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2022 Supreme(Online)(NCDRC) 397
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
R.K. AGRAWAL, CJ, S.M. KANTIKAR, J
UDAYAN & ORS. – Appellant
Versus
M/S. IMAGING POINT & ORS. – Respondent
Consumer Case No. 74 of 2009
For the Appellants/Petitioners: Mrs. Anita Shrouti, Ms. Vrushali Pradhan
For the Respondents: Mr. G.N. Shenoy, Mr. T.V.S. Raghvendra Sreyas
The failure of a radiologist to detect congenital anomalies during routine ultrasounds is a clear breach of the duty of care, establishing negligence and liability for resulting damages.
Headnote:(A) Medical Negligence - Duty of care - Incorrect reporting in ultrasound scans - Claim for compensation of Rs.10,08,80,637.62/- for a child born with congenital anomalies due to failure in detection during ultrasounds performed at various stages of pregnancy - Court found negligence on the part of radiologist in failing to detect structural anomalies which could have led to early termination of pregnancy - Experts agreed that limb anomalies should be noted during scans - Res ipsa loquitur applicable - Compensation awarded of Rs.1.25 crore, with Rs.1 crore for future expenses and Rs.25 lakh for mental agony. (Paras 31, 32, 43)
Facts of the case:
The case involves a couple whose child was born with severe congenital anomalies after multiple ultrasounds indicated no issues. Allegations were made against the radiologist for negligence in failing to identify anomalies during routine ultrasounds, despite the mother's high-risk pregnancy. (Paras 1-5)
Findings of Court:
The radiologist was found liable for negligence as he failed to perform the correct level of ultrasounds and report anomalies, which could have warranted a decision for termination of pregnancy. (Paras 31-32)
Issues: The main issues were whether the ultrasound scans performed were adequate to detect anomalies, and the resulting liability of the radiologist for negligence. (Paras 27, 28)
Ratio Decidendi: The court concluded that the radiologist did not meet the standard level of care required for his profession, as the failures in ultrasound reporting resulted in significant life-altering consequences for the family. (Paras 32, 33)
Result: Complaint partly allowed, with directions for compensation. (Para 43)
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.
1. 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.
2. 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. The hearing in left ear was normal and moderate sensori-neural hearing loss in right ear. The doctors advised pa
