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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Agrawal, President and Dr. S.M. Kantikar, Member
Udayan and Ors. – Complainants
versus
M/s. Imaging Point and Ors. – Opp. Parties
Consumer Case No.74 of 2009
Decided on 25.5.2022
Counsel for the Parties:
Appeared at the time of arguments through video conferencing
For the Complainant No.2:Mrs. Anita Shrouti, In Person with Ms. Vrushali Pradhan, Advocate
For the Opp. Party Nos.1 and 2:Mr. G.N. Shenoy, Advocate
Mr. T.V.S. Raghvendra Sreyas, Advocate (Already deleted OP, vide Order dated 07.11.2019)
IMPORTANT POINTS
1. Negligence - Res Ipsa Loquitor - In a case where negligence is evident, the principle of res ipsa loquitur operates and the Complainant does not have to prove anything as the thing (res) proves itself.
2. Doctor - Doctor cannot be sacrificial lamb which would make whole profession to work under proverbial Damocles Sword.
3. Disabled child - Just and fair Compensation - Therefore, the disabled child deserves just and fair compensation, the medical negligence is attributed to the doctor and his Imaging Centre.
Headnote:
(i) Consumer Protection Act, 1986 – S.21(1)(a)(i)[Consumer Protection Act, 2019 – S.58(1)(a)(i)] - Services – Medical Negligence – Maternal care / Pregnancy – foetal anomaly - Whether there was breach of duty by Opposite Party No. 2 and he was guilty of medical negligence - In the instant case the Opposite Party No. 2 failed to exercise the required ordinary skills and standards, thus held negligent, who failed to diagnose the structural anomalies of the foetus at 17-18 weeks. The early and correct detection could have helped the parents to take a decision to continue or terminate the pregnancy within 20 weeks as per MTP Act, 1983 - It is well settled principle of justice that in a case where negligence is evident, the principle of res ipsa loquitur operates and the Complainant does not have to prove anything as the thing (res) proves itself. In such a case, it is for the opposite party to prove that he has taken care and done his duty to repel the charge of negligence. Thus to reduce such errors and patient grievances, there is need for overall national guidelines from academic bodies (ICMR) or the government (health). [Para 32, 33]
(ii) Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – Services – Medical Negligence – Maternal care / Pregnancy – foetal anomaly – “ Damages” – Claim for – In Medical Negligence cases - The Compensation in the medical negligence cases as the quantum is highly subjective in nature as the human life is most precious. During arguments the mother of child (Complainant No.2) submitted that the compensation for negligence cannot completely cure the injury sustained by the parents and the child and their claim of Rs.10,08,80,637.62/- is justified – In this case, no doubt, the doctor (Opposite Party No. 2) could have helped the patient, had he been more careful in his reporting, though, how useful, it would have been considering MTP (Abortion) laws. It is not the intention of the Court or Commission to let go the Doctor for his mistake, which definitely need a rap on the knuckle, but that rap should not break his skull. Apparently, in the instant case, congenital anomaly is play of nature, one of nature’s wraths, which human kind is facing since time immoral. In alleviating this wrath of nature, this Doctor cannot be sacrificial lamb which would make whole profession to work under proverbial Damocles Sword. [Para 41]
(iii) Consumer Protection Act, 1986 – S.19 [Consumer Protection Act, 2019 – S.51] – Services – Medical Negligence – Maternal care / Pregnancy – foetal anomaly – Just Compensation – Award of - Disabled Child - The child is at present about 14 years old. Court has to consider several points while awarding the compensation like the actual expenses already incurred on medical treatment, travelling and emotional sufferings of the parents. The Complainants (1 & 2) have filed the receipts of recurring expenses till date for child’s medical care and for day today activities. It was informed that to take care of her child, the Complainant No.2 Anita left her job also. The parents often go through embarrassment, social stigma and severe stress/depression due to their disabled child. The Complainants’ claim of Rs.3 crore for mental agonies appears to be highly inflated and is not justified. However, we con not ignore that the child needs artificial prostheses for his hands and legs throughout his life and to be changed periodically depending on age and growth. The letter dated 07.08.2008 of Otto Block about the maintenance and repeat expenses stated that the tailor-made artificial Modular Trans-Tibial Endoskeletal Prostheses costs about Rs. 6 to 8 lakh each time. Therefore, the disabled child deserves just and fair compensation, the medical negligence is attributed to the doctor and his Imaging Centre. The Opposite Parties Nos. 1 and 2 are directed to pay, jointly and severally, Rs. 1.25 Crore to the Complainants. Out of the said amount, Rs. 1 Crore shall be the compensation to the disabled Mst. Chidanand for his welfare, future expenses for treatment and purchase of limb prostheses. The amount shall be kept in the form of Fixed Deposit (FD) in any Nationalised Bank (preferably State Bank of India) in the name of Mst. Chidanand till he attains majority. The balance amount of Rs. 25 lakh shall be paid to the parents of Mst. Chidanand (Complainants Nos. 1 and 2) towards the mental agony and allied expenses. The parents can draw periodic interest on the FD for the regular health check-up, treatment and welfare of their child. The Opposite parties shall pay Rs. 1,00,000/- towards the legal expenses. [Para 43, 44]
Result: Compliant Allowed.
ORDER
Dr. S.M. Kantikar, Member.—The most common type of litigation involving ultrasound is missing a foetal anomaly. The other causes include the failure to communicate the results of ultrasonic investigation in a timely manner; consequently the main reason for litigation is failure to offer termination of pregnancy as a result of failure to diagnose the defects at early stage.
Facts of this case are of very tragic proportion.
2. On 07.10.2006, Mrs. Anita Shrouti the Complainant No.2 (hereinafter referred to as “the Patient”), during her second pregnancy, consulted Dr. Sarita Bhonsule, Gynecologist and Obstetrician for and was remained under her follow-up for Ante Natal Care (ANC) till delivery. On 08.11.2006 Dr. Sarita Bhonsule for Ultra Sonography (USG) of Pelvis referred the patient to M/s. Imaging Point- the Opposite Party No. 1, the scanning centre. The USG was performed by the Radiologist Dr. Dilip Ghike, (hereinafter referred to as the “Opposite Party No. 2”) and reported it as normal. Thereafter, subsequently the Opposite Party No. 2 performed 2nd USG on 08.01.2007 (17th to 18th week of pregnancy), 3rd USG on 12.03.2007 and 4th USG on 12.05.2007. It was alleged that all the USG were reported as “no obvious congenital anomalies in the fetal head abdomen and spine”. The patient’s elective Caesarian Section was performed by Dr. Sarita Bhansule on 26.05.2007 at Vaishnavi Maternity Home, Nagpur. After delivery the mother (patient) and the attendants (parents and relatives of patient) were shocked to see the grossly malformed male newborn. The newborn had agenesis of fingers, right leg below knee and left foot below ankle joint. The Complainants alleged that it was due to the Opposite Party No. 2 who negligently performed the USG and issued wrong reports. It was further alleged that it was possible to detect the anomaly between 12 to 14 weeks of pregnancy, but the Opposite Party No. 2 failed to detect anomalies during 2nd, 3rd and 4th USG, most importantly at 17 to 18 weeks. The mother [Complainant No. 2] and Mst. Chidanand [Complainant No.3] were discharged on 30.05.2007.
3. It was further alleged that the baby was thoroughly examined by Child Specialist Dr. Ravindra Bhonsule and found few other anomalies like problem with left eye closure, poor blink reflexes & watering and micrognathia with microglossia. There was left sided facial palsy and poor jaw opening which was causing feeding difficulty. Subsequently after proper immunization, the child was taken to Dr. S. Suresh at MEDISCAN, Chennai. On 21.08.2007, Dr. S. Suresh performed abdomen and KUB scan, fontanelle scan, echocardiograph (ECHO) of Mst. Chidanand, which were reported normal. Thereafter, the parents consulted Dr. Sujatha Jagdeesh, Genetic Consultant & Dysmorphologist at MEDISCAN who referred the child to Apollo First Med Hospitals for his abnormalities and limb hypo-genesis syndrome having oro-mandlbuiar disability. Dr. R. Venkataswami, a very senior Plastic Surgeon with specialisation in Hand Reconstructive & Microsurgery examined the child and confirmed that Mst. Chidanand had a facial palsy with lagopthalmos and micrognathia. He asked the parents to search for a company for prostheses of lower limb and called for review after 6-7 months for treatment of hands. He further advised to take an opinion of Ophthalmologist, accordingly on 22.08.2007 at Shankar Netralaya Dr. Ravindra Mohan E, the Director of Oculoplasty and Orbit Service examined the eyes of Mst. Chidanand and noted normal closure of right eye but watery fluid from his left eye. He advised eye drops and further regular follow up with local Paediatric Ophthalmologist. Thereafter, the child was under follow-up of Dr. Amol Tamhne, a Paediatric Ophthalmologist at Nagpur. They took opinion form ENT surgeon Dr. Madan Kapre for Oro-mandibular Hypo genesis Syndrome and hearing problems of the child. T
