COMPLAINANTS: 1. M.P.Ganeshkumar,
S/o M.R.Prashnthakumar,
20 monthas old baby.

2. Smt. Geetha,
W/o M.R.Prashnthakumar,
Aged about 26 years,
House wife.

3. M.R.Prashnthakumar,
S/o M.Rajaiah,
Aged about 32 years,
L.I.C. Agent.

All are R/o T.R.Nagar,
Challakere Town,
Chitradurga District.

Since the complainant No.1 is
Minor his natural mother the
Complainant No.2 is appointed as
next friend of complainant No.1.


V/s



OPPONENTS: 1. Dr.Uday S.Shetty,
M.D.DGO.
Consultant Gynecologist,
& Obsterician,
Udaya Nursing Home,
V.P.Extension,
Chitradurga.

2. Dr.Rajagopala Reddy,
MBBS, DMRD.
Consultant Redialogist
and Sonologist,
Vasavi X-ray centre,
Church Road,
Chitradurga.

3.M/s New India Assurance
Co., Ltd., City Co-operative
Society Building,
Besides Taluk Office,
Chitradurga.

*******

: ORDER :

The brief facts of the complaint are as under.

1. Complainant No.2 is the wife of Complainant No.3. Complainant No.1 is their minor son-baby boy of 20 months old. O.P.1 is Gynecologist and obsterician running a Nursing home at Chitradurga by name ‘Udaya Nursing Home’ . O.P.2 is a consultant Radiologist and Sonologist. O.P.3 is an Insurance Company with whom O.P.1 and 2 availed professional indemnity insurance.

2. Complainant No.2 is a regular patient of O.P.1. Her delivery was also conducted by O.P.1. So after conceiving for the second time she came to O.P.1 for consultation and regular checkup. She followed his instructions regularly. On 10/11/2005 O.P.1 examined her and informed that everything is normal. As per advise of O.P.1 complainant No.2 came to his nursing home on 7/1/2006 for follow up treatment and had obsteric ultra Sonography with O.P.2, as per the report everything was normal. As per the advise of O.P.1 she visited his Nursing home on 14/2/2006, 14/3/2006, 7/4/2006, and on 24/4/2006 for follow up treatment. On 24/4/2006 as per the advise of O.P.1 she again undergone obsteric ultra Sonography with O.P.2. The report disclosed that everything is normal. On her enquiry O.P.1 informed that the condition of the baby is normal, and in good condition.

3. On 3/5/2006 Complainant No.2 got admitted to the nursing home of O.P.1 for delivery. On 5/5/2006 at 12.01 a.m. She gave birth to male baby that is Complainant No.1. It was a normal delivery. But the baby was born with congenital abnormalities namely (i) large lumbo saccral lipomyelo meningocoele with involvement of sacral roots. (ii) Lower limbi right foot drop distally 0/5: left foot weekness + Sensory decreased L-5 and below Rt>Lt. soft large swelling-subcut. (iii) No bladder/bowel symptoms.

4. Complainant No.2 and 3 and their family members were shocked to know this fact. O.P.1 called Dr. S.G.Shivaprasad pediatrician for consultation. They referred the baby to Manipal Hospital Bangalore and discharged mother and baby on 6/5/2006. Manipal Hospital doctors referred the baby to Dr.Ravinath, J.J.M. Medical College Davanagere. Lastly complainant No.3 consulted at M.S.Ramaiah Medical College and admitted his son there. After conducting tests and M.R.I. the doctors conducted two surgeries on the baby. The doctors there informed that the pregnancy of complainant No.2 could have been terminated by diagnoising the abnormalities in the 5th month itself. So because of the negligence of O.P.1 and 2 and their improper advise the baby with congenital defects allowed to come to their world and made to suffer throughout life.

5. Both O.P.1 and 2 utterly failed to exercise proper skill. They ought to have advised for M.T.P. (Medical termination of Pregnancy) at the earliest and disclosed future consequences of delivery. Because of their negligence complainants have to suffer mentally physically and financially. Due to bladder problem Complainant No.1 has no control over passing of motion and urine. A huge amount of money is required for giving better treatment to Complainant No.1. Complainant No.3 has already spent more than one lakh rupees. Because of negligence of O.P.1 and 2. Complainants and their family members have to suffer throughout. So Complainants have to be compensated. O.P.1 and 2 are liable to pay compensation of Rs.10,00,000/- to them. Hence complainants requested to allow the complaint as prayed.

6. O.P.1 appeared through his counsel and filed his version. He admitted that Complainant No.2 consulted him and took treatment as she was expecting her second child. He conducted all relevant tests and advised regular follow up cheek up, and she had regular follow up treatment. The complainant No.2 was advised ultra Sonogrophy on two occasions on 7/1/2006 and on 24/4/2006. Both reports revealed that everything was normal and expected date of delivery was 10/5/2006. He also admitted that she was admitted in his nursing home on 3/5/2006 and delivered a male baby on 5/5/2006. It was a normal delivery. He states that however the baby was born with congenital defects. He immediately called paediatrician for consultation and then referred the baby to Dr. Ramachandra, Paediatric Surgeon at Manipal Hospital Bangalore for further treatment. Mother and baby were discharged on 6/5/2006. He contends that there was no negligence on his part either during the period of her visits or during the delivery. The services and treatment rendered by him to the patient were according to the standard Medical practice and there is no negligence on his part. So requested to dismiss the complaint.

7. O.P.2 appeared through his counsel and filed his version. He denied the allegations made against him. He reiterates the same facts as stated by O.P.1. He further states that Complainant No.2 was referred to him by O.P.1 on two occasions namely on 7/1/2006 and on 24/4/2006 for obstetric ultra sonography. He did it and reports of both sonogrophy revealed that the baby was normal and everything as fine. Later he came to know that the baby was born with congenital defects namely Largo Lumbo Saccral Lipomyelo Meningoccele with involvement of sacral roots. This Lipomyelo-meningoccele is a hidden defect. It is known as occult Dysraphism. This defect is very difficult to diagnose by foetal, intra uterine ultra sonogrophy. Ultra sonogrophy doesn’t capture this kind of defects which are very insignificant in terms of size and appearance. The diagnosis is difficult because there is no skin defect. The skin covers the defect. So also there is no chair-II Mal formation in the brain, no banana sign, no cemen shaped head sign, no poly hydromnios. One must depend upon the detailed view of the back of the foetus, foetal position, maternal body hobitus, thickness of the accternal skin, resolution of the ultrasound unit. With all these factors it is highly difficult to diagnose the above condition in utero. There is no negligence on his part in preparing the Sonography test reports. He submitted that he would have definitely informed the Complainant No.1 and 2 of there were to be any kind of problem, at the initial stage itself. There is no negligence or carelessness on his part. Hence requested to dismiss the complaint.

8. O.P.3 Insurance company filed its version. Supporting the case of O.P.1 and 2.

9. On behalf of the complainants, complainant No. 2 filed her affidavit by way of evidence and they also produced the document in support of their case. All the three Opponents filed their affidavits and also filed are affidavit of expert witness doctor and produced documents. Complainants submitted interrogatories to O.P.1 and 2 and their expert witness, and O.P.1 and 2 and witness submitted the answers by way of affidavit, to the interrogatories parties also submitted written arguments.

10. Heard the argument of both the counsels.

11. The Points that arise for our consideration are:

1)Whether the complainants prove that O.P.1 and
2 doctors were negligence in their duties and
there was deficiency of service on their part.

2)Whether the complainants are entitled to the
Compensation sought.

3)What order.

12. Our findings.

Point No.1 and 2 : Negative.
Point No.3: As per the final order, for the following.

:: REASONS ::

13. It is admitted that complainant No.2 approached O.P.1 doctor for regular checkup during her pregnancy from 7/10/2005. It is also admitted that O.P.1 doctor referred her to O.P.2 doctor-Radiologist for obstetric ultra sonography that on 7/1/2006 and on 24/4/2006. She got admitted in the nursing home of O.P.1 on 3/5/2006 and delivered a male baby –Complainant No.1 on 5/5/2006. The delivery was normal.

14. It is not case of the Complainant that O.P.1 doctor is not a qualified doctor to conduct deliveries, he is M.D.D.G.O. obstetrician and Gynoecologist. She delivered her first child in his nursing home. She satisfied with his treatment approached him for second delivery also. O.P.2 is also a qualified doctor-Radiologist.

15. The case of the complainant is that even though twice the Sonogrophy tests were conducted by O.Ps. they said everything is normal, baby is good, but she delivered a baby with congenital abnormalities, namely Lipomyelo meningoccele. There is no sensivity in the limbs of baby. Baby has to suffer throughout his life, he can not lead a normal life one has to attend him throughout his life. He has to lead a miserable life. If the O.P. doctors after Sonogrophy test had informed about such abnormalities, the complainant No.2 could have gone for abortion, she would have terminated the pregnancy. So because of negligence of O.P. doctors she was made to give birth to such a baby, and for such negligence of doctors the parents and baby have to suffer mentally physically and financially. So they sought compensation for the negligence of the doctors. Both the O.P. doctors denied these allegations. According to then this Lipomyelo meningoccele is a hidden defect. It is covered by skin. So such thing will not be noticed in the Sonogrophy. So there is no negligence on their part.

16. The Complainants have to establish their case against O.P.1 and 2 doctors. Negligence has to be proved, it cannot be presumed. A doctor while treating his patient is not to be held negligent simply because something went wrong. The complainants have to prove their case by leading expert evidence or through a standard medical literature. However they may also rely on the evidence and documents of the Opposite party to prove their case.

17. In this case complainants have not lead any experts evidence. However they relied on medical literature, it will be considered later. O.P.-doctor’s filed a sworn affidavit of expert. Dr.S.R.Hegde. M.D.D.M.R.E.(Radio Diagnosis). Complainants not called this witness for cross examination, but submitted interrogatories to him and he answered the same. O.Ps. doctor’s rely on the evidence of this expert witness and also medical literature.

18. The negligence alleged by the complainants is only in respect of ultra sonogrophy reports dated: 7/1/2006 and 24/4/2006. In both the reports admitted it is stated that Foetal-movements, cardiae Activity, spine stomach, kidneys, Bladder are normal. So baby was find doing well. The Complainants contend that these reports are not true. The O.Ps. very easually, and negligently conducted the sonogrophy tests of really the Foetal Spine was normal then there was swelling on the back. Why this is not detected, why they have failed to notice it. If they deligently carefully conducted sonogrophy tests they would have definitely notices this swelling and reported to the complainants about the risk and complainant No.2 got terminated the pregnancy.

19. This is unfortunate that a baby with congenital abnormalities was born to unfortunate parents and child and parents have to suffer throughout their life. But the point is whether there is to be attributed as the negligence of the doctors or not.