KRISHNA MONI TEWARI vs GOURI BANDYOPADHYAY

THIS is a complaint under Section 12 read with Section 17 of Consumer Protection Act, 1986 claiming compensation for a sum of Rs. 8.00 lakhs for the loss suffered by the petitioner and her family members.

THE case of the petitioner, in short, is that she consulted O.P. 1, a Gynaecologist, when she became pregnant. As per advice of O.P. 1 she went to the Nursing Home (O.P. 3) for Ultra-sonography in regard to foetal profile and maturity. THE said Nursing Home issued a report signed by O.P. 2, a Sonologist observing therein Single Living Foetal of 30 weeks of gestation with normal growth. THE petitioner consulted O.P. 1 again with the report who assured that there was no cause of fear and the foetal in the Uterus is growing normally. THEreafter, she visited O.P. 1 from time-to-time for medical checkup. On 4.4.1997, the labour pain started and she was admitted to Lohia Matri Seva Sadan where she gave birth to two babies, one male and another female. The condition of both the babies was serious and as such they were transferred to Intensive Care Unit of Alpha Nursing Home at Howrah where the male child expired on 25.5.1997 due to weakness. The condition of the health or female child was still very serious. According to the petitioner, the male child expired because of negligence on the part of the O.P. to take proper care and due diligence. She alleges that the Ultrasonography Test failed to detect two living foetus in the Uterus of the petitioner. She submits that if it could have been detected by Sonography Test, she would have taken more care for their proper growth and she would have consulted more experienced doctors for their survival. O.P. 2 is the Sonologist while O.P. 3 is the Nursing Home represented by one of their partners. It has been alleged that O.P. 1 is fully dependent upon the report of Sonologist and failed to clinically examine the patient so as to detect twin in the womb. Accordingly, she has filed the case claiming compensation of Rs. 8.00 lakhs from the OPs.

The case is contested by the OPs by filing separate written versions whether the material allegations contained in the petition of complaint have been denied and disputed.

O.P. 1 states that the petitioner had a spontaneous abortion some time in August, 1996 and evacuation done on 9.8.1996. The complainant approached her on 27.9.1996 when she reported that she had not then started her menstrual period. She prescribed certain medicines and advised some pathological tests for confirmation of the pregnancy. The aforesaid tests confirmed that she was pregnant. The complainant called on her on 26.10.1996 with complaint of spotting at morning and so she advised absolute bed rest and Ultrasonography of lower abdomen to confirm foetal position. The complainant again called on her on 6.11.1996 but did not produce any Ultrasonography Report. On subsequent visit on 7.12.1996 she found that her weight is gradually increasing. On 2.3.1997 she conducted routine checkup and on clinical assessment her pregnancy appeared to be of 28 - 32 weeks. She again advised for U.S.G. Test. On 3.3.1997 the complainant again called on her along with the U.S.G. Report. According to O.P. 1 on none of the occasions of such clinical examinations she noticed that the patient had twin baby. The complainant did not turn up before her after 2.4.1997. She denied negligence and want of proper care on her part. According to O.P. 1, the death of the babies cannot be related to the treatment of the patient by her. She stressed that one of the babies died at a Nursing Home at Howrah and another baby died at Malti Hospital, Ara. In their objections, O.Ps. - 2 and 3 have denied any negligence on their part. O.P. 3 states that the Ultrasonogram Machine was of Philips make and it has been repaired from time-to-time without any problem. There was no complaint in any Ultrasonogram Plates in or around March, 1997.

IT is not disputed that the complainant visited O.P. 1 after she conceived for the second time and there was periodical checkup by O.P. 1. O.P. 1 advised U.S.G. Test to ascertain foetal profile. On 3.3.1997 O.P. 1 examined the patient clinically and noticed that her weight was 61 kgs. and her clinical assessment indicated her pregnancy of 36 weeks. The O.P. 1 states that in none of the occasions when she conducted clinical examination she could detect that she had twin baby in the womb. On her advice, U.S.G. Test was done at South Point Diagonistic and Research Centre on 3.3.1997. The said report was signed by O.P. 2. The report shows that there was Single Living Foetus of 30 weeks of gestation with normal foetal growth profile. This report turned up to be totally wrong on the ground that the complainant delivered two babies in quick succession at Lohia Matri Seva Sadan, Calcutta, on 4.4.1997. There is no dispute with regard to the fact that the petitioner delivered two babies at the said Maternity Clinic. Therefore, it is palpable that the U.S.G. Test was clearly wrong. The report indicates that the patient had 30 weeks of gestation. Learned Counsel for the petitioner submits on the basis of Authority on the subject that all twin pregnancies can be detected by 16 - 20 weeks Scan. He submits that in the case of multiple pregnancy, the earliest it is possible to diagonise multiple pregnancies is about eight weeks gestation and the babies are seen between 18-22 weeks. Here the gestation was of 30 weeks duration when the Ultrasonography Test was done and this test faile to detect twin baby in the womb of the patient. Therefore, it is crystal clear that either the machine was defective or the reading of the report by O.P. 2 was wrong. The deficiency in service on the part of the Diagnostic Laboratory and O.P. 2 is quite apparent. There cannot be any two opinions about it. The patient delivered twin baby at the Maternity Clinic in Calcutta in quick succession. This amply proves that a Ultrasonography Test was not at all done or even if it was done it was done by a defective machine. There may be another possibility that O.P. 2 has failed to read the U.S.G. Report correctly. There cannot be any two opinions in this respect. Next point that falls for consideration is whether by any such deficiency in service on the part of the OPs the complainant has suffered any loss or injury. Learned Counsel appearing for the OPs submits that unless the loss or injury is suffered, no amount of compensation can be awarded in favour of the complainant. It appears that the two babies were born underweight. The babies were shifted to a Nursing Home at Howrah and one of them died at the said Nursing Home. The other baby was taken to Ara Malti Hospital where the male baby died due to Bronchopneumonia on 26.5.1997. The learned Counsel for the OPs submits that for the death of the babies, the OPs cannot be held responsible in any manner inasmuch as the babies were not under their treatment after their birth. Learned Counsel for the petitioner submits that they have no grievance against O.P. 1. But he submits that because of faulty report, the complainant was prevented from taking extra care for the nourishment of the babies in the womb. He, however, admits that the OPs had no occasion to treat the babies at any point of time. Nevertheless it appears that the diagnostic centre has failed to detect a twin baby in the womb of the complainant when there was 30 weeks gestation. The diagnostic centre charges fees for the report and the report was of no use to the complainant. O.Ps. 2 and 3 had not explained as to how the report proved to be wrong. It established the deficiency in service on their part. The complainant lost the two babies within a few days of their birth. Had there been no faulty report the complainant and her family members would have taken extra care for the proper treatment and care of the babies after their birth. It is not difficult to imagine the mental agony and suffering of the complainant for the loss of children. Therefore, we think that a reasonable compensation should be awarded in favour of the complainant so as to assuage the feelings of the mother. Accordingly, we think a sum of Rs. 25,000/- should be awarded as compensation against O.Ps. 2 and 3. This would serve as an eye-opener to them. They should take care in future so that this type of mistake does not recur. As noticed earlier, O.P. 1 was not responsible in any manner and this was conceded by the learned Counsel for the petitioner. So, we pass award in favour of the complainant for a sum of Rs. 25,000/- to be paid jointly and severally by O.Ps. 2 and 3. O.Ps. 2 and 3 are directed to make payment of this amount of award within a month from this date failing which it would be realised by way of execution. The case be disposed of accordingly. Complaint disposed of.