IMPORTANT POINT
Doctors are expected to make best judgment in critical cases.

Dr. S.M. Kantikar, Member—The complainant, Smt. Alka Srivastava, wife of Shri Abinash Srivastava took treatment for her pregnancy from Base Hospital (OP-1). During her pregnancy, she attended to regular check-ups and ultrasound study (USG) at OP-1. During 12th week of pregnancy, i.e. on 12.09.2006, Dr. Kanika of OP-1, performed transvaginal ultrasound. Thereafter, on 25.09.2006, ultrasound was done twice by Lt. Col. A. Kapur, at Army Hospital (OP-2) and at OP-1. Further, the second level scan was performed on 21.11.2006. On each occasion, the doctors at OP hospitals told the complainant that the foetus was well developed. On 05.03.2007 due to some pain, she was rushed to Singhal Nursing Home, where Dr. Sudhir Kumar performed ultrasound and found fetal anomalies like Spinal Bifida, Meningomyelocele, and hydrocephalus.

2. It was subsequently confirmed at OP-1 on 08.03.2007. Then she was referred to OP-2. On 27.03.2007, patient delivered a female child with lack of spontaneous movements of lower limbs, lack of anal reflex and open neural tube defect. The attending doctor opined that the child may need a number of surgeries, throughout the life and there are no chances of proper cure. Hence, alleging deficiency in service and for the negligence caused by the doctors at OP hospital. The complainant filed a complaint before the District Consumer Disputes Redressal Forum – VII New Delhi (hereinafter referred to as “District Forum”) and the complainant prayed for compensation of Rs. 20 lacs.

3. The District Forum allowed the complaint and directed the OPs to pay R.5,000/- as cost to the complainant no. 1 and to pay Rs.5,00,000/- as compensation to the complainant no. 2, which shall be kept in fixed deposit in any Nationalized Bank till the child attains the age of majority. Also granted permission to the complainant no. 1 to draw the interest thereof for the welfare and upkeep of the complainant no. 2.

4. Aggrieved by the order of the District Forum, the OP hospital filed F.A. No. 476/2009 for dismissal of the complaint, whereas the complainants filed FA No. 456/2009 for enhancement of compensation before the State Commission, Delhi. The State Commission dismissed the appeal filed by the complainant, whereas allowed the appeal filed by the hospital and dismissed the complaint. State Commission further directed that, the OPs shall remain bound by their own undertaking regarding lifelong free medical care and support to the complainant no. 2 as per their Rules and Regulations.

5. Hence, aggrieved by the order of the State Commission, the complainants/petitioners filed this revision petition.

6. We have heard the learned counsel for parties. The counsel for petitioners submitted that OP doctors were negligent; patient was under regular ANC under OP-1 and 2. USG was not performed with due care. They have failed to diagnose the major birth defect during 12th, 14th and 21st weeks of pregnancy. Hence, her child suffered from such deformities, which need supervision throughout the life, under several disciplines like neurology, urology, orthopedic, eyes and physical medicines and rehabilitation and speech therapy. The child would also require full time trained attendant to look-after her, throughout the life. Due to pitiable condition of child, the family suffered lot of stress.

7. The counsel for OPs vehemently argued and denied all the allegations made by the complainants. On behalf of the OP/Group Capt. Dr. Hirdesh Sahni was also present and he had argued the matter. He submitted that all the four ultrasounds were done on the patient with reasonable care and caution by the competent doctors during the second trimester between 12th and 21st weeks. Medical Termination of Pregnancy Act, 1971, does not permit termination of pregnancy, where length of pregnancy exceeds 20 weeks. Also, submitted that Spina Bifida develops in foetus in the third trimester and the foetal anomalies can be detected in ultrasound at the stage of 35th week of pregnancy