1. The Complainant a 5 year old minor baby girl filed a compliant through her father against the Opposite Parties, alleging that the Opp. parties were responsible for the alleged medical negligence resulted delivery of Hydrocephalus baby.
2. On 22.02.2013, the Complainant’s wife during her 2nd pregnancy consulted Dr. Suranjit Dutta- the Obstetrician & Gynecologist - (i.e. “Opposite Party No. 1”) at Khanna Nursing Home (i.e. “Opposite Party No. 2”) and She categorically informed the doctor about her first daughter suffering from ‘Autism’ and therefore requested to take every precaution and to carryout possible diagnostic tests to avoid any physical and mental defect to her 2nd child. 3. It was alleged that the Dr. conducted first Ultrasonography (USG) on 13.04.2013 and thereafter doctor never advised 2nd level USG. The patient delivered healthy female baby on 24.10.2013, it was normal delivery. The mother and the child were discharged on 25.10.2013. Thereafter, on 11.11.2013, the Complainant noticed that the baby’s head had started to swell and consulted the Pediatrician Dr. Dinesh Goyal in the same hospital. After MRI and other lab investigations it was diagnosed that the baby was suffering from an incurable congenital disease “Gross Communication Hydrocephalus”. It was alleged that Hydrocephalus could have been diagnosed easily during early pregnancy and timely aborted the unwanted pregnancy. 3. On 19.11.2013 the baby underwent VP Shunt surgery , but thereafter due to various complications, the VP shunt was surgically removed and the baby was discharged on 12.03.2014. 4. Being aggrieved by the alleged negligent treatment by the Opposite Parties, the instant Consumer Complaint was filed before this Commission, praying compensation of Rs. 2 crore with interest @24 % p.a. for the Opposite Parties. Defense of Doctors. 5. The Opposite Parties filed their joint written version and denied any negligence during the treatment of mother and baby. 6. It was submitted that the Opposite Party No. 1 was a qualified Obstetrician and had experience of 27 years, conducted 8000 to 9000 deliveries including LSCS and other surgeries. The Opposite Party No. 2 is owned by a Surgeon Dr. Vivek Khanna. 7. It was submitted that after the 1st USG which was normal, the Dr. advised Triple test and USG at 16 weeks of pregnancy, but it was denied by the mother. However, later on she brought a USG report from Janta x-ray Centre; which reported as normal baby. It was further submitted that the patient was irregular during ANC check-up, did not follow the instructions. She was called for anomaly scan after 3 weeks, between 17 to 20th week of pregnancy but she came after 5 ½ weeks (late after 18 days). It was 21 weeks 3 days; therefore as per the then applicable law, the termination of pregnancy was prohibited. In case if minor changes in ventricular size of brain detected, it could be spontaneously cured before birth or could be treated after birth. The Complainant has not filed any Medical Certificate about the said anomaly from any Govt. authority. 8. Further it was stated that, if it was the case of congenital hydrocephalus, the baby had a large head and the normal vaginal delivery was not possible. 6. The United India Insurance Company Ltd. was impleaded as the “Opposite Party No. 3”
Held : 1. It was observed that the Complainant has not filed the USG images done on 11.05.2013 and the Doppler report dated 08.10.2013. It is pertinent to note that the Complainant filed one RTI reply issued by AIIMS (Annexure – D) dated 27.06.2014 was general disclosure of antenatal investigations. It was neither an expert opinion nor had any evidential value in the instant case. 2. Further it was held that, the patient did not follow the instructions of the Opposite Party No. 1 to visit every 15 days, undergo USG and Colour Doppler study. The head circumference (OFC) was measured by the Pediatrician Dr. Dinesh Kumar Goyal, it was 33.5 cm, normal. 3. The Ld. Commission relying upon the medical literature, observed that the Congenital hydrocephalus is the condition present at birth, caused by a complex interaction of genetic and environmental factors during fetal development. It is now often diagnosed before birth through routine ultrasound. The classic symptom of hydrocephalus is that the head is larger than normal. The doctor may notice it when the baby is born or within the first few months of life. The growth of head in normal baby is more during the first year, but with congenital hydrocephalus, the head may grow faster than the normal rate for a baby's height and weight. Few newborns develop special variety of hydrocephalus few days after birth. It is known as communicating hydrocephalus which is mostly caused by meningitis or subarachnoid bleeding or due to congenital or idiopathic causes. The mild variety of ventriculomegaly many times reverts back to the normal. Early treatment before age 4 months is important to help limit or prevent brain damage. Treatment focuses on reducing the amount of fluid in the brain to relieve pressure. In most cases, the doctor places a flexible tube, called a shunt, in the brain to drain the fluid. The shunt carries fluid to another part of the body (usually the belly or the heart), which then absorbs the fluid. The shunt may stay in the brain for life, though it may have to be fixed or replaced later if it becomes blocked or infected. 3. Moreover, it is apparent from the record that the mother directly came to the Opposite Party No. 1 at 21 weeks 3 days and even if there was any anomaly the termination of pregnancy was not legally allowed in India after 20 weeks, at that time. If the enlargement of head in this case was started before 20 weeks, the size of head would have been grossly enlarged and it could be easily detected at the birth. 4. The Ld. Commission relied upon the celebrated judgment of Hon. Supreme Court, in the case of Jacob Mathew’s case (2005) SSC (Crl) 1369, which reads as under: ....... The human body and medical science, both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.” It was further observed that: “When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions.” 5. Lastly it was held that In the instant case, Dr. Suranjit Dutta, the Opposite Party No.1 advised proper diagnostic tests during pregnancy to rule out anomaly. It was a reasonable degree of skill and knowledge. Therefore, he cannot be held guilty of negligence by any stretch of imagination. This judgment once again has underlined the importance of proper advise and its recording or in other words "Poor Record is Poor Defense, No Record is No Defense". It is indeed unfortunate for the poor parents to up bring such child. Further, law of MTP did not permit MTP at 21 weeks at the relevant time, which now permitted at 24 weeks subject to certain terms and conditions. Thanks and Regards, 🙏🙏
Adv. Rohit Erande. PUNE © |
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