The Doctor saved from paying Rs. 2 Crore compensation. Thanks to 'timely' advise of USG / Anomaly Scans during pregnancy. - Adv. Rohit Erande ©

The Doctor saved from paying Rs. 2 Crore compensation. Thanks to 'timely' advise of  USG /Anomaly Scans  during pregnancy. 

Adv. Rohit Erande ©

Case Details : CONSUMER CASE NO. 974 OF 2015

Baby Vani Bhattacharya, through her Father V/s.  Dr. Suranjit Dutta, MS, New Delhi

BEFORE:  

 HON'BLE MR. JUSTICE R.K. AGRAWAL,PRESIDENT

 HON'BLE DR. S.M. KANTIKAR,MEMBER

Judgment Link :

http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FCC%2F974%2F2015&dtofhearing=2021-06-01

Facts in Brief :

1. The present compliant has been filed by a minor baby through her Father against the Doctors alleging them responsible for the delivery of Hydrocephalus baby.   

2.  On 22.02.2013, the Complainant’s wife during her 2nd pregnancy consulted Dr. Suranjit Dutta- the Obstetrician & Gynecologist - the Opp. no.1 at Khanna Nursing Home (hereinafter referred to as the “Opp. No. 2”). It was alleged that she categorically informed the doctor about her first daughter suffering from ‘Autism’ and therefore requested to take every clinical precaution  tests to avoid any physical and mental defect to her 2nd child.  

3. It was alleged that the Dr. Dutta conducted first Ultrasonography (USG) on 13.04.2013 and thereafter doctor never advised 2nd level USG. The patient (Normal) delivered healthy female baby on 24.10.2013, and discharged on next day.  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”. T

4. The parents had discussion with few other doctors and learnt that Hydrocephalus could have been diagnosed easily during early pregnancy and timely aborted the unwanted pregnancy.

5.     On 19.11.2013 the baby underwent VP Shunt surgery at Shri Balaji Action Medical Institute and discharged on 28.11.2013. The shunt was implanted through her head up to her stomach Thereafter, on 14.12.2013 baby developed infection (meningitis) and again admitted to Shri Balaji Action Medical Institute. Baby was treated with numerous antibiotics and other medicines and discharged on 05.01.2014.  Again at 3rd occasion the baby was admitted on 11.01.2014 for meningitis. The doctor surgically removed the VP shunt   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 :

5.     The Opposite Parties Nos. 1 & 2 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 Hospital is owned by a Surgeon Dr. Vivek Khanna.  It was submitted that though Dr. Dutta  advised Triple test and USG at 16 weeks of pregnancy,  it was denied by the mother. However, later on she brought a USG report from Janta x-ray Centre; which reported as normal baby. 

7. 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 law (the then applicable )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.

Held : 

1. It was held 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  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. It was also held that  the patient did not follow the instructions of Dr. Dutta 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 Commission relied upon the medical literature, which states 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. 

4. 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.

5. Moreover, it is apparent from the record that after 16 weeks, the patient did not turn up but came to the Doctor on 19.06.2013 i.e. 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.

5. By relying upon catena of judgments of  Hon’ble Supreme Court on Negligence of Doctors, 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.

6. On these grounds the Commission dismissed the compliant of Rs.2 Crores.

 It is really unfortunate for the parents that the MTP Act was not suitably amended at that time, else. The case yet again underlines  proper advise at proper time and most importantly documentation. The amended CPA has increased the jurisdiction of District Forums upto Rs.1 Crore, State commission upto 10 Crores and beyond 10 Crore, National Commission. As there is no Court fee attached in proportion to the compensation claimed, Drs may find increase in such cases. 

But always remember, merely a case is not filed does not mean it will be allowed. The Complainant has to prove his/her case. What Drs can do is have proper documentation and follow normal protocols. 

Thanks and Regards

Adv. Rohit Erande ©

Pune. ©