State Consumer Disputes Redressal Commission
Firoz Mohammad Zikar Memon vs Synergy Hospital on 27 February, 2023
DETAILS DD MM YYYY
Date of judgment 27 02 2023
Date of Filing 06 08 2013
Duration 19 6 9
M, IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION
STATE OF GUJARAT
COURT -5
CONSUMER COMPLAINT NO. 71 OF 2013
COMPLAINANTS: [1]. FIROZ MOHAMMAD ZIKAR MEMON
[2]. SHABNAM FIROZ MEMON
27, Mukhi no Mohallo, Patelvas,
B/h. Municipal Hospital, Danilimda,
Ahmedabad.
(Present Address: Avenue Lokonga no. 10, Kinshasa Gombe,
Republic Democratic of Congo)
v/s.
OPPONENTS: [1]. M/S. SYNERGY HOSPITAL,
Neonatal and Paediatric Centre,
Second Floor, Vishwam complex,
Dharnidhar Cross Road,
Ahmedabad- 380007.
[2]. Dr. SNEHAL K WALA
C/o. Synergy Hospital
[3]. Dr. MANISH R MEHTA
C/o. Synergy Hospital.
CORAM: Mr. R N Mehta Presiding Member
Appearance: Mr. V M Pancholi Advocate for Complainants
Mr. (Dr.) M K Joshi Advocate for Opponents.
RNM CC712013 Page 1 of 23
(Order by Mr. R N Mehta, Presiding Member)
[1]. The complainants have filed this complaint under provisions of Sec.17 of the Consumer Protection Act, 1986 (hereinafter referred as "The Act" or "Act") and alleged negligence on the part of the opponents in rendering treatment to their child "Fatema" as a result of which she had permanent vision loss and prayed for compensation of Rs.75 lakhs, reimbursement of expenses incurred amounting Rs. 9, 65,570/- and also cost of complaint quantified at Rs.1, 00,000/-.
[2]. [a]. It is averred in the complaint that complainant no.2 (herein after referred as "mother") had delivered a premature baby girl at 26-27 weeks pregnancy (baby is herein after referred as "Fatema") on 15/12/2011 and since she was having low birth weight, hospitalised at Opponent no. 1(herein after referred as "hospital") under care of opponent no. 2 & 3 when her age was merely 5 hours. She was premature, suffering from respiratory distress, doctors in charge, started treatment with injection Survanta and was put on ventilator and also started parental nutrition. On third day, Fatema developed sudden onset of pallor, her Hb became low, USG brain was carried out which suggested she had IVH (intra ventricular haemorrhage) with mild hydrocephalus and therefore PCV given. Gradually she weaned off and therefore extubated on 5th day of her life. Again on 11th day patient's CBC deteriorated and was diagnosed septicaemia and therefore antibiotics were changed. It is alleged that despite knowledge that Fatema is premature child having low birth weight more prone to retinopathy of prematurity, the opponents did not paid any attention to development of ROP (Retinopathy of Prematurity) which was obligatory on their part being neonatologists. It is also further alleged that first examination was necessary latest by 30 days but Dr. Shaileen Parikh examined her on 25/1/2012 (i.e. 40th day after birth) and though he had advised for close watch for three weeks no actions were taken by the opponents. The doctors did not examined patient's eye and no action taken to avoid ROP.
[b]. Referring guidelines issued by National Neonatal Forum, complainants alleged that Fatema was not treated timely and submitted that had the opponents taken timely action Fatema would not have suffer vision loss or her vision could have been saved. The complainants' specific allegation worded as under:
RNM CC712013 Page 2 of 23"It is unfortunate that child has to suffer a life time of needless and incurable retinal blindness because of not being screened for ROP within prescribed time limit of birth which is mandatory for such preterm babies".
It is averred that Fatema was given discharge on 16/2/2012 and even thereafter she was taken to opponent hospital for routine follow up on 19/2/2012, 22/2/2012, 25/2/2012, 2/3/2012. It is alleged that she also remained indoor patient at opponent hospital for the period from 7/3/2012 to 10/3/2012 for her health related problems and even after discharge she was taken to opponent hospital on 19/3/2012, 10/4/2012, 20/4/2012 and lastly on 1/5/2012, but despite repeated reminder for ROP screening, no actions were taken by the doctors of the hospital. On the contrary, complainants were replied by the opponents that Fatema's vision would be cured of its own. It is alleged after much insistence, the doctor then examined and referred to Dr. Alay Banker. The complainants consulted Dr. Banker on 3/5/2012 and after examination he reported as under:
For Right eye: stage IV B ROP For Left eye: Stage V (total detachment) [c]. Dr. Banker advised complainants to consult L V Prasad Eye Institute at Hyderabad. The complainants then reached Hyderabad on 4/5/2012 with Fatema and consulted institute on next day. Dr. Subhadra Jalali, examined baby on 6/5/2012 and confirmed the diagnosis made by Dr. Banker. However, she recommended for surgery as a last effort to improve vision, if possible, which was planned on next day. Fatema was about five months on that day. On 9/5/2012, Dr. Jalali reported that Fatema had advanced ROP and she may get only "ambulatory" vision. She explained that early screening or even latest by age of a month could have benefitted her. According to her, in case, if screening is done within first month after birth, there are good chances (about 80/90 percentage) of good vision. The complainants, therefore, alleged that the opponents have shown utmost carelessness in rendering treatment to Fatema. The report of Institute dated 18/5/2012 clearly mentions "fundus examination of the right eye show macular fold and left eye fundus show retina lying behind lance" The complainants were called for follow up visit after one month. On 9/6/2012, complainants' consulted for follow up visit at Hyderabad where after examination, it was reported "Fundus examination of the right eye showed attached retina with macular fold. The left eye showed total retinal detachment." This indicates that even after surgery, Fatema will not have complete vision. She may have slight vision in RNM CC712013 Page 3 of 23 right eye but in left eye no vision at all. She was then advised for vision rehabilitation program. Thus, complainants' alleged despite having knowledge that Fatema was premature baby, having birth weight 825 gram and born at 26-27 weeks of gestation, and in such case, it is mandatory to have first eye examination/screening latest by 4 weeks, they did not do it till 40 days. It is also alleged that carelessness continued even thereafter when they did nothing despite instruction given by Dr. Shaileen for close watch for three weeks. The complainants alleged that they visited opponent hospital about ten times and reminded them about eye examination, neither the hospital nor the opponent doctors did anything on this count. The complainants also alleged that even BERA, CT brain etc diagnostic tests were also never recommended. The complainants state that they were compelled to incur expenses of Rs.2,97,000/- towards hospital bill for institute at Hyderabad and also spent Rs.1,43,570/- for medicines. It is also submitted that complainant no.1 had job at Congo (Africa) he had to bear salary loss of about 41 days which is quantified at Rs. 5,25,000/-. Thus, complainants submitted that at least these amounts considered as direct financial loss to the complainants. It is further submitted that now Fatema had to suffer for the whole life and therefore compensation of Rs.75,00,000/- and cost of this litigation Rs.1,00,000/- should be awarded.
[3]. On admission of complaint, this Commission ordered to issue notice to the opponents which were duly served and they appeared through advocate and filed detail replies.
[a]. The hospital contended that allegations against the hospital are false, that complainants have not come with clean hands, that complaint is misconceived in law and therefore it should be dismissed. It is contended that there was no fault, shortcoming, inadequacy, error on the part of the hospital and therefore allegation of "deficiency" in service is not tenable. It is also contended further that in the complaint, there is no specific allegation against hospital. The hospital is well equipped and doctors have rendered standard treatment and allegations are false and complaint should be dismissed with cost.
[b]. Although, the opponent no.2& 3 have filed separate reply but the contents of both these reply are almost same except personal details like qualification, experiences etc. Both these opponents denied allegations of deficiency in service as well as negligence in rendering treatment to Fatema. It is also contended therein that RNM CC712013 Page 4 of 23 although Dr. Shaileen (Paediatric ophthalmologist / eye specialist) and Dr. Vishal Kachhy also have rendered treatment to Fatema but deliberately they have not been joined as party and therefore complaint is bad for non-joinder of necessary party. It is stated that Dr. Mehta is M. D. D. Ped.(Paediatric) and have experience of about 10 years. He had worked with Wadia Hospital, Mumbai and Jivraj Mehta hospital of Ahmedabad in neonatal ICU and paediatric ICU. Whereas, Dr. Snehal Wala is also M D. D Ped (paediatric) and have experiences of about 11 years. He had experience in working with neonatal and paediatric ICU. He also received fellowship at the hospital for sick children, Toronto, Canada in paediatric emergency medicine and working as intensivist in opponent no.1 hospital.
[c]. Both these doctors have stated that Shabnam Firoz Memon (complainant no.2) delivered a premature child at about 26/27-week pregnancy on 15/11/2011 at V S Hospital. It is submitted that condition of new born was critical and therefore V S hospital stated to have informed the mother about less chances of survival of baby. The relatives then brought new born to opponent hospital when her age was merely 5 hours. The baby was immediately resuscitated by the team of doctors at opponent hospital. It is stated that complainant no.2 and her relatives were well explained about critical condition of the baby. She was also appraised about all possible complications and future consequences. It is noteworthy that father of the new born (complainant no.1, who initiated this complaint) was never present at that point of time and he was not even in India for a period of about first 50 days and therefore he does not know anything that had happened during this period and therefore makes wild allegations. The hospital authority, staff, and doctors regularly counselled mother of new born.
[d]. It is stated that on first day baby was kept on ventilator and inj. Surfactant was given for lung immunity. When she was in NICU, paediatric cardiologist carried out echocardiography as a result it came to know that she had intra-ventricular haemorrhage and had large Ventricular Septal Defect (VSD). It is also further submitted that during initial 35 days of stay at hospital, she had recurrent attacks of "apnoea"and therefore compelled to extend ventilatory support for more 5 days. Thus, she was on ventilator for 8 days during initial hospitalisation. It is also submitted that when she was found stable without oxygen, Dr. Mehta advised for ROP screening, to which relatives agreed, and therefore on 40th day of her life, Dr. Shaileen Parikh, retina specialist was called for screening. It is also submitted that Dr. Parikh did not RNM CC712013 Page 5 of 23 find any evidence of ROP or any eye disease which require active treatment. Dr. Parikh instructed mother for follow up after 3 weeks. All these facts have been clearly mentioned in the "Discharge Summary" also.
[e]. The doctors explained that as such, it was not medically possible to screen the baby as she had recurrent apnoea and was requiring intermittent oxygen during initial period. According to doctors, her survival without internal complication was much more important and therefore screening was done on 40th day when she became fit for the same. It is submitted that though Dr. Parikh had advised for follow up after three weeks, her mother never consulted Dr. Parikh thereafter for follow up treatment. The opponent doctors submit that ROP cannot be assessed by paediatrician clinically and it is duty of paediatric ophthalmologist. The doctors submitted that complainants have not disclosed that doctors of V S Hospital have informed them about very remote chances of her survival whereas baby is survived that itself is proof that they did best.
[f]. It is submitted that even during follow up, it was never complained by the mother but when the opponent doctors observed that baby had rowing eye movement, mother was asked about screening and at that point of time she replied that she never visited for ROP screening. Thus, the doctors treated new born with utmost care and caution and as per standard medical practice. In such a case, there is no negligence on their part. The doctors denied that loss of eyes of new born baby due to any negligence on their part. The doctors stated that father was not there and do not know under what circumstances, her baby had survived and what kind of treatment was rendered to her. It is specifically submitted that complainant no.1 has canvassed false story as to repeated reminder for eye screening and called upon to prove it. It is denied that when complainant no.1 did not see any movement in baby's eye therefore they were worried about the same and were asking the opponents in this regard. It is nothing but false story. The doctors submitted that looking to her critical condition it was rather not advisable to keep the baby without oxygen in initial month. The doctors submitted that ROP can be done when the child is ready to bear stress of eye screening. The complainant has not joined ophthalmologist as party. It is submitted that even on 1/5/2012, it is at the instance of the opponents' doctors, who drew attention of the complainants towards eyesight of the new born. In short, the opponents' doctor did their best and therefore prayed for dismissal of complaint.RNM CC712013 Page 6 of 23
[4]. The Complainant no.1 filed affidavit in rejoinder and stated therein that he was working at Kinshasa, Congo and his wife had been returned to India during November 2011 at 5th month of pregnancy. It is also stated therein that she had delivered a baby girl on 15/12/2011 at V S Hospital. It is also submitted that baby girl was transferred to opponent hospital on the same day and she was kept there for 63 days. He stated that doctor also informed them that baby had heart and also brain problem. He reiterated his allegation that during hospitalisation, doctors of opponent hospital, ignored development of ROP due to careless attitude. He stated that though Dr. Shaileen instructed for close watch for three weeks, hospital ignored it and did not observed development of ROP and as a result baby girl suffered. According to him, precious time was spoiled and when it came to knowledge, it was too late for recovery of vision. He stated that on1st May, his wife had been to opponent hospital and she informed to Dr. Manish Mehta, who then referred to Dr. Shaileen Parikh. Next day, Dr. Shaileen was consulted who then confirmed that baby had severe retinal problem in her eyes. He stated that though Dr. Parikh had earlier instructed for close watch for three weeks and though patient was hospitalised and also under control and management of opponent hospital, no follow up consultation was arranged for services of ophthalmologist. He further stated that thereafter, further opinions of Dr. Sajni Kalpit Shah and Dr. Alay Banker was taken and they also confirmed that baby's eyes are in critical stage and referred to L V Prasad Eye Institute at Hyderabad. He also stated that while taking discharge from opponent hospital, he had consulted Dr. Vishal and Dr. Anjali and asked about post discharge care but even on that day they said all necessary check have been carried out and baby has no problem.
[5]. From the opponent doctors, interrogatory questions placed on record and this Commission directed complainant to file reply of interrogatory questions on oath. Record also shows that even from the complainant side an application was moved for cross examination of opponent doctor which was ordered to "fix for hearing" but till matter was heard finally, the complainant did not press for it, leaves me to believe that complainant might have dropped the idea of cross examination of opponent. Reply to the interrogatory questions of opponents, filed on oath and at page 106. The important information comes on record are as under:
"we, both complainants have studied up to higher secondary school and have negligible knowledge in medical science. It is not true that V S hospital did not admit baby as indoor patient but baby was brought to opponent hospital since one of relative suggested for private RNM CC712013 Page 7 of 23 hospital for better management. It is not true that I was not in India during treatment of Fatema but I reached India on 2.2.2012. It is true that Fatema was in critical condition. I say that baby was premature and having respiration problem and therefore other allied problems were not required to be discussed. It is true that it was informed to us that Fatema had cardiac problem because of prematurity. I am not aware that because of great efforts made by opponent hospital doctors, baby became stable. I do not know anything about eye examination or ROP screening. I am unable to say that baby was not fit for eye examination up to 40 days. I do not know about visit of Dr. Shaileen Parikh on 25/1/2012. It is not true that Dr. Shaileen examined baby and explained all about her to my wife i.e. mother of baby. I do not know Dr. Shaileen advised to consult him after three weeks and further say that I never met Dr Parikh and therefore question does not arise for his advice. It is not true that my wife never complained for vision problem in fact, she did complain during follow up visits. I am not aware how eye examination can be done to detect ROP. It is true that prescription dt.1/5/2012 was inadvertently left out. I say that Dr. Kalpit Shah gave advice to consult L V Prasad hospital and therefore advised to have second opinion and therefore Dr. Alay Banker was consulted. It is not true that treatment rendered at opponent hospital was standard and as per accepted medical practice"
The complainants thereafter moved an application and brought on record certain documents like list of expenses incurred by him, proof of flight tickets and certificate stated to have been issued by L V Prasad Institute.
[6]. Both parties have submitted written submissions on record.
(i). The complainants have submitted that the undisputed fact is that Baby Fatema born on 15/12/2011 after 26/27 weeks of pregnancy and she was admitted to opponent hospital when her age was 5 hours. She had respiratory distress and suffering with different difficulties as mentioned in discharge summary. Though instructions were given by Dr. Shaileen for close watch for three weeks, the hospital did nothing and does nothing to screening for ROP. It is submitted that opponents are duty bound to do ROP screening within a month of birth. The report of Dr. Subhadra Jalali (who had examined and operated baby subsequently) placed on record. The complainant also have placed on record guidelines issued by National Neonatal Forum which confirms certificate issued by Dr. Jalali, The baby was detected having stage 4 b ROP in right eye and stage 5 for left eye. The complainants spent huge money for treatment of ROP for their child, and on 7/5/2012 she was operated. Referring guidelines it is submitted that since birth weight of baby was 825 gram and pregnancy was around 26/27 weeks, it is mandatory to have screening for ROP within 2-4 weeks as per condition of the baby. It is submitted that NICU records is silent about information regarding mandatory ROP. Thus non-compliance of guidelines caused delayed screening and allowed ROP to develop and as a result minor child suffers. It is also further submitted that the certificate further suggests that despite multiple surgeries, RNM CC712013 Page 8 of 23 child may not have vision (100 % blindness) as she has reached to a stage of blindness that is not reversible with current technology and that too due to advanced and delayed presentation. It is submitted that although complainants have claimed Rs.75,00,000/- but considering tension and harassment suffered by child, parents and lifelong blindness of child, this would be meagre amount, which should be awarded with interest and future treatment cost. The complainant has relied upon judgments of Hon'ble Supreme Court in V Krishnakumar vs State of Tamilnadu (2015-3-CPJ-
15(SC)) and Maharaja Agrasen Hospital vs Master Rishabh Sharma (2020-1-CPJ- 3(SC)).
(ii). Dr. Joshi, advocate for the opponents submitted that since complainant no.1 was out of India during initial treatment of Fatema, he may not have personal knowledge as to facts and therefore facts stated by him cannot be treated as true facts unless proved by corroborative evidence. He has not come with clean hands and stated differently at different occasions. It is not in dispute that Fatema was admitted to opponent hospital with respiratory distress and having cardiac problems also. It is in these circumstances, primary duty of a doctor to save life of a patient rather than an organ. It is also admitted position the patient had recurrent episode of apnoea and therefore it was not medically possible to offer her for eye screening. When she became stable, she was examined by Dr. Shaileen Parikh on 25/1/2012 and doctor did not observe any symptoms developing of ROP on that day. The said doctor had instructed mother of baby for follow up visit after three weeks, but she did not follow. During examination on 1/5/2012, doctor of opponent hospital saw abnormal eyes movement. He therefore advised complainants to consult again an ophthalmologist which they did thereafter and now alleged negligence on the part of opponent doctors and hospital! Referring medical literature he submits that it is not only preterm birth that leads to ROP but other risk factors like, Sepsis, Intra-ventricular Haemorrhage, Respiratory Distress, failure to gain weight and Blood Transfusions also are risk factors for ROP. Mr. Joshi submitted that baby was having too low birth weight and therefore her survival was a challenge to doctors. Fatema had an episode of Intra- ventricular Haemorrhage, she was also suffering from other problems like VSD and therefore screening may not be considered as priority. It is well accepted in medical science that when treating doctor have limited options available, selection of one is considered best which advances more benefits to patient. In the instant case, doctors RNM CC712013 Page 9 of 23 choose to save life against probabilities of loss of vision. It is submitted that as and when, patient became stable and fit to bear stress of screening, screening was done though delayed one. Now Dr. Parikh did not observed any symptoms of development of ROP even on 25/1/2012 (on 40th day, which is delayed according to complainant and Dr. Jalali) obviously it would not have been observed earlier had it been done within 30 days as per guidelines. Referring deposition of the complainant no.1 and his answers in reply to interrogatories, Dr. Joshi submits that he is not credible witness and do not have personal knowledge about the facts because he was away from India. A person, who had in fact personal knowledge about the facts, was his wife (complainant no.2) but she have not led any evidence or filed any affidavit. Thus the facts stated in complaint do not get supports from any proof thereof as evidence. Dr. Joshi also submits that the complainants have voluntarily not chosen to cross-examine the opponents, who have filed reply on affidavits. Thus, facts stated in replies are "uncontroverted" and not challenged. He thus submits that complaint should be dismissed with heavy cost.
[7]. From the above stated facts and submissions following facts can be described as undisputed.
[a]. Complainant no. 2 had delivery at V S hospital and baby girl born at 26/27 weeks of pregnancy on 15/12/2011. Her birth weight was 825gm.
[b]. New born baby was brought to opponent hospital with complaint of respiratory distress, VSD. She was given discharge from opponent hospital on 16/2/2012 when she was reported having stable condition.
[c]. During hospitalisation, she developed sudden onset of pallor, low Hb so USG carried out which showed Ventricular haemorrhage with mild hydrocephalus and was given PCV.
[d]. she was extubated on 5th day of her life. Her condition deteriorated and was having septicaemia.
[e]. Fatema's first eye examination was done at hospital by Dr. Shaileen Parikh on 25/1/2011 for ROP and he had instructed for close watch and follow up after three weeks. On that day, Doctor did not observe any symptoms of development of ROP. [f]. During May 2012, it came to know that Fatema had some vision problem and opinions of two specialists were obtained.
[g]. Both confirmed vision problem and advised to consult L V Prasad Institute. [h]. Patient was operated on 7/5/2012 but informed that there are rare chances of revival of vision. Dr. Jalali certified that patient had stage 4 ROP in right eye and stage 5 ROP in left eye.
[i]. There is no record of eye examination between 25/1/2012 to 1/5/2012 at hospital.
RNM CC712013 Page 10 of 23[j]. Complainant no.1 returned to India on 2/2/2012.
[8]. It is clear from the above stated facts that new born was low birth baby and her condition was critical when admitted to opponent hospital. She had respiratory distress and therefore she was kept in NICU and was administered oxygen to save her life. She also had intra-ventricular haemorrhage requiring constant support of ventilator. She had wide spread infection (septicaemia) and was put on higher antibiotics. Her general condition was poor that was made clear to relatives on the day of admission. According to complainant National Neonatology Forum clinical practice guidelines 2010 suggests that screening for ROP (Retinopathy of Prematurity) should be performed in all preterm neonates (pre-matured born baby) who are <34 weeks gestation and /or <1750 grams birth weight. Apart from these infants, those pre term infants between 34 to 36 weeks gestational age or a birth weight between 1750 to 2000 grams, with risk factors for ROP should be screened. Keeping in mind above guiding principles, it is stated that Fatema born at 26/27 weeks and had low birth weight (825gram) therefore fit case for mandatory screening.
[9]. When foetus completes 36 weeks in mother's womb, a fully developed child takes birth but prior to that foetus always remains under developing phase. In case of per term baby therefore development of tissue (which remains at the back of the eye) called the retina also under developing phase. During this development phase, unwanted blood vessels grow on the baby's retina. In fact, the role of retina is to sense light and sends signals to the brain and as a result one can see. These unwanted blood vessels can cause a problem later which may be serious eye and vision problems and that is called ROP. In the article "Programme, planning and screening strategy in retinopathy of prematurity" published in India Journal of Ophthalmology (2003-Vol. 51 Page 89) ROP screening program and facts are shown. Its relevant text is reproduced as under:
"Why should we screen for ROP? There are several compelling reasons to have a screening program for ROP. Firstly, the premature child is not born with ROP and retinal disease is not present at birth. Each such child has a potential for normal vision, even if the retina is immature at birth. Screening aims to identify those infants who have reached or have the potential to reach threshold ROP, which if untreated may cause blindness or visual impairment. This has medico legal implications. There are indefensible legal repercussions should an infant develop ROP and retinal detachment, but had not received eye examination. Secondly, the grief and the personal tragedy for the family are tremendous, besides the economic burden of such childhood blindness. Early recognition of ROP by screening provides an opportunity for effective treatment.RNM CC712013 Page 11 of 23
Whom Should we screen? The aim of screening premature babies for ROP is to detect all treatable neonates, with minimum expenses of time and resources. This also aims at not screening those babies who are unlikely to get a severe form of ROP. The criteria for screening babies are based on two critical factors - the birth weight and the gestational age. Other additional factors contributing to the development of ROP are also taken into consideration. Although much has been written about the association of oxygen use and ROP, it has been found that oxygen is not the cause of ROP. On the contrary, low levels of oxygen and slow weaning from oxygen may help regression of early stages of ROP. Oxygen levels must be well monitored to ensure optimum oxygen saturation of blood since hypoxia is a factor in increasing abnormal retinal neovascularisation.
When should screening begin? A premature infant is not born with ROP. The retina is immature, but this is perfectly natural for their age. It is the post-natal developments in the retinal vessels that could lead to ROP. The sequence of events leading to ROP usually takes about 4-5 weeks except in a small subset of premature infants who develops Rush disease in 2-3 weeks. Therefore routine screening should begin at no later than four weeks after the birth and possibly even earlier for infants at higher risk. We strongly recommend that one session of retinal screening be carried out before day of 30 of the life of any premature baby"
This test of ROP is done inside the neonatal unit or hospital, during a visit by retina specialist or paediatric ophthalmologists. The pupils of the eye are dilated using drops and the retina is examined with an indirect ophthalmoscope for signs for ROP. It is a painful procedure and requires pain preservation in preterm infants.
It is in this context; the allegations of complainants should be considered. The main allegation of the complainants that despite having knowledge that Fatema is low birth weight baby, born on 26/27 weeks pregnancy, it was expected from the doctors that they should be vigilant and mindful of time limit for ROP so as to save vision of the new born. However, according to complainants, the doctors of hospital neither examined eye nor arrange for screening within time limit which could have avoided post birth vision loss. The case of the opponents is that the condition of baby was such where eye screening was not medically possible and when patient became stable it was carried out on 25/1/2012 (i.e. 40th day from birth). According to complainant, non-compliance of protocol amounts to ignoring standards of medical science and it will lead to deficiency in service. According to doctors, saving of life is much more important rather than saving of particular organ. When doctors are pitted in a situation where they have limited set of options available, saving of life should be given utmost priority and they followed it and therefore they cannot be made liable for loss of vision either under deficiency in service or for alleged negligence.
[10] It is not in disputes that complainants have claimed compensation alleging "deficiency" in service and "negligence" on the part of the opponents. Therefore Sec. 2(1)(g) of the Consumer Protection Act, 1986 (herein after referred as "The Act" or RNM CC712013 Page 12 of 23 "Act" ) which defines word "deficiency" required to be studied in proper perspective. It reads as under:
"deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
The above said definition makes it clear that to allege "deficiency" in service, the complainants must point out any fault, imperfection, shortcoming, or inadequacy either in the quality, nature or in manner of performance that is require to be maintained by law or has been undertaken to be performed. In the instant case, although it is alleged by the complainant that doctor did not performed well as per standard practice but led no evidence to prove it.
To hold the opponents liable for deficiency in service or for negligence, in this case, the complainant must prove that irrespective of the existing circumstances, the hospital or doctors in charge of treatment were duty bound to have screening of Eye, to avoid future loss of vision. Omission thereof or inaction on the part of the doctors, would tantamount to fault or error, or shortcoming or inadequacy of service and therefore it cannot be termed as standard service. It can never be acceptable standard practice of medical professionals. The submission of the complainant is that the guidelines issued by National Neonatal Forum (hereinafter referred as "NNF") for mandatory eye screening within 4 weeks from the date of birth, and to keep patient under observation is a golden standard. Thus according to complainant, the manner of performance is prescribed by NNF and the opponents should perform their part of service in a manner prescribed.
[11]. The Hon'ble Supreme Court had an occasion to define "Negligence" and it was held as under:
"Negligence is not absolute term but is a relative one: it is rather a comparative term. No absolute standard can be fixed and no mathematical exact formula can be laid down by which is negligence or lack of it can be infallibly measured in a given case. What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances. To determine whether an act would be or would not be negligent, it is relevant to determine, if any reasonable man would foresee that the act would cause damage or not" (AIR-2003-SC-4182) Thus, before concluding "negligence" all the "surrounding circumstances" should be kept in mind. It is possible that in some case, a person may be "negligent" but he/she may not be negligent if "surrounding circumstances" differs. All these depend upon the existence of facts at that relevant point of time. Mr. Pancholi submitted that this is RNM CC712013 Page 13 of 23 a case of "Res Ipsa Loquitur" and therefore no further proof is required. I cannot endorse this submission simply because "Res" can be applied only in case where all other circumstances are proved in favour of the complainant, leaving no room for any other explanation for the happening of events. In the instant case, it is rather admitted position that Fatema was having "critical" condition requiring treatment to save her life. Therefore, it cannot be said that other circumstances were "normal and favouring" complainant. To prove negligence, either the claimant should establish the facts from which presumption of negligence can be made or the claimant should bring concrete and corroborative evidence on record which is capable of ascertaining breach of duty independently.
[12]. In the case in hand, the complainants have alleged "negligence" of opponents and pleaded that though they were reminded repeatedly about screening of eye for ROP, the doctors did not paid attention to it. If this fact is proved, obviously, the doctor can be made answerable to explain circumstances and also put under scanner to find out whether conditions were really critical as it claimed by them. Now from the complainants' side, to establish above facts, only piece of evidence that is available on record is affidavit of complainant Firoz Memon and his reply to interrogatories. I have scrutinised record and evidence but unable to find any other corroborative evidence to support his version. The opponents have already submitted that he (complainant 1) was not present in India when Fatema was hospitalised and her treatment started. In his reply to interrogatories, he has said on oath that he came to India on 2/2/2012 (Q. 11 page 107). This means he may not have personal knowledge as to what had happened during the treatment and how the patient was till that date. The pleadings in complaint do suggests that facts stated therein is taken from "Discharge Summary" given by the opponent hospital and no other documentary evidence produced to disprove the said facts mentioned by the opponents. The opponents have categorically replied that all information was given to mother of baby. In such a case, complainant no.2 only had personal knowledge as to facts taken place. Surprisingly, she has voluntarily chosen not to file any affidavit or led any evidence to disprove facts stated by the opponents. Therefore, unless having documentary or corroboratory support, all statements of Firoz Memon, regarding facts having taken place, prior to his arrival in India, inspires no confidence and therefore do not have any credibility and shall have to be discarded. The complainants also have not taken RNM CC712013 Page 14 of 23 pain to led any other independent expert opinion which could have enlighten this Commission that physical condition of the patient was not so that screening of ROP can be avoided. There is no evidence of any other competent person who can say that ROP could have been done during this period. There is no evidence worth the name that patient was not critical during ROP screening period and it could have been made possible to follow guidelines. So far acceptance of case at opponent hospital, condition of the patient at that point of time etc are not in disputes the only option left for the complainant to prove that the decision made by the opponents for delayed screening was wrong considering circumstances. It is admitted that baby born on 15/12/2011 and screening was done on 25/1/2012. According to guidelines, screening should start after 2/3 weeks and it should be done latest by 4 weeks. Therefore, complainant has to establish on record by evidence that condition of Fatema was not critical during 1/1/2012 to 15/1/2012 so as to avoid / delay screening for ROP. It is well established that primary burden of proving allegations in complaint is upon the complainant and once initial burden is discharged then onus shifts to opponents to disprove complainant's case. In absence of any such evidence from the complainant side, it is difficult to hold that the facts stated were incorrect and they failed in their duty to arrange screening of eye for ROP within above stated period of four weeks. As discussed, i could not find any evidence in this regard and therefore no reason to disbelieve the opponents and therefore hold that treatment rendered to Fatema during hospitalisation remains proved. Therefore, there was no breach of any duty during hospitalisation period.
[13]. Now, the question is the complainants were following consultations regularly and even if the care has not been taken during this period, the doctors can be made liable. Hon'ble Supreme Court in the matter between V Krishnakumar vs State of Tamilnadu (2015-3-CPJ-15(SC)) relied upon report of Medical Board of AIIMS. Even this Commission had recently an occasion to consider this aspect in Complaint no. 18 of 2014 (Yash Yogeshbhai Kotak vs Dr. Pritesh Pandya decided on 15/2/2023) wherein it was observed as under:
".... needless to mention here that it had been scientifically established and referred by many scholars in their reports or research works that lesser the gestation period higher the risk involved for development of ROP. It is also stated that in the report that it cannot be said perfectly on the date of birth that which baby would suffer from ROP meaning thereby post birth growth in the eyes of child takes place is RNM CC712013 Page 15 of 23 important and therefore growth is required to be monitored regularly is the necessity. "Time" is important factor and therefore it can easily be said that "timely assessment" and "timely diagnosis" would be beneficial to new born baby."
The book titled "Care of new born" by Meharbansingh in Chapter titled as "Miscellaneous Conditions" discussed about ROP which reads as under:
"At lower a gestational age, large areas of retina are avascular and is vulnerable to develop abnormal vascular proliferation due to large number of triggering factors. The clinically detectable fundal changes of ROP are seen after 4 to 6 weeks of birth. All infants with a birth weight of < 1500 g or gestational age of <32 weeks should be screened by a paediatric ophthalmologists with indirect ophthalmoscope. More mature infants should also be screened if they had suffered from severe RDS or apnoeic attacks and received prolonged oxygen therapy or assisted ventilation. After the initial screening at 4-6 weeks of age, or post conceptional maturity of 32-34 weeks the subsequent screening is done after every two weeks until retina is completely vascularised up to ora serrata. When ROP is diagnosed, the frequency of examination depends upon the severity of the progression of disease. Infants are examined more frequently until their retinopathy regresses and full maturity of retinal vessels is achieved or until they reach a threshold for treatment."
From the above it is clear that subsequent screening is also important untill retinopathy regresses or reach to a threshold for treatment. In the instant case, although first examination was not carried out within prescribed time limit of four weeks, but it also should not go unnoticed that eye examination of Fatema was arranged on 25/1/2012 and Dr. Shaileen Parikh had examined her. The notes made by Dr. Shaileen assumes important which reads as under:
"25/1/2012: s/b Dr. Shaileen. ROP screening. BE: Disc N. Avascular retina present. No C/o ROP, No e/o present disease Needs close watch for three weeks"
From the above report it can be said that even on 25/1/2012 Dr. Shaileen has observed avascular retina and he believed it may fully regressed after some time and therefore not sure as to development of ROP though the period of four weeks was over. His competency is not at challenge by the complainants since he is ophthalmologist. Dr. Parikh's this observation is also have been used to form an allegation of negligence of opponents in the present complaint. Undoubtedly, it suggests that though little late but eyes were examined and there were no concrete signs of development of ROP on that day. This unchallenged piece of evidence proves beyond doubt that decision of doctors of the opponent hospital for delayed examination may not have caused any damage in the eyes of Fatema. Thus, looking from even this angle also they cannot be held negligent for not examining or not arranging screening of eyes of Fatema within 4 weeks.
RNM CC712013 Page 16 of 23[15]. The guidelines of NNF suggests that the timing of first screening usually depends on the infant's postnatal age. The convention is not to delay the first screening later than four weeks of age or 30 days of the life for infants born at or more than 28 weeks of gestation. When screening should be terminated is replied describing "postmenstrual age" or retinal findings. "Postmenstrual age" means "gestational age" at birth plus "postnatal age" in weeks. Recommendations made for termination is suggestive at "full retinal vascularisation" which takes place at about 40th week of "postmenstrual age" and "vascularisation" mostly completes by the 45th week. If this formula is tested in facts of this case, considering baby delivered at 26 weeks, 45th week of post menstrual age completes on 19th week of "postnatal age". i.e., 4.5 months age of baby after birth. Therefore, latest date would be middle of April 2012. It is also mentioned in the guidelines that it is advisable to screen the baby every 1-2 weeks at least until the infant is 38-40 weeks of postmenstrual age. The guidelines also recommended that recognition of infants for screening lies with the paediatrics/neonatologists. Thus, though there was finding of no confirm symptoms of ROP on the date of screening (25/1/2012), the opponents were duty bound to take care till the baby attains the age of 4.5 months. If complainants have stopped approaching opponents for follow up treatment, the obligation would have been ended there only. But, in the instant case, it is seen from the evidence that even after discharge from the hospital on 16/2/2012, the complainants continued with follow up treatment and visited opponent hospital on 19/2/2012, 22/2/2012, 25/2/2012, 2/3/2012. She was re-hospitalised on 7/3/2012 and discharged on 10/3/2012. Again, follow up treatment continued on 10/4/2012. All prescriptions and notes of doctors, who have examined patient on those days are on record. There is no dispute about these dates also. I could not lay my hand on any of those documents, which shows that the doctors have ever insisted for screening of eyes of Fatema. It is not in dispute that first eye examination was arranged at opponent hospital and Dr. Shaileen advised for close watch. A common man may not understand mandate of doctor's advice in true spirit but hospital and doctors, being competent persons, should insist and to take adequate steps for the follow up examination at hospital which is mandatory to save the vision of child. It is to be born in mind that premature child is not born with ROP and retinal disease is not present at birth. Aim of screening is to identify those infants who have reached or have potential to reach threshold ROP, which if untreated may cause blindness or visual impairment. Needless to say, that early treatment can give better potential to save vision loss or RNM CC712013 Page 17 of 23 minimise the vision loss. I have gone through reply of the opponents and unable to find any plausible explanation for not arranging eye examination / screening during post discharge treatment. After discharge from hospital, they cannot say that condition of patient remained critical all throughout and therefore it was not possible. There are five stages of Retinopathy. If baby is examined at an early point of time of developing ROP, there are more chances of better treatment initially to save vision of the child. It is also noteworthy that stage one and two do not require immediate treatment and it may set right if little care is taken thereafter. But when stage three starts, doctors should be alert and start treatment. In the instant case, there is nothing on record which shows that at any point of time initial stage was observed. This gives inclination that no examination done at all. Thus, I would say it is direct result of careless attitude of the neonatologists, because patient has developed ROP at later point of time, which led to loss of vision despite regular follow up at hospital.
[16]. It is not in dispute, that on 1/5/2012, it was came to know that Fatema had vision problem. There are rival claims that they observed it first and asked to consult ophthalmologist. I do not want to adjudicate such trifle issue but cannot overlook that on that day it can be said severe condition and there is no doubt about it. Within a week thereafter she was taken to Hyderabad, consulted Dr. Jalali. After examination, Dr. Jalali made a diagnosis of advance retinal detachment due to ROP in both eyes with stage 4 b in right eye and stage 5 in left eye. Fatema was operated for retinopathy on 7/5/2012 proves it beyond doubt that it was so advanced condition requiring immediate treatment. Even after surgery, she will have only ambulatory vision. Now this condition would not have developed overnight and therefore it can be said that the opponents have not discharged their obligation with diligence though for post discharge treatment. It is necessary to observe that if the opponent doctors were serious about probabilities of ROP at the time of discharge, it was third week after first examination by Dr. Shaileen and therefore they could have arranged repeat screening at the hospital. But they did not do it and tried to shift burden on the complainant saying when they observed row eye movement, they inquired from mother about follow up consultation with Dr. Shaileen. As such guidelines cast duty on neonatologist and paediatrician for the same. When patient was under the care of doctor even during follow up treatment, doctor could have arranged repeat screening or examination at the hospital but they did not do it. It is understood that once having RNM CC712013 Page 18 of 23 discharged patient from hospital with advice to do something, obviously doctor cannot be made liable for not followed the advice. But when patient continues even with follow up treatment with the same doctor and institute, it becomes obligatory on the part of treating doctor or hospital to see whether sufficient actions have been taken to follow advice that was given at the time of discharge. If the patient or relatives refuses to act accordingly, the doctor either refuse to treat patient or may make note in the case paper regarding not following advice. Nothing has been recorded in this case. It is important to note that relationship between doctor and patient is concerned, ordinarily, it continues and ends on the date when patient voluntarily stops to visit doctor or on the reference given by the doctor to consult another doctor or patient is cured. It is not the case of the opponents that they have asked for arrangement of examination or screening of child at their hospital especially after discharge from hospital and there was denial from the complainant side. When the treatment has been continued with opponent doctor, it shows that patient is having complete faith in doctor/institute and therefore to protect interest of patient is unwritten obligation undertaken by the doctor. It is in these circumstances, the doctors were under obligation to show their competence in assessment of risk involved and to use reasonable foresight for the better care of patient. To prove diligence, the doctors are expected to come with all details regarding treatment they rendered, clinical findings they made and all these actions are in line with standard treatment. The doctors have not led any evidence to prove their diligence in post discharge follow up treatment.
[17]. When it comes to the failure of taking precautions, what must be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extra ordinary precautions which might have been prevented the particular happening cannot be standard of judging alleged negligence. In the instance case, both opponent doctors were neonatologists and therefore their action is to be judged comparing with neonatologist only. When the guidelines have been issued in this regard obviously no other neonatologist would have ignored to foresee risk of ROP or would have not arranged for screening. Thus, the act squarely falls within scope of the word "negligence." Thus the opponent doctors erred in not arranging for screening of eye examination of a premature baby during post discharge treatment. Since Dr. Joshi has submitted that not only preterm birth is exposes risk of ROP and there are other causes also. I do agree that there may RNM CC712013 Page 19 of 23 be other causes but it is for the doctors to prove that in this case ROP is not because Fatema was preterm baby but there may be other causes. As discussed earlier, when the complainant has discharged his initial burden, the onus shifts to opponent to disprove the case of complainant. For which the opponents have not led any evidence.
[18]. When the negligence is proved, the deficiency is established beyond doubt. Therefore, question of assessment of loss comes into picture. The complainants have claimed Rs.75,00,000/- but not described how the assessment is made. Damages are required to be proved. Mr. Pancholi submitted that in Maharaj Agrasen Hospital case referred above, the NCDRC awarded Rs. 64,00,000/- was increased to Rs.76,00,000/- in all and therefore prayer for Rs.75,00,000/- just and fair. In that case, circumstances were different. Fatema's health condition at the time of birth and there after cannot be put at par with normal child. She had many other health issues and therefore life expectancy cannot be the same. Damages were proved through evidence. In this case, no evidence is produced as to present status of baby Fatema. Mere production of certificate of disability is not sufficient to prove complete damages. Hon'ble Supreme Court in Nizam Institute of Medical Science vs Prasanth Dhananka (2009-2-CPJ-61(SC)) held as under:
"We must emphasize that the court has to strike a balance between the inflated and unreasonable demands of a victim and the equally untenable claim of the opposite party saying that nothing is payable. Sympathy for the victim does not, and should not, come in the way of making a correct assessment, but if a case is be made out, the court must not be chary of awarding adequate compensation. The "adequate compensation" that we speak of, must to some extent, be a rule of thumb measure, and as a balance has to be struck, it would be difficult to satisfy all the parties concerned. It must also be borne in mind that life has its pitfalls and is not smooth sailing all along the way (as a claimant would have us believe) as hiccups that invariably come about cannot be visualised. Life it is said akin to a ride on a roller coaster where a meteoric rise is often followed by an equally spectacular fall, and the distance between the two (as in this very case) is a minute or a yard"
In Lata Wadhwa vs State of Bihar (2001-8-SCC-197) the Hon'ble Supreme Court had an occasion to appoint retired Chief Justice V Y Chandrchud to examine matter of assessment of compensation to victims and extract of report was discussed in Civil Appeal no. 9858 of 2013 as under:
"so far as the award of compensation in case of children is concerned, shri Justice Chandrachud has divided them in to two groups, first group between the age group of 5 to 10 years and the second group between the age group of 10 to 15 years. In case of children between the age group of 5 to 10 years, a uniform sum of Rs.50,000/- has been held to be payable by way of compensation, to which conventional figure of Rs.25000/- has been added and as such to the heirs of the 14 children, a consolidated sum of Rs. 75000/- each, has been awarded. So far as the children in the age group of 10 to 15 years, there are 10 such children RNM CC712013 Page 20 of 23 who died on the fateful day and having found their contribution to the family at Rs.12000/- per annum. 11 multiplier has been applied, particularly, depending upon the age of the father and then conventional compensation of Rs.25000/- has been added to each case and consequently, the heirs of each of deceased above 10 years of age, have been granted compensation to the tune of Rs.157000/- each. In case of the death of an infant, there may have been no actual pecuniary benefits derived by its parents during the child's lifetime. But this was not necessarily bar the parents claim and prospective loss will found a valid claim provided that the parents establish that they had a reasonable expectation of pecuniary benefit if the child had lived."
In Sarla Verma vs D T C (2009-6-SCC-121) the Hon'ble Supreme Court referred other judgments and made following observation:
"assessment of compensation though involving certain hypothetical considerations, should nevertheless be objective. Justice and justness emanates from equality in treatment, consistency and thoroughness in adjudication, and fairness and uniformity in the decision making process and the decisions. While it may not be possible to have mathematical precision or identical awards in assessing compensation, same or similar facts should lead to awards in the same range. When the factors/inputs are the same, and the formula /legal principles are the same, consistency and uniformity, and not divergence and freakiness, should be result of adjudication to arrive at just compensation."
[19]. All the above referred judgments suggests that endeavour should be made to put the claimant to the pre-accidental position and in judging whether the compensation is adequate, reasonable, and just, monetary compensation is required to be arrived at on the principle of restitution in integrum. It is most important in the instant case because beneficiaries are parents and not minor child having no earning income. It is equally true that during the whole life they must face consequences because child is fully dependent on others even for her daily activities and to meet with her daily needs for the entire life.
The parents must be under great mental agony and they will have to suffer lot for growing this child. Special kind of education, special kind of training to live normal life and personalised transportation facilities etc. would be necessary for about long period. Obviously, all these would cost heavily. As on date, Fatema must have crossed 11 years and reached to age of puberty. Her initial sufferings cannot be measured in any specific monetary terms particularly when her precious childhood she cannot enjoyed with this limitation. Difficulties faced by the complainants being parents also should not be underestimated. Cost of living and education increases day by day. To provide assistance to Fatema an attendant would be necessary for which salary of a person would additional expenditure for the parents. This is not the case where simple multiplier method like motor accident cases would be applied to arrive at specific amount. On another hand this is not even fatal case and disability is limited RNM CC712013 Page 21 of 23 to vision only. Keeping in mind, all future treatment cost, inflation rate, provisions regarding fatal accident etc I am of the opinion that an amount of Rs. 10,00,000/- would be adequate and fair compensation over and above other non-pecuniary damages and reimbursement of expenditure incurred for Fatema's treatment by her parents.
[20]. (a). The complainants have placed on record invoice of L V Prasad Eye Institute for Rs. 2,86,500/- excluding preoperative and post operative OPD treatment / consultation. Complainant has claimed Rs. 2,97,000/- for these expenses seems to be reasonable.
(b). Complainant also has claimed Rs. 1,43,570/- towards expenses for Hyderabad stay, travelling cost, misc. expenses including medicines. Although there are some bills but I feel that Rs.1,00,000/- would be just and fair considering other health condition of the patient.
(c). The complainants are also entitle for compensation for harassment, mental agony which is quantified at Rs. 1,00,000/- for all.
(d). The complainant has claimed loss of salary for 41 days stay in India, I do not feel it proper to award this amount because when he flew to India, he was not knowing that his daughter had ROP and would require further treatment. He came to India to discharge his parental duty and for which the opponents cannot be made liable since it is too remote cause of damage.
(e). He has also claimed Rs. 1,00,000/- towards cost of litigation. Rs.25,000/- would be just and fair cost in this case.
To meet with inflation in future, I would suggest little higher rate of interest then present rate of interest on fixed deposits. The opponents therefore should pay this amount with interest at the rate of 10 % p.a. from the date of complaint. Thus, in all, complainants are entitled to interest on Rs. 14,97,000/- from the date of complaint and cost of this complaint Rs.25,000/-.
[21]. Since basic beneficiary of damages is Minor Fatema, it is also necessary to make proper arrangement for disbursement of this fund to protect her interest. On realisation of aforesaid amount, 75 % of the amount realised, be invested in the name of Minor Fatema jointly with her parents, either in State Bank of India or any other RNM CC712013 Page 22 of 23 nationalised bank, through long term investment tools till she attains the age of maturity. It is made clear that parents are entitled to withdraw 50 % of the annual interest earned on this investment to meet with expenditure for growing up Fatema. The bank should not allow any other withdrawal or lien on this investment without prior permission of this Commission.
From the above discussion, I pass the following order:
ORDER The complaint no. 71 of 2013 is hereby partly allowed.
The opponents are directed to pay the complainants the sum of Rs. 14,97,000/- together with interest at the rate of 10 % p.a. from the date of complaint. The complainants are directed to follow instructions regarding investment in the name of Minor Fatema as mentioned herein above.
The complainants are also entitled for cost of this complaint which is quantified at Rs.25,000/- in this case.
The opponents are directed to comply with aforesaid directions within 60 days failing which it shall carry 12 % interest from 1st May 2023.
The office is directed to supply copy of this order to all parties free of cost at earliest.
Pronounced in the open court on this 27th day of February 2023.
Mr. R N Mehta Presiding Member RNM CC712013 Page 23 of 23