Karnataka

Bangalore 4th Additional

CC/1664/2016

Sri Manjunath Singh, - Complainant(s)

Versus

Dr. Sujith, Consultant Radiologist and Sonologist, - Opp.Party(s)

27 Feb 2020

ORDER

Complaint Filed on:16.12.2016

Disposed On:27.02.2020

                                                                              

BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

 

 

 

 

27^thDAY OF FEBRUARY 2020

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

 

 

COMPLAINT No.1664/2016

 

 

COMPLAINANTs

1) Sri.Manjunath Singh, S/o E.Sarvan Singh, Aged about 29 years.   2) Smt.Ramya, W/o Manjunath Singh, Aged about 25 years.   3) Baby Poorvik, S/o Manjunath Singh, Aged about 1 year, Represented by Complainant No.1 & 2)   All are R/at No.27, 2nd Main, 11th Cross, B.K Nagar, Yeshwanthpur, Bengaluru – 560 022.       V/s

OPPOSITE PARTies

1) Dr.Sujith J, Consultant Radiologist and Sonologist.   2) Dr.Savitha M, Obstetrician and Gynecologist   3) Mr.Mallikarjuna, Radiologist.   All are doctors working at Suprith Diagnostic Centre, #4/3, 1st Main Road, Yeshwanthpur, Bengaluru – 560022.   4) M/s United India Insurance Company Ltd., DO 9, No.10/4, Mithra Towers, Kasturba Road, Bengaluru - 560 001.   5) M/s. Oriental Insurance Company Ltd., DO 12, Jayalakshmi Mansion, 2nd Floor, Dr.Rajkumar Road, Bengaluru – 560 001.   6) Suprith Diagnostic Centre, #4/3, 1st Main Road, Yeshwanthpur, Bengaluru – 560022.   Represented by Dr.Sujith J.   Advocate for OPs.1, 2, 3 & 6 – Sri.V.K Suresh.   Advocate for OP-4 – Sri.Janardhan Reddy.   Advocate for OP-5 – Sri.C.R Ravishankar.

 

ORDER

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

The complainants have filed this complaintU/s.12 of the Consumer Protection Act, 1986against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to pay a sum of Rs.20,00,000/- towards compensation for the current and future medical expenses of the complainant No.3, mental agony and distress suffered by the complainants and incidental expenses incurred as a result of negligence of OPs and to grant any such relief as this Forum may deem fit.

 

2. The brief allegations made in the complaint are as under:

 

 

Complainant No.1 & 2 are the husband and wife.  Complainant No.3 is their child.  Since complainant No.3 is a minor, he is represented by the complainant No.1 & 2 who are his parents.

 

Complainant No.1 & 2 approached the OP-2 at Suprith Diagnostic Centre during the month of December 2014, as the complainant No.2 had conceived therefore they chose to entrust the pre-natal care of the complainant no.2 and 3 to the hands of OPs as they believed that they were well qualified and well equipped to monitor the development of the fetus and the wellbeing of the complainant No.2 throughout her pregnancy.  Thus with fond hope that the OPs would give the best of their medical services and that the complainant No.2 would deliver the baby in the safe hands of the OP-2.  Complainant No.1 and 2 reposed tremendous trust and accordingly approached the OPs for pre-natal scanning and observation.

 

Complainants further submitted that since December 2014 the OP-2 used to conduct necessary medical checkups and investigations every month on the complainant No.2 and after every monthly checkup used to assure that the fetus was very much normal and that the complainant No.2 was also having good health.  OP-2 also used to refer the complainant No.2 to undergo various scanning, ultrasound etc., tests and the said scanning and ultrasound tests were being done by the OP.1 and 3.  After every such scanning and ultrasound test, OP No.1-3 used to apprise the complainant No.1 and 2 that the baby is growing normally and that there is no any such problem.  OP No.1 and 3 used to send all the test reports to the OP-2 for advice, reviews and comments, who used to see the reports and used to assure the complainant No.1 & 2 that the fetus was growing normally and further she also used to give the necessary instructions and tips to maintain good health till the complainant No.2 reaches full term of pregnancy.

 

Complainants further submitted that complainant No.1 and 2 were very much happy and satisfied with the services rendered by the OPs and were eagerly anticipating the arrival of their child.  During the entire duration of the pregnancy of the complainant No.2, the OPs had at no time made any observation of any defect or anomaly in the development of the fetus or even if they had observed any such anomaly, they have not brought the same to the notice of the complainant No.1 and 2, which they were duty bound to do so.  Such being the situation the complainant gave birth to a male child who is the complainant No.3 name above via caesarian section on 09.08.2015 at Mangal’s Nursing Home, Yeshwanthapur with ‘right foot unfound foot deformity’.  The complainant No.1 & 2 were alarmed and shocked at this as they had been assured on various occasions throughout the pregnancy that the growth of the fetus is normal and there are no defects.  Therefore they immediately confronted the OPs regarding the birth defect of their son.  The OPs were initially speechless but after much persuasion from the complainants, they admitted that they have committed on oversight in evaluating the scanning reports of the complainant No.2 and admitted that the said mistake has occurred due to their negligence.

 

Complainants further submitted that further the OPs directed the complainants to approach Indira Gandhi Children’s Hospital, Sparsh Hospital and Manipal Hospital to rectify the condition of the complainant No.3.  When the complainants approached these hospitals and consulted with Pediatric Orthopedic experts, they opined that the condition that the complainant No.3 was born with cannot be reversed or treated and that he will be permanently disables with respect to his right foot.  Further they recommended that the complainant No.3 should undergo surgery immediately and again after he attains the age of 18 years so as to accommodate the fitting of prosthetic foot on his right leg.  However, none of the expert doctors approached by the complainants have given accurate information regarding the growth and development of the child.

 

Complainants further submitted that though every month complainant No.2 was going for regular medical checkup as advised by the OP-2 and even after various investigations, scanning and ultrasound tests, at no point of time did the OPs inform the complainant No.1 and 2 about the said deformity.  In fact as per the knowledge of complainant No.1 & 2 all the scanning and ultrasound tests that were recommended to be done was with the only objective of learning and knowing the proper growth of the baby in the womb and through the tests that were performed, the OPs were duty-bound to check the development of organs, blood circulation and also the heartbeats and disclose their findings and inferences to the parents-to-be.  That the medical science has so much advanced that through the scanning and ultrasound tests various health issues of the baby could be cured and controlled by giving necessary medications to the baby while it is still in the womb of its mother.  The development of the limbs of a fetus is noticeable even at the 5^th week of pregnancy and by the 8^th week, any abnormality in limb growth is easily discernible to the trained eyes of the Sonologist as well as the Obstetrician.  However, even at 20 weeks, the OPs failed to note the abnormal development of the limb of the complainant No.3 and report this finding to the complainant No.1 and 2, and render necessary medical advice to the complainant No.1 & 2.  After learning about the condition of the fetus, the complainant No.1 and 2 would have been at liberty to continue with the pregnancy or to terminate the same, which is their discretion.  But clandestine on the part of the OPs with their negligence, all the three of them have committed serious medical negligence due to which the complainants have been left in lurch to suffer throughout their lifetime emotionally, personally and financially.  As a result of this failure on the part of the OPs to report abnormal findings to the complainants, the complainant No.1 & 2 have to suffer the agony and anxiety or bringing up a disabled child and the complainant No.3 has to suffer for his entire lifetime as a handicapped person, unable to have a healthy and happy childhood or to participate in most of the physical activities that other children enjoy during their growing years.  In addition to this, the complainants will also incur expenditure on surgery and prosthetics at various points in the life of complainant No.3.  Thus due to the sheer negligence of the OPs, the entire family of the complainants has to suffer mentally and monetarily for their entire lifetime.

 

Complainants further submitted that the very purpose of subjecting a pregnant woman to Obstetric Ultrasonography test is to see whether the child in the womb is normal or whether there is any birth defect and if so, to enlighten the parents the possible problem that they have to face and if need be to take requisite steps needed, so as to see that no handicapped or retarded child is born to bring sufferance to the child and to the parents.  If the OPs had pointed about the above said birth defect to the complainant No.1 & 2 at the right time, they would have agreed to medical termination as per the provisions of Medical Termination of Pregnancy Act 1971, which is permissible under law so as to avoid delivering a handicapped baby.  Therefore under law, the OPs are liable to compensate to the complainants, catering to the need of operations purchase of artificial right limb, the special treatment and facility which the child needs to cope up with educational and social interactions and the mental turmoil the complainants have to suffer as also the child after it is grown up.  The complainants initially thought that they may have to incur huge medical expenditure up to Rs.90,00,000/- and as such in this regard the complainant No.1 & 2 through their counsel have sent a demand notice dated 09.12.2015 to the OPs demanding them to make good of a sum of Rs.90,00,000/- towards future medical expenses.  The same was received by the OPs but however they chose not to reply to the same.  However of late, the complainant No.3 underwent a surgery for which they spent around Rs.1,50,000/-.  Hence now the complainant presumes that they might incur not more than Rs.18,00,000/- towards medical care of their son till he attain 18 years of age.  Accordingly they are restricting the claim to Rs.20,00,000/-.

 

Complainants No.1 & 2 have also registered a complaint with the Karnataka Medical Council against the OP No.1 to 3, which is pending enquiry in ENQ/47/2015 before the Karnataka Medical Council (KMC), Bengaluru.  The Karnataka Medical Council had upon registration of the Enquiry, called upon the OPs to give an explanation to the act of medical negligence leveled against them, to which the OPs in their letter dated 25.10.2015, have casually brushed off the severity of their actions by claiming the impairment of the child to be ‘non-lethal’, which is an outrageous contention showing the callousness with which the OPs treat their patients.

 

Complainants further submitted that complainant No.1 & 2 have also registered complaints with the Karnataka State Women and Child Welfare Department as well as the Commissioner of Police, Bengaluru City regarding this act of medical negligence by the OPs.  The said complaint has been referred to the Assistant Commissioner of Police, Bengaluru North Division and the Commissioner, Health and Family Welfare for inquiry by the State Women’s Commission.  The complainant No.3 has undergone surgery for excision of right great toe on 01.04.2016 and the complainants have spent about Rs.1,50,000/- on the hospitalization, surgery and medical expenses of the complainant No.3.  Further the complainant has to spend Rs.50,000/- p.a for the purchase of Prosthetics apart from regular doctor’s consultations.Hence complainant filed this complaint.

 

3. In response to the notice issued, OPs.1 to 3, 6 appeared through their advocate and filed their version.  On behalf of OP-5 Sri.C.R Ravishankar appeared and filed vakalath.  But he did not chose to file version.  The version of OPs.1 to 3 & 6contending in brief as under:

 

OPs.1 to 3& 6 submitted that the complaint is not maintainable for non-joinder of necessary and proper parties.OP-1 Dr.Sujith J is MBBS graduate with Diploma in Radiology Diagnostics and is a Proprietor of Suprith Diagnostic Centre at Yeshwanthpura, Bangalore and he is highly experienced in conducting Ultrasound Scanning.  OP-2 Dr.Savitha M, is a MBBS Graduate with Diploma in Obstetrics and Gynecology and she is having more than 20 years of experience in the field of Obstetrics and Gynecology and OP-3 Dr.Mallikarjun is a MBBS graduate with Masters Degree in Radiology and is having more than 20 years of experience in Ultrasound Scanning and Diagnostics.  Complainant No.2 Mrs.Ramya was treated by OP-2 Dr.Savitha M for antenatal check-up and OP No.1 and 3 have conducted Ultrasound scanning at the Suprith Diagnostic Centre.

 

OPs further submitted that all the anomaly cannot be directed in the Ultrasound Scanning.  The result of the scanning depends on the position of the fetus and time of scanning and as per the records the anomaly in question could not detected as the fetus was in BREACH position.  The anomaly in question is a non-lethal anomaly and hence the patient could not have undergone Medical Termination Pregnancy and it is being a congenital anomaly it cannot be treated during the pregnancy and hence negligence cannot be attributed to any of the OPs.  The anomaly in question is caused not due to any treatment but it is purely an act of god which is beyond the control of the OPs.  The OPs have taken at most care of their patient and they are not negligent in any manner what so ever.  There is no deficiency in service on the part of OPs in treating complainant No.2 and 3. 

 

OP-1 Dr.Sujith J has submitted that he has obtained Professional Indemnity Doctors Policy from United India Insurance Company Ltd., Kasturba Road Branch, Bangalore vide policy No.0723002714P110406637 for the period 24.02.2015 to 23.02.2016 and Suprith Diagnostic Centre was also insured for Professional Indemnity (Medical Establishments) Policy with United India Insurance Company Limited, Kasturba Road Branch, Bangalore vide policy No.072300/46/14/32/00000073 for a period 22.05.2014 to 21.05.2015.  OP-2 Dr.Savitha submitted that she has obtained a Professional Indemnity Doctors Policy from M/s.Oriental Insurance Company Ltd., Bangalore-1 vide policy No.423200/43/2016/270 for the period 02.05.2015 to 01.05.2016 and as such both the insurance companies are necessary and proper parties for the above complaint.  OPs deny the averment that since December 2014, the OP-2 used to conduct necessary medical checkup and investigations every month on the complainant No.2 and after every monthly check up, used to assure that the fetus was much normal and the complainant No.2 was also having good health.  OP-2 also used to refer the complainant No.2 to undergo various scanning, ultrasound etc., tests and the said scanning and ultrasound tests were being done by the OP-1 and 3.  That after every such scanning and ultrasound test, the OP No.2 to 4 used to apprise the complainant No.1 and 2 that the baby is growing normally and that there is no any such problem.  OPs.1 and 3 used to send all the test reports to the OP-2 for advice, reviews and comments, who used to see the reports and used to assure the complainant No.1 & 2 that the fetus was growing normally and further she also used to give necessary instructions and tips to maintain good health till the complainant No.2 reaches full term of pregnancy.

 

OPs further submitted that the complainant No.1 and 2 were alarmed and shocked at his as they had been assured on various occasions throughout the pregnancy that the growth of the fetus is normal and there are no defects and therefore they immediately confronted the OPs regarding the birth defect of their son.  The OPs initially speechless but after much persuasion from the complainants they admitted that they have committed an oversight in evaluating the scanning reports of the complainant No.2 and admitted that the said mistake has occurred due to their negligence.

 

OPs denied that the OPs directed the complainants to approach Indira Gandhi Children’s Hospital, Sparsh Hospital and Manipal Hospital to rectify the condition of complainant No.3.  When the complainant approached these hospitals and consulted with Pediatric Orthopedic experts, they opined that the condition that the complainant No.3 was born with cannot be reversed or treated and that he will be permanently disabled with respect to his right foot.  OPs denies that they recommended that the complainant No.3 should undergo surgery immediately and again after he attains the age of 18 years so as to accommodate the fitting of prosthetic foot on his right leg.  OPs further denies that, none of the expert doctors approached by the complainants have given accurate information regarding the growth and development of the child and the same are not within the knowledge of the OP.

 

OPs further submitted that though the medical science has developed over the years, it has its own limitation.  The Ultrasound scanning procedure also has its own limitation.  All the anomalies cannot be detected through ultrasound scanning procedure.  The Ultrasound scanning done on 05.06.2015 clearly shows that the foetus seen in BREACH presentation and in that position the present anomaly could not detected.  The anomaly in the present case is not a lethal anomaly and as such it is not covered under the provisions of Medical termination of Pregnancy Act 1971 and hence the question of termination of pregnancy does not arise at all.

 

OPs specifically deny the averment that, under law, the OP are liable to compensate to the complainants catering to the need of operations, purchase of artificial right limb, the special treatment and facility which the child needs to cope up with educational and social instructions and the mental turmoil the complainants have to suffer as also the child after it is grown up.  As far as the averment that, the complainant No.3 underwent a surgery for which they spend around Rs.1,50,000/- and now the complainant presumes that they might incur not more than Rs.20,00,000/- towards medical care of their son till he attain 18 years of age are not within the knowledge of the OP and the claim of the complainant is exorbitant, imaginary and has no basis.The complainants have filed a complaint against OPs.1 to 3 before the Karnataka Medical Council and the same is pending before the Karnataka Medical Council.  There is no negligence on the part of OPs.   Rest of the allegations made by the complainants is denied by OPs.  Hence OPs prayed for dismissal of the complaint with exemplary costs.

 

4. In response to the notice issued, OP-4 appeared through their advocate and filed their version contending in brief, as under:

 

OP-4 submitted that the complaint is not sustainable either in law or on facts.  The claim is not maintainable.  The complainant may be called upon to prove that he is entitled to file the complaint, maintain the same as against OP-4, at this stage and on the facts and circumstances of the case before this Forum.  The complaint is totally misconceived and is based on erroneous assumptions of facts and in law while making the complaint.  The policy issued is subject to various terms, conditions, exceptions, limitations thereof.  The present complaint is false, vexatious, frivolous and is aimed to harass the insurer, which is a Public sector Insurance Company Ltd., who is the custodian of Public Funds.

 

OP-4 further submitted that the complaint is not maintainable either in law or on facts.  OP-1 being the insured/policy holder having obtained Professional Indemnity Insurance Policy (Doctors Policy) under Clause 2 relating to “INDEMNITY” the insurer/Respondent No.4 is required to indemnify only to claims arising out of bodily injury and / or death of any patient caused by or alleged to have been caused by error, omissions or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by insured.  Therefore the question of OP-4 being impleaded as a party to the said complaint does not arise for consideration and as such the complainant cannot main a complaint as against OP-4 under the provisions of Consumer Protection Act.

 

OP-4 further submitted that OP-4 had issued a Professional Indemnity-Doctors Policy, vide policy bearing No.072300/46/13/35/00000393 for a period from 24.02.2014 to 23.02.2015 and subsequently renewed for the period from 24.02.2015 to 23.02.2016 vide policy bearing No.0723002714P110406637 and M/s.Suprith Diagnostic Centre obtained professional Indemnity-Doctors policy bearing No.0723002715P112347755 for the period 06.06.2015 to 05.06.2016.  That the policy of the present type i.e., Professional Indemnity Insurance Policy (Doctors) is not issued to meet the requirements of any Statute.  The premium sought is strictly in accordance with the business rule of the insurance company and the instructions issued by IRDA.  The present policy sought by the complainant is one dwelling in the limited contractual area and that there has to be consensus ad-idem.  There has to be mutuality in the matter of consent.  A consent alone would bring about a valid contract.  There is no compulsion for respondents to issue a policy of present type unlike policies issued under Motor policies.  The policy issued is subject to various terms, conditions, exceptions, limitations thereof and in any event and in any view of the matter, legal liability of the insurer, if at all, is governed by the provisions of the policy of insurance issued by the insurer in favour of complainant/insured which is binding on the parties, therefore, due observance of statutory provisions, terms, conditions of contract of insurance is a condition Precedent to admission to any liability.

 

OP-4 further submitted that during the issuance of Professional Indemnity Insurance policy, wherein, as per the pleadings/objections of the OP-1 indicated that the medical treatment so administered to the complainant by the OP-1 at OP-3 Hospital, as “in this context, this respondent submit that as according to the case of the petitioner complainant himself”.  The OP deny the averments in para 6 of the complaint that the OP-2 used to conduct necessary medical check-up and investigations every month on the complainant No.2 and after every monthly check-up, used to assure that the fetus was much normal and the complainant No.2 was also having good health.

 

OP-4 denied that complainant No.1 and 2 were very much happy and satisfied with the services rendered by the OPs and were eagerly anticipating the arrival of their child.  During the entire duration of the pregnancy of the complainant No.2 the OP No.1 to 3 has at no time made any observations of any defect or anomaly in the development of the fetus or even if they had observed any such anomaly, they have not brought the same to the notice of the complainant No.1 and 2 are not within the knowledge of OP-4.  Complainant No.1 and 2 were alarmed and shocked at this case they had been assured on various occasions throughout the pregnancy that the growth of the fetus is normal and there are no defects and therefore, they immediately confronted the OP No.1 to 3 regarding the birth defect of their son and the OPs were initially speechless but after much persuasion from the complainants, they admitted that they have committed an oversight in evaluating the scanning reports of the complainant No.2 and admitted that the said mistake has occurred due to their negligence.

 

OP-4 denied that the OP-1 to are directed the complainants to approach Indira Gandhi Children’s Hospital, Sparsh Hospital and Manipal Hospital to rectify the condition of complainant No.3 and when the complainants approached these hospitals and consulted with Pediatric Orthopedic experts, they opined that the condition that the complainant No.3 was born with cannot be reversed or treated and that he will be permanently disabled with respect to his right foot.  OP-4 deny the averment that, they recommended that the complainant No.3 should undergo surgery immediately and again after he attains the age of 18 years so as to accommodate the fitting of prosthetic foot on his right leg.  OP-4 further denies that, none of the expert doctors approached by the complainants have given accurate information regarding the growth and development of the child and the same are not within the knowledge of the OP-4.

 

OP-4 further submitted that though the medical science has developed over the years, it has its own limitation.  The Ultrasound scanning procedure also has its own limitation.  All the anomalies cannot be detected through ultrasound scanning procedure.  The Ultrasound scanning done on 05.06.2015 clearly shows that the foetus seen in BREACH presentation and in that position the present anomaly could not detected.  The anomaly in the present case is not a lethal anomaly and as such it is not covered under the provisions of Medical Termination of Pregnancy Act 1971 and hence the question of termination of pregnancy does not arise at all.

 

OP-4 deny the averment that, the OP is liable to compensate to the complainants catering to the need of operations, purchase of artificial right limb, the special treatment and facility which the child needs to cope up with educational and social instructions and the mental turmoil the complainants have to suffer as also the child after it is grown up.  As far as the averment that, the complainant No.3 underwent a surgery for which they spent Rs.1,50,000/- and now the complainant presumes that they might incur not more than Rs.20,00,000/- towards medical care of their son till he attain 18 years of age are not within the knowledge of the OP-4 and the claim of the compensation of Rs.20,00,000/- is exorbitant, imaginary and has no basis and as per the terms and conditions of policy this type of claim is not admissible and if Forum passed any awards that has to be paid by the treated Doctors but not OP-4.  The complainants have filed a complaint against OPs.1 to 3 before the Karnataka Medical Council and the same is pending before the KMC until and unless KMC comes to the conclusion that the negligence part of the OPs.1 to 3, OP-4 is not liable to pay the compensation.

 

OP-4 further denied that the complainant No.3 has undergone surgery for excision of right great toe on 01.04.2016 and the complainants have spent about Rs.1,50,000/- on the hospitalization, surgery and medical expenses of the complainant No.3.  The OP deny that the complainants has to spend Rs.50,000/- p.a for the purchase of prosthetics apart from regular Doctor’s consultation.  The alleged cause of action stated in para 17 is invented only for the purpose of the case.  Hence on this ground alone the complaint is liable to be dismissed.  It is strict of the policy and clause No.8.1.

 

8.1 The insured shall give written notice to the company as soon as reasonable practicable of any claim made against the insured (or any specific event or circumstances that may give rise to a claim being made against the insured) and which forms the subject of indemnity under this policy and shall give all such addition, information as the company may require.  Every claim, writ, summons or process and all documents relating to the event shall be forwarded to the Company immediately they are received by the insured.”

 

Thus the complainant had not complied with condition No.8.1 of the policy, wherein, victim was hospitalized and treated by the OP No.1 and 3 at M/s.Suprith Diagnostic Centre.

OP-4 further submitted that OP-4 has issued professional indemnity insurance in favour of OP-1 in respect of legal liability arising if any from the professional work of the said OP-1.  Professional negligence is however not insured.  If there is any negligence, the complainant has to look to the concerned doctor.  The Insurer/OP-4 would step in only if there is any accidental error or mishap in discharge of professional work by the OP-1 and that the liability if any, is as per the terms and conditions of the policy.

 

OP-4 further submitted that the complaint is not maintainable as against OPs.1 to 3 and as well as against OP-4.  OP No.1 to 3 have discharged all their duties and has not been negligent or deficient in any manner, nor there is any allegations so alleged in administering the treatment/surgery by the OP No.1 to 3 and that OP No.1 to 3 has not been negligent or deficient in any manner and has acted as any reasonable and prudent medical practitioner and hence, the complaint as against OPs.1 to 3 and 4 is not maintainable.  However without prejudice to the above contentions OP-4 submits that the OP-4 had issued professional indemnity policy in favour of OP-1 and 3 and that as per clause No.2 in regard to INDEMNITY under the said policy, which is extracted hereunder.  The OP-4 would indemnify to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered, which in fact there is none of this, in so far as the consultation/treatment or surgery so given by OP-1 to 3 to the complainant.

“2. INDEMNITY: The indemnity applied only to claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured or qualified assistants named in the schedule or any nurse or technician employed by the insured (hereinafter referred to as the ACT)

 

OP-4 further submitted that the present policy as per the said clause 2, stated supra is only an indemnity policy issued in respect of claims arising out of bodily injury and/or death of any patient caused by or alleged to have been caused by error, omission or negligence in professional service rendered or which should have been rendered by the insured and that as per clause 8.6 which is extracted hereunder.  The OP-4 is liable to pay to the insured in connection with any claims or series of claims under this policy to which an indemnity limit applies.  OP-4 is not a proper and necessary party to the complaint. 

 

Clause 8.6 The company may at any time pay to the insured in connection with any claims or series of claims under this policy to which an indemnity limit applies the amount of such limit (after deduction of any sums already paid) or any lesser amount for which such claims can be settled and upon such payment being made the Company shall relinquish the conduct and control of and be under no further liability in connection with such claims.”

 

There is no deficiency of service or negligence in service for the reasons explained above.  The complainants will have to pursue their remedy against those responsible for any eventuality if any, as so alleged in the complaint.  Complainant is not entitled any relief as against OP-4.  Hence OP-4 prayed to dismiss the complaint.

 

5. In the course of enquiry into the complaint, the complainant No.1 & 2 and the OPs.1, 3 & 4 have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainants and OPs.1, 2, 3, 4 & 6 have produced certain documents.  Complainants and OP No.1, 2, 3, 4& 6 have produced written arguments.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

6. Based on the above materials, the following points arise for our consideration;  

 

 

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

 

 

2.  What order?

 

7. Our findings on the above points are as under:

 

Point No.1:  Negative

Point No.2:  As per the order below

 

REASONS

 

 

8. Point No.1:-The complainant’s submitted that the complainant No.1 & 2 approached OP-6 hospital for the prenatal care of complainant No.2 with a hope that, the OPs could give best of their medical services.  OP-2 used to conduct a necessary medical check-up and investigation every month on the complainant No.2.

 

9. On 09.08.2015 complainant No.2 gave birth to male child i.e., complainant No.3.  After the birth, the complainant-3/baby had congenital anomaly, right foot was missing.  The complainant-2 alleges that, it is due to the negligence of the doctors has not told anything about the anomaly during the check-up.  The OP-2 advised the complainants to consult Indira Gandhi Institute of Child Health, Hosmat Hospital, Sparsha Hospital and Manipal Hospital to rectify the condition of complainant No.3.  The complainants approached the hospitals and consulted with Pediatric Orthopedic experts.  They opined that the condition of complainant-3 was born with cannot be reversed or treated and that he will be permanently disables with respect to his right foot.

 

10. Due to the negligence on the part of OPs, the complainants made to suffer their life time mentally, personally and financially.  As a result of this failure on the part of the OPs to report the abnormal finding to the complainants 1 & 2 made the complainants to suffer mental agony& anxiety.  In this regard complainant No.1 & 2 have registered a complaint before the Karnataka Medical Council against the OPs.1, 2 & 3 and have also approached the Forum for deficiency in service on the part of the OPs.

 

 

 

11. Admittedly the complainant has filed a complaint against OPs.1, 2 & 3 in ENQ/47/2015 before the Karnataka Medical Council.  Karnataka Medical Council is a statutory authority constituted under Medical Council of India.  The KMC consists of reputed committee of doctors who hear complaint for professional misconduct and negligence.  Accordingly the complainants have given similar set of complaints against the OPs.1 to 3 and the Karnataka Medical Council has passed an order on 02.03.2019, which reads here as under:

 

ORDER

 

After perusal of the affidavits, cross examination, written arguments and documents submitted by both the parties and also expert opinion, Council is of the opinion that “the Right foot unfound foot deformity can be missed on transabdominal sonography in the range of 16 to 20% based on position of limbs, maternal abdominal fat, quantity of liquor and position of fetus”.

 

Hence Respondents (1), (2) and (3) are “EXONERATED”.

 

12. As could be seen from the order the OPs.1, 2 & 3 have exonerated from the charges.  Therefore in light of such exoneration, we concur with the findings given by Karnataka Medical Council in the ENQ/47/2015 before the matter.  The Karnataka Medical Council being expert authority in the subject matter has been an its opinion.  Therefore, in the light of opinion given we don’t find any negligence on the part of OPs.  Hence we answer the point No.1 in the negative.

 

13. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

 

 

 

O R D E R

 

The complaint filed by the complainant is dismissed.  No order as to costs.

         

Supply free copy of this order to both the parties.

 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 27^thday of February 2020)

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

 

 

 

 

 

 

 

 

 

Witnesses examined on behalf of the complainants by way of affidavit:

 

1. Smt.Ramya,
2. Sri.Manjunath Singh

 

 

 

Copies of documents produced on behalf of complainants:

 

Ex-A1 to A6	Copies of ultrasound scans and reports (6 in nos.)
Ex-A7 to A-9	Copies of observation records and hematology reports of complainant No.2 during pregnancy.
Ex-A10	Copy of discharge summary of complainant No.2 dated 12.08.2015.
Ex-A11 to A13	Copy of demand notice along with postal receipts and postal acknowledgments.
Ex-A14	Copy of complaint filed before the Karnataka Medical Council.
Ex-A15 to A-17	Copy of letter dated 02.11.2015 issued by KMC, along with reply of OPs and reply letter dated 09.12.2015 by complainant’s counsel.
Ex-A18 to A-21	Copies complaints registered with the Department of Women and Child Welfare and the Commissioner of Police and letters dated 10.12.2015 by the Karnataka State Women’s Commission, Bengaluru.
Ex-A22 & A23	Copies of out-patient record and consultation record of complainant No.3.
Ex-A24 to A26	Copy of discharge summary of complainant No.3 dated 02.04.2016, in-patient bill dated 05.04.2016 and Prosthetic Order Book extract dated 09.05.2016.
Ex-A27	Copies of Medical Bills and receipts (24 Nos.)
Ex-A28	Copy of Karnataka Medical Council 13th Hearing – KMC/ENQ/No.47 of 2015 date 02.06.2018.
1)	Copy of research papers on the subject of Obstetric Ultrasonography, measurements in the foetal limb bone in the early pregnancy and pre-natal diagnosis for the congenital malformations and genetic disorders which are obtained through the relevant website and links from google and the judgment rendered by National Consumer Disputes Redressal Commission, New Delhi. (CC No.221/2010)

 

Witnesses examined on behalf of the OP-1 by way of affidavit:

 

Dr.Sujith, who being the OP-1.

 

Copies of documents produced on behalf of Opposite Parties.1, 2, 3 & 6:

 

Ex-B1	Copy of professional indemnity policy of Dr.Sujith for 24.02.2014 to 23.02.2015.
Ex-B2	Copy of Professional indemnity policy of Suprith Diagnostic centre for the period 22.05.2014 to 21.05.2015.
Ex-B3	Copy of professional Indemnity policy of Suprith Diagnostic Centre for the period 06.06.2015 to 05.06.2016.
Ex-B4	Copy of professional Indemnity policy of Dr.Savitha for the period 02.05.2014 to 01.05.2015.
Ex-B5	Copy of professional Indemnity policy of Dr.Savitha for the period 02.05.2015 to 01.05.2016.
1)	Copy of order of Karnataka Medical Council, Bangalore dated 02.03.2019.
2)	Copy of authority – (2010) 15 Supreme Court Cases 193
3)	Copy of policy No.0723002714P110406637.
4)	Copy of policy No.0723002715P112347755.
5)	Copy of policy No.423200148/2016/270.

 

Witnesses examined on behalf of the OP-4 by way of affidavit:

 

Tintu Unnikrishnan.

 

Copies of documents produced on behalf of Opposite Party-4:

 

1)	Copy of insurance policy No.0723002715P112347755 issued by United India Insurance Company Ltd.  Insured to M/s.Suprith Diagnotic Centre – Dr.Sujith. for the period 06.06.2015 to 05.06.2016 midnight)

 

 

Copies of documents produced on behalf of Opposite Party-5:

 

1)	Copy of professional indemnity-Doctors policy schedule along with conditions insured in favour of Dr.Savitha M.  The policy covered maximum liability of Rs.5,00,000/-.

 

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT