SENTHIL SCAN CENTRE vs Shanthi Shridharan And Anr.

THIS appeal is filed by M/s. Senthil Scan Centre, the original opposite party (appellant herein), being aggrieved by the order dated 19.6.1998 in Complaint No. 89 of 1996 of the Tamil Nadu State Consumer Disputes Redressal Commission at Chennai directing the appellant to pay Rs. 5,00,000 to the original complainant, Mrs. Shanti Shridharan (respondent No. 1 herein), along with the interest at the rate of 15% per annum and the cost of Rs. 3,000.

BRIEF facts of the case are:

THE appellant is a scanning centre with ultrasound scanning facility and respondent No. 2, Dr. (Mrs.) Ravi Chandrika, is one of the doctors who carries out the scanning examinations including the ultrasound examination. The respondent No. 1, Ms. Shanti Shridharan, was pregnant and approached the appellant for taking a diagnostic ultrasound picture specifically to seek report regarding her pregnancy. The appellant carried out scanning on 9th December, 1995; 21st March, 1996 and 24th June, 1996. The first report given on 9th December, 1995 showed fetal cardiac pulsation and confirmed a single live baby but did not suggest any malformation or other physical defects. The radiologist specifically confirmed that fetal organs were visualized and there were no obvious anomalies as revealed by this report. The respondent No. 1 felt assured that she could continue with pregnancy because there were no anomalies in the fetal frames as noted in the report. After completing 33 weeks of pregnancy, Ms. Shanti Shridharan took a third scan on 24th June, 1996 and this report also showed that there were no obvious anomalies. She gave birth to a baby girl on 18th July, 1996. She was shocked to find that her baby was suffering from a deformity called Phocomelia and her child was born with only a stump just below the elbow. Aggrieved by this mismanagement of her pregnancy by the appellant, who assured her that the fetal organs were visualized and there was no abnormality, she filed a complaint against the appellant, M/s. Senthil Scan Centre, for deficiency in service in the State Commission claiming Rs. 20,00,000 as compensation with interest.

THE State Commission held it deficiency in service on the part of the appellant and awarded the compensation against him and dismissed the complaint against respondent No. 2, Dr. (Mrs.) Ravi Chandrika. Being aggrieved by this order, M/s. Senthil Scan Centre, the original opposite party, is in appeal before us. It is submitted by the learned Counsel for the appellant that the scan findings are not 100% accurate and there are always possibilities of unobserved anomalies.

LEARNED Counsel for the appellant relied on medical text given in Diagnostic Ultrasound of Fetal Anomalies: Text and Atlas, by David A. Nyberg, Barry S. Mahony and Dolores H. Pretorius, references regarding sonographic accuracy, which is reproduced hereunder: "The accuracy of sonography for diagnosing malformations in women referred for routine clinical indications or at institutions less experienced with fetal malformations is largely unknown. In general, prenatal sonography is highly specific for the presence of major malformations when one or more anomalies are suspected. In one prenatal series, Manchester et al. reported that one or more anomalies were suspected in 215 fetuses and that 98.6% of these were confirmed to have a significant malformation postnatally."

LEARNED Counsel for the appellant has referred to the technical limitations given at page No. 92 in the Diagnostic Ultrasound of Fetal Anomalies: Text and Atlas, by David A. Nyberg, Barry S. Mahony and Dolores H. Pretorius, which reads as under: "Technical limitations produced by foetal position, maternal obesity, and abnormal amniotic fluid volume may significantly limit sonographic evaluation of foetal anomalies. Problems related to foetal anomalies are easier to correct than other contributing factors. Changing the beam path by moving the transducer to various locations on the maternal abdomen may improve visualization of foetal parts. A change in maternal position, such as decubitus positions, may alter the foetal position and thus permit optimal imaging. We have also found that endovaginal scanning may be useful for examining foetal structures when the area of interest is low in the maternal pelvis. In some cases, a delayed study a few hours or days later may be necessary. The foetus is also usually in the dependent portion of the uterus, increasing the distance from the foetus to the ultrasound transducer in the presence of polyhydramnios. The difficulties presented by abnormal amniotic fluid volume are emphasized by the study of Manchester and associates, who found that 43% of missed anomalies could be attributed to abnormalities of amniotic fluid volume."

It is also argued that: "Limb deficiencies can present alone or as part of a specific syndrome. An isolated limb deficiency of the upper extremity (e.g. distal segment of an arm) is generally an isolated anomaly. In contrast, congenital amputation of the leg generally occurs within the context of a syndrome, as do bilateral amputations or reduction of all limbs."

LEARNED Counsel for appellant also relied upon the evidence of respondent No. 1, who herself has mentioned that when the child was born she did not ask for what reason there was no forearm on her left hand. In her cross -examination, Dr. Lakshmi, who had examined the respondent No. 1, stated that she did not see anything abnormal, although she had suggested for another scan when the mother was 8 months pregnant, as she was very particular to see the maturity of the fetus. Learned Counsel further relied on the cross -examination of respondent No. 2, Dr. Ravi Chandrika, who is a trained radiologist, who conducted the scan. Dr. Ravi Chandrika also did not state that there were no anomalies in the baby and the baby was quite alright. The third scan was done around 34th or 35th week of pregnancy, which was mainly done for the purpose of surveying the intra uterine atmosphere of the baby. She further mentioned that: "I did not visualize any limb reduction during the 3rd scan. The deformity in hand is not phoecometia but limb reduction. This is also called congenital amputation. In the 2nd scan, I noticed all the four limbs and I found them alright. In the 3rd scan I did not notice any deformity."

RELYING on these statements made in the cross -examination and also the medical text, learned Counsel for the appellant submitted that there is no deficiency in service or negligence and that the deformity in the child is the limb reduction defect and this deformity is only a partial one and that it is not a major anomaly. It is further submitted that this defect could have developed during late pregnancy and hence there is no negligence or deficiency in service.

AS against this, learned Counsel for respondent No. 1 submitted that Mrs. Shanti Shridharan had given birth to her first child 10 years back and, thereafter, she had three miscarriages. That was the reason why she was being extra careful regarding the pregnancy in question and approached the appellants for three scans at different periods of gestation. She had the fear of giving birth to a child with deformities, which would be a permanent suffering for the family. In this scenario, she was assured that everything was normal and she continued with the pregnancy and did not consider terminating the same. The appellant submitted that by the time the third scan was taken she could not have aborted the child, because pregnancy was already in the 33rd to 34th week. It cannot be the correct reasoning, because after the second scan this defect could have been seen if the scan was properly observed. In this case, the anomaly was large enough because there was only a small stump below the elbow and there is no forearm and such anomaly cannot escape notice in the scan. In both the third and the fourth scans, it was observed "Limbs visualized" and "No obvious anomalies" which clearly spelled out that there is no deformity in the left arm.

LEARNED Counsel referred to medical text given at page 88 of the Diagnostic Ultrasound of Fetal Anomalies: Text and Atlas, by David A. Nyberg, Barry S. Mahony and Dolores H. Pretorius references regarding sonographic accuracy, which is reproduced hereunder: "An overview or prenatal sonographic detection of fetal malformations -Prenatal sonography has developed as a powerful tool for the detection and delineation of scongenital anomalies. Optimal examination by experienced sonographers can diagnose the vast majority of major malformations, and even minor malformations have been correctly detected."

IT further presents a table, where partial list of malformations that have been successfully diagnosed on prenatal sonography are discussed in detail and from the table 2 -7 it is also noticed that limb shortening is one of the areas, which would be covered under detection of fetal malformation with assistance of sonography.

LEARNED Counsel for respondent No. 1 further refers to the medical text given at page 91 in the Diagnostic Ultrasound of foetal anomalies: Text and Atlas, by David A. Nyberg, Barry S. Mahony and Dolores H. Pretorius that reads as under: "An ideal screening test for foetal malformations would detect all major malformations prior to the time of foetal viability, thereby providing the prospective parents the choice of continuing the pregnancy or not. Indeed, certain types of malformations may be readily detected early in pregnancy (before 20 weeks). These include cystic hygromata, most CNS anomalies (including holoprosen -cephaly, anencephaly, spina bifida, and most cases of hydrocephaly), abdominal wall defects, many lethal bone dysplasias, and major genitourinary anomalies. On the other hand, some anomalies (for example, gastrointestinal obstruction) may not be detectable until after the time of foetal viability."

A table 2 -9 that has been given along with this medical text regarding fetal anomalies, which may not be visualized by 24 weeks gestation, discusses different issues such as gastrointestinal disorders but not limb reduction.

REFERRING to the above medical texts learned Counsel for the respondent No. 1 submitted that the respondent No. 1 had taken all the appropriate precautions and followed the proper procedure to ensure the delivery of a healthy baby and approached the appellant to determine the growth and development of the fetus. Knowing her fear of having had an abortion, still the appellants were very casual about checking the scan and in giving a report, which did not give the right information. In our view, appellant had faulted in diagnosing the scan correctly, especially when they repeatedly mentioned that in the second and in the third scan reports that they had noted that they visualized the limbs and, thereafter, concluded that there were no obvious anomalies. If there is only a small stump below the elbow and there is no forearm, one cannot believe that such an obvious anomaly can be escaped from the scrutiny of the specialist who is expected to observe the scan carefully knowing the history of the pregnant woman i.e. the respondent No. 1. We agree with the discussion given in the order of the State Commission and the arguments presented by the learned Counsel for respondent No. 1 and hold that there is deficiency in service and negligence on the part of the appellant and for which respondent No. 1 is rightly being compensated. There is no need for us to interfere with the well -reasoned order of the State Commission except that the appellant shall pay a cost of Rs. 10,000, in addition, to respondent No. 1. The appellant is directed to comply with the order within four weeks from the date of receipt of the order.

THE First Appeal is, accordingly, dismissed. Appeal dismissed.