BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::

KADAPA Y.S.R DISTRICT

PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT

    SMT. K. SIREESHA, B.L., LADY MEMBER

Wednesday, 23^rd December 2015

CONSUMER COMPLAINT No.  32/ 2015

Mrs. N. Ameena, W/o Mallikarjuna,

aged about 25 years, R/o D.No9. 1/1489,

Yerramukkapalli (Post), Kadapa City.                               ….. Complainant.

Vs.

Dr. B. Sreelakshmi, M.B.B.S., D.M.R.D.,

Radiologist and Sonologist, Sree Poornima Scan Center,

Christian Lane, Kadapa City.                                           …..  Respondent.

This complaint coming for final hearing on 15-12-2014 in the presence of Sri Y. Prasad, Advocate for complainant and Sri P.V. Ramana Reddy, Advocate for respondent and  upon perusing the material papers on record, the Forum made the following:-

O R D E R

(Per V.C. Gunnaiah, President),

1.             The complainant filed this complaint under section 12 of Consumer Protection Act 1986 (for short herein after called as C.P. Act) praying this forum to direct the respondent to ₹ 4,50,000/- towards compensation together with interest from 29-9-2014 till realization and to pay ₹ 40,000/- for causing physical strain and mental agony and ₹ 2,000/- towards costs of the complaint.  

2.             The averments of the complaint in brevity are that the complainant has got pregnancy and has been taking treatment at Dr. M. Vijayalakshmi, MBBS, DGO Priya Nursing Home Hospital at Rajampet town, when the complainant was carrying 7^th month pregnancy, her doctor was advised to get scanning from the respondent.  The complainant went to the respondent scanning center on 26-6-2014 to know the status of the baby in the womb.   The respondent advised the complainant that the baby in her womb was perfectly alright and nothing to worry and baby would born with good healthy without defects.  The complainant underwent scanning for three hours.  Finally the complainant has brought birth a male child without right palm in Priya Nursing Home Hospital at Rajampet. By seeing the male baby without right palm the complainant was astonished so also the family members and doctor and staff.  The complainant and family members suffered a lot by seeing the baby without right palm.  They informed the same to the respondent but he simply said that the same was happened by the grace of god and no one was liable.   The respondent can see the position of the baby in the complainant’s womb in between in between 27 – 28 weeks.   The respondent has given in her scanning report that impressing a single line fetus within 27 -28 weeks of gestational age is seen that means it is the deficiency in the service of the respondent.  The respondent started compromise talks through cell phone with the complainant but agreed to pay ₹ 30,000/- and not come forward to pay                     ₹ 1,00,000/- for compensation after issuing legal notice on 29-9-2014, since the baby born without right palm to his hand he cannot lead his life happily as normal boy.    The respondent gave wrong report.  Therefore, there is deficiency of service by the respondent and the respondent is liable to pay the above compensation as the respondent gave reply with false allegations.  Hence, the complaint for the above reliefs. 

3.             The respondent filed counter admitting that the complainant approached for scanning on referral by Dr. Vijayalaskhmi, Priya Nursing Home, Rajampet, when the complainant was carrying 7^th month pregnancy on                   26-6-2014 but denied other allegations regarding deficiency of service on her part and liable to pay compensation claimed by the complainant.  The respondent also denied any compromise talks between them either to pay                      ₹ 30,000/- or demanding ₹ 1,00,000/- by the complainant after issuing legal notice dt. 29-9-2014. It is further contended she gave reply notice with all details and denying negligence on her part.  After scanning the complainant, she never approached the respondent and even after delivery.  

4.             It is further averred that giving birth to the baby by the complainant without right palm may be due to teratogenic drugs, chromosomal defect of the parents and maternal viral infections.   The respondent conducted scanning with care by observing all systematic methods towards the complainant.  Therefore, there was no deficiency of service on the part of the respondent towards the complainant and thus the deficiency does not arise.  The age of the fetus can be measured by comparative parameters which can be seen in the report along with the images. 

5.             It is further submitted that the fetal spine is anterior which denotes the baby in the womb is seen in prone position which means the back of the fetus is upwards and the face is downwards. In that position hands and legs obscured by the back of the trunk up to the extent of visualization of the diagnostic tool, sonologist cannot defect the anomalies.   To overcome such hurdles, repeated scannings are required to give exact impressions.  The complainant has not turned up for repeat scanning to rule out anomalies.  To know the exact impressions or findings of the fetal Skelton, the pregnant shall undergo for several x-rays, which leads to hazards to the health and growth of the fetus for which it is not medically advisable.    As per medical knowledge the skeletal defects can be detected through the X-ray, C.T. scan which are harmful to the fetus due to radiation and the said diagnostic method is also limited in view of the health of the mother and fetal health.   The respondent conducted scanning on the instructions of Dr. M. Vijaya Lakshmi, Priya Nursing Home Hospital, Rajamept but she was not added as party.  Hence, there is no cause of action and the complaint filed by the complainant is not with clean hands.  The respondent cannot be held responsible as there is no negligence on her part and giving the report thus the complaint is liable to be dismissed with costs. 

6.             On the basis of the above pleadings the following points are settled for determination. 

1. Whether there is deficiency of service on the part of the respondent as pleaded by the complainant?
2. Whether the complainant is entitled for the relief as prayed against the respondent?
3. To what relief?

7.             No oral evidence has been let in by the parties.  But on behalf of the complainant Exs. A1 to A5 documents are marked.   No documents are marked on behalf of respondent.     

8.             Heard arguments on both sides and considered the written arguments filed by the parties and the judgments filed by the respondent.   

9.             Point Nos. 1 & 2. It is not in dispute in this case that the complainant approached the respondent for scanning as per advice of her treatment doctor Jayalakshmi, when she was carrying pregnancy 7^th month for scanning to know the status of baby in her womb and the scanning was done to the complainant as per Ex. A3 and scanning report was given by the respondent.  It is the case of complainant that though the respondent doctor issued scanning report under Ex. A3 report opining that no anomalies seen to upper and lower limbs but a male child was born to her without right palm.  Therefore, there is deficiency of service on the part of the respondent in giving scanning report and finding anomalies.  On the other hand    it is the case of respondent that there was no deficiency of service on her part and she gave report what are she find on that day of scanning as per Ex. A3 and no anomalies are seen as the fetus was not rotating and the complainant was carrying          27 – 28 weeks pregnancy.  It is further case of respondent all congenital anomalies cannot be detected it depends upon gestational age, fetal position in the womb etc.,  Even, if any such anomalies to the right palm is found it is not possible to terminate pregnancy in that advanced stage.  Therefore, there is no deficiency of service on the part of respondent. 

10.            As already noted above no evidence has been let in by the parties. In medical negligence cases, initial burden to prove negligence is on the part of the respondent lies on complainant.  In this case no evidence has been placed by an expert doctor in the field of Sonology or Radiology to opinion while scanning a pregnant women of 27 – 28 weeks all parts of fetus would be visible in scanning and what was the rotating position of the fetus in the womb and is a multiple scanning are necessary.  In this case only one scanning was underwent by the complainant from respondent.  According to the respondent there was no earlier scanning or later scanning of the complainant.  It is no doubt true that the respondent took scanning by the complainant womb and gave report as per Ex. A3 finding that no evidence of anomalies and both upper and lower limbs are normal.  She also find other parts such as fetal spine, neural canal, intracranial ventricular and gall bladder all are normal as for as she can see at that time.  It is pertinent to note here at the time of taking scanning if the fetus turned opposite side showing back not giving scope to visualize hands it may not be possible for Sonologist to see the palms.  As for as the limbs seen by her are normal so the respondent gave report Ex. A3 stating upper and lower limbs are normal, no evidence or anomalies seen.   So in the absence of expert evidence by examining a doctor in that field it cannot be said that the respondent was deficiency in service towards complainant while taking scanning on her and giving report Ex. A3.   It is no doubt true that the complainant gave birth to a male child without palm as per photo but it cannot be attributed to the doctor that the said anomaly was due to negligence of the doc tor while scanning the complainant.   In a case the Administrator (in charges) Vs. P.K. Jayaprakash and others in Appeal No. 989/2003, dt. 19-6-2010, the Hon’ble State Consumer Disputes Redredssal Commission, Thiruvananthapuram (internet copy) in a similar case observed in para – 12 of the judgement as follows:-  It is also to be noted that medical termination of pregnancy at the 7^th month of pregnancy will be having the risk.  There was no occasion to have the medical termination of the pregnancy by taking such a risk.  The circumstances available on record would show that even if the fetus abnormality of meningomylocele was detected at that stage, nothing could have been done effectively.  There can be no doubt that the aforesaid abnormality was an ill fate and as a result of that abnormality the complainant 1 and 2 had to suffer a lot and that the said child also suffered pain and agony.  But no one could be found fault with for the aforesaid abnormality and the resultant illfate of the complainant.  Thus it can be concluded that due to the alleged negligence on the part of the Sonologist no specific damages was caused to the complainants, even otherwise the complainants had to suffer the consequences of the fetus abnormality.  But in the present case on hand, there is nothing on record to show that the 2^nd opposite party Sonologist who conducted the ultra sound sonogram was at fault or there was any negligence on her part.  In the present case on hand also unfortunately the fetus abnormality would not be detected in the scanning by respondent which was done at the 7^th month of pregnancy.  There is nothing on record to show that there was any negligence or omission on the part of the respondent Sonologist while scanning the complainant for not developed right palm to the child of complainant.  Hence, the Sonologist could not be find fault.   The mere fact that the complainant gave birth to a male child with abnormality of without right palm and the said abnormality was caused mental agony and suffering to the complainant cannot be taken as ground to hold that it had happened on account of negligence or deficiency of service of the respondent doctor.   The respondent gave Ex. A3 stating that no evidence of anomalies as visualized by her.   In the report of Ex. A3 itself clearly mentioned that all congenital anomalies cannot be detected which depends upon gestational age, fetal position, Liquor volume etc., and the report is not for medical purpose.   In other decision rendered by the State Consumer Disputes Redressal Commission, Chennai in F.A. No. 18/2007, dt. 18-2-2011 S. Anitha Vs. Dr. D. Sulochana and 3 others.  (Internet copy), it was held by the Hon’ble State Commission that initial burden is on the complainant to prove that the opposite party have committed negligence act or deficiency of service and expert evidence is required in medical negligence cases.   In this case there is no evidence at all placed by complainant by examining any expert doctor in Radiology or Sonology to prove the negligence while taking scanning on complainant by the respondent and report given by the respondent under Ex. A3 is without merit.  Therefore, we hold there is no negligence as alleged by the complainant on the part of respondent or deficiency of service towards complainant as alleged.  Hence, the complainant is not entitled for compensation as claimed and the complaint is liable to be dismissed.  Accordingly, points 1 & 2 are answered against the complainant. 

11.            Point No. 3. In the result, the complaint is dismissed, but in the circumstances without costs.

        Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 23^rd December 2015

MEMBER                                                                           PRESIDENT

APPENDIX OF EVIDENCE

Witnesses examined.

For Complainant:         NIL                                   For Respondent :     NIL

Exhibits marked for Complainant  : -  

Ex. A1       Office copy of legal notice to respondent dt. 29-9-2014.

Ex. A2       Bunch of prescription number in 5, stands in the name and style of

                Priya Nursing Home Hospital, Rajampet.

Ex. A3       Scanning report issued by Sree Purnima Scan center, Kadapa,

dt. 23-6-2014.

Ex. A4       Reply notice from the respondent, dt. 9-10-2014.

Ex. A5       Original photo of children of complainant. 

Exhibits marked on behalf of the Respondent : -   NIL

MEMBER                                                                         PRESIDENT

Copy to :-

1. Sri Y. Prasad, Advocate for complainant
2. Sri P.V. Raman Reddy, Advocate for respondent.

B.V.P.                                       - - -