State Consumer Disputes Redressal Commission
Dr.Y.Savitha Devi vs Smt P.Shailaja W/O Sri P.Jesuratnam on 13 September, 2011
BEFORE A BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.1208 OF 2009 AGAINST C.C.No.129 OF 2008 DISTRICT FORUM-I HYDERABAD Between: Dr.Y.Savitha Devi C/o Swapna Nursing Home 6-3-1111/19, Nishanthbagh Begumpet, Hyderabad Appellant/opposite party A N D Smt P.Shailaja W/o Sri P.Jesuratnam aged 28 years, H.No.5-342/4, Street No.3 Netajinagar, Gurukulam Post Rajahmundry-533 101 East Godavari District Respondent/complainant Counsel for the Appellants Sri S.Subrahmanya Reddy Counsel for the Respondent Sri Ravi Kondaveeti QUORUM: HONBLE SRI JUSTICE D.APPA RAO, PRESIDENT SMT M.SHREESHA, HONBLE MEMBER
AND SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER TUESDAY THE THIRTEENTH DAY OF SEPTEMBER TWO THOUSAND ELEVEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The opposite party has preferred the appeal against the order of the District Forum which directed to pay an amount of `3,00,00/-
to the complainant and `5,000/- towards costs.
2. The complainant approached the opposite party in the month of April 2006 for prenatal consultation. The opposite party confirmed the pregnancy and had got conducted 8 scannings between 14.6.2006 and 6.1.2007. The scanning report dated 14.8.2006 had shown that the foetus developed cardiac problem, it was not informed to the complainant and no advice was given for termination of pregnancy. On 14.1.2007 the complainant was admitted in opposite partys nursing home as the labour pains started and on the same day the opposite party performed caesarean operation. A child was born. The opposite party also performed tubectomy on the next day. Later, Dr.T.Adinarayana, Childrens Specialist checked the newly born child and informed the complainant that there was problem in the boys heart and advised heart check up at Care Hospital. On 16.1.2007 at about 1.00 a.m. it was noticed that the child was suffering from breathing problem. The duty doctor Dr.T.Adinarayana who tested the baby put him on Oxygen and advised to shift him to the childrens hospital immediately.
Accordingly the child was shifted to care hospital for echocardiogram. The doctors at Care Hospital advised to take the child to Apollo Hospital for cardiac surgery.
3. The child was shifted to Apollo Hospital where Dr.K.S.Moorthy, the Pediatric Cardiac Surgeon informed that the condition of the child was serious that the child would not survive without surgery that the chance of the survival even after surgery was little. The surgery was performed on 29.1.2007 but the child died don 30.1.2007. The opposite party advised properly she would not have spent `3,20,000/- out of which `2,80,000/-
was paid by the employer of the complainants husband. The conduct of the opposite party doctor in conducting sterilization operation on the complainant even though the condition of the baby was serious shows the negligence and callous attitude of the opposite party. For recanalization the complainant has to undergo another surgery which may or may not be successful. In spite of issuing a notice the opposite party failed to reimburse the amount claimed.
4. The opposite party resisted the case contending that Echogenic cardiac focus noted in the left ventricle was not an indication of cardiac disease and such a finding in the TIFFA scan in the report dated 14.8.2006 was a common finding during routine ultra sound examination. It did not warrant either further investigation or termination of pregnancy. The echogenic cardiac focus noted in the left ventricle is only a minor marker for chromosomal anomalies indicating that it was not related to heart ailment. The foetus survived for a period of about 5 months after TIFFA report till the date of the delivery indicates that the echogenic cardiac focus noticed in the left ventricle was not indication of any heart ailment or heart disease. There was no negligence or deficiency of service on the part of the opposite party.
The opposite party is a Post Graduate in obstetrics and Gynecology and is an experienced gynecologist. Dr.Shiva a pediatrician from the Rainbow Childrens hospital examined the new born child and only after his report that the baby was normal, cry and oxygenation the opposite party proceeded with the sterilization operation. The opposite party advised the complainant and her husband to wait for one year to go for sterilization so as to assess the childs health, the complainant and her husband insisted on performing of sterilization on the date of delivery.
After obtaining consent, the surgery was performed. Dr.P.Adinarayana a pediatrician examined the new born baby in his routine check up and suspected some heart problem and advised for heart check up.
5. The findings in TIFFA report dated 14.8.2007 did not warrant any drastic action for termination of pregnancy. The opposite party got issued a reply notice through her advocate on 21.5.2007 to the advocate of the complainant. The claim for compensation of Rs.10,75,000/- is excessive and unfounded and baseless.
The Rainbow Hospital where the child was treated and Apollo Hospital where also the child was treated and surgery was conducted on the child and where child ultimately died on 30.1.2007 are not made parties to the complaint. The complaint is bad for non-joinder of necessary parties.
6. The complainant has filed her affidavit and the Discharge summary marked as Ex.A1. The opposite party has filed her affidavit and the documents Exs.B1 and B2.
7. The District Forum has allowed the complaint on the premise of the failure of the opposite party to advise termination of pregnancy on the basis of finding in the TIFFA report.
8. Feeling aggrieved by the order of the District Forum, the opposite party has filed the appeal contending that the observation of the District Forum that the opposite party has not placed any material before it to establish that echogenic cardiac focus in the left ventricle noted in the TIFFA report was a minor marker and that the District Forum has misunderstood the meaning of minor which only means that the echogenic cardiac focus is only a minor indication of chromosomal abnormalities such as trisomy of 21st chromosome or associated with foetal aneuploidy. Echogenci cardiac focus is considered a normal variant and not associated with cardiac abnormality in low risk patient.
9. The point for consideration is whether the opposite party ought to have advised the complainant for termination of pregnancy on the basis of findings in TIFFA Report?
10. The complainant having been confirmed with pregnancy on 30.5.2006 had been under the treatment of the opposite party till she delivered a male child on 14.1.2007.
From the date of first consultation till she had delivered the child, the opposite party had advised the complainant for eight scannings. Colour Doppler interventions (Dating Scan) on 14.6.2006. Colour Doppler interventions Obsteritrics sonography for foetal growth assessment on 15.7.2006, Targeted Imaging for foetal anomalies (TIFFA) on 14.8.2006, Colour Doppler interventions Obsteritrics sonography on 21.9.2006, 18.10.2006 and on 18.11.2006 as also colour Doppler inventions antenatal dopplers on 9.12.2006 and 6.1.2007. The TIFFA was advised on 14.8.2006 and it was meant to rule out foetal anomaly. Based on the findings in TIFFA, the complainant contends that the opposite party ought to have advised her to go for termination of pregnancy whereas the opposite party submits that the findings in TIFFA report do not warrant any drastic action like termination of the pregnancy and that if the abortion was done at that time hastily on the basis of the findings in the TIFFA report it would amount to negligence on her part. The findings in the TIFFA are that amniotic fluid was adequate, foetal position was cephalic, foetal biometry is recorded as BPD:3.9cms, AC:11.9cms, FL:2.3, radius, tibia, humerus, ulna and fibula are noted as normal so is the head, spine, face, nose, thorax and abdomen have been noted normal.
11. The radiologist had given his findings as under:
echogenic cardiac focus noted in left ventricle. Minor marker for chromosomal anomalies. Foetal mouth could not be adequately evaluated due to foetal position. Advise review scan after 2wks.
12. It is true that TIFFA as the name indicates is intended to rule out foetal anomalies.
The obstetrics sonography report and antenatal Doppler report do not indicate any foetal anomaly. In each of the obstetrics sonography reports and ante Doppler reports, the column under foetal anomaly is recorded that no major foetal anomaly noted.
13. Dr.Adinarayana consultant paediatrician of Swapna Nursing Home advised the child to be taken to Dr.Prasada Reddy of care hospital on 16.1.2007 where echo cardiographic test was conducted and it was concluded by the cardiologist Dr.Kalyanasundaram that the child was suffering from TYPE II TRUCUS ARTERIES, TYPE-B INTERUPTION OF AORTICARCH. On the very same day, the child was admitted to Rainbow hospital and he was treated there till 18.1.2007. he was diagnosed with congenital heart disease TYPE II TRUCUS ARTERIES, TYPE-B INTERUPTION OF AORTICARCH, Moderate PDA (L-R) Large Muscular VSD (R-L). At the time of its admission to the Rainbow Hospital, the baby was euthermic and hemodynamically stable.
The discharge summary of rainbow hospital would show that the child was kept on broad spectrum of IV antibiotics in view of leucocytosis and raised CRR Chest X-ray showed mild cardiomegaly. At the time of its discharge the WC count of the child was noted as 30,400 cells/cumm and platelet count -1:32 lakhs/cumm. The discharge summary had also throws light on jaundice that the child suffered from on 3rd post natal day. The child was discharged from Rainbow Hospital on 18.1.2007 and on the same day the baby was admitted to Apollo Hospital.
14. At Apollo Hospital, total corrective surgery was planned and the baby was taken up on 18.1.2007 for surgery. Truncus repair was done under cardiopulmonary bypass and arch repair was done with total circulatory arrest. While the treatment was administered, the patient suffered from low blood pressure and high LA pressure with AV sequential pacing. The patient was kept on high dose of inotropes. The child was stated to suffer from low BP and the doctors increased the dose of medicine, multiple purges of inotropes and calcium.
The cardiac surgeon, Dr.Sunil Swain has noted in the death summary that the condition of the baby continued to be critically ill. Then he developed acute renal shut down. At 4.30 a.m. on 30.1.2007, the baby developed sudden cardiac arrest for which resuscitative measures were given but the child could not be revived and declared dead at 4.40 a.m. on 30.1.2007. The cause of death of the child according to the cardiac surgeon of Apollo Hospital is cardiac arrest due to low cardiac output, S/P truncus and Arch repair.
15. We have referred to the diagnosis and treatment administered to the child in Care Hospital, Rainbow Hospital and Apollo Hospital as the diagnosis of the child in these hospitals is essential to find out whether the echogenic cardiac focus in the left ventricle of the child as noted in the TIFFA report was to have been acted upon in order to advise the complainant to undergo medical termination of pregnancy.
16. In Ultrasonography in obstetrics and Gynecology the author Peter W.Callen, M.D., presented his opinion that echogenic intracardiac focus (EIF) is normal and there is no relation between an EIF and chromosomal abnormalities. He has stated the echogenic intra cardiac focus (EIF) has been seen among normal fetuses for many years and was considered a normal variant until 1994. Several studies have emerged to evaluate whether or not an EIF should be an indication for amniocentesis. Although the association between an EIF and trisomies 13 and 21 has been confirmed, several investigations have suggested that association between an EIF and chromosomal abnormalities is low enough that, in the absence of other findings in an otherwise low-risk patient, fetal karyotyping is unwarranted. Furthermore, an EIF is not associated with cardiac anomalies in low risk patients.
17. In Williams Obstetrics sonographic screening for major structural anomalies fetal dissmorphism has been highlighted. The author is of the opinion 17% of major congenital anomalies were detected before 24 weeks in 16,000 low risk women who were sonographically examined. According to the author, minor abnormalities are dysmorphisms do not effect the fetal prognosis and they can be associated with fetal aneuploidy. He has pointed out that still it is controversial whether ultrasound evaluation for fetal dysmorphisms should be offered as Down syndrome screening test in low risk women instead of or as a supplement to maternal serum screening
18. D.L.Brown, D.J.Roberts and W.A.Miller are of the opinion that echogenic foci within the left ventricle of the heart have been found in a minority of fetuses and generally are believed to be a normal variant. The cause and exact location of these foci have remained speculative.
The learned counsel for the opposite party had referred to Fetal Intracardiac Echogenic Foci by Joseph R.Wax, and Christine Philput. The authors had noted aneuploidy in 10 of 217 fetuses with left ventricular and in one of 18 with right ventricular intracardiac echogenic foci. They had observed 9 cases of trisomy 21, four of trisomy 13, and one trisomy 18. They have observed by ventricular intracardiac echogenic foci are more frequently associated with fetal aneuploidy but not structural lesions, as compared to isolated left or right ventricular intracardiac echogenic foci.
19. A perusal of the opinion of the aforementioned authors who conducted survey and came to conclusion that there was no any correlation between unusually appearing echnogenic foci and adverse perinatal outcome. The learned counsel for the opposite party has submitted that A.P.Medical Counsel came to the conclusion that TIFFA scan had shown echogenic cardiac marker, the experts opinion is that the marker is minor one and not necessarily produces major anomalies. The respondent, Dr.Y.Savitha Devi noted the findings in the antenatal column; advised the couple about the same at the time of sterilization. Further, the repeat scan did not show any evidence of major cardiac problem/ fetal abnormalities (TIFFA Scan + 6 scans) Repeat regular scans and Doppler scan show major abnormalities at the time of delivery, baby was examined clinically by attending pediatrician Dr.Adinarayana and clinically the baby was healthy. The general body had noted that the opposite party was not negligent in advising the complainant to go for tubectomy on examination of the baby by attending pediatrician Dr.Adinarayana who opined that the baby was healthy.
20. The learned counsel for the complainant has contended that the opposite party did not advise the complainant when she had noticed echogenic cardiac focus in the left ventricle of the fetus. According to him the opposite party ought to have referred the complainant to a specialist to ascertain that everything was normal with the fetus of the complainant .
21. We have already noted the findings of the A.P.State Medical Council that the opposite party had not been negligent in not advising the complainant to go for second opinion or a repeat scan. It is pertinent to note that the opposite party had referred the complainant for all the six scans as also the TIFFA scan. It is true the radiologist had advised for a review scan when during the course of TIFFA scan he has noted echogenic cardiac focus in the left ventricle of the fetus The opposite party for the next ultrasonogrpahic scan, has referred the complainant to the same radiologist who had noted the condition of the fetus as normal and he had not found any major fetal anomaly. Therefore, Obstetrics Sonography ought not to have been advised as contended by the learned counsel for the complainant cannot be considered as the contention with any force.
22. The medical Counsel for Andhra Pradesh has referred to the TIFFA scan and Ultrasonography scans and referred to the observation of the three expert doctors, Dr.Sarojini Devi, Dr.P.Balamba, Gynacologists and Dr.K.Nageswara Rao, Pediatric Cardiologist who had expressed their opinion that the opposite party endorsing IEF in the antenatal card by itself indicates that the opposite party had counseled the complainant. The learned counsel for the complainant has submitted that without examining the members of the A.P.Medical Council, the report cannot be considered for any purpose and that the complainant intends to file appeal against the resolution of the A.P.State Medical Council. It is a fact that the appellant had advised for scan during the period the complainant has consulted her from the time of confirmation of her pregnancy till her delivery.
23. The opposite party has relied upon the findings of the radiologist and the radiologist had noted that there was no conspicuous anomaly in the fetus. A doctor cannot be fastened with liability till it is proved that he/she had not exercised due diligence that a doctor of ordinary prudence of the faculty does exercise or he/she had deviated the normal course of treatment without any justifiable cause or explanation. We do not find any negligence on the part of the opposite party in administering treatment to the complainant.
24. The degree of skill and care required by a medical practitioner is stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35) 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, and a person is not liable in negligence because someone 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, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care.
25. Applying the principle laid down in the aforementioned case to the facts of the case on hand, we do not see any negligence on the part of the opposite party either in advising for the obstetric scan or sterilization as both aspects had been considered well and brought to the knowledge of the complainant and her husband. The findings recorded by the District Forum are liable to be set aside.
26. In the result the appeal is allowed. The order of the District Forum is set aside. Consequently the complaint is dismissed. There shall be no order as to costs.
PRESIDENT MEMBER MEMBER Dt.13.09.2011 KMK*