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Judgment
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.
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.
THE District Forum allowed the complaint and directed the OPs to pay Rs. 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.
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. Hence, aggrieved by the order of the State Commission, the complainants/petitioners filed this revision petition.
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.
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. The counsel for OP hospitals also opposed the complaint on the ground of maintainability, under CP Act 1986, as the patient was provided free ante natal and post -natal medical care in the Armed Forced Services Hospitals. The counsel for OP submitted the medical literature, namely
"i. Routine ultrasonography compared with material serum alpha -fetoprotein for neural tube defect screening
ii. The limitation of referral level fetal ultrasound examination in the detection of spina bifida in Western Australia, 1990 -1991
iii. The sensitivity of ultrasound and serum alpha -fetoprotein in population -based antenatal screening for neural tube defects. South Australian 1986 -1991
iv. Scientific and specific screening for detection of spina bifida by echography in the second trimester; systematic review and meta -analysis."
WE have perused the patient''s medical record. The antenatal card revealed that her expected date of delivery was 26.03.2007. She was admitted for threaten abortion in OP -2 Hospital at midnight on 12.09.2006. The ultrasound was performed on 14.09.2006 i.e. during 12th week''s pregnancy, which was normal. Patient was managed conservatively. On 03.11.2006, the second level ultrasound was advised which revealed cephalic presentation, no obvious congenital anomalies in any major fetal organ system and it was reported as ''normal'' during second trimester gestation.
WE have perused the AIIMS ''Expert Medical Board'' report, given under the Chairmanship of Dr. Sunesh Kumar, Professor of Obs. & Gynae, which opined as, hereunder: - "The kind of fetal abnormality which was present in this case can be missed on routine ultrosonography in 10 to 20% of the cases specially when it is small in size, it is situated very low down in the fetal back and also in situations where fetal position at the time of examination in such that the back is lying backwards."
In the instant case, it is difficult to understand, how the OP doctors failed to diagnose anomalies during the USG done at 12th, 14th and 21st week. In our view, even the AIIMS report is not supportive to the OPs, because in the instant case;
"i. The spina bifida lesion was not small, at 35th week USG, it was 6 x 7 x 5.9 in size, same was confirmed at OP -2 Army Hospital as a "large cyst is present in the lumbar region with hydrocephalous".
ii. It was not situated at very low down in the fetal back.
iii. Regarding the fetal position: if it was not appropriate at the time of ultrasound, it was the duty of ultra -sonologist to repeat the scan, when the fetal back comes to forward position. It is known fact that, fetal position usually changes enough in 30 to 45 minutes at 18 to 20 weeks to obtain all scan planes."
IT is pertinent to note that, doctors performed trans -abdominal as well as trans -vaginal ultrasound at the 12th and 14th week. It appears that, it was done as routine by the Gynecologist and not by the Radiologist. Furthermore, it is quite surprising that, even at 21st week, the OP failed to diagnose spina bifida. In this regard, we sought an affidavit from the Head of Department of Radiology in Base Hospital about qualification, experience of the doctors who performed USG of the complainant. It is interesting to note the relevant contents of said affidavit as reproduced below: - "In respect to point 1: - Name of the doctors, who have examined the Complaint during ANC and who performed ultrasound in this case: -
I do not have first hand information in this regards.
In respect to point 2: - Dr. Mamta, Dr. Kanika and Dr. Sudhir Saxena were working in which Department? Whether they were qualified Radiologist (Ult rasonologist). Specify their qualification and professional experience: -
I do not have first hand information regarding Dr. Mamta and Dr. Kanika."
THUS , the said affidavit is devoid of vital information, that whether Dr. Mamta and Dr. Kanika were qualified Radiologists who had performed USG at 12th, 14th and 21st week. The scans were performed without due care during a routine ANC check up; the USG reports lack details, are not in standard format, Normally between 11th to 13th weeks, almost all anomalies are detected, but in the instant case OP doctors failed to interpret Nuchal Transluscency Scan (NT scan) performed during 12th and 14th week. The OP raised an objection that, the complainant was not a ''consumer'' on the ground that, her husband gets health benefits as free services from the department. But, in this context, the landmark judgment in V.P. Shantha''s case Hon''ble Supreme Court clearly held that;
"3. Similarly, where, as a part of the condition of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ''service'' under Section 2(1)(o) of the Act."
WE have perused the review article namely "Parental Diagnostics of Fetal Abnormalities by Ultrasound and Color Doppler", the relevant text is reproduced as follows: - "Progressive improvements in ultrasound equipment within the field of prenatal diagnosis of structural fetal anomalies have permitted to obtain a sensitivity range of 90 to 95 percent and specificity range of 95 to 100 percent, with utilization of high definition equipment and an expert ultrasonographist in fetal dysmorphology.
To obtain the above achievements the high education and skills of examiners is needed, higher than usual ultrasonic gynecological education."
IT is pertinent to note that the pregnant lady/complainant No. 1, was in her second pregnancy and was receiving ANC care from the obstetricians at OP No. 1 and 2. The overall contention of doctors at OPs is that, it is not possible to diagnose such anomalies before 24th week. It is pertinent to note that, the complainant had undergone trans -vaginal, as well as trans -abdominal USG during 12th, 14th and 21st week of her pregnancy. At every instance, the doctors at OP 1 and 2 failed to diagnose the foetal anomalies like Spina bifida, Meningmyelocele & Hydrocephalus. But, the OPs came to know of those anomalies on 08.03.2007 and 12.03.2007 i.e. at 36 weeks of pregnancy. Therefore, as per PNDT Act, the patient had no chance to terminate the pregnancy. Hence, the complainant was forced to give birth to an anomalous child, on 27.03.2007. As per several medical literatures, the 2nd trimester scan shall detect the fetal anomalies. We have perused medical literature on "The 11 -14 weeks scan" which revealed as hereunder:
"Spina bifida: In spina bifida, there is failure of closure of the neural tube, which normally occurs by the 6th week of gestation. In the spine of normal fetuses, there are three ossification centers, two pedicles and the spinal body, and there are present from 10th week of gestation, allowing ultrasonographic visualization of the neural canal from this gestation. Braithwaite et. al. assessed the fetal anatomy at 12 -13 weeks of gestation, by a combination of transabdominal and tranvaginal sonography, and they reported successful examination of the vertebrae and overlying skin in both the transverse and coronal planes in all cases.
These findings demonstrate that, at least in some cases of spina bifida, the characteristic lemon and banana signs are present from the first trimester of pregnancy. However, the prevalence of these signs at the 11 -14 week scan remains to be determined."
THE recent medical literature titled as "Prenatal ultrasound diagnosis of neural tube defects. Pictorial essay" from Medical Ultrasonography 2012, Vol. 14, No. 2, 147 -153 revealed that Neural tube defects (NTD) are a heterogeneous group of malformations resulting from failure of normal neural tube closure before the fourth and fifth week of embryologic development. The three most common forms of NTD are: anencephaly, encephalocele and spinal dysraphism. Less common forms of neural tube defects include iniencephaly, amniotic bands and other types of spinal abnormalities including scoliosis/cyphosis, sacral agenesis, limb -body wall complex, diastematomyelia. The most part of these abnormalities are accessible to the ultrasound diagnosis in the midtrimester and sometimes even in the late first trimester of the pregnancy. This kind of abnormality can occur in isolation or in association with other anomalies, which can also be characterized with ultrasound. The diagnosis of spina bifida is made in only 80% to 90% of cases during routine screening ultra sound because the accuracy of ultra sound depends on the skill and experience of the operator, as well as the mode of ascertainment. The first step in assessing for spina bifida is scanning of the head because virtually, all fetuses with spina bifida have signs of a Chiari II malformation in the brain at 16 to 20 weeks gestation: obliterated cisterna magna (banana sign): and/or concave frontal bone (lemon sign): and/or dilated lateral ventricles. The sensitivity of these cranial signs is close to 99%.
WE put reliance on the judgment of Hon''ble Supreme Court in case "Laxman Balakrishna Joshi v. Timbak Bapu Godbole & Anr." : 1969 (1) SCR 206, and the relevant para of said judgment is as under: "The duties which a doctor owes to his patient are clear. A person who holds himself out ready to give medical advice and treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person when consulted by a patient owes him certain duties, viz., a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give or a duty of care in the administration of that treatment. A breach of any of those, duties gives a right of action for negligence to, the patient. The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires"
Therefore, in the instant case, the doctors at OP -1 and OP -2 owed the duty of care towards the pregnant complainant. We observe that, there was a breach in the duty, doctors have not exercised their reasonable degree skill and care. They failed to diagnose the obvious fetal anomalies at 12th, 14th and 21st weeks of gestation. When the transabdominal (TA) scan is not optimal, transvaginal (TV) scans are done to evaluate the spine. The OP doctors were aware that, the patient was aged of 32 years. Her first pregnancy resulted in miscarriage, thus, the doctors should have been more careful during assessment of 2nd pregnancy. There are more chances of congenital or structural anomalies in elderly pregnant woman. When spina bifida is diagnosed prior to a birth, parents can decide whether or not to continue the pregnancy. A delay, or failure, to diagnose Spina Bifida can cause an unnecessary period of pain and suffering for the pregnant mother and can even result in an unwanted birth. It could seriously hamper the child''s chances of success in obtaining the best possible outcome from surgery. The OP 2 hospital is known to be one of the best specialized medical centers in India and possesses high standard and qualitative diagnostic approach. Hence, the consumers (patients) expect higher degree of skills and standard of care. But, in this instant case, it was lacking.
HON ''ble Supreme Court of India in Nizam Institute of Medical Sciences v. Prasanth S. Dhanaka & Ors. rightly sensed and quoted in para 39, that; "At the same time we often find that a person injured in an acceded leaves his family in greater distress, vis -vis a family in a case of death. In the latter case, the initial shock gives way to a feeling of resignation and acceptance, and in time, compels the family to move on. The case of an injured and disabled person is, however, more pitiable and the feeling of hurt, helplessness, despair and often destitution endures every day. The support that is needed by a severely handicapped person comes at an enormous price, physical, financial and emotional, not only the victim but even more so on his family and attendants and the stress saps their energy and destroys their equanimity".
NO doubt that, the State Commission has made it''s observations during final hearing, that the army establishment has given an undertaking in writing that the child is the daughter of serving personnel of the Armed Forces and is entitled for free medical care for her entire life along with required social and infrastructure support from the organization which has the best track record in imparting care of such individuals as per Defense Service Regulations, Regulations for the Medical Services of the Armed Forces (1983) and the provisions of the Ex -Servicemen Contributory Health Scheme. But in our view, such undertaking will not take away the agony of parents'' anymore. Therefore, the complainant deserves just and proper compensation also. On the basis of the foregoing discussion and taking the reference from the various medical literatures, the judgments of Hon''ble Supreme Court, we modify the order of State Commission as follows:
"the OP shall abide by their undertaking, and in addition, OPs shall pay compensation in the sum of Rs. 5,00,000/ - and Rs. 5,000/ - as litigation charges, to the complainant -1, within 90 days from the date of receipt of this order, otherwise entire amount will carry interest @ 12% per annum, till it''s realization."