KUNDAN KUMAR KUMAI

This is an application under section 12 of the Consumer Protection Act, 1986 which was initially filed before the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at Khadya Bhavan Complex, Kolkata and received on transfer by Order No.1 dated 05/10/18.

            Brief facts of the complainants’ case are that, complainant no.2, was under the supervision of OP no.3/gynecologist, from 17/06/2015 and had been advised U.S.G. from time to time, starting from 18/06/2015 to 18/01/2016, which was done in the OP no.1/Lab, by OP no.2/radiologist. On 01/12/15 a single live fetus was normal and 27 weeks 1 day of gestational size was observed, but on 17/12/15 the OP No.2/Radiologist, observed “fetal brain shows mildly prominent ventricular system (lateral ventricle measuring about 11mm in diameter)”, but OP no.2/radiologist’s impression was, single intrauterine live fetus of approximately 29 weeks 5 days of gestational size. On 18/01/16, op no.2/radiologist, observed “fetal brain shows mildly prominent ventricular system (13 mm)” and the impression was, single intrauterine live fetus of approximately 33 weeks 3 days of gestational size. The OP no.2/radiologist had thus, failed to detect the problem fetal organ brain, early.

            The OP no.3/gynecologist also did not show proper interest, as she advised, on 17/12/15, to consult the senior gynecologist at a higher center and again on 18/01/16, she advised, pediatrician regarding fetal prognosis. She never advised for U.S.G. of fetal anomaly nor advised repeat targeted U.S.G., to understand clearly, the abnormalities of fetus. The complainant had consulted the other gynecologist and repeat U.S.G. to confirm, the actual situation.

            The complainant no.2 had then been admitted at Eveland Clinic Pvt. Ltd., Maternity & Nursing Home, on 11/02/16 at 09:57 AM and complainant no.3 had been born on 13/02/16 at 8:10 AM. After birth the baby’s spinal chord discharged fluid, from the lower region of spinal cord lumbar 3 to Sacral 2 and the baby was discharged on 15/2/16 at 10:50 AM and advised some medicines and referred to NBMC&H. The complainant no.3 had been afflicted with disease called Spina Bifida, which is a birth defect, occurring due to incomplete closing of backbone and membrane along the spinal cord. The associated problems included poor ability to walk, problems with bladder or bowel control, hydrocephalus, tethered spinal chord and latex allergy. This was due to the enlargement of brain, due to the excessive fluid in brain called hydrocephalus.

            The complainants had rushed to the NBMC&H, where the doctors advised some diagnostic tests including MRI brain and spine from AMRI Center of NBMC&H. The complainant no.3, was subjected to treatments and surgical procedures, from time to time, to save his life. The complainant no.3, suffers from lack of spontaneous movements of lower limbs, lack of anal reflex and open neural tube defect. 

            The complainants no. 1 &2, sent several letters to OP no.1/Lab, to obtain medical records, but no response.

            Finding no alternative, the complainants lodged this case with necessary prayers. Hence this case.

            The OP no.1 &2, appeared to contest the claim by filing written version, wherein it has been submitted, that the complaint was bad in law due to non-joinder of Dr. Moloy Roy and Dr. Salil Dutta, as the complainants had consulted them and had undergone U.S.G., as advised by them. It is further stated that the case was of complicated nature and full-fledged trial was necessary and therefore the Civil Courts was the Appropriate Forum, in deciding such dispute. It is also stated that the complainant no.2 had undergone U.S.G. on different occasions, starting from 18/06/15 to 18/01/16 and only on 17/12/15 abnormality had been detected and on 18/01/16 also, the U.S.G. had further established and the U.S.G. done on 31/01/16 at Anandolok Sonoscan Centre, had also shown identical abnormality. When hydrocephalus had been detected and when that happened there was no treatment of the fetus in eastern India and pre-cautions could be taken only after the birth of the child. The U.S.G. done in the OP no.1/Lab and the report prepared by OP no.2/radiologist, had been correctly prepared and substantiated by the report and U.S.G. done at higher center. Under such circumstance, when there was very little that doctor could do, to treat the fetus before the birth, the instant complaint should be dismissed. It was further stated that the complainant also had failed to substantiate the expenditure, claimed in the complaint, as no bills had been appended.

            Though OP no.3 gynecologist, had also appeared to contest the claim, by filing written version, wherein it had been submitted that, the complaint was bad in law due to non-joinder of Dr. Moloy Roy and Dr. Salil Dutta, as the complainants had consulted them and had undergone U.S.G., as advised by them. It is further stated that the case was of complicated nature and full-fledged trial was necessary and therefore the Civil Courts, was the Appropriate Forum, in deciding such dispute. It was further mentioned that on different dates, she had advised U.S.G., but as the U.S.G. report, was found showing mildly prominent ventricular system (11mm) of fetal brain, she had advised the patient to consult the senior gynaecologist at the higher center, as she felt that the patient required management by a senior gynaecologist. It is also stated that the complainants had consulted Dr. Salil Dutta, who had also advised U.S.G., which had been done on 18/01/16 and the report also showed mildly prominent ventricular system (13mm) of fetal brain. She had further advised the complainant, to consult another senior gynaecologist at another higher center and the complainant had consulted Dr. Moloy Roy, on 26/01/16, who had advised double-checking of fetal anatomy, by a repeat U.S.G. (Level II scan). But the complainant had only done the level I U.S.G., at Anandolok Sonoscan Center, which revealed “dilated fetal lateral ventricle on either side (14-15mm). No other major abnormality was detected”. Dr. Moloy Roy, had also commented that no antenatal treatment was available for the ventriculomegaly and advised for assessment after the birth of the baby, in a center equipped with pediatric neurological facilities. On 02/02/16, the complainants 1 &2, had visited her again, even after she had referred them to senior gynaeologist, at a higher center, but they had requested her to continue the treatment and delivery under her care in a small set up, without the required facilities. She had then admitted and the complainant no.2, was a RH negative PRIMIGRAVIDA mother. After delivery the baby had cried immediately, showing good APGAR score, but unfortunately, had been born with spina Bifida Aperta at the Lumbo sacral region with underlying mucosa protruding, with no obvious CSF leak. The pediatrician diagnosed it as neural tube defect? Meningocele/Meningomyelocele and advised immediate consultation, with neuro surgeon at some higher center. The baby had been taken to NBMC&H and brought back to her mother, after neuro surgical consultation and investigation with an advice, to attempt for review after six weeks. It is further stated that none of the 7 U.S.G., done reported any direct or indirect evidence of spina bifida which is not possible to be detected, by clinical examination during antenatal period and is always detected by imaging study only. She has further mentioned that all the medicines advised, had been as per standard protocol for pregnancy and proper development of fetus. It was further stated that as far as detection of fetal congenital anomaly was concerned, the standard protocol is to do the standard/routine mid trimester U.SG. scan at 18-20^th weeks of gestation. If this routine U.S.G. scan is detected or suggested any fetal anomaly, then only the more detailed anomaly scan (Level II) had to be done. In the instant case the standard mid trimester U.SG. scan done at 19^th week of gestation, did not suggest or reveal any fetal anomaly, for which reason the more detailed anomaly scan (Level II), had not been advised.

            Moreover, the other indications for doing detailed anomaly scan (Level II) according to different national/international standard guidelines were:

1. Maternal age more than 35 years
2. Mother had abnormal baby earlier
3. Mother had history of recurrent pregnancy loss
4. Family history of neural tube defect
5. Mother having Type 1 diabetes mellitus in pregnancy
6. Mother is on anti-convulsant drug therapy like Valproic Acid, Carbamazepine, Phenytoin.

None of the above factors had been present in the complainant no.2. Furthermore, the patient had been referred to senior and experienced doctors at higher center who had also treated the patient and the protocol advised by them had been followed. Under the circumstance, no negligence had been committed and strictly as per protocol the patient had been treated. That apart the complainant had not substantiated the amount of compensation by any bills and receipts for which also the complainants’ case should be dismissed.

In support of the respective cases the complainant as well as the OP nos. 1, 2 & 3 had been examined on affidavit.

Decision with reasons

            The only point that needs to be adjudicated by this Commission is whether the negligence was committed by the OP no.2/radiologist and OP no.3/gynaecologist, while delivering the baby of the complainant nos. 1 & 2.

In this regard the complainant no.1 had argued at the time final hearing that the OP no.2/radiologist, had failed to detect the abnormality of hydrocephalus, prior to the detection by the U.S.G. on 17/12/15 and had also failed to report the same, on the impression of the diagnostic report of the U.S.G., on 17/12/15. It is further argued that the OP no.3/gynaecologist, had not given proper interest, when she had advised the complainant, to consult senior gynaecologist, at the higher center on 17/12/15 and on 18/01/16, advised the complainant to consult pediatrician, regarding fetal prognosis but she failed to advise U.S.G. of fetal anomaly nor had advised repeat targeted U.S.G., within the period of 24 weeks of pregnancy to understand clearly, the abnormalities of the fetus. Thus, the negligent attitude of the OP 2 & 3 doctors, resulted in the birth of the child, afflicted with hydrocephalus and spina bifida. He has relied in the judgement passed by the Hon’ble Supreme in V. Kishan Rao Vs. Nikhil Super Specialty Hospital and Anr. ((2010) CTJ 868) and in Smt. Savita Garg Vs. Director of National Heart Institute ((2004) 8 SEC 56). He therefore prayed for necessary relief.

Ld. Advocate for the OP No. 1, 2 & 3 on the other hand, had argued at the time of final hearing, that the complainant no.2 had been treated on the advice of OP no.3/gynaecologist, by Dr. Salil Dutta and Dr. Moloy Roy both senior and experience gynaecologists and they had also suggested U.S.G. scans, for which reason they should have been made a party to the instant case and the failure on the part of the complainant to make them parties in the instant case, makes the case bad for non-joinder of parties. It is further argued that the OP no.2/radiologist, had performed the U.S.G. on the machine manufactured by Aloka Hitachi (Arietta-560) which had 3 Probes (1) Convex Sector Probe (1 – 5 mhz) (2) Linear Probe (5 – 13 mhz) (3) another Linear Probe (3 – 7 mhz). But as there were limitations of the U.S.G. machine, as it has poor penetration to bone or air and has limited penetration in Obese patients. It is also settled proposition in medical science that, air or bowel gas prevents visualization of structures, as the U.S.G. sound waves fail to traverse through these mediums, causing poor image quality and inability to assess the patient. Moreover, a warning is mentioned at the bottom of the U.S.G. report. That apart due to the economic backwardness of the area, state of art U.S.G. machines were not available, for which reason the detection of the abnormalities, could not be done. But, otherwise the U.S.G., had been done with utmost care and diligence and the reports, were also confirmed by the U.S.G., done at higher center and therefore no negligence could be attributed. Even then the congenital anomaly, in the fetus viz., hydrocephalus had been detected and once such detection takes place, there was no antenatal treatment and the only treatment was to take precautions at the time of birth. The detection of the other anomaly viz. spina bifida could be done by Level II scan only, but the same was not done upon the complainant no.2.

As regards the allegation against the OP no.3/gynaecologist, it can be stated that she had followed the standard protocol for treatment and she had even referred the patient to a senior gynaecologist, at a higher center and the complainant no.2, had been advised Level II U.S.G. scan, but the complainant had failed to do so and she had followed the protocol, advised by the senior gynaecologist. Moreover, Dr. Moloy Roy, had reported that no antenatal treatment, was available for hydrocephalus. The OP no.3 had taken the utmost care and responsibility while conducting the delivery of the complainant no.3 and during the treatment of complainant no.2. Moreover, the expert opinion also supported the belief that negligence had not been done. The citations relied on are Jacob Mathew Vs. State of Punjab & Anr. reported in 1(2005) CPJ 9 (SE), S K Jhunjhunwala Vs. Dhanwanti Kaur recorded in AIR 2018 SC 4625 and Ramesh Chandra Agarwal Vs. Regency Hospital Ltd. & Ors. Reported in AIR 2010 SC 810. The text book of Rumacity Diagnostic Volume II 5^th Edition was also relied.

Therefore, from the above it becomes crystal clear, that the facts of the case are not disputed. Even the expert opinion given by the “Standing Medical Board” of the Medical College  Hospital Kolkata, has categorically mentioned that the OP no.2/radiologist and OP no.3/gynaecologist were not found to be negligent with the delivery of the complainant no.3, with the fetal anomaly. But the dispute is only as to why the OP no.2/radiologist, could not detect the anomaly of hydrocephalus prior to 17/12/15, when it was detected for the first time. The other dispute is why the OP no.3/gynaecologist, had not prescribed the Level II anomaly scan U.S.G., earlier.

 In this respect, the OP no.2/radiologist had stated in his reply to the Questionnaire, regarding the limitation of U.S.G. in presence of air in the bowel, visualizations of structure in U.S.G., may be difficult as the U.S.G. sound waves, fails to traverse and it was a known fact to the referring doctors also. Moreover, at the bottom of the report it was also mentioned that the U.S.G., may not detect all congenital anomalies. That apart, U.S.G. reports prior to 17/12/15, did not show any ventricular dilation in the brain and the late onset of ventriculomegaly (hydrocephalus) was a known occurrence. Furthermore, U.S.G. done at higher center (Anandolok Sonoscan Siliguri), dated 31.1.2016, showed the same report as the report given by him. That apart that the OP no.2/radiologist, had done only Level I scan and such scan could only determine fetal measurement and position, placenta, liquor is evaluated, but not the fetal body part. To detect the fetal organs and to detect birth defect like spina bifida the Level II anomaly scan, was required to be done. He had only done both scans as per the prescription of the OP no.3/gynaecologist and for this reason he had not advised, to go to a better radio diagnostic center.

Hence from the above it becomes clear that the limitations of the U.S.G. Level I scan, was the main reason for not detecting the anomaly of the fetal organ like Spina Bifida. As regards the anomaly of the congenital hydrocephalus, the reason for non-detection of the same prior to 17/12/15, can be attributed to the late onset of the anomaly. In the absence of any other evidence to prove otherwise the above has to be believed and therefore the OP no.2/radiologist, has to be absolved from any kind of negligence.

            As regards the allegation as to why the OP no.3/gynaecologist, had not advised Level II scan prior to 17/12/15, to which  she had stated during her replies, to the Question no.7, by referring to Williams Text Book of Obstetrics 24^th Edition, wherein it was mentioned that the fetal anatomical structure should be evaluated during the mid-trimester scan (after 18 weeks) examination:

Head, face and neck

Lateral cerebral ventricles Choroid plexus Midline falx Cavum septum pellucidi Cerebellum Cisterna magna Upper lip Consideration of nuchal fold measurement at 15-20 weeks Chest Four-chamber view of the heart Left ventricular outflow tract Right ventricular outflow tract Abdomen Stomach – presence, size and situs Kidneys Urinary bladder Umbilical cord insertion into fetal abdomen Umbilical cord vessel number Spine Cervical, thoracic, lumbar, and sacral spine Extremities Legs and arms Fetal sex In multifetal gestations and when medically indicated (Summarized from American Institute of Ultrasound in Medicine, 2013).

            Moreover, she has stated that all routine anomaly scan was never advised but routine mid trimester between 16-22 weeks, was advised, because of expense and no incidence of major fetal anomaly, could not be afforded by the general population and for which High End U.S.G. machine and good U.S.G. experts, were required and who were not readily available. Only on some suspicion on routine mid-trimester scan, were they referred for gross anatomy scan, by advice of radiologist.

            Moreover, the other indications for doing detailed anomaly scan (Level II) according to different national/international standard guidelines were:

1. Maternal age more than 35 years
2. Mother had abnormal baby earlier
3. Mother had history of recurrent pregnancy loss
4. Family history of neural tube defect
5. Mother having Type 1 diabetes mellitus in pregnancy
6. Mother is on anti-convulsant drug therapy like Valproic Acid, Carbamazepine, Phenytoin.

None of the above factors had been present in the complainant no.2. For which reason the Level II scan had not been advised. Only after the detection of the “fetal ventriculomegaly” had been done at 29^th week, she had referred the patient at higher center for proper investigation and management.

Therefore, from the above statements as well as the medical literature the OP no.3/gynaecologist, had been able to categorically explain, as to why the Level II scan had not been advised and consequently had referred the complainant to senior gynaecologist, at the higher center. In the absence of any contradictory evidence allegation of negligence upon the OP no.3/gynaecologist, cannot be attributed. In this regard the citations relied by the complainants, do not come to their aid as negligence could not be established.

Under the circumstance, the birth of the complainant no.3 with the above anomalies, though, very unfortunate, but to attribute the occurrence, due to the negligence of the OPs, in the face of such overwhelming evidence, would be misplaced sympathies.

As a result, the instant case fails.

It is therefore,

Ordered

That the instant case be and the same is dismissed on contest, but without costs.

Copy of this order be sent to the parties, free of cost.