ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainants against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service and for negligence in not identifying the down syndrome in respect of the baby complainant No.1 and 2 born to the complainant No.1 and also for practicing unfair trade and to direct OP-1 to refund Rs.1,29,071/- spent for treatment, refund Rs.9,664/- from OP-2 spent towards treatment and medical bills, to refund Rs.1,14,369/- from OP-3 towards the amount spent for treatment and medical bills, Rs.28,832/- being the amount spent at Jayashree Multispecialty hospital to remove the retained product of crape and to direct OP-1, 2 and 3 to pay for causing permanent disability suffered by complainant No.2 the baby, in taking special care, special food, special education, special treatment for care taker, special school for the remaining life of the baby due to the negligence of OPs, by paying monthly Rs.40,000/- from the date of birth till the death of complainant No.2, Rs.12,000/- per month towards care taker expenses for taking care of the baby. Rs.18,000/- per month as school expenses of the baby. Rs.1 crore for pain, physical mental suffering caused due to the deficiency in service and for litigation expenses and cost of the proceedings and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant married to her husband James D’Souza during the month of August 2017, Dr. Nirmala working with OP-1’s hospital being managed by OP-2 Hebri Sudarshan Ballal. OP-3 is the doctor working in Kids Clinic India Pvt. Ltd., Jayanagar, Bangalore also known as Cloudnine Hospital. Which was solemnized with her husband James D’Souza, she was unable to conceive due to her husband staying away in Dubai.

3.     She decided to undergo Intra uterine insemination (IEU) procedure and consulted OP-2-s hospital who inturn directed her to meet OP-1 Dr.Nirmala for consultation.  The doctor was informed by the complainant the important facts i.e. her age previous medical history her husband’s medical history and his family history relating to genetic issues before undergoing initial screening for the procedure. She underwent a few blood test, and x-ray with Ragav’s Diagnostic and Research Pvt. Ltd Bangalore and report was shared with the doctor. The pholicular maturations studies also started on 09.02.2019 and continued till 22.06.2019 which included scanning medication depending on the growth of the egg.  Her husband who was in Dubai also underwent some test as instructed by Doctor Nirmala.  She also prescribed some medicine for a period of 5 days to him and asked him to visit OP-1 in the month of March 2019 to submit semen sample which are to be frozen and stored for the future IEU procedure.

4.     On 12.04.2019 the IEU procure was performed but was not successful. Again on 07.06.2019, the same was performed for the 2^nd time which ended in a positive result and she conceived and on 22.06.2019 the same was confirmed by the pregnancy test conducted at her home with rapid kit on the advice of Dr.Nirmala. She visited OP-1 to submit blood sample for HCG test to get confirmed the pregnancy and the reports confirmed the same.  She was advised by OP-1 to undergo early pregnancy scan on 09.07.2019 and again on 23.07.2019 and the same was conducted and the report was “no complication with the pregnancy.”  Again on 13.08.2019 she visited OP-1 for her first trimester scan wherein the doctor would measure the fetus nasal bone size, to determine the risk of down syndrome.  The result of the scan came out as 3076/- and 10,255/- on which doctor opined and informed complainant No.1 that the fetus is normal. Again on 16.08.2019 the sample was taken for double marker (NT Test) which is another test to indicate and detect the chances the fetus having down Syndrome Again OP-1 ensured that the risk of down syndrome is less and there is no possible signs for the same.  She was again referred to OP-2  Hospital Jayanagar for her further treatment for her further pregnancy and doctor Meena Muttaiah was treating her from 24.08.2019. Due to unusual pain in the uterus she had to rush to the hospital at Jayanagar and she was kept under observation where again blood samples were taken for the tests and the heart rate of the fetus was examined simultaneously and she was asked to come on next day. She visited hospital on 14.09.2019 and was told that her Hg level has dropped to 8.50 which was very low. Again blood sample was taken on the same day for further investigation and the finding reflected that the Hemoglobin level was 10.10. The earlier test for error. She was advised to take folic acid tablets.

5.     OP-2 staffs were not duty bound to and there is lack of professionalism by them. Hence she lost faith in OP-2 hospital and wanted to change the hospital for further treatment.  She shifted to Dr.Poornima Murthy on 05.10.2019 for further treatment with all her previous reports relating to IEU procedure, history of her in-laws to be sure that her fetus is health and does not carry any adverse genetic condition. Dr.Poonima Murthy of OP-3 hospital suggested her to undergo anomaly scan/second trimester scan which was performed on 09.10.2019 by Dr. Sureka Maragoli and after going through the scan report Dr. Poornima Murthy confirmed that the fetus was normal and has not deformity which gave the complainant as sense of satisfaction. She used to give regular visit to Dr.Poonima Murthy on 06.11.2019, 01.12.2019, 08.12.2019, 22.12.2019, 24.12.2019 02.01.2020 for the purpose of checking the heartbeat of the baby in the womb. The doctor ensured that the baby is healthy and normal even though complainant raised concern that baby not kicking often and movement of the baby was rare and slow for which Dr.Poonima Murthy ignored such concern and asked her to come on 11.01.2020. ON that day they performed ultra sound scanning by Dr. Surekah and the doctor the blood flow to the bay was low and to get admitted to the hospital for 2 dozes of steroid injection to increase baby’s lung development as it might develop any further complication.  She was admitted for two days and later discharged on the ground that the blood flow had reached normal level.  On 03.02.2020 Dr.Surekha examined her for third trimester scan and found no complication and immediately after five minutes called the complainant stating that she might have seen restricted blood flow to baby and wanted to confirm the same by repeating the scan. Even in the repeated scan, there was no abnormality found and informed that nothing to be bothered.

6.     The next dated was given and examined on 10.02.2020. Dr. Poornima advised her for an early delivery in 38th week of her pregnancy but not disclosed the reason of such decision. At that time also, there was no much movement of the baby in the womb. Doctor advised for NST test whereby doctor once again observed that the baby was absolutely fine. Then she was admitted on 16.02.2020 for delivery on the advise of Dr.Poornima and cesarean section was performed at 07.30 am on 17.02.2020 and she delivered a female baby.

7.     The doctor wokup the complainant in the middle of the operation to enquire regarding the NST report which was kept in the ward room. The doctor rushed to the ward and took the report which made the complainant completely left in the hands of junior doctor without any supervisor to stitch. Dr Poornima Murthy was seem to be worried while going through the report and informed the relatives and mother of the complainant that both mother and baby were healthy. They were shifted NICU where doctor Girish a pediatrician visited the complainant and informed that the baby was fine and blood sample would be sent for Kyro Typing as the baby had several feature indicating symptoms of Down Syndrome.  After the complainant was shifted to the ward Dr.Girish visited again and informed clearly that the baby has feature such as Eyes slanting upwards, very small mouth two little fingure on both the hands, bigger toe had huge gap, nasal bone was pressed in low muscle tone and mentioned that these symptoms should have been diagnosed in NST scan and features should have been detected in anomaly/2^nd trimester scan.  This news devastated the mother i.e. complainant on 22.02.2020 complainant visited OP-2 to collect Kanyotyping result and to her utter shock the said result showed positive for down Syndrome Tryzomy 21. Further Dr.Girish informed that the baby may have heart defects in the heart, respiratory infection, breathing complications, issue relating to the speech and hearing, delayed mental development and physical developed might not have menstrual cycle because of which may not be able to conceive and enjoy the women hood. This completely shattered demonstrated and shocking to learn as a mother that first child not be able to lead an independent life.

8.     Dr. Poornima Murthy advised complainant that after delivery no more visit necessary if the stiches were intact, and even forgot to advise that even after learning that the new born baby was her first child, about the bleeding post pregnancy in normal situation. As a result, complainant was unaware and the bleeding continued for more than 2 months with severe abdominal and back pain which made here to lose confidence in OP-3 and due to COVID situation she was forced to consult a doctor via practo, online platform for virtual medical consultation.  Again she consulted Dr.Poornima Murthy on 25.04.2020 who advised her not to go for D and E but prescribed tablets Meftal and Meprate by texting the message, and advised if the bleeding is heavy for few more days, and if does not stop then dilation and evacuation procedure could be thought of. Complainant consulted Dr.Ambika from Jayashree Multi Speciality hospital with all reports.

9.     D and E was performed in Jayashree hospital on 27.04.2020 for which she had to leave the 2 months baby in the home alone and the procedure was extremely painful.  The particles were sent to biopsy and the result reflected the particles as D generated products of conception. She was prescribed calcium and iron tablets due to prolonged pregnancy bleeding. She had to spent Rs.4,92,572/- towards medical expenses. Her wish was to have a child and wanted to live happily with her husband. In future she had to go through physical pain due to consecutive operations.  Most important and emotional event in the life of a couple is to have a child which is always joys occasion when the family a newly born arrival. Whereas the birth of the female child due to down syndrome has become depressing, disheartening and she is always under worry which has severely affected her husband and family members. 

10.   She conceived through artificial procedure after long time of marriage and it was a precious pregnancy for the couples but they have to suffer mental grief since the birth of the complainant No.1 to as even though the several tests that were conducted could not detect the down syndrome and the baby has to suffer throughout her life, and has to undergo many medical issues. Even the baby is unable to suck breast milk due to low muscle tone as a result she would be on formula food (Neocate special formula) cost Rs.3,300 for 400 grams.  She had to take the baby to Rainbow hospital due to acute breathing problem which is one of the several symptoms of down syndrome.  The baby to be continued with special food, to arrange for a special school, need therapies and depend on someone else throughout her life. 

11.   The baby acquired severe deformities which are of permanent in nature solely due to the consequence of failure of medical professional to take proper care to treat the complainant which could have been easily avoided with the standard treatment and advise maintained by the doctors of OPs.  There is negligence on the part of OPs and hospital has to be held vicariously.  Though OPs were equipped with qualified professional doctors in the field of medicine, have failed to prescribe most important mandate of Tripple marker test for a fetus growing in the womb when the complainant was above 30 years of age, to identify the feature of the down syndrome at an early stage, even after complainant repeatedly mentioned the family history of her husband during consultation, this indicates the motive of OPs to count the money in the counting machines and not providing proper care. 

12.   She did not get proper advise and assistance from OPs and made her life worry some as the baby was having down syndrome which was not at all detected by OPs 1 ,2 and 3. Who are vested with duty to care, breach of which has made the life of complainant No.1 worrisome for giving birth to such a differently abled  female child which is a proximate and direct result of sheer negligence and severe damage is cause to the complainant No.1 and 2 that is irreversible and non-compensable. The complainant no.2 is suffering from down syndrome, several deformities and permanent deformities only and solely because of negligence on the part of OPs, who  did not feel bounden by their duty to interpret the reports to address various concerns which were raised by the complainant No.1 in every check-up before  the delivery and hence clearly shows the failure of the Ops to render qualifies advice and assistance in care and treatment in this case.

13.   OPs are clearly guilty of deficiency of  services, negligence  and malpractices in the particulars. Failing to advise and provide treatment to the complainant nO.1 in accordance with the standard of care for physicians specializing in obstetrics and gynecology; also failed to follow guidelines laid down by ICOG FOGSI Recommendations for a good clinical practice routine for antenatal care for healthy pregnant women, failed to diagnose down syndrome in NT scan and features for any anomaly, Failed to recommend Triple marker test which gives a higher chance of detecting down syndrome which is a mandate when the patient is above 30 years of age with family history of anomaly. Failed to communicate the symptoms of down syndrome in embryo in spite of conducting NT scan that clearly indicated symptoms associated with the down syndrome, failed to perform a thorough examination of the complainant  No.1 and gave  and gave no special attention to the down syndrome which existed in excess throughout the period of pregnancy, failed to detect abnormalities in the fetus via anomaly scan despite repeated concerns raised by the complainant No.1 abut no movement or rare movement in fetus, failed to take proper care in discharging the complainant No.1 post delivery as a result of which another procedure, D&E  was done to stop the unnatural blood flow, failed to remove the residue and fluid remains with care during the labour procedure which are meant to be cleaned out of the uterus, failed and were negligent to draft, promulgate, adopt, implement, and/or enforce appropriate  rules, regulations, policies, procedures and orders which should have result in the appropriate and timely treatment of complainant No.1 and 2, as alleged and set forth above, all of which could have been accomplished.

14.   Due to the negligent act of OPs the child is unable to live as a normal child with normal activities and has to depend on someone else during her entire life.  She had to undergo extensive medical care and treatment which requires huge amount of expenses.  Which is not only limited to special food therapy nurses physicians hospitals and medicines and also require devices to assist her to take care of the child. OPs-1, 2 and 3 have deprived her from normal enjoyment of life whereas she has to suffer humiliation, embarrassment, frustration, mental emotional anxiety. The baby has to suffer for her whole life due to disability, disfigurement, diminishing of earning capacity. Hence left with no other alternative, she had to issue legal notice to the OPs seeking compensation. Though served has been replied with untenable contents by denying the allegations and she had spent Rs.2,81,936/- towards treatment of the baby. Hence prayed the commission to allow the complaint.

15.   Upon issuance of notice, OP-1, 2 and 3 appeared before the forum and filed their respective versions.

16.   In the version filed by OP-1 it is contended that the complaint is not maintainable either in law or on facts, she is a registered medical practitioner well qualified skilled competent in profession with long year of experience so also the management.  It is contended that, the complainant No.1 received best of medical care and treatment from OP-1. No instance of negligence, deficiency in service or violation of code of conduct of medical ethics in treating and caring the complainant No.1 as a patient. The allegation made against her in respect of the above are all false worth discarding. 

17.   OP is not aware regarding the personal knowledge of the events of her marriage.  Complainant No.1 approached OP-1 on 19.01.2019 through the reference by Dr. Meena Muttaiah for management of infertility.  At that time, complainant No.1 was of 33 years, with a history of married life of 1.5 years, trying to conceive since marriage and primary infertility. She was having irregular menstrual cycle as per her statement and was also diagnosed to have polycystic overy syndrome in 2017 and had taken treatment.  She was also taking tablet ‘Letrozole’ a ovulation induction agent in October 2018 and timed Sexual activity without any USG monitoring of egg growth which failed.  She did not give any histories, medical disorders surgeries in the past nor about any addictive habits. She gave the history of her mother having diabetes and having been long medical management. Her husband was living in Dubai visiting her once in three or four months.

18.   Dr.Meena Muttaiah referred the complainant for intra uterine inasamantion (IUI) during husband’s visit which was to be in March 2019. She also disclosed that she was on medication Metital for PCOS and Folic Acid, Tab Thyronorm 25 Mg for Hyperthyroidism  and Tab Caberilin 0.25 Mg once weekly for six weeks to reduce her prolactin (milk protein levels). Since the husband of the complainant not reported to Dr. Nirmala, (OP-1) his history was derived from the patient at first instance.  Accordingly to her husband had no previous medical or surgical history, occasionally consuming alcohol, no allergies. Her father in law was having throat cancer and no family history of genetic diseases was revealed and denied as false and baseless the claim of the complainant that she had disclosed her husband’s family relating genetic issues and genetic abnormalities. 

19.   When specifically asked for genetic abnormalities in her husband’s family with quoted examples the patient said there was none. Hence OP-1 has no reason to disbelieve her.  The semen analysis of the husband of the complainant was done at Dubai and the report was shown to her. She chose to undergo IUI during the month of March 2019 as her husband was expected to be in India for 3 weeks. She was administered oral contraceptive pills to time her mensural cycle during his availability and also advised to continue the same medication that she was previously taking and to loose some body eight. 

20.   On 18.03.2019 husband of the complainant James Melwin D Souza aged 40 years visited OP and advised 4 days of abstinence as advised for semen analysis and semen freezing.  His family history, course of events, previous diagnostic reports as shared by the patient was confirmed by him in person and the same corroborated with patients earlier version.  His previous diagnostic report, were studies and confirm by him. OP-1 after clearing all her doubts regarding the details, the physical health of the complainant husband a detailed counseling session with him including history of genetic disease as required by law was informed and obtained consent as required under law. He underwent elaborate process of semen freezing on 18.03.2019, 21.03.2019 and on 28.03.2019 for the IUI procedure. The semen count and other parameters were in the acceptable range.

21.   On 02.04.2019 complainant reported with history of menses on previous day. Accordingly ovulation induction was started from day 3 ie. 03.04.2019 and she recruited one egg on the right ovary. IUI was done on two consecutive days on i.e. on 11.04.2019 and 12.04.2019 with processed semen. Unfortunately the cycle result was failure as complainant did not release the egg from the ovary.  Subsequent to this cycle, patient reported again on day 3 of menses during the next cycle i.e. on 25.03.2019. Again overlation induction was done on the left overy. Single IUI with frozen sperm and planned and done as egg got released. She conceived in the cycle as confirmed by the urine pregnancy test. Positive result on 22.06.2019. The same was confirmed by transvaginal ultrasound on 09.07.2019 wherein 6+6 weeks live intrauterine pregnancy was detected. Considering her LMP on 21.05.2019, by date she was exactly 7 weeks of pregnant. The second grown viability TVSUSG was done on 23.07.2019 by dates also 9 weeks and single live uterine pregnancy of 9 weeks was confirmed. 

23.   On 13.08.2019 by that date, complainant No.1 was of 12 weeks pregnancy and reported for NT/NTD (Nuehal Translucency/Neutube Defects) Crown lum length measurement of NT met the criteria 54 milimeter, plecenta low lying NT was 1.1 MM and nasal bone was 2 mm. Both these are normal findings. Doppler of uterine artery was negative for further development of pregnancy induced hypertension. The routine 1^st trimester screening for genetic disorder was asked by double marker test on the same day i.e. 13.08.2019, which was done with “new burg supra teck reference laboratory” which is a separate legal entity and report received were found to be normal.

24.     The patient was again referred to Dr.Meena Muttaih at Manipal hospital with a reference letter by OP-1 by 13.08.2019 for obstetric management. Afterwards from OP-1 had no occasion to meet the patient.  In view of this, there is limited role of OP-1 and her team which exercised their task with due diligence and also followed evidence based protocol and any recommendation for further diagnostic tests, would be liable to be unnecessarily and unethical. 

25.   Frist trimester screening tests like double  marker test is a standard tool commonly used in obstetric practice to detect genetic disorders, however it is important to remember that it is only a statistical analysis and not a confirmatory test. A negative result does not always rule out fetal defects and even in a positive test, fetus may be normal, meaning that there could be false positive and false negative results. A test per se has a 5% false positive rate and a detection rate of 80% only. That is why other USG markers like nasal bone, NT, CRL are added to increase the detecting rate up to 95%. According to medical literature, age related risk was 1 in 523 for down’s syndrome, but according to the NT scan, risk was 1 in 3076 and combined NT and Nasal bone 1 in 10255. The graph of double marker showed a combined risk of 1:300 which is below their cut off of 1:270 hence no recommendation of further testing was made even by the diagnostic laboratory. 

26.   The allegations made against OP-1 are false and misconceived. The patient was not of advanced maternal age. The patient and her husband did not give history or family history or disclose such other facts warranting counseling in terms of higher parental genetic interventions. Despite this, first trimester screening was done by way of abundant caution to rule out genetic abnormalities. Both the lab reports and scan reports combined did not indicate need for higher parental genetic interventions. The report of Nasal bone and Nuchal Thickness/Nuchal Translucency scan (NT) done in the first trimester did not offer clues to suspect down’s syndrome. A triple marker test is done between the 16^th and the 18^th week of pregnancy during which period, the patient was under the care of the treating obstetrician.

27.   OP-1 denied all the allegation of negligence, misconduct deficiency of service and violation of the code of medical ethics alleged in the complaint as false baseless and misconceived.  Inspite of it, the complainant has preferred this complaint which is a frivolous litigation. The complaint is liable to be dismissed for non-joinder of necessary parties as husband of 1^st complainant being property has not been arrayed as a party and hence the same is liable to be dismissed and also for misjoinder of parties and the claim made by the complainant is unjustifiable. OP-1 is not liable to pay any compensation, any costs, or any of the reliefs claimed by the complainant and prayed the commission to dismiss the complaint.

28.   In the version filed by OP-2, it is contended that the complaint is not maintainable on the ground of mis-joinder of necessary party and that OP-2 is not at all involved in neither treating the complainant nor investigations. No specific allegations have been made against OP-2. No reasons has been assigned to make them as OP-2.   No treatment was given either by Manipal hospital at HAL Airport Road or in the Whitefield. The complaint filed against it is totally misconceived.  It is submitted that the complainant No.1 approached and consulted Dr. Meena Muttaiah at Malathi Manipal hospital, Jayanagar, Bangalore on 14.09.2019 on OPD basis and further blood samples were taken on 23.09.2019 for investigation. The other claims raised by the complainant including the potential error in testing have been denied. Complainant is not entitle for any of the reliefs claimed in the complaint. Whatever the diagnosis and tests conducted in the OP-2 hospital was in accordance with the medical protocol and there is no negligence or deficiency of service and prayed the commission to dismiss the complaint.

29.   In the version filed by OP-3, it is contended that the complaint is not maintainable for non-joinder of necessary parties making unlawful claims to harass the OP and for unlawful gain. Complainant herself gave relevant information and some substantial erroneous information, and consequently has filed this complaint. OP has not committed any breach of duty, negligence and there is no damage caused to the complainant.  OP-3 do not know the solemnization of the marriage and do not know about the relationship with complainant and her husband and also the genetic issues and abnormalities of the complainant husband’s family.  She has denied that the complainant has disclosed also minute details of genetic history to her. Whereas, she approached OP-3 for consultation i.e. Dr.Poornima Murthy of OP-3 on 05.10.2019 when she was running 20 week of pregnancy. After which, anomaly scan was done and report was normal a. Hence there was no necessary for further investigation/test. Complainant consulted OP-03 Dr. Poornima Murthy when She was running pregnancy of 24 weeks, 27 week, 28, 30, 30 weeks 2days and 31 week 2 days. On all these occasions she was examined and found everything was normal. SOP on all occasion, the height of uterus and heartbeat were checked. Only if any abnormality was found, then further investigation would be done. The symptoms of reduced movement of the baby in the womb is not a symptom of down syndrome at all.

30.   At any rate complainant approached OP belatedly and the doctors could not have helped regarding the down syndrome.  It is once again denied that complainant informed them regarding genetic disorder in the family of her husband. As per the records available and informed by the doctor routine scan was done on 11.01.2020 which revealed the featel growth restricted with reduced flow to the baby. In view of the same, complainant was admitted to the hospital and SOP was carried and steroid administered for lungs maturity and afterwards, complainant became normal and discharged. Again on 10.02.2020 complainant approached the doctor and she explained to her that she needs an early delivery, due to the indication that fetal growth restriction with reduced flow to the fetus.  Complainant No.1 accompanied by her mother and readily agreed for delivery. The notice issued by the complainant making false allegations have been replied properly. 

32.   It is contended further that, complainant consulted Dr.Poornima Murthy for the very first time when she was running pregnancy of 20^th week i.e. during 1^st week of October 2019. By that time, the screening for down syndrome already over.  The hospital could not have detected the down syndrome owing to the negligence of the complainant in not consulting doctor at the very inception of the pregnancy.  Complainant No.1 has falsely alleged that she was with care and treatment Dr. Poornima Murthy during pregnancy till the end.  It has denied that Dr. Poornima Murthy has given confirmation that the fetus is free from abnormalities, as doctor has lost opportunity of giving any confirmation as the window for the scanning was already over. 

33.   It has denied that the treating doctor gave assurance or confirmation that the fetus is free from problems or that it is absolutely fine and  complainant No.1 was left with junior doctor and Dr.Poornima Murthy became nervous while going through the report and did not follow up the complainant-1 and 2 for the whole day after delivery.  From 19.02.2020 onwards, complainant did not approach OP doctor inspite of the doctor calling the complainant No.1 to come to the hospital. She on one or the other pretext, abstained from meeting Dr.Poornima Murthy. Immediately after delivery cesarean Section, the uterine cavity was cleaned to take out plasenta and membrane as is routinely done during the surgery. The same was inspected for any missing cotilengde and its membrane and were found to be complete. The allegation regarding post pregnancy bleeding or any post pregnancy complications not discussed are all false.  The same was not mentioned in the legal notice issued on 05.06.2020. 

34.   When complainant No.1 called over the phone on 25.04.2020 she asked to meet her in the hospital whereas she did not do so.  OP-3 has also denied that she did not give instructions as to when to come to the hospital regarding removing the stitch and about the duration of the bleeding post pregnancy. The complainant is to strict prove the allegations.  Complainant No.1 did not come for any post natal checkup for two months. After the scan doctor suggested complainant No.1 to consult beta HCG report but she did not turn up for the checkup. Denying all other allegations made in each and every para of the complaint contended that there is no negligence on its part can be attributed and that Dr. Poornima Murthy performed her duties and exercised profession skills and hence cannot be held guilty of nay negligence, and with ulterior motive and to harass the OPs, has filed this complaint seeking whimsical and fanciful demand for compensation. They are not liable to pay compensation and hence prayed the commission to dismiss the same.

35.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainants have proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainants are entitled to the relief prayed for in the complaint?

36.   Our answers to the above points are:-

POINT NO.1 & 2 :    IN THE NEGATIVE.

                                For the following.

REASONS

POINT No.1 & 2:-

37.   On perusing the complaint, version, documents, evidence filed by both parties, it becomes clear that, the complainant No.1 took the services of OP-1 for Intra Uterine Insemination which became successful in the second attempt and the complainant became pregnant/conceived.  The required tests were carried out under the instructions of OP-1’s Dr. Nirmala immediately after knowing that the complainant has conceived.

38.   It is also in the complaint itself that, complainant No.1 visited OP-1 and 1^st trimester scan was done wherein the doctor measured the fetus, nasal bone, size to determine the risk factor for down syndrome. As per the test report of the scan, it is one in 3076 and one in 10255 and depending on the said report the doctor informed the complainant that the fetus is normal. Again the double marker test (NT) was conducted to know about the down syndrome, for which samples were taken and as per the test report the risk factor for down syndrome was too low and there was no positive sign for the down syndrome.  This test report is dated 16.08.2019. When this aspect is taken into consideration, Dr.Nirmala has taken all proper, possible care and caution with due diligence to find out the risk of down syndrome.  When the test results are negative for the down syndrome, it is quite but natural for any doctor that too the experienced, expert doctor like Dr. Nirmala not to refer for further investigation to know about the down syndrome in respect of the baby. If at all there was any doubt in the mind of the doctor Nirmala regarding presence of down syndrome in the fetus, or, the report suggest to that extent, she would have naturally, definitely and ought to have, referred the patient for higher level of test in detecting the down syndrome. When she was not at all having any iota of doubt in her mind and also the report were not in favour of down syndrome, she acted vigilantly, consciously and dutifully in not referring for a higher tests.  When such being the case, this commission cannot find fault, or any negligence / deficiency in service or deviation from the standard protocol by Dr. Nirmala. 

39.   In respect of the 2^nd OP, it is a hospital wherein, the complainant has not gone  for any treatment whereas she might have gone to give blood samples for the test to be conducted upon the prescription of the doctor. Hence complainant has failed to prove the  negligence on the part of OP-2.

40.   Coming to the alleged negligence by OP-3 by the complainant, we have to observe here that the complainant went to Dr. Poornima Murthy a consultant in working with  OP-3 for the first time on 05.10.2019 when she was undergoing 20^th week of pregnancy. As per the medical protocol she (complainant No.1) was subjected to anomaly scan and as per the report of the scan the fetus was normal and there was no necessity for any further scan as per the doctor’s opinion. Complainant went to the doctor when she was of the pregnancy of 24 weeks, 27 weeks, 28 weeks, 30 weeks 31 weeks 2 days for checkup and on all these days, as per the medical report, there was no abnormality mentioned in the reports and the doctor Poornima Murthy examined the complainant and found everything normal and as per the standard operating procedure they measured the  height of the uterus and checked heart beat. Since there was no anomaly found and abnormality found she was not referred for further tests particularly for down syndrome.  It is her evidence that, the symptoms of reduced movement of the fetus in the womb is not at all a sign for a down syndrome. Further the approach of the complainant to her i.e. on 05.10.2019 when she was undergoing 20^th  week of pregnancy, doctor could not have helped the complainant regarding the down syndrome as it was too late.

41.   Further she was not at all informed regarding the genetic abnormalities of her husband’s family. Since on 11.01.2020, when the routine scan was done, it was found that there was growth restriction of the fetus with reduced flow to the baby and she was administered with steroids to enhance the lungs capacity/maturity of the baby and discharged from the hospital. 

42.   Even the early pregnancy scan report Ex P3 mentions that single live intra uterine gestations corresponding to gestational age of six weeks six days.  Review after two weeks.  In Ex P1, the case sheet,  there is no mentioned of the genetical factors either of the complainant or of the husband. It is mention that husband not attended OPD, works in Dubai, No smoking, alcohol occasional , past surgery, allergy, Sexual no, Family history father throat cancer, Semen analysis done in Dubai. No report available was told to be normal.  Apart from this, no genetical disorder information either in respect of the complainant or husband or of their families have been mentioned in the case history.  Ex P3(d) is the “New Burg Supra Teck reference laboratory”  report dated 16.08.2019 reads as:-

“DOUBLE MARKER

Pregnancy Associated plasma 1.41   mlU/ml

Protein-A

Free Beta HCG                      H 132                   NG/ML 0 -2

(CLIA)

DOUBLE MARKER

Maternal serum screening has historically been used in obstetric care to identity pregnancies that may have an increased risk for certain birth defects, such as Down Syndrome and trisomy 18, Screening in the second trimester has been available in some version(eg. Alpha fetoproteies (AFP) test, Triple screen (Beta HCG, AFP & ostraiol) Quad screen) for decades, Screening in the first trimester became an established alternative over the last decade.

      If the risk form the first trimester is below the established cutoff, an additional serum specine is drawn in the second trimester is combines and a report is issued. If results are positive, the patient is typically offered counseling and diagnostic testing (i.e. amniocentesis).

USEFUL FOR

Prenatal Screening for down syndrome,

Down Syndrome:

Sequential Maternal Screening, Part 2, Serum results are negative when the calculated risk is below 1/270 (0.37%). Negative results mean that the risk is less than the established cutoff: they do not guarantee the absence of Down syndrome.

Results are positive when the risk is greater than the established cutoff ( or =1/270 in Sequential Maternal Screening, Part 2, serum ) Positive results are not diagnostic.

When both sequential maternal Screening Part 1 and Part 2 are performed with a screen cutoff of 1/270, the combination of maternal age, nuchal translucency (NT), pregnancy associated  plasma protein A (PAPP-A) AFP, unconjugated estriol (uE3), human chorionic gonadotropin (hCG), and inhibin A has an overall detection reate of approximately 90% with a false positive rate of approximately 3% to 4%. In practice, both the detection rate and false positive rate vary with maternal age.

Follow-up.

Verity that all information used in the risk calculation is correct (maternal date of birth, gestational dating, etc). If any information is erroneous, contact the laboratory for a revision.

Screen negative results typically do not warrant further evaluation.”

43.   Further  the said scan report in respect of trisomy mentions that age risk is 1:298, bio chemical T 21 risk 1:50, combined trisomy 1:300 and trisomy 13:18 +NT 1:10000, which represents a low risk for down syndrome. When this is the report in respect of double mark test, there was no occasion for the doctor to come to the conclusion or to suspect down syndrome in the fetus so as to refer the matter for further investigation of a higher level or triple . When such being the case, the doctors who have treated the complainant i.e. OP-1 and 3 cannot be held responsible for any of their negligence is not suspecting and identifying down syndrome in the fetus/baby. 

44.   Even in Ex.R1 the case sheet pertaining to the husband of the complainant, do not reveal the genetical disorder in his family so that the doctor could have taken more care and caution.  Though all said and done and lot of scientifical and medical advancement in the field of obstetrics and gynecology, it is to be considered that the doctors are not gods. Ultimately, there is one hand that controls all the universe. Whether one can call it as a god or a super power which draws the destination of each and every one.  Unfortunately it is the misfortune of the complainant to have delivered a baby with down syndrome for which we express our sympathy. Though the baby has to suffer all along with the effect of down syndrome and complainant No.1 has to take care of the said baby, we are of the opinion that it is not due to the negligence of either of the doctors or of the hospital., Hence we answer POINT NO.1 IN THE NEGATIVE  holding that no sufficient evidence has been placed before us to come to the conclusion that there is negligence, dereliction of duty, deficiency of service on the part of OPs-1 to 3.

45.   The counsel for the complainant has relied on several decisions and medical journals regarding the point of how down syndrome to be detected. Since the complainant has failed to prove negligence on the part of OPs 1 to 3 we are of the firm opinion that the said decisions and journals are no way  helpful to the complainant and for us to come to the conclusion that there is negligence, dereliction of duty, deficiency of service on the part OP-1 to 3. Hence we answer POINT NO.2 ALSO IN THE NEGATIVE and pass the following:

ORDER

1. The complaint is hereby dismissed. No order as to cost.

2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 14^th day of MARCH 2022)

MEMBER                 MEMBER                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the First Visit consultation sheet.

Ex P2: Copy of the Follicular Maturation studies dt:09.02.2019 and 22.06.2019.

Ex. P3: Copy of the  Scan reports

Ex P4: Copy of the photos of complainant No.2.

Ex P5: Copy of Jayashree Hospital Discharge summary dt: 27.04.2020

Ex P6: Copy of Biopsy Test report dt:04.05.2020

Ex P7 : Copy of list of medical expenses from 19.03.2019 to 14.05.2020

Ex P8: Copy of the legal notice dt: 20.08.2020 & 17.09.2020

Ex P9: Postal acknowledgment.

Ex P10: Reply to the legal notice from Manipal Hospital dt:11.09.2020.

Ex P11: Reply to the legal notice from M/s Kids Clinic India Pvt. Ltd. Dt: 14.09.2020.

Ex P12: Reply to the legal notice from M/s Centre of Human Reproduction & Bioscience Pvt. Ltd., dt:17.10.2020.

Ex P13: Certificate u/s 65/B of the Indian Evidence Act.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Dr. Nirmala, Managing Director of OP-1.

RW-2: Sri Nishanth Santhipal, Legal Executive Officer of OP-2.

RW-3: Hanumathagouda, Authorized signatory of OP-3.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the History of chart sheet.

Ex R2: Copy of the Semen processing work sheet

Ex R3: Copy of the letter received from supratech, micros patch laboratory.

Ex R4: Certificate u/s 65B of the Indian Evidence Act

Ex R5: Copy of the legal notice.

Ex R6: Copy of reply.

Ex R7: Postal acknowledgment

Ex R8: Copy of authorization letter.

MEMBER                 MEMBER                PRESIDENT

RAK*