the upper limbs remain the same as stated for second scan. The report stating that there were "no obvious structural defects" is which was what the report sincerely meant.
7. The fourth scan was done on 31.08.2012, 26 weeks into pregnancy. The purpose of the scan was to ascertain and assess the growth of the fetus by checking fetal head, abdomen and thigh bone. The scan observed that all of the above demonstrated good interval growth and it is clear on the birth of an appropriately grown child at term. The purpose of this scan was to rule out growth disorders and it is submitted that it was satisfactorily done.
8. The complainant no.2's delivery was done in excellent obstetric care with immediate neonatal assessment. As per BJOG: An International Journal of Obstetrics and Gynacology, October 2005:
" The proportion of limb defects diagnosed prenatally remained low, particularly for amputation, where in three out of four affected babies it was unsuspected even in the most recent cohort. It can be very difficult for parents to understand how something as apparently obvious as a missing limb can be missed by a technique that readily detects brain and heart malformations in utero".
9. Thus the non-detection is not due to any omission of the doctors but due to a false negative in the ultrasound reports. There had been immediate post natal detection of abnormality and the process of initiating the counselling by experts has been adopted along with appropriate multidisciplinary guidance towards rehabilitation. This shows that the doctors and the hospital have excellent standards of care and have taken appropriate care with utmost sensitivity despite the abusive and unbecoming verbal assaults by the family members/complainants no.1 and 2 towards the doctors who treated the complainant no.2. The experienced team of doctors and the hospital observed and accepted the said reaction of the complainants as a general and human reaction to the discovery of a malformation in the child. The child/complainant no3. Was discharged at the request of the complainants' no1. And 2. Even after being informed by the experts of the appropriate multidisciplinary guidance towards rehabilitation, complainants no.1 and 2 sought to stop care implying the complainants no.1 and 2's non-compliance with the expert opinion of post-natal rehabilitation needs of the child/complainant no.3. The opposite parties no.3 to 6 who performed the prenatal ultrasound on complainant no.2 are trained fetal medicine specialists who are well qualified and well trained under the renowned fetal medicine specialists. Further, the fetal medicine department at opposite parties no.1 and 2 have got state of the art technology and appropriate procedures to ensure high medical facilities and efficient diagnosis and treatment to its patients. In spite of the best equipment there may be a chance of an anomaly being missed or under rare circumstances, evolved at a later stage and that such limitations are inherent to prenatal ultrasound testing and that there is no 100% detection rate of anomalies especially with respect to limb reduction defects. The opposite parties no.3 to 6 have followed all standard recommendations and guidelines accepted in clinical practice and hence the question of negligence cannot be arose.
10. There are no treatments which can be done before the birth of the child/in the fetal stage and the complainants could not have done anything differently if the scan reports had stated the amputation of the right forearm. It is heartening to see that treatment for the amputed arm is available and that the process waS stated as soon as possible. Further, it is submitted that as this treatment is possible only after the birth of the child and in the present case nothing was amiss in helping the complainant couple plan the treatment of the child after birth. The cost liability cannot be placed on the opposite parties on the opposite parties as they did not play a role in creating the defect of the complainant no.3 arm. The defect is part of a natural process which can rarely affect fetuses and is positively not caused by ultrasound scans. The treatment is possible only after the birth of the child and in the present case nothing was amiss by the opposite parties in helping the complainant couple plan the treatment of the child after birth. The defect was not caused by the negligence of the doctors or the hospital. As the treatment of the defect could only be done after the birth of the child, the opposite parties cannot be blamed for every activity the complainant's child might not be able do or career he cannot choose. There is no way that the defect could be rectified in the pre-natal stage as a forearm cannot be created and transplanted in a fetus. If the problem/defect would have been diagnosed antenatal, it is a possibility that the complainants would have perhaps opted to discontinue the pregnancy to avoid the costs of rehabilitating a child for a condition which can be managed through rehabilitation. Hence, the opposite party no.1 prayed for dismissal of the complaint.
11. On behalf of the complainants, the complainant no.1 filed his evidence affidavit and got Exs.A1 to A13 marked. On behalf of the opposite parties, the opposite party no.3 has filed his evidence affidavit and got Exs.B1 to B8 marked. On a petition filed by the complainants, the opposite party no.3 was cross examined as DW1.
12. Counsel for both parties present and were heard. The counsel for both parties have filed their respective written arguments.
13. The points that arise for consideration are :
Whether the opposite parties committed any deficiency in service in not diagnosing the deformity of the right hand of the complainant no.3?
Whether the complainants are entitled to any compensation?
To what relief?
14. POINTS NO.1 TO 3: The case of the complainants is that the complainant no.2 became pregnant and received obstetric care at opposite party no.1 and that during the course of her periodical checkup and examinations on the advice of opposite party no.3 complainant no.2 underwent "prenatal scanning" four times. It is also the case of the complainants that in the first prenatal screening/scanning report dated 14.03.2012 issued by opposite party no.4 it was normal. Likewise, in the second report dated 20.04.2012 issued by opposite party no.5 clearly informing that both hands were visible, in third scan report dated 06.06.2012 issued by opposite partyno.5 clearly stated that 'no obvious fetal structural defects" were observed and in the fourth scan report dated 31.08.2012 issued by opposite party no.5 stating that there was " Good Interval Growth". All the findings of periodical scanning reports were "normal", without any medical problem to the complainant no.2 and to her baby in the womb. Thereafter the complainant no.2 was admitted in the opposite party no.1 Hospital on 18.10.2012 for delivery and found that the complainant o.3 who was noticed to have absence of right forearm distal elbow joint.
15. On the other hand the opposite parties contended that the opposite parties no.4 to 6 who performed the prenatal ultrasound on complainant no.2 are trained fetal medicine specialists who are well qualified and well trained under and renowned fetal medicine specialists. Further, the fetal medicine department at opposite parties' no.1 and 2 have got state of the art technology and appropriate procedures to ensure high medical facilities and efficient diagnosis and treatment to its patients. It is further contended by the opposite parties that antenatal scan of living and moving fetuses have limitations to accuracy. All fetal abnormalities cannot be picked up by ultrasound scans. Detection of fetal anomalies depends on fetal position, penetration of ultrasound waves through maternal abdomen, gestational agent of the fetus etc. Some abnormalities develop as the fetus grows and some congenital problems present only postnatally. Therefore, a technical limitation of the scan cannot be equated to negligence by the opposite parties.
16. At the outset, we would like to reproduce "Halsbury's Laws of England - Volume 26 (3rd Edition) Pages 17-18" which reads as follows:
"23. Degree of skill and care required. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires; a person is not liable in negligence because some one else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, although a body of adverse opinion also existed among medical men."
17. The above principle has been well accepted and relied upon repeatedly by the Hon'ble Supreme Court, Hon'ble National Commission, House of Lords and others. We wish to specially rely upon the observations "Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires." We are in no doubt that when a patient who goes to a physician or diagnostic or radiologist, does not expect a wrong diagnosis leading to further mental agony and tension.
18. The opposite party no.3 was cross examined by the counsel for the complainants and in her cross examination the opposite party no.3 answered to the questions posed by the counsel as follows:
Q. Are there any abnormalities found in pre-natal screening report/scan done on 14.03.2012 (Ex.A1) A. This test is done to screen for chromosomal problems specially (down syndrome) and that turned at to be a low risk with blood test and NT scan.
Q. What are the findings of Ex.A2 1st trimester scan report taken on 20.04.2012.
A. Ex.A2 is nuchal transcluency scan showed she is at low risk for down syndrome.
It is true that as per Ex.A2 i.e. pertaining to col.fetal anatomy is concerned it was mentioned that both hands were visible. Ex.A2 is issued by opposite party no.5.
Q. I suggest you that Ex.A2 does not speak abnormality of the fetus of any kind. What do you say?
A. This scan is done only to screen for Down Syndrome i.e. the reason in the final conclusion they did not mention about structural problems. My role is limited in interpreting the report as screen negative for D.S. It is true that generally whatever the radiologist observe on the screen, the same will be mentioned by him/her in the report. It is true that in Ex.A3 anomaly scan, the operator i.e., opposite partyno.6 diagnosed as " No obvious foetal structural defects".
Q. After going through Exs.A1 to A3 did you at any point of time suspect any abnormality or structural deformity in the baby (fetus)?
A. Based on the reports I must have counsel the patient i.e. complainant no.2 that at 12 weeks scan 95% your baby is going to the normal and a normally scan i.e. 20 weeks 99% normal baby.
Q. I am suggesting to you that you were carried away by Exs.A1 to Ex.A4 and gave your advice.
A. Yes my treatment was based on the scan reports and clinical findings.
It is true that the complainant no.2 was admitted on 18.10.2012 for delivery and the delivery was on 18.10.2012 at 10.51 p.m and baby boy i.e. complainant no.3 was born with absence of right forearms distal elbow joint.
Q. What are the reasons for the birth of the baby with the absence of right forearm distal to elbow joint?
A. Need not be any reason it can happen accidentally or it can be amniotic band syndrome.
Q. What is amniotic band syndrome? A. When the baby is in amniotic sac very rarely a band can form and can strangulate the small parts of body which in turn can decrease the blood supply to that part and alter that part disappears.
19. The opposite party no.3 in her cross examination stated that the deformity of the complainant no.3 i.e., absence of right forearm distal to elbow joint can be amniotic band syndrome. The opposite partyno.3 also explained the Amniotic Band Syndrome as it is an amniotic sac very rarely a band can form and can strangulate the small parts of body which in turn can decrease the blood supply to that part and later that part disappears.
20. In the website https://fetus.ucsf.edu/amniotic-band-syndrome it is stated as follows:
How serious is my fetus's amniotic band syndrome?
Each case is unique, multiple strands may be entangled around the fetus, and the severity can range from mild to life-threatening depending on where the bands are constricting and how tightly they are wound.
If there is evidence of amniotic bands, a detailed ultrasound test should be done to assess the severity and avoid a misdiagnosis. Amniotic bands can be difficult to detect by ultrasound because of their small size, so it is important to have your case reviewed by someone knowledgeable in amniotic band syndrome. The individual strands are often hard to see on an ultrasound, and typically the condition is detected indirectly by the constrictions and swelling they cause to limbs and other parts of the fetal body.
What are my choices during this pregnancy?
Amniotic band syndrome causes no increased risk for the mother during pregnancy. Most complications of amniotic bands are handled after birth. For more severe cases, a detailed assessment of your situation is necessary before fetal surgery can be considered as an option.
In cases where the situation is mild, fetal surgery is not recommended and any complications will be treated after birth by reconstructive surgery. All cases of amniotic band syndrome should be monitored by ultrasound during pregnancy for potential increasing severity.
More severe cases may be considered for fetal surgery provided the maternal and fetal risks of surgery are small. A full evaluation is required before going ahead with fetal surgery as each case of amniotic band syndrome is unique and additional complications may be present. Fetal surgery may be a treatment option in select cases. This can be offered when the band is around a limb and causing swelling and obstructing blood flow to the limb. The fetal surgeons can enter the uterus with a small instrument and attempt to cut the band around the limb. This can be accomplished by either disrupting the band with a laser or cutting the band with a sharp instrument.
21. Therefore, from the above it is possible that the child abnormality could have been rectified. Had the opposite parties no. 4 to 6 diagnosed the deformity in the foetus, there is a possibility of fetal surgery to rectify the deformity. Instead of accepting his fault and negligence, the opposite parties went on saying that the reports of the scan were normal without any medical problem to the complainant no.2 and to her baby in the womb. On the other hand the opposite parties stated that the opposite parties no.2 to 6 who performed the prenatal ultrasound on the complainant no.2 are trained fetal medicine specialists who are well qualified and well trained under and renowned fetal medicine specialists and also that the opposite parties no.1 and 2 have got state of the art technology and appropriate procedures to ensure high medical facilities and efficient diagnosis and treatment to its patients. When they themselves stating that the opposite parties no.4 to 6 are well qualified and well trained specialists and also the opposite parties no.1 and 2 have got state of the art technology and appropriate procedures why cannot they detect the deformity in the antenatal scan if they are really pioneers in the fetal medicine.
22. Learned counsel for opposite parties cited a decision of the Hon'ble Apex Court in the case of Martin F. D'Souza Vs. Mohd. Ishfaq; 2009 NCJ 193 (SC), wherein it has been held that medical practitioners are not liable for negligence simply because things went wrong from mischance / misadventure through error of judgment. The Hon'ble Supreme Court in case "V. Kishan Rao Vs Nikhil Super Specialty Hospital & Anr.", 2010(2) RCR (Civil) 929 (SC), observed that the law laid down in Martin F. D'Souza Vs Mohd. Ishfaq (supra) is not the good law. In Paras No.47 to 49, the Hon'ble Supreme Court observed as follows:-
"47. In a case where negligence is evident, the principle of res-ipsa- loquitur operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence.
48. If the general directions in paragraph 106 in D'souza's (supra) are to be followed, then the doctrine of res-ipsa-loquitur which is applied in cases of medical negligence by this Court and also by Courts in England, would be redundant.
49. In view of the discussions aforesaid, this Court is constrained to take the view that the general direction given in paragraph 106 in D'souza (supra) cannot be treated as a binding precedent and those directions must be confined to the particular facts of that case.
23. It is admitted in this case by the opposite parties that the complainant no.2 had come to the opposite parties no.1 and 2 hospital for periodical checkup and examinations and in that process the complainant no.2 underwent ultrasound scans as to ascertain if there is a gestational sac and that it is rightly placed within the uterus, to rule out ectopic pregnancies, to establish whether the pregnancy is viable and pregnancy is single/multiple, to ascertain risk for chromosomal abnormalities in the fetus and that to see all the organs are normal and for conducted ultrasound scanning on 14.03.2012, 20.04.2012, 06.06.2012 and 31.08.2.012 on her and opined that the fetus within her was normal in all aspects. It is undisputable that she gave birth to a child, who did not have right forearm distal to elbow joint. The International Journal of Obstetrics and Gynecology report relied upon by the opposite parties does not specify that the deformity was undetectable through ultrasound. In the present scenario it is not found helpful to decide the controversy existing between the parties. In the case in hand the report takes back seat, as the case appears to be squarely covered by the principle of Res-ipsa-locutor.
24. In the case of V. Krishna Rao (Supra), Supreme Court observed that where negligence is evident the principle of Res-ipsa-locutor operates and the complainant does not have to prove anything, as the things (rest) prove itself, and in a case where this principle operates it is for the respondent to prove that he has taken due and reasonable care expected and performed his duty diligently, as to repel the charge of the negligence against him.
25. We are therefore of the considered view that the OP doctor failed to discharge his duty as to determine any abnormality in the child in womb during four ultrasounds performed on the complainant no.2, who had approached the opposite parties with a hope to know that everything was right with her child. The result therefore was that all the hopes of the mother shattered when she found at the time of the birth of the child that he was suffering with a defect of absence of his right forearm distal to elbow joint which will have serious impact on the mother and the child all along, they are alive. Failure to detect abnormality in the fetus during pregnancy, thus constitute medical negligence amounting to deficiency in service on the part of opposite parties.
26. In the case of Bombay Hospital and Medical Research Centre Vs. Sharifabi Ismail Syed and others; I (2008) CPJ 432 (NC), the presence of tumour was wrongly indicated in MRI film and on operation, no tumour was found. Another MRI was conducted and second operation was performed on the basis of that MRI. It was held by the Hon'ble National Commission that the consulting Radiologist who signed the report was responsible for misreading, non-reading / looking at MRI film correctly. Similarly, in the case of Nehra (Dr.) Vs. Shalini Vij and others; IV (2008) CPJ 230 (NC), there was wrong ultrasound report about abscess left lobe, which was contradicted by another Radiologist in another report within 24 hours. It was held by the Hon'ble National Commission that the negligence on the part of the petitioner is writ large and the Radiologist was held liable for giving wrong report and was made liable to pay compensation.
27. From the discussion made above, it is clearly established that the opposite party No. 4 has committed negligence in the performance of her duties and has issued a wrong and incorrect ultrasound report. Therefore, all the opposite parties liable for the negligence of the opposite party no.4.
28. In Smt. Savita Garg Vs. The Director, National Heart Institute reported in 2004 (8) SCC 56 the Supreme Court observed that "Once a patient is admitted in a hospital it is the responsibility of the hospital to provide the best service... it is the duty of the hospital to satisfy that there was no lack of care or diligence." Therefore, the opposite parties no.1 and 2 are vicariously liable for the negligence of the doctors.
29. In Aparna Datta Vs. Apollo Hospitals Enterprises Ltd., the Madras High Court held "Where an operation has been done negligently without bestowing normal care and caution, the hospital cannot be allowed to escape from the liability by stating that there is no master and servant relationship between the hospital and the surgeon who did the operation. The hospital is liable for the negligence of the surgeon, and it is no more a defence to say that the surgeon is not a servant employed by the hospital." In the present case all the doctors i.e., opposite parties no.4 to 6 including Radiologist and the opposite parties no.1 and 2 which are the hospitals are liable for their negligence in not detecting the deformity of the child in the fetus. Had the opposite parties informed the congenital deformity of the baby at appropriate time through accurate investigations the complainants' no.1 and 2 would have taken appropriate steps to rectify the deformity. Therefore, Opposite Parties 1 to 4 are liable to pay compensation for the negligence in conducting the surgery on the complainant.
30. Now coming to the compensation aspect of the case. The complainants have claimed the compensation of Rs.99,67,010/-. It is not sure that had the opposite parties detected the deformity they can rectify the problem successfully it is only a chance to get it rectify the deformity if they detected the deformity in the fetus. Therefore only 50% chance to the opposite parties to rectify the deformity as such the complainants are not entitled to the cost of Right Trans Radial Cosmetic Prosthesis with cosmetic glove as claimed by the complainant. It is not that due to the negligence of the opposite parties during delivery of the complainant no.2, the child has become handicapped but it is only due to structural or functional abnormalities present at birth that cause physical or mental disability. Birth defects may be caused by genetic problems, problems with chromosomes, or environmental factors. The only negligence on the part of the opposite parties are that they did not detect the deformity in the fetus had they done it there is a chance of fetal surgery that might help the child in rectification of the deformity. Even after detection if the opposite parties failed in fetal surgery, the opposite parties also can counsel the parents to retain sufficient 'self-control'. Through skilled counselling, the doctors in addition to their diagnostic and management skills, may meaningfully influence the ongoing care of the infant. They may help avoid the development of unrealistic fears or an over-optimistic outlook, thereby fostering the normal development of the child. But looking into the negligence made by the opposite parties in not detecting the congenital deformity of the baby resulting which causing the complainants no.1 and 2 to undergo agony , we are of the considered view that the complainants are entitled to lumpsum compensation of Rs.5,00,000/- together with costs of Rs.5,000/-. Hence, the points no.1 to 3 are answered in favour of the complainants and against the opposite parties.
In the result, the complaint is allowed in part holding and directing the opposite parties no.1 to 6 jointly and severally liable to pay a compensation of Rs.5,00,000/- on all counts together with costs of Rs.5000/-. Time for compliance four weeks.
PRESIDENT MEMBER DATED 19.01.2018 APPENDIX OF EVIDENCE WITNESSES EXAMINED For complainant for opposite parties NIL DW1 : Dr.Shruthi Kesireddy, Op3 EXHIBITS MARKED For complainants Ex.A1 Copy of prenatal Screening Report dated 14.08.20196 Ex.A2 Copy of First Trimester Scan Report dated 20.04.2012 Ex.A3 Copy of Anomaly Scan report dated 06.06.2012 Ex.A4 Copy of Growth Scan dated 31.08.2012 Ex.A5 Copy of New Born Summary dated 18.10.2012 Ex.A6 Copy of legal notice dated 20.11.2012 Ex.A7 Copy of reply notice dated 05.12.2012 Ex.A8 Copy of Ottobock Payment receipt dated 05.07.2013 Ex.A9 Copy of Ottobock Payment receipt dated 26.09.2013 Ex.A10 Copy of Ottobock prescription with quotation dated 04.10.2013 Ex.A11 Birth Certificate of Barla Nirav Reddy Ex.A12 Photograph of complainant no.3 Ex.A13 Copy of particulars of the Managing Director of Rainbow Hospitals For opposite parties Ex.B1 Copy of Admission Sheet dated 18.10.2012 Ex.B2 Copy of General Consent for Treatment Ex.B3 Copy of Progress Notes Ex.B4 Copy of discharge report dated 19.10.2012 Ex.B5 Copy of Admission Details Ex.B6 Copy of progress notes dated 19.10.2012 Ex.B7 Copy of Labour Record Ex.B8 Copy of Patient Transfer Form dated 91.10.2012 Ex.B9 Copy of Medication Chart dated 18.10.2012 Ex.B10 Copy of nursing assessment sheet dated 18.10.2012 Ex.B11 Copy of pre-operative check list dated 18.10.2012 Ex.B12 Copy of consent for special procedures Ex.B13 Copy of clinical representation dated 18.10.2012 Ex.B14 Copy of TPR & BP chart dated 18.10.2012 Ex.B15 Copy of fluid chart dated 18.10.2012 & 19.10.2012 Ex.B16 Copy of nursing handover chart dated 19.10.2012 Ex.B17 Copy of antenatal record dated 18.10.2012 Ex.B18 Copy of list of ongoing fetal surgery trials PRESIDENT MEMBER [HON'BLE MR. JUSTICE B. N. RAO NALLA] PRESIDENT [HON'BLE MR. Sri. PATIL VITHAL RAO] JUDICIAL MEMBER