A Senior Gynaecologist fined for doing Anomaly Scan as it missed the Anomaly, Important Judgment : Adv. ROHiT ERANDE ©
" Anomaly Scan should be done by the Specialist like qualified Radiologist or Fetal Medicine expert and not by the Gynaecologist. "
"Any Radiologist of ordinary prudence, could have detected such abnormality and it could have averted the patient’s sufferings. She could have aborted the baby within 20 weeks of pregnancy. "
Adv. ROHiT ERANDE ©
DR. USHA MUKHI HARYANA, V/s. SEEMA DESWAL & ANR.
REVISION PETITION NO. 2780 OF 2017
(Against the Order dated 15/03/2017 in Appeal No. 1051/2015 of the State Commission Haryana)
Judgment Link :
http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F2350%2F2017&dtofhearing=2023-01-09
BEFORE:
HON'BLE DR. S.M. KANTIKAR,PRESIDING MEMBER
HON'BLE MR. BINOY KUMAR,MEMBER
Dated : 09 Jan 2023
Facts in short :
1 The case of the Complainant - Seema Deswal (patient) that during her pregnancy, she was under consultation of Dr. Usha Mukhi (OP-1), who performed USG seven times, but for earlier six occasions, the OP-1 could not detect the congenital abdominal wall defect. It was alleged that the OP-1 was not a qualified Radiologist and even she did not seek opinion from any qualified Radiologist for USG to defeat congenital anomaly. She continued such abnormal pregnancy and avoided unnecessary sufferings and expenses for the treatment. Being aggrieved, the Complainant filed the Complaint before the District Forum, Sonepat.
2. The District Forum dismissed the Complaint by relying upon the opinion of the Medical Board, constituted by the Civil Surgeon. The Radiologist members of the Medical board opined that "the disease cannot be 100% detected from the Ultrasound. Only in 60-70% of the anomaly like exomphlaus can be diagnosed in 2nd trimester in expert hands and some cases are diagnosed in perinatal period.
3. Being aggrieved, the Complainant filed the First Appeal before the State Commission. The Appeal was allowed with the direction to the Opposite Parties to pay lumpsum amount of Rs.3 lakh along with interest @ 9% from the date of filing of complaint till payment. It also awarded compensation of Rs. 21,000/- for mental and physical harassment and Rs. 11,000/- as litigation expenses. As the Insurance Company – OP-2 has insured the OP-1 for professional indemnity; both the OPs were directed to pay the amount jointly and severally.
4. Being aggrieved, the OP-1 Dr. Usha Mukhi filed Revision Petition No. 2350/2017 for setting aside the impugned Order and the Complainant filed the Revision Petition No. 2780/2017 for enhancement of compensation.
Arguments :
1. The learned Counsel for OP-1 argued that during USG, the foetal position was breech i.e. dorso anterior, therefore, it was very difficult to detect the front portion (abdomen) of the baby. Due to technical limitations of USG the Congenital anomalies cannot be detected all the times depending upon gestation period, fetal position and quantity of liquor etc.
2. The Subtle defect may not be seen in all scans. The Level-II Scan is a detailed time devoted anomaly scan but it does not guarantee to detect all the congenital anomalies.
3. He further argued that on 30.07.2014, the patient was admitted in emergency with the history of severe intermitted pain and history of leaking since 6 AM. It was 32 weeks breach presentation and movements were absent. There was rupture of sac with thick meconium-stained liquor. USG showed distended loops of intestines outside the abdominal wall due to abdominal wall defect. The complainant as well as her attendants were duly counselled regarding pre-term baby and after an informed consent caesarean section was performed by OP-1. A female baby was born and soon after delivery the baby cried, the Paediatrician handled the new-born which did not require any resuscitation.
4. The parents were informed in their vernacular language about urgent need to take the baby to higher centre in Paediatric Surgery Department. The OP-1 telephonically consulted Dr. Vishesh, Senior Consultant in AIIMS for shifting of baby in AIIMS, but ICU bed was not vacant. Therefore, Dr. Prashant, Senior Consultant at B.L. Kapoor Hospital, New Delhi was contacted and arrangement were made to shift the baby to either AIIMS or BLK Hospital New Delhi, but the Complainant and her husband did not follow the advice, as they alleged the paucity of funds and since it was girl, they decided to keep the baby in OP-1 hospital. Subsequently, on 01.08.2014, the baby died. The Counsel submitted that the OP treated the mother and baby as per standard of care, there was no negligence.
Held :
1. The NCDRC held that, even though it was breech presentation, the anterior abdominal wall defect during the target scan shall not be missed as it could be easily visible.
2. The Ultrasonography is a sensitive technique, but it remains operator dependent. A definitive diagnosis of omphalocele (abdominal wall defect) is possible only beyond 12 weeks' gestation. The Ultrasound scan is done every 4 weeks to measure the fetal biometry. It is to monitor fetal growth and amniotic fluid. It is best to monitor growth through estimation of fetal weight by the Sieme formula, which uses biparietal diameter, occipitofrontal diameter and femur length, rather than formulas using abdominal circumference[Sci Rep.2021; 11: 8752]. Thus the detection of congenital anomalies needs expertise, training and competency in Radio Diagnosis.
The commission relying upon the medical literature held that The earliest that an omphalocele can be detected is at 12 weeks of menstrual age
3. The Commission then highlighted the importance of the anomaly scan and observed that the main purpose of the scan is to check that your baby is developing normally, and look at where the placenta is lying. The findings of this scan help the doctor to take the necessary decisions to manage the rest of the pregnancy. It is beneficial to the pregnant woman or the parents to take decision for medical termination of pregnancy as per MTP Act.
4 It should be borne in mind that the detection of certain congenital anomalies is the domain of competent, qualified and experienced Radiologist or fetal medicine specialist. In the instant case, the OP-1 is a Gynaecologist & Obstetricians, who failed to detect the anterior abdominal wall defect during the target scan (18 to 20 weeks), but the same was diagnosed by OP-1 at 32 weeks of pregnancy.
5. In the instant case, the USG Scans were performed by the Obstetrician, no doubt she possesses 30 years of experience in Obstetrics, the question before us is that whether OP-1 was competent enough or failed in her duty of care to report the Target scan – (level – II USG). Even the Medical Board and the PGIMS, Rohtak stated that such anomalies are diagnosed in expert hands. Admittedly, the OP-1 missed to detect abdominal defect.
6. The Target scan (level II scan) detects development and position of the fetal organs. The abdominal wall defect could easily be detected irrespective of breach presentation. In our view, any Radiologist of ordinary prudence, could have detected such abnormality and it could have averted the patient’s sufferings. She could have aborted the baby within 20 weeks of pregnancy.
7. The Commission rejected the contentions of the Opponents that the complainant refused to transfer to baby to the Higher Centre, for want of evidence. Moreover, acceptance for surgery is a sole and independent decision of the parents of the new-born, which also depends upon their financial condition, the chances of baby’s survival etc.
8. In the instant case, the referral slip of Mukhi Hospital (OP) clearly stated that the baby has ‘Exomphalos major’ (Exstrophy of intestine with liver). However, parents took the baby to Chacha Nehru Bal Chikitsalaya, wherein the clinical findings recorded that ‘1 day neonate c/o bowel outside abdomen’. On examination, it was noted that bowel protruded outside the abdomen, and diagnosed as Gastroschisis. The doctors explained prognosis also. However, on 31.07.2014 baby was taken to Lok Nayak Hospital, but unfortunately the baby died on the same day.
9. The Commission relied upon the landmark judgment of Hon’ble Supreme Court in the case of Spring Meadows Hospital & Anr. v. Harjol Ahluwalia through K.S. Ahluwalia & Anr.[ (1998) 4 SCC 39], wherein their Lordships observed as follows:
"Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor."
10. Based on the discussion above, it was neither a bona fide mistake nor error of judgment of the OP-1, but it was the failure of duty of care of the OP-1 during the level II (Target scan). We affirm the reasoned Order of the State Commission, which needs no interference. Also, there is no merit in the Revision Petition filed by the Complainant. In our view, the State Commission awarded just and adequate compensation to the Complainant, thus there is no reason to enhance the further compensation.
11. The commission also directed the National Medical Council to formulate stringent guidelines to regulate Antenatal USG protocols to especially the TIFFA Scan (level-II scan), which should be done by the Specialist like qualified Radiologist or Fetal Medicine expert.
Important, What if ?
This is very important judgment for all the Gynaecologists and Radiologists. Had this Scan been done by a qualified Radiologists as observed by the hon. Court or suppose the baby would have been alive, then what would have been the effect ?
Importance of Record keeping :
If there had been some record that the Doctors advised the patient to be shifted to a higher centre, but parents refused, it would have been of great help. So always remember "NO RECORD IS NO DEFENSE, POOR RECORD IS POOR DEFENSE"
The Medical Fraternity may not welcome this judgment. Surprisingly the Hon'ble commission has not considered or same have not been brought no the notice of the commission, its own earlier 2-3 judgments, in which the present Hon'ble Member was also the presiding member.
Case no.1 "All Anomalies can't be detected by the ultrasound Study."
Case No.2 : "USG study been indicative and not confirmatory; it should not be construed as a wrong report" ,"the treating surgeon’s clinical assessment with relevant laboratory investigations should be given more credence".
Case Details : REVISION PETITION NO. 696 OF 2015, decided on 27/01/2021
S. MANIKANNAN, Tamilnadu (complainant) V/s. DR. T. PANDIARAJ & ANR.(Opponents)
Judgment Link :
http://cms.nic.in/ncdrcusersWeb/GetJudgement.do?method=GetJudgement&caseidin=0%2F0%2FRP%2F696%2F2015&dtofhearing=2021-01-27
the blog Link :
https://advrohiterande.blogspot.com/2021/01/important-judgement-for-physicans.html
Case no.3 - Failure to diagnose Urinary Stones by USG does not amount to Medical Negligence, as the sensitivity and specificity of USG varies.
REVISION PETITION NO. 266 OF 2019
DAYA SINGH V/s. SHIVI DIGITAL X-RAY, ULTRASOUND, COLOUR DOPPLER AND MAMMOGRAPHY CENTRE & 3 ORS.
The Blog Link :
https://advrohiterande.blogspot.com/2022/02/failure-to-diagnose-urinary-stones-by.html
The above judgments seem to have not been cited before the Hon'ble Forum. No doubt, the sufferings of the parents are unfathomable and irreversible.
thanks and regards,
Adv. ROHiT ERANDE ©
PUNE
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