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7.       Defense by Dr. G. S. Saluja (OP-3): ( w.r.t. 1st USG report) Dr. Saluja submitted affidavit, that he is having thirty years' experience in radiology, including sonography. He admitted that, he has performed the USG scan for the patient on 20.01.2009, as per requisition from Dr.Indira Vyas to confirm duration of Pregnancy. ( Annexure R1/ page 44). Hence, he had conducted basic/routine sonography following standard procedures with due diligence. He further submitted that, organ imaging is largely dependent upon position of foetus and to recognise absence of structure that ordinarily could be visualized with most difficulty. Routine ultrasound is the most basic form of prenatal examination and lasts only for about 10 minutes during which the position of foetus cannot be changed to view it from sides. Every qualified radiologist and gynaecologist is fully aware of the inherent limitation of such USG. During the USG performed by him, the foetus was lying on its side, with upper limbs tucked underneath, it was impossible to see that any limbs were missing nor was there any reason to assume or suspect so. The congenital anomaly suffered by the child rather very rare and extremely difficult to detect even with repeated examinations with the best expertise and modern equipment. The routine scan cannot detect such anomalies, it needs advanced targeted or anomaly scan. It should be advised by a treating doctor because; the radiologist/sonologist will not simply perform it on his own. In this context, he produced Exhibit R3/3, a medical literature (from Callen's book). Therefore, he cannot, in any manner, be held liable for malformations and congenital defects occurred in the child. The police also closed the case registered by the complainant.

(vi)      Textbook of ultrasound (4th edition) by Callen, pages7 and 221--Lack of amniotic fluid limits proper visualization of the foetus during sonography.

Argument:

12.     Arguments on behalf of Complainant:

The learned counsel Mr. Ankit Jain, for complainant reiterated the submissions made in the complaint. The counsel brought our attention to the   opinion of forensic expert Dr. R. K. Sharma, who opined it was a gross negligence. Therefore, the complainants deserve compensation as prayed. With regard to compensation to the victim as well as her parents, the counsel relied upon the judgment of Spring Meadows Hospital Vs. Harjot Ahluwalia, case (1998) 4 SCC 39 wherein, the Hon'ble Supreme Court held that the parents of the child having hired the services of the hospital are also the consumers within the meaning of Section 2(i) (d) and (ii) and they would also be entitled to award of compensation due to negligence of the opposite parties to the complainant.

15.     The counsel further raised objections on the expert opinion given by           Dr. S. K. Sharma, that, he is not a qualified expert in radiology or sonography. It is wrongly concluded that " Dr. G.S. Saluja and Dr. K. Soni have failed to provide reasonable skill to detect congenital malformation which was their basic duty while doing sonography. It amounts to gross medical negligence as per Supreme Court judgment." The counsel submitted that, it was not a basic duty of OP 2 & 3 "to detect congenital malformation" when the patient was not referred by a gynaecologist in that context. They performed an obstetric ultrasound and not a target scan. Thus, Dr. R.K. Sharma has given a knowingly false expert opinion to subvert the course of justice, it is in violation of the Code of medical ethics, therefore, OP reserves his right to complain to the MCI against him. Also the complainant and Dr. R.K. Sharma are liable under IPC chapter XI for giving false evidence. The counsel prayed to issue necessary directions for prosecution of the complainant in terms of section 195 of the CrPC.   The counsel put reliance upon the Hon'ble Apex Court Judgments in M/s. Senthil Scan Centre Vs. Shanthi Sridharan & Anr., III (2001) CPJ 54 (SC) and Martin F. D'Souza Vs. Mohd. Ishfaq, I (2009) CPJ 32 (SC) and prayed for dismissal of the complaint. 

          On examination of above facts, the following conclusion can be safely drawn

(i)        Smt. Anju Dutt was referred for first sonography at 18-20 weeks on advice of treating gynaecologist as per current medical practice to rule out congenital malformations. It specifically looks for all parts of external body development, development of kidneys, stomach, heart, lungs, urinary bladder, etc.. It is very essential as if some congenital malformation is detected then mother can be suggested for medical termination of pregnancy as per MTP Act.