Failure to Detect Foetal Anomalies: Consumer Court Exonerates Radiologist of Medical Negligence

"Such diagnostic tools are interpretative and should be corroborated with additional evidence to establish definite conclusions," held the State Consumer Court.

Apart from this, the consumer court also took note of the findings of the report of the Committee doctor, consisting of the Chief Medical Officer, Haridwar, which concluded that the investigation conducted by the doctor was without malice and did not constitute negligence.

Also Read: Failure to Detect Foetal Anomaly: NCDRC Slaps Rs 15 Lakh Compensation on Hospital, Radiologist

The history of the case goes back to 2014 when the complainant gave birth to a child in the Himalayan Hospital, Jolly Grant. After the birth, she found that the child had significant abnormalities including absence or severe underdevelopment of Fetal Femur Length, lumbar and sacrum. These anomalies resulted in the child's inability to sit, stand or move the lower part of the body independently.

On inquiring from the doctors, the complainant found that these types of abnormalities were detected in ultrasound before birth, for which the doctors get an ultrasound done for pre-natal birth. 

The complainant alleged that despite undergoing several USGs during the pregnancy, the clinic reported that the foetus was developing normally and did not indicate any abnormalities.

Later the child was shifted to AIIMS Hospital, New Delhi for appropriate medical care. Allegedly, the doctors at AIIMS also indicated that the child's disability was due to absence or severally underdeveloped Lower Lumbar Spine and Sacrum and they allegedly also informed that the Radiologist in question had committed gross negligence and gross deficiency in providing medical services. 

When the child was examined in AIIMS Rishikesh, the doctor indicated that since the Radiologist did not give the correct ultrasound report at the right time and informed very belatedly about the physical disability of the child, the child was. now unable to sit, stand or move the lower part of the body independently and he was physically handicapped.

Therefore, alleging mental, physical and financial distress, the complainant alleged that the failure to deduct and communicate such abnormalities during the USG constituted serious breach of medical duty and it was indicative of gross medical negligence and deficiency in standard of care expected from medical professionals. Filing the complaint before the District Consumer Court, the complainant sought relief and compensation for hardship due to gross medical negligence and deficiency in providing medical services by the Radiologist.

The District Consumer Court allowed the complaint, directing the Radiologist to pay Rs 8,00,000 as compensation and Rs 3,50,000 towards mental and physical agony along with interest @6% per annum from the date of filing the consumer complaint.

Challenging this order, the Radiologist filed an appeal before the State Consumer Court, Uttarakhand. He argued that the ultrasound was correct because it was not clear to tell the abnormalities of the Lumbar and Sacrum in basic 2D ultrasound. 

The Radiologist also submitted before the State Consumer Court that he was not instructed to conduct any test other than a 2D ultrasound in respect of the complainant. He had no instructions regarding the child's fetal biophysical profile level II ultrasound/ anomaly scan/3D/4D ultrasound which would have provided detailed information about the child growing in the foetus.

He further claimed that he saw the movement and growth of the child in the foetus of the complainant through 2D ultrasound which was normal. According to him, he conducted the 2D ultrasound as per modern medical techniques and did not commit any negligence.

While considering the matter, the consumer court referred to the Supreme Court order in the case of Senthil Scan Centre, where the Apex Court had held that "Ultrasound is not a perfect depiction of foetus and scan result cannot be 100% conclusive."

The State Consumer Court also perused the record, prescription/referral schedule for ultrasound and noted that the Radiologist performed 2D ultrasound examination as per the directions of the doctors at BHEL hospital and he was not authorised or empanelled to conduct MRI and child’s fetal bio-physical profile II ultrasound/ anomaly scan/3D/4D ultrasound.

"It is also admitted that the complainant was suffering from high BP and diabetes during the pregnancy. It is further admitted by the complainant (paper No. 43) that Dr. Singhal of BHEL Hospital kept insisting the complainant as treating doctor till the end that the child was normal and healthy, therefore, in our opinion she should be impleaded as a necessary party to the complaint case but the same was not done," observed the Commission.

The Commission also perused the findings of the report of the Committee consisting of the Chief Medical Officer, Haridwar which stated that the complainant (child) was suffering from Congenital Abnormality, which is a rare disease, the probability of which is one case in 75000 to 100000 and its probability increases further in mothers suffering from diabetes.

At this outset, the State Consumer Court further observed, "As per report, the detection rate of this disease by 2D ultrasound (normal ultrasound) is only 15 to 20%. The report states that the complainant was referred by BHEL Hospital for normal ultrasound and was neither asked nor referred for level II / 4D ultrasound. The report further states that the BHEL Hospital should have refer the complainant for Level II ultrasound / 3D/ 4D ultrasound examination keeping in view High Blood Pressure in previous pregnancy and risk caused by diabetes during this pregnancy."

It also noted that the Committee comprising the Chief Medical Officer concluded that the investigation conducted by the appellant (Radiologist) was without malice and did not constitute negligence.

"Thus, above expert report does not reveal that there was any medical negligence on the part of the appellant. Moreover, the complainant has not filed any such expert report wherein it was observed that the appellant was negligent in conducting the ultrasound and making his report. It is also pertinent to mention that the MRI was conducted of the child of the complainant after the birth of the child and no such report was filed on record by the complainant that any fetal deformity was detected in pre-natal test including ultrasound prior to the delivery procedure," the State Consumer Court concluded.

Accordingly, finding no merit in the complaint, the State Consumer Court held that the complainants failed to substantiate their claim by adducing cogent and trustworthy evidence that there was any deficiency in service on the part of the appellant Radiologist.

Therefore, the Commission set aside the District Commission's order, holding, "Accordingly, we are of the considered opinion that the impugned judgment and order passed by the District Commission lacks adequate reasoning and fails to account for relevant facts, evidence of the case. The impugned judgment and order is perverse and it has suffered from illegality and irregularity in passing of the same, thus, the impugned judgment and order is liable to be set aside and the appeal is also to be allowed."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/uttarakhand-scdrc-293096.pdf

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