ORDER

Appeared at the time of arguments     

For Dr. Usha Mukhi                    :        Mr. Sandeep Kapoor, Advocate

with Dr. Usha Mukhi, In person

For Seema Deswal                   :          Ms. Sudesh Kumari, Advocate

For UIICL                                :          Mr. Maibam M. Singh, Advocate

Pronounced on:  9^th January, 2023

ORDER

DR. S. M. KANTIKAR, PRESIDING MEMBER

1.       This Order shall decide both the Revision Petitions which have been filed against the order dated 15.03.2017 passed by the State Consumer Disputes Redressal Commission, Haryana (hereinafter referred to as the ‘State Commission’) in First Appeal No. 1051/2015, wherein the Appeal filed by the Complainant was allowed. 

2.       For the convenience, the parties are referred to as stated in the Complaint and the facts are drawn from RP No. 2350 of 2017.

3.       The case of the Complainant - Seema Deswal (patient) that during her pregnancy, she was under consultation of Dr. Usha Mukhi (OP-1), who performed USG seven times, but for earlier six occasions, the OP-1 could not detect the congenital abdominal wall defect. It was alleged that the OP-1 was not a qualified Radiologist and even she did not seek opinion from any qualified Radiologist for USG to defeat congenital anomaly. She continued such abnormal pregnancy and avoided unnecessary sufferings and expenses for the treatment. Being aggrieved, the Complainant filed the Complaint before the District Forum, Sonepat.

4.        The District Forum dismissed the Complaint by relying upon the opinion of the Medical Board, constituted by the Civil Surgeon.

5.       Being aggrieved, the Complainant filed the First Appeal before the State Commission. The Appeal was allowed with the direction to the Opposite Parties to pay lumpsum amount of Rs. 3 lakh along with interest @ 9% from the date of filing of complaint till payment. It also awarded compensation of Rs. 21,000/- for mental and physical harassment and Rs. 11,000/- as litigation expenses. As the Insurance Company – OP-2 has insured the OP-1 for professional indemnity; both the OPs were directed to pay the amount jointly and severally.

6.       Being aggrieved, the OP-1 Dr. Usha Mukhi filed Revision Petition No. 2350/2017 for setting aside the impugned Order and the Complainant filed the Revision Petition No. 2780/2017 for enhancement of compensation. 

7.       We have heard the learned counsel for the parties. The learned Counsel for the Complainant reiterated the facts and stated that it was gross negligence of the OP-1.

8.       The learned Counsel for OP-1 argued that during USG, the foetal position was breech i.e. dorso anterior, therefore, it was very difficult to detect the front portion (abdomen) of the baby. Due to technical limitations of USG the Congenital anomalies cannot be detected all the times depending upon gestation period, fetal position and quantity of liquor etc. The Subtle defect may not be seen in all scans. The Level-II Scan is a detailed time devoted anomaly scan but it does not guarantee to detect all the congenital anomalies.  

9.       He further argued that on 30.07.2014, the patient was admitted in emergency with the history of severe intermitted pain and history of leaking since 6 AM. It was 32 weeks breach presentation and movements were absent. There was   rupture of sac with thick meconium-stained liquor. USG showed distended loops of intestines  outside the abdominal wall due to abdominal wall defect. The complainant as well as her attendants were duly counselled regarding pre-term baby and after an informed consent caesarean section was performed by OP-1. A female baby was born and soon after delivery the baby cried, the Paediatrician handled the new-born which did not require any resuscitation. The parents were informed in their vernacular language about urgent need to take the baby to higher centre in Paediatric Surgery Department. The OP-1 telephonic