State Consumer Disputes Redressal Commission
Archana vs Tarun Kumar Vohra on 22 September, 2011
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 22.09.2011 Appeal No. FA-2009/661 (Arising out of Order dated 12.08.2009 passed by the District Consumer Forum, (East) Saini Enclave Delhi in CC No.205/2005) Smt. Archana . Appellant/Complainant. W/o Sh. Devender Singh, through Mr. Gaje Singh, G-35/1, Shakarpur, advocate. Delhi -92. Versus Dr. Tarun Kumar Vohra, . Respondents/Opposite Party M.D. (Radio Diagnosis) through Mr. Sandeep Kapoor, B-3, Dwarkadhish Building, advocate. A-158, Shakarpur, Main Vikas Marg, Delhi-92. CORAM: Justice Barkat Ali Zaidi President Mrs. Salma Noor Member
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1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice Barkat Ali Zaidi, President
1. The facts of the case are that the complainant, who was in family way approached the OP doctor at his Radio-diagnosis centre, Vikas Marg, Delhi on 13.11.2002, on 20.01.2003 and lastly on 13.03.2003 for ultrasound examination as to ascertain the condition of the unborn child and on all these occasions the OP after her ultra-sonography gave report of the child being normal. The ultrasound plates and reports are annexed as Annexure A,B,C,D, E, and F with the complaint. On 08.04.2003 when she gave birth to a male child in Lok Nayak Hospital, the new born baby had no left upper limb part of forearm. The complainant therefore attributing negligence on the part of the OP doctor filed a complaint before the District Forum after serving a notice on the OP doctor praying that the OP be directed to pay her damages Rs.10,00,000/- towards harassment, mental agony, education and looking after of the disabled child.
2. The OP opposed the claim and filed written version pleading that for the first time on 13.11.2002 when the complainant approached him she had 16-17 weeks of gestation and on her second visit on 21.01.2003, 26-27 weeks of gestation had passed by, and no pregnancy should be terminated after 20 weeks of gestation period, except when it is imminently dangerous to the life of the pregnant lady. Even on 13.03.2003 after performing the coloured doppler process no evidence of IUGR was seen. The OP pleaded that this ultrasound was performed as routine obstetrical measures and was not as a level II scan which is performed for detection of suspected abnormalities or otherwise. OP pleaded that the abnormality in question found in the child is not life threatening, and is likely to be missed in sonography as baby is always in a moving position in the womb besides overlapping of fetal parts particularly hands and feet. The OP pleaded that ultrasound examination has its own technical limitations, and cannot take place of a naked eyes examination and cant be 100% foolproof. He pleaded that accuracy in diagnosing fetal mal-formation in low risk population is variable, ranging 14% to 85% while specificities from 93 to 99%. The OP alleged that the complainant withheld complete report of Lok Nayak Hospital and the ultrasound performed there, which revealed no gross congenital anomaly involving other parts including limb. The OP alleged that the complaint is liable to be dismissed as the complainant has not given any nexus as to how the complainant is entitled for the claim of Rs.10 lacs. The OP alleged that he is a qualified Radiologist having degree in Radio-diagnosis and she was referred to him for ultrasound examination by Dr. Vinoda Rajeev and he cannot be blamed for the loss of the limb of the baby due to his act or omission.
3. Earlier the District Forum dismissed the complaint of the complainant on the ground that he complainant had filed no evidence to rebut the plea of the OP that congenital abnormalities can be detected in ultrasound. In an appeal bearing No.FA-1811/2005, filed by the complainant, the Commission remanded the case back to the District Forum observing that since the controversy involved in this case cannot be settled in absence of medical opinion by a board of doctors on the point whether ultrasound is 100% foolproof method or whether there was any defect in the machine of ultrasound that resulted in the wrong report or whether it was due to wrong opinion of the doctor examining ultrasound report that resulted in the birth of child without any forearm or one of the arm; and directed the District Forum to obtain opinion of the experts and decide the case afresh.
4. Pursuant to the order, the District Forum referred the matter to a board of experts from Guru Teg Bahadur Hospital, Shahdara, Delhi, whose report is annexure K available on the appeal file. Taking into account the experts report and other material available on record, the District Forum exonerated the OP from the negligence in question and dismissed the complaint.
5. That is what brings the complainant/appellant in appeal before this Commission.
6. We have Sh. Gaje Singh, counsel for the appellant and Sh. Sandeep Kapoor, counsel for the respondent.
7. As will appear the finding of the District Forum solely rests on the experts report that ultrasound is not a 100% foolproof method to diagnose congenital anomalies and that the limitation of fetus can be effected by amniotic band syndrome and at any time during the period of pregnancy. It is to be noticed that the question whether a medical practitioner is negligent or not, is mixed question of fact and law and the Forums are not bound in every case to fall in line with the experts opinion as observed by the Supreme Court in case of V. Krishna Rao Vs Nikhil Super Specialty Hospital III (2010) CPJ 1 SC.
8. It is admitted in this case by the respondent/OP that the complainant had come to his clinic for ultrasound as to know the position of the child in her womb and for that he conducted ultrasound on 13.11.2002, 21.01.2003 and 13.03.2003 on her person and opined that the fetus within her was normal in all aspects. It is undisputable that she gave birth to a child, who did not have upper part of the left forearm. The Experts report relied upon by the District Forum available on record does not specify that the deformity was undetectable through ultrasound or that the OP performing the ultrasound was either wrong or negligent in giving his opinion, that fetus in the womb was normal by all angles. In the present scenario the experts opinion is not found helpful to decide the controversy existing between the parties. In the case in hand the experts report takes back seat, as the case appears to be squarely covered by the principle of Res-ipsa-locutor.
9. In the case of V. Krishna Rao (Supra), Supreme Court observed that where negligence is evident the principle of Res-ipsa-locutor operates and the complainant does not have to prove anything, as the things (rest) prove itself, and in a case where this principle operates it is for the respondent to prove that he has taken due and reasonable care expected and performed his duty diligently, as to repel the charge of the negligence against him.
10. We are therefore of the considered view that the OP doctor failed to discharge his duty as to determine any abnormality in the child in womb during three ultrasounds performed on the complainant/appellant, who had approached the OP with a hope to know that everything was right with her child. The result therefore was that all the hopes of the mother shattered when she found at the time of the birth of the child that he was suffering with a defect, his left upper arm missing, which will have serious impact on the mother and the child all along, they are alive. Failure to detect abnormality in the fetus during pregnancy, thus constitute medical negligence amounting to deficiency in service on the part of OP doctor. The District Forum was therefore not justified in exonerating the OP doctor for negligence and the order of the District Forum is therefore set aside.
11. The appeal of the appellant is allowed and the claim of the complainant is decreed with the direction to the respondent (OP) doctor to pay to the appellant(complainant) a sum of Rs.6,00,000/- (Rs. Six lacs) as damages for harassment, mental agony suffered by the complainant and for upbringing the child, Rs.20,000/- towards costs of litigation. The order shall be complied with within 30 days, from the date the certified copy of the order reaches the respondent(OP) doctor.
12. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
Announced on 22nd day of September 2011.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member Tri