National Consumer Disputes Redressal
Oriental Insurance Co Ltd vs Bhavish Mahajan Madhav Mahajan on 2 June, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 253 OF 2021 (Against the Order dated 17/12/2020 in Complaint No. 1008/2018 of the State Commission Punjab) 1. DR. TRUPTI SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB ...........Appellant(s) Versus 1. BHAVIK MAHAJAN, ALIAS RAGHAV MAHAJAN THROUGH FATHER SH. RAHUL MAHAJAN HOUSE NO. 216, MOHALLA JANDRIAN, NEAR ANANDPUR WATER TANK, PATHANKOT PATHANKOT PUNJAB 2. DR. PANKAJ SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 3. DR. SURJIT SINGH DR. SURJIT SINGH EYE HOSPITAL, LANE NO. ZERO, INDRA COLONY, PATHANKOT PATHANKOT PUNJAB 4. THE ORIENTAL INSURANCE COMPANY LIMITED 3, 4E/14, AZAD BHAWAN, JHANDEWALA EXTENSION, NEW DELHI CENTRAL DELHI ...........Respondent(s) FIRST APPEAL NO. 254 OF 2021 (Against the Order dated 17/12/2020 in Complaint No. 1009/2018 of the State Commission Punjab) 1. DR. PANKAJ SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB ...........Appellant(s) Versus 1. BHAVISH MAHAJAN, ALIAS MADHAV MAHAJAN THROUGH FATHER SH. RAHUL MAHAJAN HOUSE NO. 216, MOHALLA JANDRIAN, NEAR ANANDPUR WATER TANK, PATHANKOT PATHANKOT PUNJAB 2. DR. TRUPTI SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 3. DR. SURJIT SINGH DR. SURJIT SINGH EYE HOSPITAL, LANE NO. ZERO, INDRA COLONY, PATHANKOT PATHANKOT PUNJAB 4. THE ORIENTAL INSURANCE COMPANY LIMITED 3, 4E/14, AZAD BHAWAN, JHANDEWALA EXTENSION, NEW DELHI CENTRAL DELHI ...........Respondent(s) FIRST APPEAL NO. 255 OF 2021 (Against the Order dated 17/12/2020 in Complaint No. 1009/2018 of the State Commission Punjab) 1. DR. TRUPTI SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB ...........Appellant(s) Versus 1. BHAVISH MAHAJAN, ALIAS MADHAV MAHAJAN THROUGH FATHER SH. RAHUL MAHAJAN HOUSE NO. 216, MOHALLA JANDRIAN, NEAR ANANDPUR WATER TANK, PATHANKOT PATHANKOT PUNJAB 2. DR. PANKAJ SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 3. DR. SURJIT SINGH LANE NO. ZERO, INDRA COLONY, PATHANKOT PATHANKOT PUNJAB 4. THE ORIENTAL INSURANCE COMPANY LIMITED 3, 4E/14, AJAD BHAWAN, JHANDEWALA EXTENSION, NEW DELHI CENTRAL DELHI ...........Respondent(s) FIRST APPEAL NO. 256 OF 2021 (Against the Order dated 17/12/2020 in Complaint No. 1008/2018 of the State Commission Punjab) 1. DR. PANKAJ SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB ...........Appellant(s) Versus 1. BHAVIK MAHAJAN, ALIAS, RAGHAV MAHAJAN THROUGH FATHER SH. RAHUL MAHAJAN HOUSE NO. 216, MOHALLA JANDRIAN, NEAR ANANDPUR, WATER TANK, PATHANKOT PATHANKOT PUNJAB 2. DR. TRUPTI SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 3. DR. SURJIT SINGH DR. SURJIT SINGH EYE HOSPITAL, LANE NO. ZERO, INDRA COLONY, PATHANKOT PATHANKOT PUNJAB 4. THE ORIENTAL INSURANCE COMPANY LIMITED 3, 4E/14, AZAD BHAWAN, JHANDEWALA EXTENSION, NEW DELHI CENTRAL DELHI ...........Respondent(s) FIRST APPEAL NO. 503 OF 2021 (Against the Order dated 17/12/2020 in Complaint No. 1008/2018 of the State Commission Chandigarh) 1. ORIENTAL INSURANCE CO LTD , 1ST FLOOR, 88 JANPATH,
NEW DELHI ...........Appellant(s) Versus 1. BHAVIK MAHAJAN RAGHAV MAHAJAN RAHUL MAHAJAN, MINOR THROUGH HIS FATHER AND NATURAL GUARDIAN SH. RAHUL MAHAJAN, RESIDENT OF HOUSE NO.216, MOHALLA JANDRIAN, NEAR ANANDPUR WATER TANK. PATHANKOT PUNJAB 2. DR. PANKAJ SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 3. DR TRUPTI SHARMA DR PANKAJ SHARMA, BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 4. DR PANKAJ SHARMA BEHIND SSP OFFICE, SILVER ESTATE , SIALI ROAD PATHANKOT 5. DR. TRUPTI SHARMA W/O. DIR PANKAJ SHARAMA , BEHIND SSP OFFICE, SILVER ESTATE , SIALI ROAD PATHANKOT 6. DR. SURJIT SINGH C/O. DR SURJIT SINGH KEY HOSPITAL LANE NO ZERO INDRA COLONY PATHANKOT 145001 ...........Respondent(s) FIRST APPEAL NO. 504 OF 2021 (Against the Order dated 17/12/2020 in Complaint No. 1009/2018 of the State Commission Punjab) 1. ORIENTAL INSURANCE CO LTD 1ST FLOOR, 88JANPATH, NEW DELHI ...........Appellant(s) Versus 1. BHAVISH MAHAJAN MADHAV MAHAJAN RAHUL MAHAJAN, MINOR THROUGH HIS FATHER AND NATURAL GUARDIAN SH. RAHUL MAHAJAN, RESIDENT OF HOUSE NO.216, MOHALLA JANDRIAN, NEAR ANANDPUR WATER TANK.
PATHANKOT PUNJAB 2. DR. PANKAJ SHARMA BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 3. DR TRUPTI SHARMA DR PANKAJ SHARMA, BEHIND SSP OFFICE, SILVER ESTATE, SIALI ROAD, PATHANKOT PATHANKOT PUNJAB 4. DR. SURJIT SINGH LANE NO ZERO , INDRA COLONY PATHANKOT 145001 5. - - ...........Respondent(s)
BEFORE: HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER
FOR THE APPELLANT :
Dated : 02 June 2023 ORDER
Appeared at the time of arguments:
For Dr. Trupti Sharma &
Dr. Pankaj Sharma : Mr. Arjun Dewan, Advocate
Mr. Jatinder Nagpal, Advocate
Ms. Ashima Sawhney, Advocate
Mr. Pranav Sethi, Advocate
For Bhavik Mahajan @ Raghav Mahajan &
Bhavish Mahajan @ Madhav Mahajan : Mr. Neeraj Gupta, Advocate
For Dr. Surjit Singh : Mr. D. P. Singh, Advocate
Mr. Umesh Chauhan, Advocate
For Oriental Insurance Co. Ltd. : Ms. Aakriti Goel, Advocate
Pronounced on : 02nd June 2023
ORDER
1. This Order shall decide the instant 6 Appeals as titled above filed under section 19 of the Consumer Protection Act 1986 ( in short "the Act") against the impugned order of the State Commission, Punjab and Chandigarh, dated 17-12-2020 in Consumer Complaint No 1008 and 1009 of 2018. The impugned order allowed the Complaint(s).
2. For the convenience, the parties are referred to as stated in the Complaint filed before the State Commission. The Complainants are minor twins filed two separate Complaints against the opposite parties for alleged medical negligence both the twins suffered Retinopathy Of Prematurity (ROP) and became blind throughout their life. The Complaints were filed by father of twins Rahul Mahajan as natural guardian against the OPs. The OP-1 Dr. Pankaj Sharma is a Paediatrician. His wife Dr. Trupti Sharma (OP-2) is an Ophthalmologist working at Om Praksah Eye Centre. The OP-3 is Dr. Surjit Singh, an ophthalmologist and the OP-4 is Oriental Insurance Company.
3. Brief facts that on 25.01.2017 Dr.Ashoo Goyal conducted delivery of Alka in City life-line Hospital. It was twin- premature delivery, one baby was breech presentation. The TWIN-1 Bhavik Mahajan @ Raghav was born at 6.09 PM, the birth weight was 750 g and the TWIN-2 Bhavish Mahajan @ Madhav was born at 6:30 PM, having birth weight 1700 g.
4. After delivery for neonatal care both twins were shifted to Neonatal Intensive Care Unit (NICU) under care of Dr.Pankaj Sharma (OP-1) at his Dr.Pankaj Sharma Hospital in Pathankot. The TWIN-1(Bhavik) remained admitted about 8 weeks from 25-01-2017 to 12-03-2017 and after discharge he was taken to another paediatrician Dr Chaman Gupta. The TWIN- 2 (Bhavish) remained in the Hospital for 3 weeks from 25-01-2017 to 12-02-2017 under care of OP-1 and discharged from on 12-02-2017. On 01-03-2017 the TWIN-2 was taken to Dr. Om Parkash Eye Institute and then later on both the TWINS were taken to Dr Surjit Singh Eye Hospital on 11-04-2017 and 11-05-2017.
5. The Complainants alleged that ROP was detected on 27-07-2017 by Dr. Trupti Sharma at Dr. Om Parkash Eye Institute. Later, on 28-07-2017 both the TWINS were taken to PGI, Chandigarh and thereafter, on the recommendation of PGI, taken to Sankara Nethralaya Chennai, a super speciality Hospital on 04-08-2017. The treatment there did not yield expected results and Sankara Nethralaya issued a summary of poor outcome of procedure. After 3 months, Dr. Trupti Sharma was again consulted on 26.08.2017 and 04.09.2017 at Dr. Om Parkash Eye Institute.
6. Being aggrieved, both the minors (through the natural guardian) filed separate Consumer Complaints before the State Commission being Nos. 1008 of 2018 and 1009 of 2018.
7. The OPs denied any negligence in the treatment. They filed the relevant medical literature on the subject.
8. Upon hearing the parties, the State Commission partly allowed both the Complaints and in each Complaint, directed the OP-1 to pay Rs. 50 lakh as compensation alongwith interest @ 7% p.a. from the date of filing of the Complaint + Rs. 33,000/- as litigation cost. The OP-2 was directed to pay Rs. 15 lakh as compensation alongwith interest @ 7% p.a. from the date of filing of the Complaint + Rs. 11,000/- as litigation cost. The OP-3 was directed to pay Rs. 5 lakh as compensation alongwith interest @ 7% p.a. from the date of filing of the Complaint + Rs. 5,000/- as litigation cost.
9. Being aggrieved, six Appeals were filed before this Commission. The OP-1 & 2 filed F.A. Nos. 253-256/2021 whereas the F.A. No. 503/2021 and 504/2021 filed by the Oriental Insurance Company.
10. I have heard the arguments at length from the learned Counsel on both the sides. They have reiterated their evidence filed before the State Commission. The Insurance Co. made its submissions on the basis of indemnity insurance cover to the OPs.
11. The learned Counsel for OPs (Appellants) argued that the State Commission failed to take note of contemporaneous medical record which clearly mentioned that during hospital stay the OP-2 had conducted two ROP screening for TWIN-1 on 24.02.2017 & 10.03.2017. As per the standard protocol, for TWIN-1 the first ROP screening was done within four weeks of the birth and 2nd later at 2 weeks.
12. However, the TWIN-2 stayed for 3 weeks and it showed increase in weight. The parents took discharge from the OP-1 hospital NICU on 12.02.2017. However, at the time of discharge the parents were instructed to get ROP test done for TWIN 2 on 24.02.2017.
13. The crucial points for my consideration are whether the Paediatrician (OP-1) and Ophthalmologist (OP-2) followed the reasonable standard of care for ROP screening of premature TWINS?
14. I have gone through the text books of Paediatrics Neonatology for screening guidelines of ROP, the AIIMS-NICU protocol, 2010 and NFF guidelines and the research articles on ROP. All infants having weight less than 1500 g or age less than 32 weeks are required to be screened for ROP. I have carefully gone through the medical record.
15. The Chronology in the instant case, that the babies were delivered by the Gynaecologist Dr Ashoo Goyal. She contacted Dr Pankaj Sharma (OP-1) a MD Paediatrician who runs 10 bedded hospital and 5 NICU beds with 24 hours emergency services. After counselling of parents, both the babies were taken to Neonatal ICU. In light of the aforesaid and the Preterm/extreme low birth weight Bhavik Mahajan (TWIN-1) was put on nasal CPAP with FiO2-40%. The treatment was started with IV fluids, higher Antibiotics viz Piperacillin, Ceftriaxone, Amikacin. The TWIN-2 Bhavish Mahajan (TWIN-2) who was born with a weight of 1700 grams did not cry immediately at the time of birth thus endotracheal intubation was done with intermittent positive pressure ventilation (IPPV). The baby was suffering from Intra Uterine Growth Retardation (IUGR).
16. Bhavik (TWIN-1) remained admitted from 25-01-2017 to 12-03-2017 with Dr. Pankaj Sharma Hospital. On 26.01.2017 TWIN-1 was put on Inj Meropenem and Inotropes. The baby also developed neonatal jaundice and it was given phototherapy. On 28.01.2017 the infection markers were increased and clinical deterioration persisted. The baby started showing signs of Necrotising Enterocolitis and was administered Metronidazole. Further, the baby was started on nasal prongs. From 30-01-2017 till 13-02-2017 he was kept on Injection Fluconazole prophylactically in view of risk of fungal sepsis in extreme low birth weight premature babies. Trial of weaning off nasal CPAP support was continued with tapering FiO2 but the TWIN -1 needed nasal CPAP support and was unable to maintain oxygen saturation on nasal prongs. The baby was tried to be weaned off oxygen support, however, he was not able to maintain oxygen support. On 08-02-2017, the TWIN -1 was put on trophic feeds. On 16-02-2017, the baby was also treated for an episode of Hyperkalemia and required close ECG monitoring. Baby then started showing improvement and slight weight gain. On 22-02-2017 swelling all over the body noted because of low serum albumin and infection markers. The Ophthalmic examination of TWIN-1 for ROP screening was done on 24-02-2017 in the NICU by Dr. Trupti Sharma (OP-2). It was suggestive of immature retinal vascularization-zone 1 with no threshold of ROP or any retinal disease. The findings are reproduced as below:
"First Screening done on 24.02.2017 Call for ROP Screening noted Dilate BE provided ROP Screening drops prepared- 1:1 dilution i.e. Phenylephrine 2.5% + Tropicamide 0.5% Instill in both eyes, two times at 15 minutes intervals- 1:20 p.m. & 1:35 p.m., wipe excess drops.
Withhold feeding from 12:30 p.m. Inform SOS.
ROP Screening History noted 30 days make baby H/o 26-28 weeks prematurity- BW- 750 gms. BE A/s WNL 20D lens- No e/o tunica vasculosalentis Pupils- well dilated mydriatic lens- clear. Fundus dil- Indirect ophthalmoscope & 20 D & 28D lens Tropical paracaine lid speculum applied. RE- Immature retinal vascularization in Zone 1 No s/o threshold ROP No s/o plus disease LE- Immature retinal vascularization in Zone 1 No s/o threshold ROP No s/o plus disease Avascular retina in Zone II and Zone III" It instructed for follow up ROP screening after 2 weeks.
17. Blood transfusion of TWIN-1 was given between 25-27.02.2017 subsequent to blood transfusion the health of TWIN-1 improved substantially and hence oral feeds increased. He was shifted from tube feeds to oral feeds. On 02-03-2017; the family of the TWIN-1 was counseled by the Appellant and oxygen support was stopped. However, TWIN-1 was still required pre-term care. On 10-03-2017, follow up the 2nd ROP screening was done by Dr. Trupti Sharma (OP-2).The findings are as follows:
"10.03.2017- ROP Screening- F/U Age of gestation 26-28 weeks- BW- 750 grams, chronological age- 6 weeks.
Corrected gestational age/Post menstrual age- 32-34 weeks.
H/O prematurity/ELBW/O2 support- CPAP H/O severe sepsis neonatal period O/E- Anti seg RE LE Lids- N N Conj- N N Cornea- clear clear N size and shape N size and shape AC- shallow shallow Iris- No e/o vessels (ou) N colour pattern clear Lens- clear No s/o tunica tunicavasculosalentis Pupils- well dilated mydriatic effect (ou) Fundus Evaluation dil. - Indirect ophthalmos copy & 20D/28D Lens. Tropical paracaine eye drops- anaesthesia. Lid speculum applied- neonatal speculum RE- Immature retinal vascularization in Zone 1 No e/o threshold ROP No e/o plus disease LE- Immature retinal vascularization in Zone 1 No e/o threshold ROP No e/o plus disease Avascular Retina in Zone II and Zone III"
18. It is pertinent to note that the OP-2 counselled the mother about the necessity for further ROP screening of TWIN-1 after 2 weeks as there was a possibility developing ROP as the retinas were still immature. On 11-03-2017 discharge was planned but considering body swelling and the CRP level was 22, the baby was not allowed to be taken home. On 12-03-2017, family members just took the baby away, without discharge and the TWIN-1 was then taken to another pediatrician Dr. Chaman Gupta. The baby was taken away with cannula in situ. The parents however came on 18-03-2017 to take the discharge summary. Thereafter, on 24-03-2017 Dr. Brar conducted Colour Doppler Echocardiography, it was stated in DAMA Summary. Dr. Surjit Singh (OP-3) examined the eyes on 11-04-2017 and 11-05-2017. There is nothing on record about vaccination or visit to any other hospital or doctor during the period 12-03-2017 to 27-07-2017.
19. The TWIN-2 (Bhavish) remained admitted in NICU at Dr. Pankaj Sharma Hospital from 25-01-2017 to 12-02-2017. It was found that he was suffering from many complications such as lungs and intestines were not formed well, showed necrotizing enterocolitis with severe sepsis. It was also found that he was suffering with birth asphyxia, SS Stage-III for which intubation was immediately done after birth and IPPV was given. Till 02-02-2017 condition of TWIN-2 improved and on 07-02-2017, In light of his passing adequate stool and urine, the IV fluids were completely stopped, and Bhavish was continued on Trophic/tube feeds, which were increased. On 10-02-2017, In light of the improving condition and his accepting feeds through tube, well. He was tried on pallade feeds which he accepted well. Rest treatment was continued. On 12-02-2017, weight was 1.95 kgs and all his vitals were found to be stable and discharged. At the time of discharge, the parents were explained all follow-up instructions in detail and were also explained about the need for Ophthalmic Examination for ROP on 25-02-2017. The discharge instructions, reproduced as below:
Bhavish Mahajan was discharged with the following follow-up advice-
"Nurokind 0.5 ml OD Vit D drops (Pure D3) 1 ml OD Amikacin-C 0.5 ml OD Ophthal. Examination for ROP on 25.02.2017 BERA Examination on 25.04.2017 2D ECHO to be done and to bring reports on F/U Regular immunization at F/U"
20. However, the on 27-02-2017, TWIN-2 was brought to Dr Pankaj Sharma Hospital for follow up and vaccination. At that time, Dr Pankaj Sharma learnt that TWIN-2 had not been taken for his ROP screening at Dr. Om Parkash Hospital on 25-02-2017. Therefore, the parents were again explained, about the necessity of ROP screening for TWIN-2 and an appointment was taken again with Dr Om Parkash Hospital for 28-02-2017 for the ROP screening. The parents finally took the baby (TWIN-2) on 01-03-2017 for ROP screening at Dr OM Prakash Eye Institute. Dr Trupti Sharma (OP-2) found that the retina in both eyes was immature (Zone-1) without threshold or plus disease and therefore at that stage no intervention was required. However, the mother was counselled about further follow up. The Complainant has admitted the fact of visiting Dr Om Parkash Eye Institute but has stated that no ROP was done
21. I have perused the affidavit of Dr Rohit Om Prakash, and the record of Dr. Om Prakash Eye Institute. Those records consist of appointment register, patient register, payment proof of consultations, and the real time system generated receipts. Thereafter, the Twin -2 was taken to Dr. Surjit Singh, an another eye specialist on 11-04-2017 and 11-05-2017, it was taken for watering of eyes. Their ROP screening was not done as alleged by the Complainants.
22. It is pertinent to note that in the month of July, suddenly after more than 4½ months, on 27.07.2017, the Twin-2 was taken to Dr. Om Prakash Hospital, where Dr. Trupti, with a team of doctors, examined and informed that he was suffering from ROP Stage-V. The OP-2 requested the parents to bring Twin 1 (Bhavik) for screening as he was not brought for examination to rule out suffering from ROP. The OPD card of Twin 1 (Bhavik) clearly indicates that the patient lost follow up.
23. On 28-07-2017 both the twins were taken to PGIMER, Chandigarh on advice of OP-2 and were later referred to AIIMS by the doctors at PGIMER, Chandigarh. The doctors at AIIMS later advised the Complaints to visit Super Specialty Hospital 'Sankara Nethralaya', Chennai for the treatment of twins. On 04-08-2017 A surgery was performed in Chennai, but did not yield the expected results and subsequently discharged on 09-09-2017. It was explained about poor outcome of procedure.
24. The affidavit of Alka the mother of TWINS deposed about the counseling done to her regarding ROP by Dr. Trupti Sharma at various occasions. The TWIN 1 was discharged on 12-03-2017 and TWIN-2 on 12-02-2017 as the TWIN-1 was still in the NICU. The advice in the Discharge summary of TWIN-2 reads as under:
"Advised Nurokind drops 0.5ml OD Vitamin D drops (Pure D3) 1ml OD Astymin-C drops 0.5ml OD Ophthal Examination for ROP on 25/02/2017 BERA Examination on 25/04/2017 2D Echo to be done and to bring reports on F/U Regular Immunization on F/U"
The discharge summary of TWIN -I who is taken DAMA on 12-03-2017, the discharge summary dated 18-03-2017 reads.
"Advised Need for management of sepsis and edema.
F/U ROP Screening BERA Examination 2D echo Regular Vaccination after baby is stabilized.
Condition of baby at DAMA Vitals stable Accepting pallade feeds well Activity good Generalized edema +ve Lab inv CRP +ve (22)"
25. The State Commission discussed on AIIMS Protocol for ROP screening. The OPs contended that they have followed the AIIMS Protocol as the thumb rule for conducting the first ROP Screening is 30 days from the date of birth. The Complainants have simply alleged that ROP was neither did nor advised. The fact remains ROP of TWIN-2 who was discharged after 3 weeks on 12/02/2017, ROP Screening is done on 01-03-2017 at Dr Om Parkash Eye Institute. The discharge summary filed by Complainant with Complaint itself indicates that they were advised to go "ophthalmic examination for ROP on 25/02/2017 and the fact of visiting Dr Om Parkash Hospital is also admitted in Complaint itself.
26. As claimed by the appellants, the 30-day standard rule of first screening was followed in both babies. As noted in medical records an immature retinal vasculature confined to zone 1. Such immature retina can progress to ROP over weeks. And the standard protocol is to follow up every 2 weeks. Medical literature[1] shows that many screenings are generally required before treatable ROP develops. Generally, ROP develops around 40 weeks of gestation age, +-2 weeks. That is around EDD which in this case was 25-03-2017. Dr Trupti Sharma has last seen TWIN -2 on 01-03-2017 and TWIN-1 on 10-03-2017. Dr Pankaj Sharma has last seen Twin-1 on 12-03-2017.
27. The State Commission wrongly held that ROP Screening of TWIN-2 should have been done in the hospital itself. This observation is contrary to the AIIMS Protocol. In fact, the TWIN-2 was in NICU for 17 days only and as per protocol ROP Screening was to be done between 3 to 4 weeks. The complainant visited Dr. Om Prakash Eye Institute and stated that it was for eye examination but simply denied the ROP screening. It is pertinent to note that the OPD patient's findings are documented in the OPD file itself. Though, the OPD prescription of 27-07-2017 was with the Complainant but the OPD prescription of 01-03-2017 has been withheld /concealed. The State Commission rejected to accept the OPD record, which would speak about critical condition of both the babies born with extreme complications.
28. It is further to note that the State Commission wrongly relied on the referral slip issued to the parents on 27-07-2017, as DAMA summary. On careful reading, in my view it was only a referral slip for both the twins. The complainant himself has stated that they took the baby away because the treatment was being prolonged and the fact of taking to Dr. Chaman Gupta is also stated in the complaint.
29. Admittedly, both the babies were premature delivered at 27-28 weeks. The TWIN-1 was treated in NICU from 25.01.2017 to 12.03.2017 whereas TWIN -2 remained i NICU for a short period from 25.01.2017 to 12.02.2017. As babies were premature, the ROP screening was required to be done as per the ROP screening protocol. It is evident from the medical record that ROP screening was done for TWIN-1 on 24.02.2017 & 10.03.2017. As the TWIN -2 got early discharge from NICU, the parents did not follow the instruction to get ROP screen on 24.02.2017, but it was got done on 01.03.2017 (supra). In my view, the State Commission wrongly observed that ROP screening has not been done by the OP-1 during the period the babies remained in NICU with him.
30. In my view, the parents of twins were responsible for permanent blindness of the babies. It is pertinent to note that the parents took DAMA discharge of TWIN-1 in such hurry that they even did not take discharge summary and got removed IV cannula of the TWIN-1. Moreover, for ROP screening the TWIN-2 was brought to the OP-2 only on 27.07.2017. Thus, the parents were negligent, who did not follow the instructions given by OP-1 & 2. The State Commission failed to consider the deliberate concealment of treatment record and the OPD Card of OP-1 issued in March, 2017, wherein the findings of ROP screening were recorded.
31. The State Commission observed that:
"...Opposite Parties No. 1 & 2 alleged that ROP screening of Twin No. 1 was duly done as per DAMA Summary Ex. C-13 at Page 72 and backside of Page-331 of CC No. 1008 of 2018. However, there is no date on Page-72 and, as such, it cannot be relied upon. It needs to be mentioned that complications of detachment of retina in premature babies generally occur. The fact remains that the treating physicians were not aware that there was risk of damage to the eyes of Twin No. 1....."
In my view, the State Commission ignored certain noting in the DAMA summary dated 18.03.2017, while making the said observation.
32. In my view, the instant matter is to be tested on the principle of standard of practice as held in Bolam v. Frien Hospital Management Committee[2], that a doctor is not negligent if he acts in accordance with standard practice and not merely because there is a body of opinion who would take a contrary view. The settled position of law that the onus to prove negligence is on the Complainant and for that, some form of evidence must be led by the Complainant. The Complaint is just statement of facts and assertions and that by itself does not in any manner discharge the Complainants herein of the onus placed on them to prove negligence. It is the obligation of the Complainant to provide facta probanda and facta probantia. In this regard reliance is placed in the judgement of this Hon'ble Commission in the case of Girishchandra V. Bhat versus Sterling Hospital[3] wherein the Hon'ble Court held as under:
"It is settled law that the onus to prove medical negligence lies largely on the complainant and that this onus can be discharged by leading cogent evidence. A mere averment in a complaint by no stretch of imagination, be said to be evidence by which the case of the complainant can be said to be proved. It is the obligation of the complainant to provide the facta probanda as well as the facta probantia. In my view the present the Consumer Complaint completely lacks facta probantia and ought to be dismissed on that ground alone."
In the case of Dr. (Mrs.) Chanda Rani Akhouri & Ors. Vs Dr. M.A. Methusethupathi & Ors.[4] has laid down in no uncertain terms that merely because doctors could not save the patient, he/she cannot be held liable for medical negligence. The Hon'ble Supreme Court held in para (27) that:
27. It clearly emerges from the exposition of law that a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.
33. In the case of "Achutrao Haribhau Khodwa Vs State of Maharashtra & Ors.[5], it was held as under:
"Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Courts finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence."
In the case on hand I do not find the OP-1 and OP-2 have deviated from their standard of reasonable practice. Both possess adequate skill and diligence. The parents did not follow the advice of their treating doctor. The parents of twins themselves were negligent, who did not follow the instructions of OP-1 & OP-2, which became detrimental to the new-born. For that, the treating doctors shall not be victimised.
34. The learned Counsel for OPs brought to my attention that, the OP-3 Dr. Surjit Singh had already complied with the directions given by the State Commission and paid his part of compensation. Conclusively, in my view, the Paediatrician (OP-1) and the Ophthalmologist (OP-2) had performed their duties to their best abilities with reasonable standard of care. It was an unfortunate happening, I have deep sympathies with both the babies, and however, sympathy cannot be the ground for liability.
35. Based on the afore discussion, the orders of the State Commission are set aside, the Appeals are allowed. Consequently, the Consumer Complaints filed before the State Commission are dismissed. The Parties to bear their own costs.
[1] Indian Journal of Ophthalmology 67(6):p 711-716, June 2019 [2] (1957) 1 WLR 582 [3] 2018 SCC Online NCDRC 204 [4] 2022 LiveLaw (SC) 391 [5] (1996) 2 SCC 634 ........................................... DR. S.M. KANTIKAR PRESIDING MEMBER