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

New Delhi: Holding a Thrissur-based hospital and its Radiologist liable for failure to detect anomaly in the foetus, the National Consumer Disputes Redressal Commission (NCDRC) recently directed them to pay Rs 15 lakh compensation to a couple.

Setting aside the State Consumer Court's order, which had directed the hospital and the doctor to pay Rs 75,000 each as compensation, the top consumer court increased the amount of compensation. Both the hospital and the doctor have been directed to pay Rs 7.5 lakh each to the complainant couple as compensation for the error in the scanning report. 

"Apart from this, life-long disability to be suffered by the child and the agony to be suffered by the parents due to such physical disability would need to be additionally compensated... and in the present case the amount of Rs.75,000/- appears to be a pittance," opined the Apex Consumer Court.

"In the opinion of this Commission, the amount of Rs.75,000/- each on the doctor and the hospital is negligibly disproportionate. On the overall circumstances of the case, the said amount deserves to be enhanced to the tune of Rs.7,50,000/- each on the hospital and the doctor. This liability of Rs.7,50,000/- shall be on *** Hospital (P) Ltd. and Dr. *** respectively for the lapse and deficiency in tendering an incorrect radiological report and their failure to detect the anomalies and report accordingly," ordered the NCDRC.

The matter goes back to 2011 when the concerned couple approached the treating hospital to consult a Gynecology Specialist. The complainant's wife informed that she had a history of abortion during the previous pregnancy and therefore as per the advice of the doctor she got her preliminary examination through an ultrasound scanning at the Scanning Centre attached to the Hospital, where the concerned doctor was working as the Consultant Radiologist. The Ultrasound Scanning conducted on 02.09.2005 indicated all parameters to be normal. This USG test was conducted when the foetus was about nine weeks and five days old.

It was alleged by the complainant that another Ultrasonography was carried out on 11.03.2006, nearly a month before the expected date of delivery, where again the same conditions were reported with a clear impression that no gross anomalies were found.

Therefore, the complainant went ahead with the planned delivery. However, the child was born unfortunately with serious limb anomalies as the two legs of the baby from the knee downwards were not there and the right hand from above the elbow downwards was also missing. Finally, the complainant mother and the child were discharged on 01.04.2006 and thereafter a lifelong agony commenced as the child required artificial limbs and had to be nursed and cared for by a helper for the rest of his life.

It was alleged by the complainant that had these anomalies have been detected at an earlier stage, she could have exercised the option of abortion. But because of the negligence and carelessness as well as the reckless casual report submitted by the Doctor, the tragedy could not be averted. Therefore, alleging gross deficiency against the hospital and its radiologist, the complainants approached the State Consumer Court, Kerala.

On the other hand, the doctor and the hospital contested the claim by urging that the patient had been informed for regular antenatal check-ups and the conduct of another Ultrasonography study at 18-20 weeks of the pregnancy to detect any anomalies. It was contended that this anomaly scan was not undergone by the mother when the foetus was 18-20 weeks old as advised by the concerned Doctor and the Hospital. 

Further, they also alleged that the patient brought some Ultrasonography reports from the Gulf, which also did not indicate any abnormality of anomaly. Referring to the Ultrasonography conducted on 28.12.2005, they submitted that the report was not to detect any anomalies, as the ideal time for detecting such anomalies is only between 18-20 weeks.

The doctor and the hospital also urged that the Amniotic Fluid had reduced and was less and therefore, the level of detection of any anomalies stood considerably reduced according to medical protocols. It was argued that in such a situation, the Ultrasound would not show the optimal growth or condition of the baby. They further contended that even if the anomaly is detected after 20 weeks, the MTP Act 1971, does not allow any abprtion. Therefore, the hospital and the doctor claimed that any detection later on and any negligence prior to that cannot be alleged against them as they conducted the Ultrasonography far beyond 18-20 weeks of the pregnancy.

They contended that the evaluation made by them was at a stage when the anomalies could have not been detected with accuracy due to the breech foetal position and the lessening of the amniotic fluid. They further argued that even otherwise, the accuracy rate of such detections is between 45-55% and all the anomalies according to the Doctor and the Hospital cannot be necessarily be detected in every examination.

While considering the matter, the State Commission examined the evidence on record and the Ultrasonography Reports and concluded that the Ultrasonography Reports did indicate adequate amniotic fluid and, therefore, the conclusion drawn by the Doctor was not correct.

Further, the State Commission while discussing the issue of any negligence during Radiological Ultrasound Examination, also took into account the expert evidence of Radiologist, who was working as a Professor in the Department of Radiology, Medical College, Thiruvananthapuram. 

After considering the expert's deposition, the State Consumer Court held that wrong Scanning Reports were tendered by the Doctor. Therefore, the Commission held the Doctor and th hospital liable to pay Rs 75,000 each for negligence. Apart from Rs 1.5 lakh in total as compensation, the State Commission also granted a cost of Rs 1,500 on the hospital and the doctor.

The order was challenged before the NCDRC bench. It was argued by the complainants' counsel that the quantum of compensation awarded was a pittance and disproportionate to the nature of negligence established and loss that occurred to the Complainants.

On the other hand, the counsel for the hospital and the doctor submitted that having failed to get the USG conducted between 18-20 weeks of pregnancy, there was little chance of any detection in the anomaly test, later on which was admittedly conducted in December, 2005, when the Complainants came from the Middle East to India and was done when the foetus was 26-27 weeks old.  Referring to this, the counsel argued that this was a voluntary choice and conduct of the complainants as they did not arrive in time or get the anomaly test conducted in order to enable the detection of any abnormality.

They contended that when the second round and third round of ultrasonography were conducted, there was no likelihood of any anomaly being reported as the material and relevant medical period for conducting such exercise was already over beforehand.

While considering the matter, the NCDRC bench referred to the report dated 28.12.2005 and noted that the report categorically stated about the limbs of the foetus being normal. "The contention of the learned Counsel of the Hospital and also for the Doctor in this regard does not appear to be convincing. The anomalies did exist and which stands established post-delivery. The only issue is as to whether they could have been possibly detected or not in December or even thereafter through radiology examination," the NCDRC bench noted at this outset.

"It is here that the expert evidence indicates that the best period for detection through an anomaly test is between 18-20 weeks. A doubt has also been expressed that the tests conducted may not have indicated any abnormality but that is well within the medical protocols," it further noted.

The top consumer court observed that if the defence taken by the Doctor and the Hospital, that a poor visibility of the growth of the limbs is possible during the third trimester, is taken to be correct then "in that event the benefit of doubt goes in favour of the Doctor and the Hospital. The responsibility of the patient was to be careful when she was a known case of previous abortion, to have abided by the advice of the Doctor and to have taken precautionary measures in order to locate and detect the expected anomalies timely," noted the Commission.

Nonetheless, NCDRC noted that the Doctor and the Hospital were persistent in their Ultrasonography reports that the foetus was normal and rather it was more categorical in the report dated 28.12.2005 when it stated that the limbs were normal. "The amniotic fluids volume was found to be adequate even on the Ultrasonography Report taken on 11.03.2006. Thus, it cannot be said the visuals on account of lessoning of fluids would be impaired," it observed.

NCDRC observed that a complete USG was carried on 28.12.2005, which appears to be an anomaly scan as the same mentions 2D, 3D, and 4D examination. "This was therefore the medically recognized protocol of an anomaly scan where even though the position of the child is mentioned as breech, no other abnormality has been indicated. To the contrary, what is revealing is that the report categorically states that the limbs are normal," it noted.

The Commission further noted that the hospital and the doctor argued that since was test was carried between 26 to 27 weeks, there were greater chances of no detection as the visibility would be reduced due to the positioning of the foetus and also because of other factors.

"In the instant case, the amniotic fluid was stated to be adequate. The expert opinion of Dr. Harikumaran Nair states that if the ratio of the amniotic fluid reduces with the growth of the child, the detection rate becomes less and it is difficult to detect anomalies. Thus even according to the expert’s opinion, the detection rate is lessened only when the amniotic fluid is reduced but here the report clearly states that it was adequate," further observed the Commission.

"The examination in chief and cross-examination of Dr. Harikumaran Nair also states that after the expiry of 20 weeks period the anomalies cannot be detected in all patients. The inference that can be drawn is that anomalies even otherwise can be detected in some patients after the expiry of 20 weeks, which is not an impossibility. He has in his statement also indicated that if an anomaly scan is carried out, a radiologist will spend more time to study the same. This indicates that the examination and assessment should be more seriously undertaken," NCDRC noted at this outset.

Further, the top consumer court noted that the test carried out on 28.12.2005 was an anomaly scan where the report categorically stated that the limbs were normal. The Ultrasonography on 11.03.2006 and 23.03.2006 also did not indicate any anomaly and the said tests were carried out by the same doctor in the same hospital.

Referring to this, the NCDRC bench observed, "It does not stand to reason that if the limbs were normal on 28.12.2005, how would they get deformed as became evident immediately on the delivery of the child on 27.03.2006."

Therefore, the top consumer court agreed with the State Commission's findings regarding deficiency in the radiological report about no anomalies being detected and noted that 

"...report submitted by the doctor in the tests conducted at the radiological centre in the hospital was therefore a careless and adhoc exercise which is nothing short of negligence. Had the report been indicative of anything inconclusive or hazy or doubtful, one could have leaned in favour of the suggestion regarding the correctness of the report, but in the present case as indicated above the anomaly scan on 28.12.2005 categorically mentions that the limbs are normal."

"It is now established that the lower part of the limbs and the foot were totally absent and so was the position of the right arm of the child. Thus the limbs were not normal and a clear deformity existed. This was therefore a clear case of lapse on the part of the doctor who tendered the report. This is not an error of judgment but a lapse due to neglect," it further noted.

Although the Commission agreed with the argument that the baby could not have been aborted even if correct report was given at such a stage, it noted, once the fact of negligence in tendering of the report is established, then the issue is about the quantum of the compensation, to which the complainants are entitled.

Therefore, enhancing the amount of compensation, the NCDRC bench directed the hospital and the doctor to pay Rs 7.5 lakh each for the lapse and deficiency in tendering an incorrect radiological report and their failure to detect the anomalies and report accordingly.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-medical-negligence-230734.pdf

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