Document Fragment View

Matching Fragments

PER VINEETA RAI, MEMBER   This First Appeal has been filed by Shri V.K. Suri, complainant before the State Commission and Appellant herein being aggrieved by the order of the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as the State Commission) which has rejected his complaint of medical negligence against Dr.Sushma Aggarwal and Dr.Arun Gupta, Respondents No.1 and 2 respectively.

In his complaint, Appellant had contended that his wife delivered a male child at Shubham Hospital, New Delhi and the delivery was handled by Respondent No.1 who was a Gynecologist and thereafter by Respondent No.2, a Pediatrician. Because of the wrong treatment and gross negligence on the part of Respondent/doctors the baby was severely retarded both mentally and physically. Appellant specifically stated that his wife who was suffering from fever in her 32-34 weeks of pregnancy had visited Respondent No.1 who failed to conduct a basic test known as Torch Test which would have clearly indicated the nature of the pre-natal viral infection and whether it had infected the foetus. Instead the patient was given only paracetamol to check the fever. The baby was born after 36 weeks of gestation i.e. 4 weeks before the full gestation period with symptoms of the present disease but he was not given the required medical treatment at birth as a result of which, as per the certificate issued by the All India Institute of Medical Sciences(AIIMS) in 1996, he has cerebral palsy with spastic tendencies, mental retardation and 90% permanent physical impairment. The certificate from AIIMS specifically stated that the perinatal viral infection was the cause of this condition. If due medical treatment had been given at birth instead of just tonics and vaccines by Respondent No.2, Appellant contended that the extent of disability would not have been so extensive. Appellant, therefore, approached the State Commission on ground of medical negligence and requested that Respondents be directed to pay him Rs.15 lakhs as compensation for mental agony and to enable him to provide the necessary treatment for his child.

The State Commission after hearing both parties and on the basis of evidence filed before it concluded that no case of medical negligence was made out. The relevant part of the order of the State Commission is reproduced:

Here is a case where the child was born at 36 weeks gestation on 16-061992. The last when the complainant contacted the O.P. was till 15, September, 1992. The child subsequently has been diagnosed as suffering from Cerebral Palsy in 1996, which is indication of mental retardation. The complainant was advised hospitalization of the child but he declined. Medical treatment prescribed was not followed. There is no cure for cerebral palsy. Torch test is prescribed only if the mother is suffering from such fever in the first twelve weeks of pregnancy and not thirty four weeks of pregnancy. Giving PCM (Paracetamol) to a mother who is in thirty fourth week of pregnancy is absolutely safe and by no means can cause any kind of infection or abnormality to the child. The mental retardation of the child cannot be projected in the Ultrasound examination. Merely because the child was born underweight is known as SFD (Small for Date).
We have heard the Appellant and the Counsel for Respondent and have carefully gone through the evidence on record. We note from the record that as observed by the State Commission due care was taken in the pre-natal care of the Appellants wife by Respondent No.1 and necessary tests were conducted. Appellants contention that there was negligence in not conducting the Torch Test when the Appellants wife contracted fever between 32-34 weeks of pregnancy is not borne out by the medical literature on the subject according to which a Torch Test is prescribed within first 12 weeks of pregnancy in case the mother is suffering from fever because this is the period when foetal malformation can occur due to certain infections (Reference: American Pregnancy Association and MCRCK, Manual on High Risk Pregnancy risk factors). Admittedly, the Appellants wife suffered from fever only a few weeks before the delivery and she was given paracetamol which is not contra-indicated. While it is a fact that the child was born with cerebral palsy and related problems, as per the medical literature, this could not have been detected in the womb or caused because of any medication or wrong treatment when the Appellants wife had fever just prior to her delivery.