State Consumer Disputes Redressal Commission
1. Smt. Satyavathi vs 1.Tapadia Diagnostic Centre, on 6 October, 2023
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION:HYDERABAD
(ADDITIONAL BENCH)
C.C.147/2019
Between :
Smt. Satyavathi, W/o. Goutham Prasad,
Aged about; 38 years, Occ: Employee,
R/o. Habsiguda, Hyderabad.
...Complainant
And
1.Tapadia Diagnostic Centre, 1-7-1072/A, Opp: Saptagiri Theatre, RTC X Roads, Hyderabad - 500002.
2. Dr. A. Anuradha (Radiologist), Tapadia Diagnostic Centre, 1-7-1072/A, Opp: Saptagiri Theatre, RTC X Roads, Hyderabad - 500002.
...Opposite parties Counsel for the Complainant : M/s. A. Mahadev & A. Naveen Kumar Counsel for the Opposite parties : M/s. Mayur Mundra & S. Goutham QUORUM: Hon'ble Sri V.V.Seshubabu, Member (M-J), & Hon'ble Smt.R.S.Rajeshree, Member (N-J) FRIDAY, THE SIXTH DAY OF OCTOBER, TWO THOUSAND TWENTY THREE.
***** Order: Hon'ble Sri V.V.Seshubabu, Member-Judicial
1. The complaint is filed on 30.07.2019 U/s.17 (1) (a) (i) of C.P. Act, 2019, seeking directions against opposite parties to pay compensation of Rs.60,00,000/-.
2. The brief averments of the complaint are that the complainant while carrying pregnancy being treated in the Gandhi Hospital since 22.11.2017 and on the advice of the Doctor went for ultra sound scanning (TIFFA) in the opposite party No.1 centre; that after conducting the test, report dt.30.12.2017 shows that there is no sonographic abnormality detected; that another scan was conducted 2 on 06.03.2018 in which it is mentioned there is a live foetus in breech presentation with approximate gestation age of 34-35 weeks; that the complainant delivered a female baby in the Gandhi Hospital on 16.04.2018 through C-Section; that on delivery it was noticed the baby was born had a left cystic hygroma and so, emergency operation was performed on the child and cyst was removed and saved the life of the child; that biopsy of the cyst was sent to cytology/histopathology and report dt.27.04.2018 shows the baby had immature teratoma and WHO GRADE-III; that the teratoma can occur only due to problem in ovaries and it could be diagnosed in TIFFA Scanning; that the new born baby was kept in the Gandhi Hospital for about 50 days and due to the same the complainant and other relatives incurred an expenditure of Rs.2,00,000/- for transport and food etc,.; that due to the negligence on the part of opposite parties, the complainant suffered mental agony and even had to forgo Ph.D. studies; that a legal notice was given to the opposite parties for which a reply was given denying the liability; that there is deficiency in service on the part of opposite parties in giving the TIFFA scan report; hence, the complaint.
3. The brief averments of the written version of opposite parties No. 1 & 2 are that the complaint is not maintainable either on facts or under law; that the complainant is put to strict proof of all the averments made in the complaint except those that are admitted; that there is no basis to make a claim for Rs.60,00,000/-; that the cervical teratomas are extremely rare tumours and they are usually detected in the late second trimester pregnancy and it is difficult to detect in the early second trimester, as the baby is in a prone position and in breech presentation the placenta being anterior, it is difficult to evaluate feotal neck; that the tumour might 3 not have been developed at the stage of examination; that no scan was conducted during the end of second trimester period; that the opposite parties advised the complainant to get a follow up scan around 24 to 26 weeks, but she failed to appear; that there is no negligence on the part of opposite parties; that they conducted the scan test by receiving Rs.200/- on 06.03.2018; that due care and diligence was adopted while performing the tests. With this requested to dismiss the complaint with heavy costs.
4. The written version of opposite parties No.1 & 2 was filed on 02.12.2019 vide SR. No.3977 dt. 02.12.2019. The signatures of opposite parties No. 1 & 2 including their counsel is dearly missing in all the three sets. Therefore, one need not attach any importance to such written version.
5. Before this commission, evidence affidavit of complainant filed as PW1 and got marked Ex.A1 to A7. Evidence affidavit Dr. Radhe Shyam Tapadia, the Managing Director of opposite party No.1 filed as RW1 and no document is marked for the opposite parties. It is well established legal principle that any amount of evidence without pleadings cannot be appreciated. Heard the arguments on both sides.
6. The following points are settled for discussion are:-
(i) Whether there is any deficiency in service on the part of opposite party towards the complainant?
(ii) Whether in a breech presentation of the foetus the chances to observe presence of tumour at the neck are brim?
(iii) Whether the complainant is entitled for the compensation as claimed?
(iv) Relief?4
7. Points No. 1 to 4:- Admittedly, PW1 undergone ultra sound scanning dt.13.12.2017 in the opposite party No.1 diagnostic centre which was conducted by opposite party No. 2. Ex.A1 is the ultra sound scanning report of TIFFA. As per the report everything is normal and no sonographic abnormality is detected. The readings goes to show that "neck shows no evidence of any abnormal swelling". Nothing is mentioned in Ex.A1 that due to breech presentation of the foetus, visibility is obstructed to give a conclusive finding. A rider clause was incorporated in Ex.A1 in the lines that "Note: - All anomalies cannot be ruled out by single scan since assessment of fetal anomalies depends on fetal position, liquor volume, period of gestation and maternal obesity, serial scans are required for detection of IUGR. Hence, this report has limitation and is not for medico-legal purposes".
8. The Ex.A1 consists of another routine obstetric scan taken on the same day i.e., 13.12.2017 with the gestational age of the foetus 21-22 weeks. In the said report it is mentioned that single live foetus in breech presentation was found. In this also the same note as stated supra is mentioned. In this also, no gross anomalies are noted. Another scan i.e., routine obstetric scan dt.06.03.2018 taken at the gestational age of 34-35 weeks shows no abnormalities. Ex.A2 is the bill issued by opposite party No. 1 having received Rs.600/- for conducting the TIFFA Scan and routine obstetric scan.
9. Ex.A3 is the case sheet and it shows that PW1 delivered a child on16.04.2018 at 11:11 AM with a weight of 3.5 Kgs. with 7 x 6 cm. cystic swelling anterior to neck more towards left side. A small swelling on right side of neck too and immediately baby shifted to NICU. Ex.A4 photos five in number shows a big lump to the child on the left side of the face extending almost throughout front side of the neck and other photos goes to show that it was 5 operated. With the above evidence it is very clear that the child of PW1 was born with cyst and the same was operated.
10. The contention of RW1 is that as the child was in breech presentation in a prone position in the uterus, the abnormality of the neck was not visible and so, the existence of the cyst at the neck was not noted in the Ex.A1 TIFFA Scan. It is also his contention that unless series of scans are conducted it is difficult to assess the fetal anomalies and it also depends upon fetal position, liquor volume, period of gestation and maternal obesity. It is not noted in Ex.A1 or in the routine obstetric scan taken on 13.12.2017 that, the liquor volume is less. The TIFFA Scan will be performed at the second trimester during the gestational age of 18th to 21st week. As per the routine obstetric scan dt.13.12.2017 the gestational age of the foetus is 21-22 weeks. In other words the contention of RW1 that at the early time of second trimester the scan was taken and for the said reason the abnormality of the neck was not visible and it might have surfaced, if series of scans have taken or at least at the later end of second trimester duration, has no legs to stand on.
11. The TIFFA Scan is the most important one and Doctors would recommend the same to check the baby's growth, anatomy and other factors that directly contribute to the health of a baby. It is one of the most valuable prenatal screening tests to know the abnormalities and detailed analysis of the foetus. When the TIFFA Scan itself is prescribed to know the abnormalities, the contention of RW1 cannot be accepted to the effect that, there was no clear vision of the foetus. Suppose if it is there, the Ex.A1 should have reflected mentioning no clear vision of the foetus. Over and above the same, it is clearly mentioned in Ex.A1 that neck shows no evidence of any 6 abnormal swelling. Therefore, we are of the view that opposite party No.2 not properly evaluated while conducting this scan and in a routine manner issued the report, which amounts to nothing but deficiency in service.
12. The opposite party counsel relied upon the medical literature- (i) "mode of delivery and outcome of breech presentation:
a prospective observational study in a tertiary centre, international journal of reproduction, contraception, obstetrics and gynaecology.
(ii) A study on feto maternal outcome of breech presentation in a tertiary Care Hospital and (iii) Study of feto-maternal outcome of breech presentation with singleton pregnancy at tertiary Care Hospital. After going through the literature and marked portions, we are of the view that, the literature discussed about the breech presentation at the time of delivery and other aspects of different breech presentations. However, nowhere it is mentioned that there is difficulty for vision to observe the condition of the foetus while conducting the scan. One or two reasons are given like less quantity of liquor volume and if the baby view was in side angle etc,. We are reiterating at the cost of the repetition that, nothing is mentioned in the Ex.A1 about the improper visibility or the foetus was in side angle obstructing a clear image.
13. The opposite party counsel relied upon several cases viz., (i) Bolam case (ii) Eckersley V/s. Bennie-(1988) 18 CON LR1 (iii) Vinod Jain Santokba case - AIR2019 SC 1143 (iv) Kusum Sharma & Others - AIR 2010 SC 1050 (v) Post Graduate Institute of Medical Education & Research - 2009 7 SCC 330 (vi) NS Sahota - 2000 2 CPJ 345 (vii) Jacob Mathew - AIR 2005 SC 3108 (viii) State of Himachal Pradesh V/s. Jai Lal - AIR 1999 SC 3318 (ix) Daya Singh 7 V/s. Shivi Digital X-Ray Centre & 3 others-RP. NO. 266/2019 by NCDRC (xi) Des Raja Singla. After going through the above case law we are of the view that the facts are different, to the present case on hand. In Daya Singh case the ultrasonography test failed to capture the presence of a stone in the kidneys, but in the second report it was detected. Against order of dismissal of the State Commission which concurred with the order passed by the District Forum, observing no negligence on the part of diagnostic centre. The Hon'ble NCDRC dismissed the revision and upheld the order of the Commissions below. Basing on the same, the opposite party counsel contended that there is no negligence at all on the part of opposite parties in the present case. It is important to note TIFFA Scan will be conducted only to know the abnormalities in the foetus. In such circumstances failure to observe the same and not giving any reasons in the report that, there was no proper visibility due to the breech presentation of the foetus, the above case law cannot be applied to the present facts of the case.
14. The complainant counsel relied upon the case of Kusmlatha & another V/s. M/s. Raj 3D scans & another dt.21.02.2019 by the Hon'ble NCDRC. In the said case the scan centre failed to observe mal formation of all the four limbs and so, the scan centre was found fault with and compensation was awarded. It is argued for the opposite parties that mal formation of four limbs cannot be equated with the presence of cysts at the neck. It is observed by the NCDRC that, it amounts to negligence even though the gestational age of the foetus was 21.6 weeks by the date of scan. Breech presentation of the foetus was also involved in the cited case. Therefore, we are of the view that the case relied upon by the complainant is useful for the complainant herein. In view of the 8 above discussions, we are of the considered view that the opposite parties are at negligent while conducting the TIFFA Scan and while giving the report under Ex.A1.
15. PW1 not filed any bills to show that she incurred Rs.2,00,000/- expenditure and also not placed any documentary evidence to prove under what heads, she incurred expenditure in providing treatment to the child. However, as per Ex.A3, the child was in-patient in the Gandhi Hospital from the date of delivery till date of discharge covering about 50 days and child was subjected to operation. Taking all these aspects into consideration including the sufferance of the baby and mental agony of the parents compensation of Rs.5,00,000/- can be awarded. So, the points are answered accordingly.
16. In the result, the complaint is allowed in part directing the opposite parties No.1 & 2 with joint and several liability to pay a sum of Rs.5,00,000/- as compensation to the complainant within 30 days from the date of receipt of this order, besides costs of Rs.20,000/-. Failure to do so, the amount will carry interest @10% p.a., after completion of 30 days till the date of payment.
Typed to the dictation to the steno on system, corrected and pronounced by us in the open bench on 06.10.2023.
SD/- SD/-
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MEMBER(J) MEMBER(NJ)
Dated : 06.10.2023.
BSR
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APPENDIX OF EVIDENCE
WITNESS EXAMINED
Evidence affidavit of Evidence affidavit of
The complainants: Opposite parties:
PW1: Smt. Satyavathi RW1: Dr. Radheshyam
Tapadia
EXHIBITS MARKED
For Complainant:
Ex.A1: is the Photostat copy of Ultrasound Scanning Report, dated:
13.12.2017.
Ex.A2: is the Photostat copy of Payment to Opposite Parties No. 1 & 2 Receipt, dated: 13.12.2017.
Ex.A3: is the Photostat copy of Gandhi Hospital Discharge Summary, dated: 16.04.2018.
Ex.A4: is the Photostat copy of Photographs.
Ex.A5: is the Photostat copy of Legal Notice, 13.03.2019. Ex.A6: is the Photostat copy of Registered Post Acknowledgement Due, dated: 16.04.2019.
Ex.A7: is the Photostat copy Registered Post Acknowledgement Due, dated: 15.07.2019.
For Opposite Parties:
Nil/-
SD/- SD/-
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MEMBER(M-J) MEMBER (M-NJ)
Dt: 06.10.2023.
BSR