State Consumer Disputes Redressal Commission
Karmveer Kaur vs Gian Chand Rangwala Memorial Hospital ... on 6 March, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No. 45 of 2020
Date of institution : 30.01.2020
Reserved on : 15.02.2024
Date of Decision : 06.03.2024
Karamveer Kaur aged about 28 years wife of Pritpal Singh, resident
of # 764, Ward No. 30, Moga, Punjab.
....Complainant
Versus
1. Gian Chand Rangwala Memorial Hospital, 326, Near Civil
Hospital, Aara Road, Moga through its Owner-cum-Managing
Director
2. Dr. Sohan Ultra Sound & Scan Center, 326, Near Civil Hospital,
Aara Road, Moga through its Owner-cum-Managing Director
3. Dr. Sohan Lal Goyal C/o Dr. Sohan Ultra Sound & Scan Center,
326, Near Civil Hospital, Aara Road, Moga.
4. Dr. Asha Goyal C/o Gian Chand Rangwala Memorial Hospital,
326, Near Civil Hospital, Aara Road, Moga.
5. Dr. Kanu Goyal C/o Gian Chand Rangwala Memorial Hospital,
326, Near Civil Hospital, Aara Road, Moga.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the complainant : Sh. M.S. Saini, Advocate
For the opposite parties : Sh. Munish Kapila, Advocate
Consumer Complaint No. 45 of 2020 2
SIMARJOT KAUR, MEMBER :
The Complainant has filed this Complaint against the opposite parties (hereinafter referred as OPs) under Section 17 of the Consumer Protection Act, 1986 (for short 'the Act'). The Complainant has averred that in the month of April, 2015, she came to know that she was pregnant as her last menstrual period (LMP) was on 16.03.2015. On 26.06.2015, she had got conducted her 1st Level Scan from Advance Endoscopy and Scanning Center, Moga done by Dr. Harpreet Kaur (M.D. Radiodiagnosis). In the said report, it was confirmed that she was 14 week and 4 days pregnant. After that on 07.07.2015, she had visited OP No.1 Hospital for check-up, where OP No.5-Dr. Kanu Goyal, checked her as per the guidance and instructions of OP No.4-Dr. Asha Goyal. She continued with her treatment with the OPs till the delivery of the child. Said Doctor advised her to get 2nd Level Scan/Ultrasound conducted to establish whether the brain, neck, heart and backbone tissues of the child were properly developed as per the advancement of pregnancy. She got her scan conducted from OP No.2 Scan Center on 26.07.2015. OP No.3 Dr. Sohan Lal Goyal after going through the report informed her that the development of the fetus was normal. OPs No.4&5 after going through the said report also confirmed the same. On 31.10.2015, 3rd Scan of the Complainant was got conducted at OP No.2. The Complainant got herself admitted with the OPs on 14.12.2015 for delivery. On 15.12.2015, she gave birth to a male child, namely, Master Manraj. After the birth of the child, OP No.4 Doctor informed her that the child had cried immediately after the birth so he was normal. On 19.12.2015, the Complainant along with the child was discharged and advised to continue with follow up treatment.
2. The Complainant after the lapse of 2-3 months, observed that the child was not taking the proper feed, was not making eye contact and Consumer Complaint No. 45 of 2020 3 there were no signs of recognition of the family members. The child was not gaining weight and the size of his head was not increasing at normal rate. Thereafter, on 05.04.2016, she visited Dr. Darshan Singla for taking 2nd opinion. After examining the child, said Doctor prescribed him with some multi-vitamins. Thereafter, the Complainant visited the Department of Ophthalmology, PGI on 11.04.2016 for eye check-up of the child but the Doctor there suggested her to wait till the child completed 6 months of age. The child was neither showing progress nor was relieved of his symptoms. The Complainant visited another hospital i.e. Garg Hospital, where she had consulted Dr. Rupinder Singla, who after examining the child found that the child had delayed milestones as per his age. Said Doctor suggested her to get MRI Scan and ECG of the child done. Then again on 20.06.2016 she visited PGI where Doctors after examination confirmed that the development of the child was delayed. They also suggested to get MRI Brain conducted but no early dates were available in the PGI for the same. The Complainant visited Chaitanya Hospital, Chandigarh and met Dr. Monika there, who also suggested to get MRI Brain of the child conducted. The same day CT & MRI was got conducted at Spiral Center, Chandigarh. On 21.06.2016, the Doctor there revealed to the Complainant that her child was suffering from Hydranencephaly i.e. a type of Cephalic Disorder. Hydranencephaly is a medical condition, in which the Cerebral Hemispheres of the brain are absent to a great degree and the remaining Cranial Cavity is filled with Cerebrospinal Fluid. The Doctor there informed her that there was no treatment available for the said disease in Allopathy. She had also taken Homeopathy treatment for her child. Thereafter, the Complainant visited number of Hospitals for the treatment of the child but there was no improvement in the health of the child. The child was having Consumer Complaint No. 45 of 2020 4 the problem of severe constipation, abnormal sleeping patterns and fits. He was totally bed ridden and 100% disabled.
3. The Complainant pleaded that due to negligence of the opposite parties in understanding the 2nd Level Scan Report, the child was born with the problem of false/imperfect brain tissue. The 2nd Level Scan conducted by OP No.3, who was only a MBBS Doctor, who was not qualified to conduct such scan/ultrasound. Therefore, he failed to give correct report. This act of the Doctor tantamounts to medical negligence and deficiency in service. Had the Complainant known at the time of 2nd Scan that the fetal brain tissue of the child was not normally developed, she could have opted for Medical Termination of Pregnancy (MTP). Due to said medical negligence of the OPs, the child, who was 100% disabled and totally dependent upon his family, suffered from mental and physical agony. The family also had to go through the difficult times.
4. Alleging the act of the opposite parties to be a case of medical negligence as well as deficiency in service, it was prayed that the Opposite Parties be directed to pay Rs. 5,00,000/- on account of mental trauma and harassment suffered by her, family and the child; Rs. 20,00,000/- along with 12% p.a. interest on account of medical negligence; Rs.20,00,000/- as compensation along with 12% p.a. interest for past & future medical expenses incurred on the disabled child and Rs.55,000/- as litigation expenses.
5. Upon issuance of notice, OPs appeared and filed their respective statements raising preliminary objections that the present complaint had been filed without any reason, with a view to harass, malign and to gain uncalled monetary compensation/benefit from the OPs. No documentary evidence had been produced by the OPs to prove that when Level 2 Ultrasound was conducted on 26.07.2015, the fetal brain tissue Consumer Complaint No. 45 of 2020 5 was not normally developed and the OPs failed to record these findings in the said Ultrasound Report. Therefore, no medical negligence had been proved on the part of the OPs. There was no record that OPs had deviated from the acceptable and recognized medical practice or line of treatment at any stage. The present complaint was also lacking in non-joinder of necessary parties. The present complaint was also barred by limitation too because the 2nd Level Ultrasound was conducted on 26.07.2015 and the complaint had been filed in the year 2020 i.e. not within the period of 2 years as stipulated in the Consumer Protection Act.
6. The Complainant had approached Advanced Endoscopy and Scanning Centre, Moga for her Ultra Sound, it was confirmed on 26.6.2015 that she was 14 weeks pregnant. No abnormality had been reported in the said Scan. After that she consulted Dr. Asha Goyal, M.D. (Obs. & Gyn.)- OP No.4 initially on 07.07.2015 and thereafter for follow-up also. Said Doctor along with Dr. Kanu Goyal, M.D. (Radiology)-OP No.5 performed her ante-natal examination and 2nd Level 2 Ultrasound on 26.07.2015. The said report after reading had been signed by the Complainant as well. It was denied that Dr. Sohan Lal conducted the Ultrasound. Actually Dr. Kanu Goyal, M.D. Radio Diagnosis had conducted the same and affixed his signatures. Usually Level 2 Scan is conducted to overrule structural abnormalities like brain, spine, face, stomach, heart, bowel, kidneys, urinary bladder and limbs. Thus, the said Scan in question was conducted to overrule any congenital abnormality and malformation of the fetus. Thereafter, the Complainant visited Dr. Asha Goyal on number of dates from 6.8.2015 to 9.10.2015. During that period, Doctor advised the Complainant to undergo USG to know the growth/progress & position of fetus, position of placentra & amount of amniotic fluid/liquor. On 31.10.2015 another Ultrasound was conducted by Dr. Sohan Lal Goyal, Consumer Complaint No. 45 of 2020 6 who was authorized to do so. Again no abnormality was found in 3rd Ultrasound. Thus, during her pregnancy, the Complainant got 3 Ultrasounds conducted and in none of them any abnormality was detected/reported. On 14.12.2015, the Complainant was admitted with OP No.1 and underwent LSCS due to non-progress of labour and delivered a healthy male child. It was reiterated that the baby was discharged from OP No.1-Hospital in a healthy condition. It was averred that Hydranencephaly was diagnosed in the child after six months of delivery. MRI Scan of Brain of Master Manraj Singh showed an abnormality, which meant that some insult/injury had taken place due to which such an abnormality had occurred. This fact had been mentioned by the PGI in the OPD slip dated 20.06.2016 that the patient Master Manraj Singh suffered on D15 of life, admitted for Hypothermia? Cause:
Sepsis', History of LONS @ D15 of life. Infection could be a common cause of brain damage in neonates leading to Hydranencephaly.
Ultrasonography has a high sensitivity of 87.5% to detect hydranencephaly, however, there was 12.5% chance of fallacy in the realm of diagnosis on ultrasound.
7. On merits, the OPs reiterated the above stand. The Complainant had been given proper consultation and attention during her visits. No medical negligence occurred in the treatment administered by them. It was prayed that the Complaint be dismissed.
8. The Complainant had filed the rejoinder to the written statement of the OPs wherein she had reiterated her version mentioned in the Complaint. It was pleaded that she had annexed all the necessary documents to prove that the OPs were negligent in their medical services.
The OPs had reported in the Scan Report dated 26.07.2015 that Fetal brain tissues were normally developed whereas after the birth of child, her Consumer Complaint No. 45 of 2020 7 son was diagnosed with Hydranencephaly i.e. a type of cephalic disorder wherein Cerebral hemispheres of brain were absent to a great degree and the remaining cranial cavity was filled with cerebrospinal fluid. This fact had never been reported in any of the scans. The Scan had been conducted by Dr. Sohan Lal Goyal, who was not qualified to do so, as such, proper reporting of the Scan with respect to fetal abnormalities was not reported. Due to this non detection of problem, the OPs could not escape from their responsibilities and the act of negligence. They were compelled to incur huge financial expenditure on the treatment of the child due to the said negligence.
M.A. No. 1784 of 2020 (Addl. Evidence)
9. The said M.A. has been filed by the Complainant for bringing on record the additional evidence relating to the case history, which now had been traced by him. The said documents are necessary to bring on record as the same would be helpful in deciding the case. It was prayed that for just and proper adjudication of the present complaint, the same be taken on record.
10. After hearing the prayer of the Complainant in the said M.A. and going through the contents of the application, we are of the opinion that the documents annexed with the application are Ultrasound Report, News Item and CD having conversation between the parties. No adverse effect would accrue if the said documents are considered while deciding the Complaint. Ultrasound report is an important document to find out the exact cause of the Complainant's problem. Therefore, the present application is allowed and the documents annexed with the application are taken on record.
M.A. No. 53 of 2021 (Placing on record rejoinder to replication) Consumer Complaint No. 45 of 2020 8
11. The OPs in their reply to the aforesaid application raised the objections that such an application had been filed by the complainant after filing of written statement by the OPs just to fill up the lacunae in the complaint. No justification had been given by the Complainant why the said documents had not been annexed at the initial stage of the Complaint. In the interest of justice, the same is allowed and rejoinder is taken on record.
12. To controvert the additional stand of the Complainant in her rejoinder/replication, it was specifically pleaded that on 26.7.2015 the Scan was conducted by Dr. Kanu Goyal, MD (Radiology), who had signed the report on the last page. The entry of the said Scan was also made in the Ultrasound Register/PNDT submitted before the Health Authorities. The Complainant also in her additional evidence Ex.C-14 i.e. CD had admitted that the 2nd Level Ultrasound was performed by Dr.Kanu Goyal, who is son of Dr. Asha Goyal. The allegations of the Complainant regarding the alteration of the Report/PNDT Register were specifically denied because the said Register had been periodically checked by the Civil Surgeon under its seal. Total three Ultrasounds of the Complainant had been conducted during the pregnancy period and in none of the Scans any malformation in the brain of the fetus was detected. The said problem had occurred to the child after delivery, which was revealed from medical record of PGI.
13. Both the parties have led evidence in support of their respective versions by way of affidavits and documents.
14. Mr.M.S. Saini, Advocate, learned counsel for the Complainant had argued on the similar lines and reiterated his stand as per the contents of the complaint.
15. The learned counsel for the OP-Mr. Munish Kapila, Advocate had argued on the similar lines as mentioned in the written Consumer Complaint No. 45 of 2020 9 submissions. It was further pleaded that the Complaint was barred by limitation. The cause of action regarding the alleged negligence took place on 26.07.2015 and the complaint was instituted on 30.01.2020. The said delay in filing the complaint was much beyond a period of 2 years as prescribed under the Consumer Protection Act. Another issue raised by the counsel for the OPs is that the Level 2 Ultrasound was conducted on 26.07.2015 by the OP No.5-Dr. Kanu Goyal, M.D. Radiodiagnostics. No problem was detected in the fetus in the all three scans out of which two were conducted at OPs Hospital. The problem of the child had developed at a later stage i.e. after the birth, which had been clearly revealed from the treatment documents available on the file. The Complainant had deliberately concealed the record of PGI and other relevant documents of the treatment and falsely implicated the OPs in the present case with the allegations of medical negligence.
16. We have heard the arguments of learned counsel for the parties and have also carefully perused all the documents, medical literature and written arguments available on the file.
17. There is no dispute that the Complainant had approached the OPs after knowing about her pregnancy for further check-up. She had undergone her 1st Level Scan from Advanced Endoscopy and Scanning Centre, Ferozepur Road, Opposite Goyal Market, Moga wherein it was confirmed that she was 14 week 4 days pregnant. Thereafter, she approached the OPs for further treatment, which continued till the birth of the child. After the birth of the child, he developed problem of Hydranencephaly and the Complainant had levelled allegation of medical negligence on account of inaccurate reading of the 2nd Level Ultrasound Scan in the 2nd Trimester.
Consumer Complaint No. 45 of 2020 10
18. The OPs had taken the preliminary objection that the present complaint had been barred by limitation because as per the version of the Complainant herself she came to know about the problem of delayed mild stones later. Subsequently, as advised by the Doctor she got conducted MRI of the child on 20.06.2016 wherein he was diagnosed with the problem of Hydranencephaly. The present Complaint had been filed by the Complainant on 30.01.2020 in this Commission, therefore, the period of 2 years had already been lapsed. However, it was decided to take up the Complaint as per the intent and mandate of Consumer Protection Act, as CP Act is a benevolent Act, thus, it was decided to take up the Complaint on merits. Moreover, during the course of oral arguments the counsel for the Complainant had submitted that much time had been lost as the family of the child was busy in getting him treated. At that point of time it was a major priority for the family to get the child treated rather than going through the process of litigation. So the present Complaint is being decided on merits.
19. Now the issue before us is whether there was any 'act of medical negligence' on the part of the OPs as per the contents of the Complaint and whether there was any 'Deficiency of Service' on their part or they indulged in 'Unfair Trade Practice'.
20. To decide the above mentioned issue involved in the Complaint, it is important to go through the sequence of events, which lead to filing of the present Complaint.
(i) The patient Karamveer Kaur came to know about her pregnancy at 14 weeks and 4 days after she got her scan conducted from Advance Endoscopy and Scanning Centre, Moga (Ex.C-1).
(ii) After the said Scan, she approached the OPs at Gian Chand Rangwala Memorial Hospital for her antenatal check-up on 07.07.2015 and continued to visit them for further check-up and follow-up (Ex.C-2). Consumer Complaint No. 45 of 2020 11
(iii) On 26.07.2015, when she was pregnant at 18 Weeks and 6 Days (2nd Trimester), she underwent Ultrasound at the OPs Hospital. This Scan was performed by Dr. Kanu Goyal (OP No.5), M.D. (Radiology) (Ex.C-3). The said Ultrasound was normal. The report was signed both OP No.3 Dr. Sohan Lal Goyal and OP No.5 Dr. Kanu Goyal.
(iv) As the Complainant progressed through her pregnancy, she got her 3rd Ultrasound Scan done on 31.10.2015, which was conducted by Dr. Sohan Lal (OP No.3) (Ex.C-4).
(v) On 15.12.2015, the Complainant delivered a healthy Male Child through Lower Segment Caesarean Section (LSCS), who was named Master Manraj Singh.
(vi) The Complainant observed that the child had delayed Mild Stones i.e. the child was not gaining weight, his head was not increasing and he was unable to recognize the family members. She decided to consult Dr. Rupinder Singla on 05.04.2016 and Dr. Darshan Singla on 19.04.2016.
(vii) Since the progress/development of the child was unsatisfactory, the child was shown at PGIMER, Chandigarh on 20.06.2016. There the treating Doctor suggested her to get MRI Brain conducted. The dates for getting the said MRI were not available at PGI. During this period she also consulted Dr. Monika at Chaitanya Hospital, Chandigarh. In the eventuality of non-availability of the early dates with PGI, she decided to get it done from Spiral CT and MRI Centre on 20.06.2016, where the child was diagnosed with Hydranencephaly.
21. To co-relate the above chain of events, we have perused the following documents available on the file:-
S. Dates & Exhibits Documents Details
No.
1. 26.6.15 (Ex.C-1) Scan Report from Advance Endoscopy and
Scanning Centre, Moga
2. (Ex.C-2) OPD check-up record of the Complainant with
the OPs - Gian Chand Rangwala Memorial
Hospital, Sohan Ultrasound & Scan Centre,
Moga
3. 26.07.2015 Antenatal Ultrasound (Level 2) at Dr. Sohan
(Ex.C-3) Ultrasound & Scan Centre, Moga
4. 31.10.2015 Antenatal Ultrasound at Dr. Sohan Ultrasound &
(Ex.C-4) Scan Centre, Moga
5. Exs.C-5 & 6 Birth Certificate and Birth Record/Immunization
detail of child
6. Exs. C-7 & C-8 OPD/Check-up details of child at PGIMER,
Chandigarh
7. 20.6.2016 MRI Brain Scan at Spiral CT & MRI Centre,
(Ex.C-9) Chandigarh
8. 21.6.2016 OPD Card of Chaitanya Hospital, Chandigarh
(Ex. C-10)
9. 7.9.2017 MRI of Brain Scan at Mittal Lab, MRI, C.T.
Consumer Complaint No. 45 of 2020 12
(Ex. C-11) Allergy & Ultrasound Scan Centre Moga
10. 26.7.2015 Colour Scan Report
(Ann.C-12)
11. CD (Ann. C-14) CD of conversation
22. The OPs had also annexed some documents with their written statement, which have also been perused, the detail of which are as under:-
Document No. Documents details
Annexure OPs 1 & 2 Ultrasound Scan Record/Register of the relevant date,
verified by Civil Surgeon, Moga
Annexure OP 3/ Hydranencephaly of Postnatal Origin Literature
Ex.OP-5/5
Annexure OP 4/ Ex. Congenital Fetal Anomalies and the Role of Prenatal OP-5/4 Ultrasound Literature Ex. OP-3/3 Certificate of Registration
23. We have carefully perused the sequence of events, related documents/exhibits, medical literature and heard the arguments raised by the learned Counsel for both the parties. We have also listened to the conversation between the Doctor, the mother/Complainant of the child and her one colleague (Annexure C-14) in CD.
24. Before reaching any conclusion, it is important to narrate and understand the various stages of pregnancy, medical terminologies that have been mentioned in the present Complaint as well as in the medical record.
25. The pregnancy of a women is divided into three trimesters. As per the medical procedure, Ultrasound Scans are carried out in different stages of the trimesters. In the present case, the first Ultrasound (Ex.C-1) was carried out on 26.06.2015 on patient/Complainant Karamveer Kaur. The findings has been given as "Impression: 14.4 weeks pregnancy. Kindly Correlate clinically." There is also Disclaimer on the report of the Scan wherein it has been mentioned that the sex of fetus had neither been detected nor disclosed. Under the report of the Scan, a note has mentioned as under:-
Consumer Complaint No. 45 of 2020 13
"Note - Fetal anatomy may not always be visible due to technical limitations related to fetal position, fetal movements, amniotic fluid volume and abdominal wall thickness. Therefore all fetal anomalies may not necessarily be detected in every examination."
26. The patient approached the OPs Hospital in OPD from 07.07.2015 till 10.12.2015 (Ex.C-2). During this period on 26.07.2015, her Antenatal Ultrasound (Level-2) was conducted in which it had been mentioned that the patient had reached 18 weeks 6 days maturity with normal cardiac activity in her stage of pregnancy. Then in the same report following parameters had been mentioned:-
"Nasal bone = 6.16 mm Corresponding to 18W/6D F.H.R. = 142b/mt.
E.D.O.D. = 21/122015 E.F.B.W. = 261gm(=/-38gm) Cranial vault bones are normally seen with normal shape of fetal skull. Fetal brain tissue is normally formed with ventricular artrial diameter of 6.7mm and cisterna magna measuring 4.3mm. Transcerebellar diameter is 1.80cm corresponding to 18W6d. Oribital diameter is 9.0mm and interorbital distance is 1.03cm. Fetal neck and chest are normal with normal craniovertebral junction. The diaphragm is normally seen with no evidence of diaphragmatic hernia.
Fetal heart is normal in size with normally formed all 4 chambers. Interventricular septum is intact.
The outflow tracts appear normal.
Fetal abdomen is normal with normal abdominal wall. Right renal Pelvis measures 2.22mm and left renal Pelvis measures 1.8mm.
Stomach bubble and urinary bladder are normally seen. All the fetal 4 limbs are normally seen. Umbilical cord shows 2umbilical arteries and 1 umbilical vein. No loop of cord seen around the fetal neck. IMPRESSION:- Single ongoing Pregnancy of 18W6D."
Under the said Scan Report also, 'Disclaimer' had been mentioned as under:-
"(IT MUST BE NOTED THAT DETAILED FETAL ANATOMY MAY NOT ALWAYS BE VISIBLE DUE TO TECHNICAL LIMITATIONS RELATED TO FETAL POSITION, AMNIOTIC FLUID VOLUME, FETAL MOVEMENTS & Consumer Complaint No. 45 of 2020 14 ABDOMINAL, WALL THICKNESS. THEREFORE, ALL FETAL ANOMALIES MAY NOT NECESSARILY BE DETECTED AT EVERY EXAMINATION.
I do not want to know the sex of my foetus by undergoing ultrasonography I have neither detected nor disclosed the sex of the foetus to anybody in any manner."
This is only a professional opinion and not the diagnosis. It should be clinically correlated. Not for Medico legal purpose."
27. Thereafter, another Scan i.e. 3rd Scan of the Complainant had been conducted by the said OPs on 31.10.2015 and the findings in the same were as under:-
"ANTENATAL ULTRASOUND Gravid uterus shows a single intrauterine fetus of 32W5D maturity with normal cardiac activity present in cephalic presentation at the time of scan.
Placenta is anterior in the upper segment. Liquor is adequate (AFI-13).
B.P.D. = 33W3D H.C. = 33W1D A.C. = 32W0D F.L. = 32W2D EDD by USG : 21/12/2015 E.F.B.W. = 1924gm+/-281gm F.H.R. = 134/mn IMPRESSION : 32W5D Ongoing Pregnancy."
In the said Scan also the same disclaimer 'as mentioned in para 26 above' had been mentioned.
28. The Complainant got herself admitted in the Hospital of OPs on 15.12.2015 for delivery. There she gave birth to a male child through Lower Segment Caesarean Section (LSCS), who was named Master Manraj Singh. She was discharged from the Hospital along with the child. The Complainant observed that the child had delayed Mild Stones at 3-4 months of age. The child was not gaining weight, his head was not increasing and he was unable to recognize. She consulted Dr. Rupinder Consumer Complaint No. 45 of 2020 15 Singla on 05.04.2016 and Dr. Darshan Singla on 19.04.2016. Thereafter, the child was initially shown at PGI for vision impairment/eye problem on 11.04.2016 (Ex.C-7). Thereafter at six months of age the child was shown at PGI again as the development of the child was not normal. There the Doctor suggested MRI Brain for 'Evolving Spastic Cerebral Palsy due to ? to Probable Perinatal Insult'. Perinatal is the period of time when you become pregnant and up to a year after birth. In the same OPD slip observations such as physiotherapy, hearing and speech evaluation ENT had been suggested. The MRI Scan of the child was got conducted from Spiral CT & MRI Centre on 20.06.2016 in which under the caption of 'Impression', it was recorded as under:-
"IMPRESSION :
Scan reveals CSF filled supratentorial cranial vault with small temporal, parietal and occipital lobe remnants. The thalami, brainstem and cerebellum are intact. Findings are s/o hydranencephaly."
29. Meaning thereby that the child was diagnosed with Hydranencephaly for the first time on 20.06.2016. To understand the disease of 'Hydranencephaly', we have referred to the medical literature Authored by Dr. Nimet Kabakus, Firat University Faculty of Medicine, Department of Pediatric Neurology. The condition of 'Hydranencephaly' has been explained in the same in following terms:-
"Hydranencephaly is devastating CNS malformation consisting of almost complete absence of the cerebral hemisphere. It can be developed as a consequence of intrauterine infections (such as toxoplasmosis and cytomegalovirus), other gestational insults, or acquired cerebral infarction associated with extensive meningitis, widespread intracerebral hemorrhage or ischemia."
The explanation of the above in common language is as follows. (Source:Google) Consumer Complaint No. 45 of 2020 16 CNS is Central Nervous System. Toxoplasmosis is a type of infection, which can be passed to the fetus during pregnancy. Cytomegalovirus is a common infection caused by a type of Herpes Virus. Pregnant individuals infected with this virus can give birth to a baby, which can cause hearing loss, development issues and compromised immune system. Meaning thereby that the disease of Hydranencephaly can be caused by various infections and cannot be attributed to any single cause like congenital deformity.
30. An infant with Hydranencephaly may appear normal at birth or may have some distortion of the skull in upper facial features due to fluid pressure inside the skull. The infant's head size and spontaneous reflections such as sucking, swelling, crying and moving the arms and legs may all seen normal at first depending on the severity of condition. After few months symptoms like visual impairment, lack of growth, deafness, blindness, paralysis and intellectual deficits develop/appear. The exact cause of the disease remains undetermined in most cases. The most likely general causes by Vascular Insult such as stroke, injury, infra uterine infections or trimetric disorders after the first trimester of pregnancy. In some cases it is a recessive genetic condition, so both parents may carry the asymptomatic gene and pass it along to their child. It can also occur as post natal diagnosis because of meningitis, widespread intracerebral hemorrhage or ischemia. (Source : Wikipedia)
31. In support of their arguments, the OPs have submitted the medical literature. It had been vehemently contended that the child was born healthy and there were no abnormal signs in the child during the course of pregnancy and after the delivery. The main allegation is that the OPs could not read and report the 2nd Scan properly. To understand the accuracy of reporting of Ultrasound Scan, we have perused the medical Consumer Complaint No. 45 of 2020 17 literature (Ex. OP-5/4) i.e. Congenital Fetal Abnormalities and Role of Prenatal Ultrasound by Fanni Rebeka Eros and Arthur Beke, in which it has been mentioned that Ultrasound has a high sensitivity of recognizing fetal abnormality involving the brain tissue. It is around 87.5% as reported in the said literature. Meaning thereby Ultrasound Scan is not 100% foolproof. Besides we have also perused the judgment of the Hon'ble National Commission passed in 'Dr. Tarun Kumar Vohra' (supra) wherein it has been observed that the Ultrasound is not a 100% full proof method of diagnosis for all congenital anomalies. It was further opined that a study- sensitivity of routine ultrasound screening of pregnancies in the Eurofighter Database quotes the overall detection rate of congenital anomaly to be 56.2% (In Annals of New York Academy of Sciences, Grand Jean et al; vol 847 issue 1 ultrasound 118-124). Based on above, the Radiologists always mention a 'Disclaimer' to this effect after the report of Ultrasound is recorded.
"(IT MUST BE NOTED THAT DETAILED FETAL ANATOMY MAY NOT ALWAYS BE VISIBLE DUE TO TECHNICAL LIMITATIONS RELATED TO FETAL POSITION, AMNIOTIC FLUID VOLUME, FETAL MOVEMENTS & ABDOMINAL, WALL THICKNESS. THEREFORE, ALL FETAL ANOMALIES MAY NOT NECESSARILY BE DETECTED AT EVERY EXAMINATION.
I do not want to know the sex of my foetus by undergoing ultrasonography I have neither detected nor disclosed the sex of the foetus to anybody in any manner."
This is only a professional opinion and not the diagnosis. It should be clinically correlated. Not for Medico legal purpose."
32. The undated 'CD' submitted by the Complainant as additional evidence has been listened to by us. This CD contains a conversation between the Doctor, the Complainant and the colleague of the Complainant. It has transpired that it was a normal conversation amongst the aforesaid persons. During the recorded conversation, when OP No.4 Consumer Complaint No. 45 of 2020 18 Doctor was specifically asked by the Complainant why the said problem could not be detected in the 2nd Level Scan, the Doctor had given a specific reply that the day the Ultrasound was carried out, no problem was detected. The child looked normal at the time of birth. The Complainant can also be heard saying to the OP No.4 Doctor that 2nd Level Ultrasound was conducted by her son, who is none else but Dr. Kanu Goyal-OP No.5. Thus, the averments that Ultrasound was conducted by the Doctor, who was not qualified to do so has not been proved by the Complainant.
33. The contention of the Complainant that her Level-II Scan was not conducted by a professionally qualified Doctor. We have perused Ex. OP-3/3 i.e. the Certificate of Registration by the Office of Civil Surgeon, Moga in which Dr. Sohan Lal, Dr. Asha Goyal and Dr. Kanu Goyal, all three of them have been granted permission to operate Ultrasound Clinic. Moreover, in the Antenatal Ultrasound Level-2 Report (Ex.C-3), both Doctors i.e. Dr. Sohan Lal, MBBS and Dr. Kanu Goyal, who is a M.D. Radio Diagnosis (Ex.OP-5/2) have signed the report on page 1 & 3, respectively. The Ultrasound Record Register (Ex. OP-1) submitted with the Civil Surgeon, Moga has been signed by the patient, as well as Dr. Kanu Goyal against the dedicated column for Doctor. Thus, the ground raised by the Complainant has no force and the same is hereby rejected.
34. The child developed the problem of Hydranencephaly after his birth. This can be established from the medical record of the child during his treatment/check-up at PGI. In the medical notes of OPD Slip of PGIMER, Chandigarh dated 20.06.2016, it has clearly been mentioned under the caption as under:-
"D15 of life, admitted for Hypothermia, Cause -? Sepsis, CSF not done CRP 1.9, RBS (N) Plt. 75,000 Received i/v Ab - 3 days"Consumer Complaint No. 45 of 2020 19
From the above report, it transpires that when the child was 15 days old, he was admitted for Hyperthermia i.e. abnormally high body temperature. The probable cause could be Sepsis, which means the body's extreme response to infection. Sepsis is a life threatening medical emergency. Though Random Blood Sugar (RBS) of the child was normal, however, the platelet counts of the child was 75,000, which shows that the child was suffering from infection. The child had been administered intravenous antibiotics for 3 days. Besides in the OPD slip of PGIMER dated 20.06.2016, there is a mention of Family History of two children of remote maternal uncle having spine problem.
35. To deal with the afore said observations of Doctors at PGI, medical literature has been perused and it has been established that 'clinically no abnormalities could be noted/detected from 9 to 21 weeks of gestation' in the case study reported by Department of Neuropathology, Institute of Brain Science and Department of Forensic Medicine, Hirosaki University School of Medicine, Hirosaki, Japan in Article/Case Report titled as "Hydranencephaly with extensive periventricular necrosis and numerous ectopic glioneuronal nests". In the same Article, it has been reported that "the said disease can occur due to different causes like infection, trauma, irradiation, fetal anoxia, medications and twin-twin transfusion. Meaning thereby that there is not one single cause that can be attributed to the onset of the said disease. Thus, as per the aforesaid discussion, it is difficult to establish that whether the said problem was congenital i.e. whether it had occurred at the time of birth of the child or was genetic or was due to extreme infection suffered by the child on day 15 as per medical record of PGI. The Complainant did not adduce any expert advice to establish that the problem of Hydranencephaly had Consumer Complaint No. 45 of 2020 20 specifically occurred during the course of pregnancy of the Complainant. In this context, we have relied upon the judgment of 'Dr. Tarun Kumar Vohra' (supra) in which it has been held in para No. 10 of the judgment, as under:-
"10. Whether, from the ultrasound certain anomalies can be detected or not is not something which can be decided in the absence of expert evidence. Since the expert evidence did not support the respondent, we are of the considered view that the principle of res ipsa loquitor was wrongly invoked by the State Commission as also by the National Commission."
36. It has been averred that the Complainant had concealed the fact about admission of the child to another Hospital on day 15, as mentioned in the PGIMER record is proved correct as nowhere in the Complaint any record pertaining to admission of the child to another Hospital when he was 15 days old and suffered from illness has been annexed. Besides no prescription with reference to Dr. Darshan Singla and Dr. Rupinder Singla, who were consulted before the child was taken to PGI has been brought on record. Therefore, it is concluded that the Complainant had concealed some material facts/documents in the Complaint.
37. Thus, in the aforesaid terms it can be safely deducted that reading/reporting of Ultrasound Scan could not be termed as 'negligence' or 'deficiency in service' on the part of OP No.5 as the said test is not 100% accurate.
38. The present Complaint is barred by limitation as it has been preferred in 2020 whereas the actual cause of action arose on 26.07.2015 i.e. the day on which the 'Antenatal Ultrasound (Level-2) Scan' had been conducted. We have already dealt with this contention in para No. 18. Consumer Complaint No. 45 of 2020 21
39. In view of the above detailed discussion, perusal of the medical literature, ratio of judgments and in the absence of any expert opinion, we are of the view that the Complainant has been unable to prove her averments as per the contents of the Complaint regarding not conducting the 2nd Level Scan by the Authorized Person or not understanding/reporting correctly the observation/findings of the said Scan. The Complainant has also failed to bring on record any evidence to prove negligence on the part of the OPs in their duty while the Complainant was under their treatment/delivered the child and later discharged. The judgments relied upon by the Complainant with regard to medical negligence i.e. 2022 (3) CPR 58 "Udayan & Ors. Versus M/s Imaging Point & Ors." of the Hon'ble National Commission and Kerala State Commission passed in C.C. no. 33 of 2015 "Jayesh JR & Anr. Vs. St. Luke Hospital & Ors.", dated 04.10.2023 do not support her contentions. Whereas the judgments relied upon by the OPs of the Hon'ble Supreme Court passed in "Senthil Scan Centre v. Shanthi Sridharan", (2010) 15 SCC, (2011) 1 SCC 53 "V.N. Shrikhande (Dr.) Versus Anita Sena Fernandes" and C.A. No. 8504 of 2019 "Dr. Tarun Kumar Vohra V. Archana", decided on 08.11.2019 fully support their version. It has been held by the Hon'ble Supreme Court in the judgment of "Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others", 2010(3) SCC 480 that "it is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension."
40. In the light of the aforesaid observation, it is held that no act of 'Medical Negligence' or 'Unfair Trade Practice' can be attributed on the part of the OPs in the present Complaint as the Complainant has failed to prove her allegations. Hence, we do not find any merit in the Consumer Complaint No. 45 of 2020 22 present Complaint and the same is hereby dismissed. No order as to costs.
41. Since the main case has been disposed of, so all the pending Miscellaneous Applications, if any, are accordingly disposed of.
42. The Consumer Complaint could not be decided within the statutory period due to heavy pendency of court cases and pandemic of COVID-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 06, 2024.
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