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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
J.M. Malik, Presiding Member & Dr. S.M. Kantikar, Member
Anil Dutt and Anr. —Complainants
versus
Vishesh Hospital & Ors. —Opp. Parties
Consumer Case No. 221 of 2010
Decided on 16.5.2016
(B) Consumer Protection Act, 1986—Section 21—Medical services—Medical negligence—Maternity—Birth of underdeveloped baby—Obstetric USG is not fool-proof in detection of foetal malformations—Foetal USG is the most important tool to provide prenatal diagnosis of foetal anomalies—Standard obstetric ultrasound examination includes documentation of arms and legs—Detection of limb abnormalities may be a complex problem if correct diagnostic approach is not established—Prenatal diagnosis and management of limb abnormalities involve a multidisciplinary team of obstetrician, radiologist/sonologist, clinical geneticist, neonatologist, and orthopaedic surgeons to provide parents with information regarding etiology of disorder, prognosis, option related to pregnancy and recurrence risk for future pregnancies—Had anomaly been detected parents would have been referred to a tertiary foetal medicine unit for further investigations which would have revealed presence of other anomalies in addition to abnormalities of foetal limbs—Existence of two serious anomalies would have resulted in pregnancy being terminated—Doctor is bound by ethical obligations to examine patient thoroughly with all his competence—Radiologists should not shirk away from their responsibility and professional obligations—Principle of Res-ipsa-loquitor is squarely applicable in this case—Compensation of Rs.15,00,000/- awarded. (Paras 36 and 39)
(C) Torts—Medical Negligence—Compensation—Number of factors needed to be considered while awarding compensation—Many parents live with a sense of isolation, particularly, if their birth defect child is rare and there is little support—This can cause significant anxiety in social settings and even lead distressed parents to further isolate themselves—Loss of dependency by its very nature is awarded for prospective or future loss— In case of death of an infant there may have been no actual pecuniary benefit derived by its parents during child’s lifetime—But this will not necessarily bar parents’ claim and prospective loss will found a valid claim provided that parents establish that they had a reasonable expectation of pecuniary benefit if child had lived. (Paras 37 and 38)
Result: Complaint Partly allowed.
Dr. S.M. Kantikar, Member—The Greek playwright Sophocles writes as, “It is a painful thing to look at your own trouble and know that you yourself, and no one else has made it.”
“Don’t Shift Responsibility and Blame” it is the situation frequently come across that, how some people not only refuse to accept responsibility when they’ve made a mistake, but they even shift the blame onto someone else…!! Hippocratic Oath hastens the moral conduct of physicians, assuming the respect for all human life, even the unborn.
Complaint: The Facts:
1. This is the complaint of alleged medical negligence filed by Mr. Anil Dutt and Baby Simi through mother Mrs. Anju Dutt against the Opposite Parties, Vishesh Hospital as OP1, two other radiologists Dr. Kaushalendra Soni as OP2, and Dr. G.S. Saluja as OP3, respectively, working at Vishesh Hospital.
2. The facts that, Mrs. Anju Dutt, the wife of complainant No.1 (herein referred as a “patient”) was pregnant and was under consultation of Dr. Indira Vyas, a Gynaecologist. She advised for ultrasonography (USG) to ensure well-being of child, it was done on 20.01.2009 by Dr. G.S.Saluja, the OP3, and reported it as intrauterine 20 weeks and 6 days gestational age, with no abnormal findings. The “Foetal Spine, Trunk & Limbs are Normal”. On the basis of the said report Dr. Indra Vyas continued her regular treatment and check-ups. After 3 months, i.e at 32 weeks of pregnancy, on 22.04.2009, 2nd USG was performed by OP2 Dr.Kushalendra Soni. It was reported as 32 weeks 01 day( + 2 weeks) “ Severe Oligohydramnios” and the “Foetal Spine, Trunk & Limbs are Normal”.
3. The allegation of complainants is that, both the doctors, OP2 and OP3 are qualified Radiologists/Sonologists, but due to casual approach, negligence and lack of care towards the patient, gave wrong reports at both occasions, which resulted into serious consequences. On the basis of 2nd USG report, Dr. Indra Vyas continued the treatment till May, 2009. Thereafter, patient went to Devas where she remained under treatment in Devas Hospital from Dr. Shakuntala Jadhav, a Gynaecologist and Obstetrician. On 18.05.2009, patient gave birth to a female baby which was found not fully developed. New-born’s left arm and kidney were missing and even lungs were not completely developed. The foetal weight was 1500 gm. only, instead of 2500 gm. Thus, it was medical incompetence and gross medical negligence. Patient approached Dr. Maheshwari, Child Specialist at Devas District Hospital, he advised to consult various experts. Also expressed that on account of wrong USG reports, no proper treatment was given for mother and child before birth, hence, the child did not develop fully. Therefore, the doctors expressed need for surgery in future for her neck and spine because of fused spinal cord. Child may have increased chances of paralysis. As the baby had a single kidney, there are chances of renal failure in near future. In this regard complainant produced expert opinion from Dr. R. K. Sharma, a Forensic Medicine expert.
4. It is further alleged that, due to wrong report, the patient did not go for MTP (medical termination of pregnancy) as per law under MTP Act. It was anxiety, agony and distress to the parents. Further, the grandmother of the child, Smt. Kala Dutt suffered severe heart attack after seeing the deformity in the new-born baby. She underwent by-pass surgery, it caused expenses of Rs.2.5 lacs at Fortis Hospital, New Delhi. Presently, the grandmother is under physiotherapy, incurring regular expenses.
5. Therefore, for alleged medical negligence, Smt. Anju Dutt/ patient lodged an FIR on 08.06.2009 at Police Station, Palasia, Indore. She also filed a Consumer Complaint on 26.11.2010 before this Commission under Section 19 of the Consumer Protection Act, 1986 against the OPs 1,2 and 3 for claiming compensation of Rs. 1,50,00,000/-.
Defense:
All the OPs filed separate written versions and respective affidavit evidences. They denied any negligence during USG proc
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