Alleged failure in diagnosing Microcephaly: Max Hospital, doctor absolved of medical negligence charges

The patient during her initial months of pregnancy went to the super speciality hospital. The first and second level ultrasounds were conducted and the doctor assured her that there were no complications and called her for routine check-up. However, after the third level Ultrasound with colour Doppler Test and later the Fetal Echo Test the doctor informed the patient that there was abnormality in the head of the child in the womb, and prescribed medicines.

Thereafter, the patient met the Head of Department of Gynaecologist, Dr Neera Agarwal who informed her that the brain of the child in the womb had not developed properly and advised her to get few more tests. The patient eventually gave birth to a baby boy and was discharged from the hospital.

However, the child became permanently disabled and the patient, therefore, alleged medical negligence on the part of the hospital and the doctor as they allegedly failed to diagnose Microcephaly during initial days of her pregnancy and could not guide her properly due to which the condition of the child deteriorated day by day.

On the aforesaid ground, the patient filed a complaint against the hospital and the doctor with the State Commission seeking Rs 40 lakh for expenses incurred on the treatment and for causing mental pain, agony to her and her family members along with an award of Rs 22,000 as litigation expenses.

However, the hospital and the doctor denied the allegation and submitted that neither any abnormality was diagnosed in child till second trimester ultrasound nor was the patient administered any medicine during her pregnancy, which was responsible or caused any side effect or caused any kind of abnormality to the child.

It further stated that Microcephaly may not be detected most of the times until late pregnancy or later in infancy as the head circumference is difficult to measure by this stage, especially when the head is well down in the maternal pelvis. Moreover, Microcephaly may happen at the time of birth of the child or during the first few years of child's life and therefore, the permanent disability of the child was inborn or natural and not due to the acts of the hospital or doctor.

Justice Sangita Dhingra Sehgal, President and Rajan Sharma, Member deemed it appropriate to refer to the law on the cause. The bench in detail discussed the scope and extent of Negligence with respect to Medical Professionals in CC- 324/2013, titled Seema Garg & Anr. vs. Superintendent, Ram Manohar Lohia Hospital & Anr. decided on 31.01.2022.

"In the present case also, it will have to be ascertained whether there was any lack of skill and competence on the part of the operating doctor and/or any omission to do what was actually required in the present facts and circumstances. It is not the case of the Complainant that the doctors operating upon her were not having the requisite skill or competence or were not qualified to operate upon the patient, hence, the first part of the aforesaid para stands answered, that there was no lack of competence on the part of the hospital and the doctor," it noted.

It observed that so far as the question of omission to do any act which was actually required is concerned, the Complainant alleged medical negligence on the part of hospital and the doctor as they failed to diagnose Microcephaly during initial days of her pregnancy, due to which doctors failed to guide her properly, which if would have been done by the hospital and the doctor could save the child from the said permanent abnormality.

Relying on earlier judgements by Hon'ble Apex Court, the Commission clarified that only the failure of the treatment is not prima facie a ground for Medical Negligence and in order to attract the principle of res ipsa loquitur, Negligence i.e. the breach of a duty exercised by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do, should be clearly evident from the record.

It further took note of the official website of World Health Organisation (WHO) that under the head 'Causes of Microcephaly', stated that there are many potential causes of Microcephaly, but often the cause remains unknown.

Returning to the facts of the present case, the State Commission observed;

"1st and 2nd Level Ultrasound did not show any kind of abnormality in relation to the condition of the child. Also, the report of 3rd Level Ultrasound and Fetal Echo-Doppler Test had not shown any abnormality in the child of the complainant. Since the Ultrasound and Doppler test report failed to diagnose the Microcephaly, the question of advising the complainant properly with respect to the same does not arise as the hospital and the doctor were themselves not aware of the said abnormality."

It further observed;

"Delivery of the child has been done by LSCS (Lower Segment Caesaran Section) on 17.04.2011, which was uneventful. It is a further clear from the medical literature that the Microcephaly is often diagnosed at the time of birth or at later stage. There exists no evidence which would substantiate the claim of the Complainant that the diagnosis of Microcephaly could not be done earlier due to the negligent acts of the hospital and the doctor or the treatment given to the complainant by the Hospital and doctor was not acceptable or was not used generally at the time of pregnancy. The Complainant has even failed to establish that there was a lack of due care and caution on the part of the hospital and the doctor either by oral or by documentary evidence, which are basically the essential requirements/ingredients for constituting a case of Medical Negligence covered under the Consumer Protection Act, 1986."

Referring to the dicta of the Hon'ble Apex Court in C.P. Sreekumar (Dr.), MS (Ortho) v. S. Ramanujam reported at (2009) 7 SCC 130, the bench noted;

"Perusal of the above settled law reflects that the onus to prove medical negligence is on the complainant and the same can be discharged by leading cogent evidence. It is noted that the complainant has failed to adduce any evidence which shows us that it was due to the acts of the hospital and the doctor that the child of the complainant had suffered from Microcephaly. There is no proof of any medicine being administered to the complainant during her pregnancy, which had caused the said abnormality in the child."

It further added;

"Even the website of WHO shows that there is no specific treatment for microcephaly. Therefore, it is clear that the hospital and the doctor could not cure the child from the said disease through any treatment. It is clear from the record that the hospital and the doctor had taken due care and caution in treating the complainant and the abnormality in the child born to the complainant has no relation to the acts of the opposite parties."

Consequently, the Commission dismissed the complaint and held;

"We are of the view that there exists no Negligence on the part of the Opposite Parties, hence, the Complaint stands dismissed, with no order as to costs."

To view the original order click on the link below: