State Consumer Disputes Redressal Commission
Alka Srivastava vs Base Hospital on 19 January, 2009
IN THE STATE COMMISSION : DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 19-01-2009 (1) Appeal No. FA-2008/194 (Arising from the order dated 26-02-2008 passed by District Forum-VII, L.S.C.,Sheikh Sarai-II, New Delhi-110017. Delhi in Complaint Case No.DF-VII/594/2007) 1. Mrs. Alka Srivastava, -Appellants W/o Sh. Abhnash Srivastava, Through Mr. Abhinash Srivastava, 2. Pragati Srivastava, A/Representative. Minor daughter of Mrs. Alka Srivastava. Both residents of WZ-56/B, Gali No. 14, Sadh Nagar, Palam Colony, NewDelhi-110045. Versus 1. Base Hospital, -Respondents Delhi Cantt., New Delhi. Through Mr. Anmol, 2. Army Hospital (R& R), Advocate. Delhi Cant, New Delhi. (2) Appeal No. FA-2008/835 (Arising from the order dated 26-02-2008 passed by District Forum-VII, L.S.C.,Sheikh Sarai-II, New Delhi-110017. Delhi in Complaint Case No.DF-VII/594/07) 1. Base Hospital, -Appellants Delhi Cantt., New Delhi. Through Mr. Anmol, 2. Army Hospital (R& R), Advocate. Delhi Cant, New Delhi. Versus 1. Mrs. Alka Srivastava, -Respondents W/o Sh. Abhnash Srvastava, Through Mr. Abhinash Srivastava, 2. Pragati Srvastava, A/Representative. Minor daughter of Mrs. Alka Srivastava. Both residents of WZ-56/B, Gali No. 14, Sadh Nagar, Palam Colony, NewDelhi-110045. CORAM : Justice J.D. Kapoor- President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT (ORAL) Aforesaid two appeals have been preferred against the impugned order dated 26th February 2008. Short controversy that calls for determination is whether the appellant-Base Hospital can be held guilty for deficiency in service in not diagnosing the foetal anomalies Spinal Bifida, Meningomyelocele & Hydrocephalus uptill 12 weeks of gestation or even upto 21 week of gestation of the appellant-patient Mrs. Alka Srivastava whereas this abnormality was detected after 35 weeks of gestation i.e. on 5th March 2007 by a private nursing home namely Singhal Hospital. Child with such abnormality is a handicapped child having lack of spontaneous movements of lower limbs, lack of anal reflect and an open neural tube defect and as such has to suffer innumerable surgeries for curing the deformity, though most children born with spinal bifida live well into adulthood as a result of modern day sophisticated medical equipments and tests.
2. For the convenience sake we will refer appellant- Mrs. Alka Srivastava as complainant and appellant-Base Hospital, Delhi Cantt. as respondent No.1 and Army Hospital (R & R), Delhi Cant as respondent No.2.
3. Chronological details of examination of the woman who suffered the birth of such a child with past history of spontaneous miscarriage are that she conceived in the month of June/July 2006. Since it was their first child, the complainant-Mrs. Alka Srvastava was keen to have child only if every thing was to be safe and sound both for the mother and child. She registered with Station Medicare Centre, 13 BRD, AF Palam, New Delhi for her proper Gynaecology and Obstetrician check ups. She continued to undergo regular check ups at the suggested intervals right from the 10th or 11th weeks of the period of gestation. That in her 12th week of gestation, on 12th September 2006 the complainant had vaginal bleeding at round 21.00 hrs. She was immediately rushed to Station Medicare Centre, 13 BRD, AF, Palam, New Delhi. From there she was immediately transferred to respondent No.1 hospital. She was attended by Dr. Mamta and diagnosed as a case of threatened abortion. She had undergone transvaginal ultrasound the same night. She was admitted and thereafter again Dr. Kanika in Department of Obstetrics and Gynaecology, Base Hospital, Delhi Cantt. did transvaginal ultrasound.
Dr. Kanika assured her the well being of the foetus. During her stay in the hospital, she was given injections sustain on alternate days and advised complete bed rest. She was discharged from the respondent No.1 hospital on 15th September 2006 and advised injection sustain 1 amp on alternate days with complete bed rest.
That on 25-09-2006 she once again had vaginal bleeding. This time she reported to Station Medicare Centre, Western Air Command, Suborto Park, New Delhi who referred her to respondent No.2 hospital where Lt. Col. K. Kapur attend her and after transvaginal ultrasound, she was assured that the treatment being given by respondent No.1 is the best by saying there is no foetal abnormality. But respondent No.2 refused to give the ultrasound report in question. That respondent No.2 referred to respondent No.1 where she was admitted the same day, 25-09-2006. Thereafter, Dr. Mamta at respondent No.1 had performed transvaginal ultrasound and revealed that foetus was well developed. Thereafter she was discharged on 29-09-2006 and advised to report back in Gynaecology OPD after four weeks. Complainant reported in Gynaecology OPD of respondent No.1 on 03-11-2006 and she was advised level II scan and to report back four weeks with ultrasonography report. That Lt. Col. Sudhir Saxena at respondent No.1 handed over the written report of level II scan. The report being in technical/medical language, could hardly be understood by the complainant but for what was explained by Lt. Col. Sudhir Saxena. But the line No obvious congenital anomaly, sonologically detectable at this stage, in any major foetal organ system, seen.
Caused apprehension in the mind of the complainant and sought clarification from Lt. Col. Sudhir Saxena who told her that this was only a formality and meant nothing. He again assured the complainant about the health of pregnancy rather gave her congratulations in advance. The complainant had regular medical check ups at respondent No.1 and Station Medicare Centre, 13 BRD AF, Palam New Delhi. The first Trimester was uneventful, the second had problems, in which at various stages the complainant was assured by the doctors of respondent No.1 and 2 about the well being of the foetus and the absence of foetal anomalies.
4. On 05-03-2007, when the complainant was on an evening walk with her husband, she felt pain. She was immediately taken to nearby Singhal Hospital, C-40, Gali No.9, Sadh Nagar, Palam Colony, New Delhi where Dr. Sudhir Kumar performed ultrasonography and on the basis of ultrasound he diagnosed the case of foetal anomalies spinal bifida, Meningomyelocele & Hydrocephalus. He also explained the seriousness of the said anomalies. Complainant was extremely shocked to know that her child will be handicapped and also mentally retarded. The newborn child will be having problem in passing stool and urine through out life.
On 06-03-2008, complainant went to respondent No.1 again with ultrasonography report of Singhal Hospital where she was admitted and now after the ultrasonography the treating doctor of respondent No.1 confirmed the reported anomalies by Singhal Hospital in its ultrasonography report, and for the reconfirmation, Dr. Dhavani of respondent No.1, referred the complainant for a Special Investigation. That on 08-03-2007 respondent No.1 carried out request ultrasound. The said report reconfirmed the ultrasound report of Singhal Hospital and thereafter complainant was transferred to the Hospital of respondent No.2 as the new born child may require immediate surgery after the delivery, for which facilities were not available with respondent No.1. After the admission respondent No.2 carried out ultrasonography on 12-03-2007 and confirmed the anomalies. The complainant reported back to respondent No.2 on 27-03-2007 and was admitted. She delivered a female child at 14.04 hrs on 27-03-2007. The infants birth weight was 3170 gm, noted to have lumbar menngomyelecele; head circumference 34.0 cm. Thereafter her child was shifted to SNCU ward and kept in Death Illness List.
That after being shifted to SCNU, the infant was noted to have lack of spontaneous movements of lower limbs, lack of anal reflex and an open neural tube defects.
5. After the delivery of abnormal child respondent No.2 informed the complainant that on 28-03-2007 Paediatric Surgeon Col. Ravi Kale will perform newborn child surgery. But the said Paediatric Surgeon after examining the newborn child told the complainant that surgery is not likely to be eventful and also many-many surgeries are required throughout life of the child. Later on complainant was discharged from respondent No.2 hospital.
That the complainant had taken the services of respondent No.1 and 2 for performing the ultrasonography scan before the delivery, because it had been assured to the complainant that the scan and survey of foetal anomalies would have enabled the complainant to make a decision with regard to continuation of pregnancy. The complainant had already undergone a distressful period at the time of the first pregnancy, which was miscarriage when the pregnancy was only six weeks old. As such, it was all the more necessary to have a careful and considered report with regard to the scan undertaken on her and of the foetus that she was carrying.
The respondent No. 1 and 2 had in turn given full assurance to the complainant as explained earlier. That the very purpose of taking the services of respondent No.1 and 2 was that they were competent to give the accurate diagnosis.
The ultimate result has however, thrown all hopes of the complainant to winds. The birth of the child with meningomyelocele and hydrocephalus is an ample proof of the guilt of these respondents of being utterly negligent and careless in conducting the transvaginal and transabdomnal ultrasonography of the complainant despite the fact that they have been informed the facts of the miscarriage of the first pregnancy and these doctors at respondents having assured all out efficiency. Had said doctor been not negligent in performing there due professional duty, it should not have been at all difficult for them to detect the deficiency in the foetus. Thus respondents No. 1 and 2 are jointly and severally liable for this act of negligence.
That the obstetric ultrasound scans are advised for pregnant women and are considered basic investigative procedures to ensure that there exist no anatomical deficiencies. It is reported medical norm that a scan performed between 16 and 19 weeks gestation will accurately date the pregnancy, confirm the number of foetus, the location of placenta, the structural integrity of the foetus and congenital anomalies. Respondent No. 1 and 2 performed ultrasound of the complainant utterly casually without exercising their minimal reasonable care, as they are required to exercise in performing the ultrasonography and then basing their report on their careful examination of the ultrasonography. Because of the reported competence and integrity of the doctors of respondent No.1 and 2 neither the complainant nor the Gynecologist who were attending the complainant had necessity of a repeat scan of the complainant. It is well known fact that Indian Society does not accept a handicapped person as the societies in certain advanced and more humane countries. She would need repeated surgeries throughout the life, as such the complainant claimed a compensation of Rs. 20,00,000/-.
6. The defence taken by the respondents was that the complainant being dependent of a serving Armed Forces personnel was provided free hospital services in Base Hospital of the Indian Army. That the transvaginal ultrasounds performed by Dr. Mamta and Dr. Kanika in Base Hospital Delhi Cant did not reveal any abnormality in the foetus as no defect existed in the foetus at 12 weeks of pregnancy on 14-09-1996. The transvaginal ultrasound done by Lt. Col. A. Kapoor in Army Hospital (R & R), Delhi did not reveal any abnormality in the foetus at 14 weeks of pregnancy on 25-09-2006 because no defect in the spine or head of the foetus existed at that stage. That a repeat transvaginal ultrasound on 25-09-2006 performed by Dr. Mamta in Base Hospital, Delhi Cantt.
confirmed the ultrasound report of the Army Hospital Delhi Cant as foetus at that stage of gestation was well developed and without any defect in the spine or brain. That the referral of the level II scan of the foetus was received in the Department of Radiodiagnosis, Base Hospital, Delhi Cantt. on 03-11-2006 and being a routine study, the appointment for the same was fixed on 21-11-2006.
Historically the nation of levels of the obstetricsonograms found its way into the routine practice by way of maternal serum alpha fetoprotein screening programs (UK collaborative study on alpha-feto protein relation of neural tube defects : material serum and fetoprotein measurement in antenatal screening for anencephaly and spinal bifida in early pregnancy). Accordingly level I examinations were performed largely to detect obstetric problems that result in high material serum alpha fetoprotein levels and Level II used to be done to detect foetal anomalies. Presently, the concept of levels of ultrasound is obsolete and now the obstetric ultrasonography is performed as per Ante partum Obstetrical Ulstrasound examination guidelines. The estimation of maternal serum alpha fetoprotein levels, high levels of which are the marker for spine bifida and other neural tube defects was not considered necessary in this patient by the treating obstetricians as there was no suspicion of any foetal abnormality in previous three ultrasounds performed on her and patient was referred for Level II ultrasonography as a routine patient to the department of Radiodiagnosis in the Base Hospital.
Further that the trans abdominal ultrasound performed on 21-11-2006 by Lt. Col. Sudhir Saxena at 21 weeks of gestation also did not reveal any abnormality in the head or spine of the foetus as there was no detectable congenital anomaly at that stage of gestation.
Sonograms clearly portray ossified structures in the foetal spine but the unossified components are difficult to delineate. Between 13-20 weeks ossification in the neural processes generally extends into laminae and pedicles; the ossification is always more complete in the thoracic vertebrae than the lumber and sacral vertebrae therefore spina bfida and meningomyelocele in the lumbosacral region are late to appear in sonography. No associated anomaly like hydrocephalus Arnold Chiari Malformation II was seen because ventricular dilation is usually very minimal during II trimester.
7. Further that the complainant has mentioned in her petition that she did not understand the text No obvious congenital anomaly, sonologically detectable at this stage, in any major foetal organ system, seen printed in the Ulstrasound report given to her on 21-11-2006. Any verbal communication between Lt. Col. Sudhir Saxena and the appellant to allay her apprehension regarding the meaning, limitations and contents of the self explanatory written ultra sound reports, is congectural and hence untenable. Complainant did not have uneventful first trimester, she had vaginal bleeding in 12th week of gestation based on her last menstrual period corresponding to approximately 11th week of gestation by ultrasound. Four different doctors at two most advanced centres of the Armed Forces Medical Services namely Base Hospital, Delhi Cant and Army Hospital ( R & R), Delhi carried out ultrasound examination of the appellant between 12th and 21st week of her gestation and found it to be normal because no detectable congenital anomaly was present in the foetus then. The spina bfida meningomyelocele and hydrocephalus were detected for the first time in the foetus at composite gestational age of 35 weeks 3 days on 05-03-2007. As explained, it is a well researched fact that a normal second-trimester ultrasound scan does not rule out significant intracranial anomalies. A repeat third-trimester scan enables more accurate diagnosis and counselling. Once the congenital anomalies in the foetus were detectable by ultrasound, the review ultrasound examinations performed in Base Hospital Delhi Cantt on 26-03-2007 confirmed these anomalies thus vindicating the fact that once the anomalies were detectable by ultrasound in the third trimester, they were detected in the Base Hospital, Delhi Cantt as well as at Army Hospital, Delhi. The complainant was provided free ante natal and post natal medical care as an out door as well as indoor patient in the Armed Forces Services Hospitals as the dependent of the serving armed forces personnel and is outside the ambit of the service as defined in the Consumer Protection Act. There were no written or verbal assurances given to the patient regarding the outcome of her pregnancy at any stage. The foetal anomalies detected at 35th weeks of gestation could have occurred late in the intrauterine life or were not detectable by ultrasound between 12th to 21st week of pregnancy due to the reasons explained above. It has been brought out in large Radius Trial published on page 3 of the peer reviewed Cochrane Library 2007 issue 4, that only 17% of foetuses having malformation were identified in prenatal ultrasound before 24 weeks of pregnancy. Thus the contention of the complainant that it is an act of negligence, incompetence and carelessness is contemptuous in the light of the facts documented in current medical literature followed and practiced all over the world.
8. The respondent-hospital has relied upon the international medical literature on the subject to the effect that detection rate of major foetal malformations in the large Radius trial is very low as only 17% of such babies were identified in the ultrasound screened group before 24 weeks of pregnancy which implies intensified diagnostic expertise. The aforesaid view is expressed in the form of an Authors Conclusion as under:-
AUTHORS CONCLUSIONS Implications for practice Assumed benefits of routine ultrasonography in early pregnancy have been (1) better gestational age assessment; (2) earlier detection of multiple pregnancies; (3) detection of clinically unsuspected fetal malformation at a time when termination of pregnancy is possible.
These assumptions appear to have been justified by analysis of data from the controlled studies. The reduced incidence of induction of labour for apparent post-term pregnancy in the routinely scanned groups presumably results from better gestational dating, and twin pregnancies are detected earlier.
Neither of these effects has been shown to improve fetal outcome, but much larger numbers of participants would be required to do this if such an effect were to be real. The detection of fetal malformation has been addressed in detail only in two of the trials. The Helsinki trial showed improved detection with a resultant increase in the termination of pregnancy rate and a drop in perinatal mortality; there were, however, large differences in the detection rates between the two hospitals involved in this study, which reinforces the need for expert ultrasonography in such a programme. This point is further emphasised by the low detection rate of major fetal malformations in the large Radius that only 17% of such babies were identified in the ultrasound screened group before 24 weeks of pregnancy.
Based on the Helsiinki trial results and other reports of observational data, this implies unsatisfactory diagnostic expertise. A combination of low detection rates of malformation together with a gestational age limit of 24 weeks for legal termination of pregnancy in the Radius trial produced minimal impact on perinatal mortality, unlike the Helsinki experience.
9. As against this the Indian Spina-Bifida Association have come out with the following conclusion:-
What is Spina Bfida?
Spina Bifida is a permanently disabling birth defect. It is a Neutral Tube Defect, and is one of the most devastating of all birth defects.
It results from the failure of the spine to close properly during the first month of pregnancy. In severe cases, the spinal cord protrudes through the back and may be covered by skin or a thin membrane. Surgery to close a newborns back is generally performed within 24 hours after birth to minimize the risk of infection and to preserve existing function n the spinal cord.
Most children born with Spina Bfida live well into adulthood as a result of todays sophisticated medical techniques.
Let us all unite together to fulfil the dreams which our children dared to dream but due to lack of proper facilities, unable to accomplish them.
10. In the instant case there is no expert opinion available on the record by any Medical Board or by some higher authority to show that from the report of ultrasound or ultrasonography upto the gestation period of 21 weeks i.e. 21-11-2006 when Dr. Sudhir Saxena carried out Level II scan wrongfully opined that the entire foetus was well developed and there was no cause to worry whereas there were foetal anomalies spinal Bifida, Meningomyelocele & Hydrocephalus.
What is on record is that on 05-03-2007 i.e. after 4 months of the last ultrasound taken on 21-11-2006 that is after 21 weeks of gestation she suddenly felt pain and was taken to nearby private nursing home where ultrasonography was performed and the aforesaid foetal anomalies were detected.
11. As is apparent, it is ultrasonography test from where these anomalies can be detected and since we dont have any opinion including Dr. Sudhir Kumars who performed the last ultra sound after the previous ultrasonography conducted by the respondent hospital on 21-11-2006 that previous ultrasonography tests had also projected these anomalies but could not be diagnosed by the respondent-doctor either due to his lack of skill or expertise or negligence.
12. In order to arrive at correct conclusion and the case being most unfortunate case as the parents of the child have to live may be with such deformity which has more or less reduced the child into a vegetable, we allow the appeal of Base Hospital, set aside the impugned order with the direction to the District Forum to get a Medical Board of AIIMS constituted, which the AIIMS shall constitute by treating this order as direction to them to give definite opinion as to the negligence or as to the lack of experience in diagnosing such abnormalities in the child on the basis of ultrasonography reports or ultrasonography materials available till 24 weeks of pregnancy, record of which shall be sent to the Medical Board of AIIMS and in case such an opinion is received the parents of the child may be entitled for higher compensation.
13. The parties shall appear before the District Forum on 02-02-2009 and the District Forum shall decide the matter positively within three months. The District Forum shall send all the requisite materials to the Director, AIIMS and the Director AIIMS shall submit the report within one month from its receipt.
14. However, in view of the financial status of the parents of the unfortunate child whose bringing up involves huge expenses as it stated that these require highly sophisticated medical technologies and expertise, we direct the respondent hospital to provide all the requisite treatment to the child free of charges as it is not only their moral but statutory obligation to provide medical assistance free of charge as and when the child is taken to them and in case the complainant is not satisfied with the treatment or the hospital or hospital is not equipped with the required sophisticated technologies the parents will be free to receive private treatment and the respondent hospital shall pay the entire bill.
15. Both the appeals are disposed of in aforesaid terms.
16. F.D.R./Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
17. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
18. Announced on 19th January 2009.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj