National Consumer Disputes Redressal
Kusum Lata & Anr. vs M/S. Raj 3D Scans & Anr. on 21 February, 2019
Author: R.K. Agrawal
Bench: R.K. Agrawal
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 887 OF 2016 (Against the Order dated 03/02/2016 in Complaint No. 74/2012 of the State Commission Punjab) 1. KUSUM LATA & ANR. W/O. SH. SANJEEV THUKRAL, R/O. B 1/14 BEHIND SANSKRIT COLLEGE, BAHADURPUR CHOWK, HOSHIARPUR, 2. SH. SANJEEV THUKRAL S/O. SH. OM PRAKASH THUKRAL, R/O. B 1/14, BEHIND SANSKRIT COLLEAGE, BAHADURPUR CHOWK, HOSHIARPUR PUNJAB ...........Appellant(s) Versus 1. M/S. RAJ 3D SCANS & ANR. THROUGH ITS INCHARGE DR. RAJ KUMAR JALANDHAR ROAD, KAMALPUR CHOWK, HOSIARPUR PUNJAB 2. M/S. DHAMI NURSING HOME, DR. SUKHPREEET DHAMI, NEAR PARBHAT CHOWK, HOSHIARPUR, PUNJAB 3. ORIENTAL INSURANCE COMPANY THROUGH ITS CHIEF REGIONAL MANAGER, SCO NO.109-11, SECTOR 17-A, CHANDIGARH 4. UNITED INDIA INSURANCE COMPANY LTD., THROUGH ITS DIVISIONAL MANAGER, 54, JANPATH, CONNAUGHT PLACE, NEW DELHI-110001 ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT HON'BLE MRS. M. SHREESHA,MEMBER For the Appellant : Mr. Deepak Sharma, Advocate For the Respondent : Mr.Salil Paul and Mr. Sahil Paul, Advocates for R-1&2 Mr. Ajay Singh and Mr. Abhay Verma, Advocate for R-3 Mr. Naveen Kumar Advocate for R-4 Dated : 21 Feb 2019 ORDER Mrs. M. Shreesha, Member Aggrieved by the order in CC/74/2012 dated 03.02.2016, passed by the Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short "the State Commission"), the Complainants preferred this First Appeal under Section 19 of the Consumer Protection Act, 1986 (in short "the Act"). By the impugned order, the State Commission has dismissed the Complaint on the ground that there was no case of medical negligence made out against Opposite Parties.
2. The facts, in brief, are that the Complaints, husband and wife parents of two school going children approached the Opposite Parties to ensure trouble free delivery of their child and proper medical care for the mother. It was averred that ultrasound scan done by the first Opposite Party (hereinafter referred to as "the Scanning Centre") dated 11.2.2011 did not show any abnormalities in the feotus. It was stated that the treating doctor at the second Opposite Party Nursing Home to whom the report was shown advised another ultrasound to be got done in May and the same was done on 31st May, 2011. It was averred that even at this time both the Scanning Centre and the treating doctor assured the Complainants that everything was alright and should come again at the time of delivery of the child. When the second Complainant asked both the Opposite Parties about the observations in the report that there is asymmetry of the featal limbs being small in size as per gestational age, both the Opposite Parties assured the Complainants that there was nothing to worry about and that they would have a normal baby.
3. The first Complainant got herself admitted in the second Opposite Party Nursing Home for delivery of the baby on 7.6.2011 and an ultrasound was done on the same date, the report of which was directly sent by the Scanning Centre to the second Opposite Party and the Complainants received it only after the cesarean section was performed and the delivery was complete. It was pleaded that a perusal of the report showed that there were significant physical deformities in the baby but the same were explained as being seen because of poor visualization due to amniotic fluid. It was stated that the discharge card clearly mentioned that the baby had malformation of all the four limbs. It was stated that lower half of the right arm and the leg were missing and lower part of the left arm and leg were deformed with abnormal fingers, toes and foot. It was pleaded that the ultrasound reports given by the Scanning Centre were incomplete and insufficient giving the wrong conclusion and the birth of the significantly deformed child could have been avoided if the second Opposite Party was more vigilant and the Complainants could have taken legal/medical option of terminating the pregnancy in an early stage. Hence, the Complaint seeking direction to the Opposite Parties for the following reliefs:-
"a. Reimbursement of ₹25,000/- being the approximate cost incurred on the medical care and delivery of the child;
b. ₹15,00,000/- towards estimated loss of earnings of the Complainants, as their major time would be invested in taking care of the dis-advantaged and handicapped born child.
c. ₹10,00,000/- as token compensation for the mental agony, pain and suffering of the complainants and their two earlier children, on account of the upbringing of the abnormal child.
d. ₹50 lakhs as token compensation and damages to the born physically abnormal child, to compensate her for the fact that she won't be able to do gainful work in her life and in fact require a constant help and support to even lead a passive life.
e. ₹50,000/- towards litigation costs and miscellaneous expenses.
f. ₹5,00,000/- as punitive damages against the OPS; for their gross professional misconduct and medical negligence. "
4. The scanning Centre filed its Written Version stating that they have always maintained the highest standard of professional conduct; that the ultrasound was done on 11.02.2011, when the feotus was 23.4 weeks of age and the reports stated that 'single live intrauterine feotus of 21.6 weeks size' ; that the ultrasound dated 31.5.2011 was done when the feotus was 40.1 weeks of age during full term pregnancy which revealed that there was 'asymmetry of the fatal limbs which was smaller in size as per gestational age'; that the child was suffering from Achondroplasia which is one of the most common form of child limb dwarfism, this is most common skeletal dysplasia with an incidence of around 5-15 per one lakh births; that this fatal anomaly occurs in the third trimester and that that Medical Termination of Pregnancy Act,1971 prohibits termination of pregnancy after the feotus is more than 20 weeks of age, as can be seen in Section 3 of the Act and therefore no negligence can be attributed to them.
5. The second Opposite Party filed their Written Version and Evidence Affidavit stating that the ultrasound report dated 11.2.2011 when the feotus was 23.4 weeks showed single live intrauterine feotus of 21.6 weeks size and no abnormalities could be predicted and that even this ultrasound had shown any abnormality, medical termination of the pregnancy was not possible beyond 20 weeks. It was averred that as this report did not show any abnormality and the physical examination of the patient cannot in any manner detect any abnormality, no adverse inference regarding the limbs of the feotus can be drawn and therefore this Opposite Party cannot be found fault with. Second ultrasound report dated 31.5.2011 showed asymmetry of feotal limbs and even otherwise the physical examination of the patient including per-vaginum checkups which the Gynecologist conducts, cannot in any manner, indicate any abnormality of limbs of the feotus. It was stated that the treating doctor is a well qualified Gynecologist with 18 years of experience and is treating at the second Opposite Party Nursing Home. The Complainant got the scan done at a scanning centre of her choice and the centre was never recommended by the treating doctor. Although it was a breech presentation which is indicative of delivery through Lower Segment Cesarean Section (LSCS), but in order to attempt normal delivery, the patient was directed to wait till the labour pain started. When the third ultrasound was done on 7.6.2011, after the admission of the patient it was found that the presentation is still breech and the placenta is on the posterior aspect reaching upto the fundus and the cord was around the neck of the feotus, with absent amniotic fluid, it was a case of the emergency and therefore the delivery was done through LSCS. The child was born with limb abnormalities. There was no negligence in the conduction of the LSCS and therefore no negligence can be attributed to this Opposite Party. It was further pleaded that the physical examination of the patient does not lead to any conclusion regarding the deformity in the limbs of the child and the detection of abnormalities was done only after the second ultrasound report, by which time, 20 weeks had already lapsed and it was too late for the patient to get an MTP done.
6. The State Commission based on the evidence adduced dismissed the complaint observing as follows: -
"12. Now the allegations of the complainants are that vide report dated 06.01.2011 of OP No. 2 ultrasound FWB was recommended, which was got done by the complainant on 11.02.2011 when the feotus was 23.4 weeks after a gap of more than one month and impression taken by OP NO. 1 was as under:
"Impression Single Live Intrauterine Feotus of 21.6 wks size."
13. In case we go through this report, the size of the feotus was 21.6 weeks. Now the major question arises whether at that stage, the limbs of the feotus could be checked to give the report whether those were fully developed or not? The counsel for the complainant has referred to the Medical Literature Apollo Centre for Feotus Medicine, it refers to anomaly scan of level-II scan, which is done at 18-23 weeks, during which each part of the fet5al anatomy is examines to see if the baby is developing normally. During the scan, the doctor will measure part's of baby to see how it is growing. The Doctor will measure your Baby's-
"head circumference (HC) Abdominal circumference (AC) Femur or thigh bone (FL) Humeris or arm bone."
He has referred another literature of anomaly scan and baby centre. It is also called mid-pregnancy ultrasound scan when the baby is 18 weeks to 20 weeks + 6 days pregnancy. The sonographer will examine baby's organs and take measurements, specific consideration will be on baby's heart, stomach, kidneys, arms, legs, hands and feet but sonographer will not be able to count it. Missing or short limbs can be 90%. It has been further observed that about 15% scans will be done again for one reason or the other. Whereas on the other hand, the counsel for OP No. 1 has referred that in Ex. C-2 the Amenorrhea was 20.1 weeks, whereas it was looking at the size 32.4 wee3ks. It is called as Amenorrhea and literature has been referred from Prenatal diagnosis of Achondroplasia. It has been referred as one of the most common forms of short limbs dwarfism. It is usually suspected on third trimester routine ultrasound because of very shortened long bones. In 'Clinical Sonography A Practical Guide' Page 487 ' Achondroplasia' has been referred as under:
"In the usual heterozygous form of achondroplasia, the limbs do not become sho0rt until after 24 weeks. The proximal limbs are more shortened than the distal limbs (rhizometic shortening). The head is large, and the ventricles may be mildly dilated, as in hydrocephalus"
According to that Limb do not short until after 24 weeks.
14. No doubt that ultrasound was done at 23.4 weeks but the size was 21.6 weeks. Therefore, at that time it may not be possible to give the deformity in the limbs as claimed by the Complainant. .............
.......................16. Here also the Doctor has conducted the ultrasound scan to the best of his ability and there is ample scope of any general difference of opinion and even an error of judgment cannot be held to be a case of medical negligence. Moreover, as alleged in the complaint, in case at the time of 23.4 weeks, it would have been reported that there is some deformity in the organs of the foetus then the complainant may have done for termination of her pregnancy. But as referred by OPs in their written reply under Section 3 of the Medical Termination of Pregnancy Act, 1971, pregnancy can be terminated only upto 20 weeks and after that pregnancy is not legally allowed. So far as the judgment 'Chandrakant Jayantilal Suthar & Anr. Versus State of Gujarat" (supra), it was a case of rape, therefore, in special circumstances, the Hon'ble Supreme Court had allowed the termination of the pregnancy. Whereas those circumstances does not exist in the present case, therefore, even if the complainants would have dome to know about any deformity in the organs of the baby, legally it was not possible for them to get the termination of the pregnancy."
7. Learned counsel appearing for the Appellant/Complainant vehemently contended that the State Commission has erred in addressing to whether the termination could be done after the 20th week or not and given a finding on the wrong premise that MTP Act does not permit termination after 20th week, while the case was with respect to negligence on behalf of the Scanning Centre in not detecting anomalies in the first ultrasound report dated 11.2.2011 and also a negligence on behalf of the treating doctor in not advising an earlier scan. He relied on the judgment of this Commission in Anil Dutt & Anr. Vs. Vishesh Hospital & Ors., 2016 (3) C.P.R. 106, wherein this Commission observed that though MTP is not permissible in India after 20 weeks of pregnancy, the wrong diagnosis about the well-being of the feotus, shattered the dream of the parents, when the Opposite Parties who failed to detect the anomalies were found to be negligent and for this act of carelessness and breach in the duty of care an amount of ₹15,00,000/- was directed to be paid by them.
8. Learned counsel appearing for the Respondents vehemently submitted that IA/5274/2017 was filed stating that the Insurance Company was not made party whereas they were impleaded before the State Commission; that the Appeal should be dismissed for non-joinder of necessary parties; that the State Commission has rightly concluded that there was no negligence on behalf of the Respondents; that achondroplasia, child limb dwarfism is not detected until after 24 weeks; that the ultrasound was done at 23.4 weeks but the feotal size is 21.6 weeks. Therefore it was not possible to see the deformity in the limbs and that the State Commission has given a right finding with respect to the fact that even if the deformity was detected at 23.4 weeks, the first Complainant could not have gone for termination of her pregnancy.
9. The brief point that falls for consideration is whether the Scanning Centre was negligent in not giving a detailed report regarding the deformities of the feotus in the first scan conducted on 11.2.2011 and if the treating doctor was negligent in not advising an earlier scan and more importantly in not specifying the time frame within which it ought to be conducted, considering the age of the patient as most abnormalities are detected between 18 to 20 weeks the age of the feotus?
10. A brief perusal of the scan report dated 11.2.2011 shows 'impression: single live intrauterine feotus of 21.6 week size.' A perusal of the medical literature, The Screening Tests For Abnormality In Pregnancy shows under ult rasound baby scans in pregnancy that the second scan usually takes place between 18 to 20 weeks, six days. It is called the anomaly scan because it checks for structural abnormalities in the baby. For better understanding of the case, the portion of medical literature by under the 'anomaly scan' is reproduced as hereunder:
"This is a detailed ultrasound scan, usually carried out when you are between 18 weeks and 20 weeks, 6 days pregnant. The scan checks for possible physical problems (abnormalities) in your baby, although it can't pick up every problem . The scan is offered to all women, but not everyone chooses to have it. Your choice will be respected if you decide not to have the scan, and you'll be given the chance to discuss it with your maternity team before making your decision.
The anomaly scan is carried out in the same way as the dating scan, with jelly on your tummy and the sonographer passing the ultrasound instrument backwards and forwards. Sometimes, the sonographer doing the scan will need to be quiet while they concentrate on checking your baby. However, they will be able to talk to you about the pictures once they've completed the check. Most hospitals welcome partners into the scan room."
11. From the aforenoted medical literature it is clear that the anomaly scan is done between 18 to 20 weeks, 6 days pregnancy. In the instant case, the scan dated 11.02.2011 was taken at 21.6 weeks size of feotus, but the anomaly was not detected. There is no note or statement written by the sonologist/ radiologist stating that the feotus was perhaps lying in a supine position or that the image was not clear. There was no plea taken by the Scanning Center/ radiologist that there was no amniotic fluid present or that the position of the feotus was such that the movements could not be seen and hence the scan was not clear. The question whether the Complainants could have gone for MTP or not is an option which the Complainants could exercise legally or not and that is not the issue of medical negligence which needs to be given a finding to.
12. While we can see from the ultrasound report dated 30.05.2011 that there was a breech presentation and the gynecologist had rightly decided to conduct an LSCS and we see no negligence in the conduction of the LSCS per say, however, the question which arises here is keeping in view the past history of the patient did the gynecologist advised an ultrasound scan to be taken specifically between 18 to 20 weeks, when that is a stage when anomalies could be seen and timely rectifiable steps could be taken.
13. The WHO recommendations on Antenatal Care for a Positive Pregnancy Experience: Ultrasound Examination. Highlights and Key Messages from the World Health Organization's 2016 Global Recommendations are detailed as hereunder:
"In its 2016 antenatal care (ANC) recommendations for pregnant women, the World Health Organization (WHO) recommends one ultrasound (US) scan before 24 weeks gestation to estimate gestational age (GA), improve detection of feotal anomalies and multiple pregnancies, reduce induction of labour for post-term pregnancy, and improve a woman's pregnancy experience."
(Emphasis supplied)
14. The first trimester is the gestational period between conception and 13 weeks + 6 days of gestational age. The second trimester is 13 to 27 weeks of pregnancy and third trimester is 28 to 40 weeks of pregnancy. Feotal morphology should be studied between 19 to 21 weeks to exclude the most serious malformations. It requires systematic scanning of the head, chest, abdomen and extremities, with assessment of placental and amniotic fluid volume.
15. Learned counsel appearing for the Respondents relied on the medical literature of International Journal of applied Research: Detection of Structural Feotal Anomalies in third trimester which usually remains undetected in the second trimester, in which it is stated that ultrasonography in the third trimester is generally considered as growth scan. Some anomalies might be overlooked if sonography is not done in a view to detect anomalies. He vehemently argued that some anomalies can be missed even in the third trimester due to adverse position or poor visualization of machines.
16. What can be gathered from the medical literature and the material on record is that it is the duty of every prudent sonologist to study the USG in detail. In the instant case, it was a 2nd trimester scan, and the treating Doctor was aware of it. As per medical literature, Foetal body measurements is helpful as it reflects the gestational age and size of the foetus. Even for the routine scan the Sonologist measures;
a) Crown rump length (CRL) b) Head Circumference (HC) c) Bi-parietal diameter (BPD) d) Abdominal Circumference (AC)
At the cost of repetition, it is reiterated that the submission of the counsel regarding less amniotic fluid or position of baby was not taken either in the Written Version or in the Evidence filed before the State Commission. It is not the case of the Scanning Centre that the feotal size was small or that the position was adverse or that there was poor resolution of machines therefore we hold that the scanning Centre was negligent in not detecting the anomalies during the anomaly scan period (as detailed in the medical literature), that the scan is primarily done as per WHO guidelines, only to detect the feotal anomalies during this period. Additionally the report shows that there was sufficient amniotic fluid and also it is not the case of the radiologists\ Scanning Centre that the baby was lying on one side or that the image was not clear.
17. It should be borne in mind that, foetal USG is the most important tool to provide prenatal diagnosis of foetal anomalies. The standard obstetric ultrasound examination includes documentation of arms and legs. The detection of limb abnormalities may be a complex problem if the correct diagnostic approach is not established. The prenatal diagnosis and the management of limb abnormalities involve a multidisciplinary team of obstetrician, radiologist/sonologist, clinical geneticist, neonatologist, and orthopaedic surgeons to provide the parents with the information regarding aetiology of the disorder, prognosis, option related to the pregnancy and recurrence risk for future pregnancies. Admittedly, the patient was seen by the treating doctor of the second Opposite Party nursing home on 06.01.2011 and if the anomaly scan ought to have been done between 18 to 20.6 weeks as per WHO guidelines then there was no substantial reasons given as to why the treating doctor did not suggest such a scan to be done as a precautionary measure in a timely manner for a patient who was 33 years old and is at comparatively higher risk, specially keeping in view the light of the fact that MTP Act does not permit termination after 20 weeks. Additionally when the treating doctor was in the knowledge that USG ought to be done within the time frame of 20 weeks to predict feotal anomalies, the prescription does not show that the 'USG ought to be done within the specified time frame'. This is within her field of Expertise and Specialty, and the same ought to have been done by the treating Doctor. Hence we hold that the Treating Doctor is negligent qua this aspect alone as the record evidences that the 'time frame has not been specified' which is not in accordance with standards of normal medical parlance and duty of care as envisaged by the Hon'ble Apex Court in Laxman Balakrishnan Joshi (Dr.) vs. Dr. Trimbak Bapu Godbole, 1969 (1) SCR 206.
18. It is relevant to note that vide order dated 19.03.2018, Oriental Insurance Company Limited and United India Insurance Company Limited were impleaded as third and fourth Respondents and IA/5274/2017 filed by the first and second Respondents for dismissal of the Appeal for non joinder of necessary parties was dismissed as rendered infructuous.
19. For all the aforenoted reasons, the Scanning Centre is held negligent and is directed to pay an amount of ₹10,00,000/- towards compensation for the mental agony, pain and suffering of the Complainants, having to take care of a differently abled child. We rely on the decision of the Hon'ble Supreme Court in V. Krishan Kumar Vs. State of Tamil Nadu & Ors. [2015 (9) SCC 388], in which the Hon'ble Apex Court has laid down the principle of restitutio in integrum, wherein it was held that the aggrieved person should get that sum of money, which would put him in the same position if he had not sustained the wrong. It must necessarily result in compensating the aggrieved person for the financial loss suffered due to the event, the pain and suffering undergone and the liability that he/she would have to incur due to the disability caused by the event. In this matter even future expenses and inflation were taken into account. However, keeping in view the facts and circumstances of the case a conservative amount of ₹10,00,000/- is being awarded to the Complainants to be paid by the Scanning Centre and an additional amount of ₹1,00,000/- to be paid by the second Respondent, the Nursing Home. Needless to add, the amounts awarded shall be paid by the respective Insurance Company to the extent of the insured amounts and the balance shall be paid by the Scanning Centre and the Nursing Home. Time for compliance is four weeks from the date of receipt of a copy of this order, failing which, the amount shall attract interest @ 9% p.a. from the date of filing of the Complaint till the date of realization.
......................J R.K. AGRAWAL PRESIDENT ...................... M. SHREESHA MEMBER