Kanishka vs Vibha Dua And Ors.

REVISION Petition No. 1005 of 2013 has been filed by the petitioner/complainant against the order dated 14.12.2012, passed by Haryana State Consumer Disputes Redressal Commission, Panchkula (short, "State Commission") in First Appeal No. 1286/2012. Brief facts of the case as per the petitioner/complainant are that the mother Charu Manchnada wife of Deepak Manchanda was under treatment and under observation of the respondent No. 1/opposite party No. 1 from the inception of the pregnancy and a female child, i.e., Kanishka -petitioner was born on 23.2.2009. The mother and the petitioner remained under treatment of respondent No. 1 against payment of charges, fee, etc. by hiring the services of the petitioner. Thus, the petitioner through her mother Charu Manchanda is the consumer of the respondent No. 1 under the provisions of the Consumer Protection Act. The respondent No. 1 gave assurance, after due checking and tests from time to time to the mother of the petitioner that there was nothing abnormal with the fetus and the child in the womb was quite OK.

ON 23.2.2009, the mother of the petitioner was brought to the Nursing Home of the respondent No. 1 where she was admitted and gave birth to the petitioner baby Kanishka under ''supervision, treatment, control of respondent No. 1. The mother and the petitioner were discharged on 23.2.2009, the same day after delivery. But after a few days, the petitioner seemed to have a problem and did not stop weeping. On 28.2.2009 she was taken by her parents to the respondent No. 1, who referred the petitioner to doctor Seema Chanda, Pediatrician Darya Ram Hospital, Sonepat who checked the petitioner and treated but she got no relief. On 5.3.2009, the petitioner was referred to Dr. Anil Jain, Medical Surgeon of Darya Ram Hospital, Sonepat who advised Pharosin drops. She was again taken on 30.3.2009, 11.4.2009, 24.4.2009, 6.5.2009 and 3.6.2009 for checkup and tests. On 6.5.2009, Dr. Seema Chanda advised for Hemoglobin electrophoresis and petitioner went to Hari Pathology Lab Surgeon on 29.5.2009 gave his report on 1.6.2009 on the basis of the above stated test. It was reported by Hari Pathology, Sonepat that Hemoglobin test was found abnormal. Dr. Seema Chandra then referred the petitioner to All India Institute of Medical Sciences, Delhi for treatment, after going through the report of Dr. Lal Path Lab, Delhi. On 3.6.2009, the petitioner was taken by her parents to Sir Ganga Ram Hospital, Delhi where the doctors declared the petitioner, as a patient of Thaelassemia major and advised regular monthly transfusion of blood and advised ELA.

THE petitioner was taken to Dr. V.P. Chaudhary, Director, Sun Flag Pahuja Centre for blood disorders Hematology division, Delhi, A -25, Shivali near Malviya Nagar, New Delhi -110017 who after due check -up, tests, etc. was admitted on 4.6.2009 and blood of petitioner was tested and she was given 90 MT of pack cell and 90 MT pack cell on next date.

THE doctors of Sir Ganga Ram Hospital, New Delhi and doctors of Sun Flag Hospital referred to above opined and declared that after the age of 2 1/2 of 3 years the petitioner should be operated for bone marrow transplanted and the doctors clearly declared the sole negligence of the 1st treating doctor Vibha Dua/respondent No. 1. The doctors also stated clearly that after marriage or before pregnancy one test of blood namely HBA -2 was necessary to be conducted by the treating doctor, which was never got done by the respondent No. 1 and this was the sole negligence on the part of the respondent No. 1, Had Dr. Vibha Dua, respondent No. 1 got test of HBA -2 prior to the pregnancy of the mother of the petitioner, the present disease would not arise and now the disease of Thalassemia was not curable for petitioner''s entire life. The only treatment of Thalassemia was by heavy bone marrow transplantation. The respondent No. 1, Dr. Vibha was a Senior Doctor and the above serious disease was caused to the petitioner due to the sole negligence on the part of respondent No. 1, Dr. Vibha Dua. The doctor of Sir Ganga Ram Hospital, estimated the expenses of major operation of the petitioner about Rs. 15 lakh and also suggested/opined that the blood would have to be transmitted to the petitioner every month till whole the life of the petitioner. The life of the petitioner has been ruined due to the negligence -wrong guidance and treatment of the petitioner by the respondent No. 1 and due to the deficient services rendered to the petitioner. Thus, the respondent No. 1 was liable to pay Rs. 15 lakh for operation and Rs. 5 lakh for compensation of causing mental monetary suffering, pains and ruining of the life of the petitioner due to deficient services rendered by the respondent No. 1 the petitioner apart from it to bear monthly blood transmission expenses till the whole life of the petitioner, along with the costs of the proceedings.

RESPONDENT No. 1/OP No. 1 in their reply before the District Consumer Disputes Redressal Forum, Sonepat (short, ''District Forum'') has stated that: "2. The contents of para No. 2 of the complaint are partly admitted and partly denied as they are false. It is correct that the complainant''s mother was under the treatment of the answering respondent. It is also correct that patient''s delivery took place on 23.2.2009 and a female child was born. It is, however, being concealed by the complainant that patient was subjected to the standard of care as recommended during the delivery as well as in the antenatal and post -partum period. It is emphasized that all due investigations and treatment was done by the respondent on the patient, as per prevailing norms. It is denied that the complainant is a consumer of the respondent. It is correct that the respondent had assured the patient that "as per clinical examination and various lab tests and ultrasound scans done from time to time" nothing abnormal had been detected. It is pertinent here to mention that in "routine pregnancy" routine investigations are performed, as per standard norms. In complicated pregnancies, as determined from history or clinical examination or from the routine investigations, special investigations are performed, as per standard norms. All this was discussed with the patient during antenatal counselling but the complainant has presented these assurances in a distorted manner, as if "blanket assurance" had been given. This distortion is denied as it is false and motivated.

The patient remained normal in the post -partum period, confirming it to be a ''normal'' post -partum period. The details mentioned in connection with the complainant''s visit to the Neonatologist, Paediatrician or the surgeon is denied for want of knowledge. It is pertinent here to mention that as per facts submitted by the complainant, in view of the nature of the problem. The Paediatrician could suspect the problem only after seven visits and a period of two and a half months of delivery and the complainant''s parents took further more than three weeks to comply with the paediatrician''s advice to get the Hemoglobin electrophoresis done.

It is vehemently denied that the complainant''s disease was caused by or contributed by the negligence of the respondent. The complainant is making false allegations of negligence on the part of the respondent. The complainant has a genetic disorder, caused exclusively by the genes inherited by the complainant from her genetic father and genetic mother and nothing else. This can be suspected in the antenatal period, if there is a previous history of such genetic disorder in the family or if the mother is found to be anemic in the antenatal period. Otherwise, hemoglobin electrophoresis does not form part of the routine investigation protocol in the routine uncomplicated pregnancies. The respondent is sympathetic to the complainant and her parents but the unfortunate disease cannot by and stretch of imagination, be blamed on the respondent."

RESPONDENT No. 2 in its written statement before the District Forum held that there was no negligence on the part of the respondent No. 1. District Forum vide order dated 11.10.2012 while dismissing the complaint observed that: "It is also pertinent to mention here that according to the revision petition No. 20 of 2010, decided on 27.4.2012 titled as Dr. Mrs. Vibha Dua v. Kanishka, the petitioner did not move an application for taking the opinion of the medical board within the stipulated time. The petitioner wants to decide the matter on merits only.

Evidence on the file marked as 1 to 47 are the various doctors prescriptions and tests. The complainant did not put any allegations to the various doctors about these prescriptions and tests. But told that some doctors (names not mentioned) told her that after marriage and before pregnancy, one test of blood HBA -2 is necessary to be conducted by the treating doctor.

This Forum feels that Thalassemia is a genetic disease. Was it not the duty of the complainant to clear her husband''s position to treating doctor?

The complainant fails to prove in her complaint that under which clause, rules or notification on behalf of the Government or any authorities, it is necessary to test the blood HBA -2 be conducted by the treating doctors.

In our view to prove the medical negligence on the part of the respondent No. 1 and elaborate and cogent evidence is required which the complainant has failed to lead. Simply on the basis of allegations, the doctor cannot be held liable for any medical negligence. Accordingly, it is held that merely on the basis of the material available on the case file, the respondent No. 1 cannot be held liable for any medical negligence. Thus, we dismiss the present complaint against the respondents since it has no merit."

AGGRIEVED by the order of the District Forum, the petitioner filed an appeal before the State Commission. The State Commission in its impugned order observed that: "From the perusal of documents available on the record, as well as the observations made by the District Forum, Sonepat we are of the view that it cannot be denied that to prove the case of medical negligence and deficiency in service on the part of medical practitioner/doctor some expert evidence corroborating the version of the complainant is required but in the present case mere relying upon the version of the complainant in the shape of affidavit is not sufficient when no expert witness has been examined by the complainant. Without examining any medical expert witness, it cannot be said that there was any negligence on the part of opposite parties in providing treatment to the complainant. Thus, no medical negligence can be attributed to the opposite parties mere believing the version of the complainant.

It is well settled principle of law that charge of professions negligence on a medical person is a serious one as it affects his professional status and reputation and as such the burden to prove any kind of medical negligence lies upon the claimant. A doctor cannot be held negligent only because something has gone wrong. He cannot be held liable for mischance or misadventure or for an error of judgment in making a choice when two options are available.

The Hon''ble Supreme Court in case titled as Kusum Sharma and Others v. Batra Hospital & Medical Research Centre and Others, : 2010 CTJ 241, has discussed well known principles given below, which must be kept in view while dealing with the medical negligence cases:

(i) Negligence is the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do or doing something which a prudent and reasonable man would not do.

(ii) Negligence is an essential ingredient of the offence. The negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment.

(iii) The medical professional is expected to bring 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.

(iv) A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.

(v) In the realm of diagnosis and treatment there is scope for genuine difference of opinion and one professional doctor is clearly not negligent merely because his conclusion differs from that of other professional doctor.

(vi) The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher of failure. Just because a professional looking to the gravity of illness has taken higher element of risk to redeem the patient out of his/her suffering which did not yield the desired result may not amount to negligence.

(vii) Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because the doctor chooses one course of action in preference to the other one available, he would not be liable if the course of action chosen by him was acceptable to the medical profession.

(viii) It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck.

(ix) It is our bounden duty and obligation of the civil society to ensure that the medical professionals are not unnecessary harassed or humiliated so that they can perform their professional duties without fear and apprehension.

(x) The medical practitioners at times also have to be saved from such a class of complainants who use criminal process as a tool for pressurizing the medical professionals/hospitals particularly private hospitals or clinics for extracting uncalled for compensation. Such malicious proceedings deserve to be discarded against the medical practitioners.

(xi) The medical professionals are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest and welfare of the patients have to be paramount for the medical professionals."

State Commission gave the following order:

"Having taken into consideration the facts and circumstances of the present case and the well settled principle explained above, we do not find even an iota of evidence on record to prove a case of any medical negligence and deficiency in service on the part of respondents -opposite parties while giving treatment to the complainant and thus, we do not find any legal infirmity in the impugned order while dismissing the complaint of the complainant. In this view of the matter, we do not find any merit in this appeal, it is dismissed."

HENCE , the revision petition. The basic grounds for the revision petition are that: • That Hon''ble Supreme Court had observed in several cases that it is not always incumbent upon the complainant to prove the medical negligence on the part of doctor with the help of expert evidence and in case if the negligence on the part of doctor is such that the complications would not have occur if the doctor would have discharge reasonable precautions. In the present case, there is lot of awareness programme conducted by Government agencies for getting the parents tested for Thalassemia disease before conceiving a child, so that the child with such disease not to be born. In the present case, respondent No. 1 did not advise the blood test for the said disease and resultantly complainant was born with such disease which incurable. Thus, respondent No. 1 acted in negligence manner.

• That the Courts below ought to have considered that doctors who have treated subsequently after treatment of Dr. Vibha (respondent No. 1) had opined that due to sole negligence of respondent No. 1 the problem had occurred, due to which the petitioner Kanishka has to undergo major operation of Bone Marrow at the age of three years. That the respondent No. 1 due to her negligence had not advised for the test of HBA -2 which is normally advised by the doctor before or after pregnancy.

IN their reply to the revision petition, respondent No. 1 has stated that: "It is pertinent to mention here that the mother of the petitioner/revisionist was earlier admitted in the hospital of the respondent No. 1 on 26.10.2004 and gave birth to a normal baby at that time. Even at that time all normal routine tests were conducted on the mother of the petitioner and the HB of the mother of the petitioner was 10 gms. And even now when the mother of the petitioner was admitted all routine tests were done, as there was no previous history of any abnormality. In normal pregnancy, unless there is any previous history of abnormality, only routine and required tests are done which were performed in this case also. It is not justifiable to do tests for all congenital abnormality in every pregnant woman until and unless there is a strong suspicion of any abnormality.

It is pertinent to mention here that to prove a medical negligence on the part of respondent No. 1 an elaborate and cogent evidence is required which the petitioner has failed to lead, simply on the basis of allegation the doctor cannot be held liable for any medical negligence. The petitioner has failed to prove that under which clause, rules or notification it is necessary to test the blood HBA -2 be conducted by the treating doctors.

It is vehemently denied that the petitioner''s disease was caused by or contributed by the negligence of the respondent No. 1. The petitioner is making false allegations of negligence on the part of the respondent No. 1. The petitioner has a genetic father and genetic mother and nothing else. This can be suspected in the antennal period, if there is a previous history of such genetic disorder in the family or if the mother is found to be anemic in the antennal period. Otherwise, HB electrophoresis does not form a part of the routine investigation protocol in routine uncomplicated pregnancies."

WE have heard the petitioner in person and the Counsels for respondent Nos. 1 and 2 and carefully gone through the record. Thalassemia is a disease of the blood in which a person suffers from anemia as a result of destruction of the red blood cells (RBCs). Thalassemia is a genetic condition. There are specific genes that code for hemoglobin the protein in RBCs responsible for carrying oxygen throughout the body. There are separate genes coding for alpha and beta chains that are self -arranged to form a hemoglobin molecule. Defects in either of the genes can result in the production of abnormal hemoglobin which causes RBC destruction. This defective gene may be inherited either from the mother or the father or from both. Depending on the inherited pattern, the disease is manifested in two forms: Thalassemia major and Thalassemia minor. Thalassemia major - -In case the defective gene is inherited from either of the parents the child will be Thalassemia minor.

Thalassemia major - -If the defective gene is inherited from both the parents from both the parents then the child will be Thalassemia major, a severe form of Thalassemia.

THE petitioner has failed to place on record any documents or evidence regarding the negligence on the part of the respondent No. 1 who was responsible for the petitioner suffering from Thalassemia. As per respondent No. 1 in a routine pregnancy routine investigation are performed as per standard norms. There was nothing alarming in the HB. HB count of the mother to alert the doctor to get the Thalassemia test done. The HB of the mother was 10 gms. And all routine tests were done. The patient never mentioned any previous history or any abnormal genetic disease to warrant any test to diagnose Thalassemia.

IT is an accepted fact that Thalassemia is a genetic condition and so it can be prevented in future generation. It is the duty of young people who are at high risk to get screened before marriage. If screening is performed in childhood, it is often forgotten around the time they get married. Hemoglobin electrophoresis is the confirmatory test to diagnose Thalassemia minor or carrier status. All at risk couples need to be counseled about the pre -natal diagnosis to confirm the Thalassemia status of the fetus. If the fetus is not affected, the pregnancy is continued. If the fetus is affected, the choice of terminating the pregnancy is offered. In this case, nowhere has been mentioned whether it was ever brought to the notice of respondent No. 1 that either parents or any member of their respective families were high risk being Thalassemia major or Thalassemia minor. If it was so they should not only have got themselves tested before marriage but definitely before pregnancy. They should also have informed respondent No. 1. Hence, in view of the above, we do not find any evidence on record to prove a case of any medical negligence. Hon''ble Supreme Court in Mrs. Rubi Chandra Dutta v. M/s. United India Insurance Co. Ltd., : IV (2011) SLT 303 : II (2011) CPJ 19 (SC) : 2011 (3) Scale 654, has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act/under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora."

THUS , no jurisdictional or legal error has been shown to us to call for interference in the exercise of powers under Section 21(b) of Act. Since, both the Foras below have given detailed and reasoned order which do not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction or material irregularity. Thus, the present revision petition is hereby dismissed. No order as to cost.