Missing out Retinopathy of Prematurity Test: Supreme Court Directs Rs 76 lakh compensation

New Delhi: Upholding National Consumer Disputes Redressal Commission (NCDRC) order noting Maharaja Agrasen Hospital vicariously liable for the acts of negligence committed by its doctors engaged or empanelled to provide medical care, the Supreme Court has directed the hospital to pay compensation to the family of a baby whose mandatory check-up of Retinopathy of Prematurity was missed. The preterm baby as a results suffered from total blindness.

While giving the order the Apex Court further enhanced the compensation awarded by the commission from Rs 64 Lakh to Rs 76 lakh based on the principle of restitutio in integrum.

The order came following a civil appeal filed by the hospital and the doctors, aggrieved by the verdict passed by the commission in a medical negligence case that doctors and hospital guilty of medical negligence since they failed to carry out the mandatory check-up of Retinopathy of Prematurity (“ROP”) on a pre-term baby, which led to his total blindness.

The case concerned a baby born pre-term at 32 weeks’ gestation, with a weight of 1.49 kg at the time of birth and was under ante-natal care of a gynaecologist. The gynaecologist referred the case for intensive care to Maharaja Agrasen Hospital.

At the time of admission, the general condition of the baby was poor, and was diagnosed as “32 weeks pre-term AGA with HMD”. The baby was treated in the Neo-natal ICU of the Paediatrics Unit and was put on ventilatory support, and Surfactant injections were administered gradually. The patient stayed in the hospital for almost 4 weeks and was discharged on 29.04.2005, which was 27 days after birth.

Post-discharge, the baby was brought for a follow-up check-up on 04.05.2005 to the Paediatrics Unit of the General OPD of the hospital, when the baby was 4 weeks and 4 days old. The baby was examined by two Consultant Paediatricians. On 13.07.2005, the baby was brought for a 2nd follow-up visit when he was over 3 months old. The paediatrician advised BERA scan/test to be conducted. Notably, there was no advice or recommendation for ROP check-up till then.

Thereafter, in November 2005, abnormal visual responses were observed in the baby. The patient's mother (complainant) sought for the medical records of the baby to have his follow up treatment done. However, the medical records were not made available by the hospital.

The patient was taken to Nayantara Eye Clinic, Delhi where an ultrasound (B. Scan) was conducted. This was followed by another ultrasound at Shroff Charity Eye Hospital, Delhi for further examination where diagnosis revealed that the baby had ROP Stage 5 in both eyes, which is a case of total retinal detachment. The condition of ROP Stage 5 was confirmed at Centre for Ophthalmic Sciences at AIIMS, New Delhi.

This led the complainant to the gynaecologist to seek for an explanation as to how the medical condition of the baby had remained undiagnosed.

Thereafter, a legal notice was issued to the hospital to provide the entire in-patient medical records of the baby in compliance with Regulation 1.3.2 of the Indian Medical Council (Professional Conduct, Etiquettes and Ethics) Regulations, 2002 (“IMC Regulations”). However, the hospital failed to furnish the records despite the issuance.

Taking a step forward, the complainant moved the Delhi Medical Council (DMC) to obtain the medical records. DMC issued a warning to the hospital for the delay in supplying the medical records. Eventually, more than two years after discharge, the hospital provided the medical records along with the case summary. The medical record mentioned that ROP check-up was conducted on 26.04.2005. However, the patient's family contented, that no ROP examination was conducted.

The complainant approached the NCDRC, alleging medical negligence and deficiency in service on the part of the hospital and the doctors and asking compensation for the permanent physical disability, mental agony, and social stigma, deprivation of normal human life, companionship, torture and harassment etc.

The commission directed the Medical Board, AIIMS to give an expert opinion in the matter. The report submitted by the Medical Board of AIIMS stated;

"As per standard guidelines (National Neonatology Forum), the new born babies who are born at 32 weeks’ gestation or less, should have their eyes examined at 3-4 weeks of age and more frequent check-ups to be done thereafter. The doctor examined the baby at 24 days of age in accordance with established protocol. If ROP screening does not reveal any ROP, then repeat examination should be performed after 2 weeks. The Report goes on to say that after discharge, the baby was brought twice to the General OPD of the hospital. There is no record to show that the baby was brought after 2 weeks of discharge to the Paediatrics OPD clinic when subsequent progression could have been assessed and treated on time."

The National Commission finally was of the considered view that neither the ROP screening was performed, nor was any advice for follow up of ROP given and directed the appellants to pay Rs 64 lakh as compensation. The commission noted;

"ROP screening is a team-work of the Paediatrician, Opthalmologist and the NICU nurse. There is no medical documentation of the ROP screening procedural details. The O.P. No. 5 should have performed the retinal examination with binocular indirect opthalmoscope on dilation of the pupil with scleral depression to ascertain avascular zone at the periphery of the retina. The National Commission found that nothing was forthcoming from Page 102 of the medical records. It appears to be a bare visual examination done by O.P. No. 5 in haste to cover up the case."

Aggrieved by the orders, the hospital and the medical practitioners approached the apex court, besides the complainant also appealed for enhancing the amount of compensation awarded.

The court heard all the parties, wherein the appellant contended that "The critical condition of the baby and possible neuro-development, visual and hearing sequel was informed to the parents. The baby was given utmost care and attention by the doctors of the hospital."

However, the patient's family contended that the doctors of the hospital did not at any stage conduct the ROP examination of the baby, who was a premature baby, nor was the family ever informed about the high risk of ROP in a premature baby, and the necessity for regular check-ups. Further, the hospital had deliberately withheld the medical records for over two years after discharge, the complainant alleged, adding that even the discharge slip did not disclose any instructions advising that the infant be brought for ROP examination.

"If the standard protocol had been carried out by the Doctors, the ROP would have been detected at an early stage, and could have been cured, since it is medically known to be reversible at the early stages, " quotes the contention.

Referring to the Bolam Test and other judgments on medical negligence, the Court observed that the reasonable standard of care for a premature baby mandates screening and checking up for ROP. The court noted;

"A medical professional should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes reasonable skill that other ordinarily competent members of his profession would bring."

The apex court, finally upheld the commission's decision and revised the quantum of compensation to Rs 7600,000 and issued directives on the utilisation of the amount awarded. The court held;

"It is well established that a hospital is vicariously liable for the acts of negligence committed by the doctors engaged or empanelled to provide medical care. It is a common experience that when a patient goes to a hospital, he/she goes there on account of the reputation of the hospital, and with the hope that due and proper care will be taken by the hospital authorities. If the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on a contract basis, it is the hospital which has to justify the acts of commission or omission on behalf of their doctors."