Rs 1.4 crore compensation slapped on doctors for missing retinopathy of prematurity at birth

It was averred that In the case of premature babies, who have been administered oxygen or blood after birth, it is settled norm/practice that said babies are to be screened for ROP. This thing was required to be explained to parents of the babies, as prematurity is one of the most common causes of blindness It is caused by an initial constriction and then by rapid growth of blood vessels in retina. When the blood vessels leak, they cause scarring. The scars can later shrink and pull on the retina and sometimes detach. The disease advances in five stages. As per the medical literature, stage-III of ROP can be treated by laser or cryotherapy treatment, in order to eliminate the abnormal vessels. Even in stage-IV in some cases central retina or Macula remains intact, thereby keeping the central vision intact. When this disease is allowed to progress to stage-V, there is a total detachment and retina becomes funnel-shaped, leading to blindness.

In their defence, both the pediatrician and the opthalmologists denied any negligence. They debated the complaint filed for mentioning the wrong EDD and not showing any records of delivery as well as further records with followup opthalmologists and pediatricians. The pediaitrician further submitted that while he had reffered the parents to take the children to the opthalmologist for checkup, the same was not done in time

It is further pleaded that counselling of the mother for the need of ROP screening and regular follow-up for both the twins was also done at that time. The OPD records are with the patient/complainant and this fact has also been concealed. On 01.03.2017, medicines were used to dilate pupils, as per ROP screening protocol and fundus evaluation under dilatation and examination using IDO was done with 20d/28d lens. A close follow up and risk for development of ROP was advised because at that time, retina in both eyes was immature (Zone-1) without threshold or plus disease. At that stage, no intervention was required and mother was counselled for follow-up and noting was mentioned on the OPD Card, which is with the parents of the baby. This fact of examination and ROP screening has also been concealed in the present complaints.

The pediatrician further claimed that despite medical advice during treatment, the parents took the childrem LAMA with cannula in situ adding that if baby remained in NICU, ROP would have been done in NICU.

The first opthalmologist in his defence pointed out that the birth prematurity of a baby is an aspect, which cannot be judged by any person by simply seeing the baby. Since he was not privy to the fact of birth prematurity of the children, so there was no occasion for him to advice for retinopathy, as alleged by the complainant. In view of the facts and circumstances of the case as well as medical protocols, it was not at all imperative for him to have recommended ROP screening of the child, more particularly in the absence of aspect of birth prematurity of the child having been disclosed to him. All other allegations levelled in the complaint have been denied and it has been prayed that the complaint be dismissed.

Both the parties debated on the time of birth of the children, with one party stating that they were delivered at 32 weeks, while the other stating that they were delivered 26-28 weeks 

The court after going through the submissions in detail noted.

Retinopathy of Prematurity (ROP) is one of the major emerging causes of childhood blindness. A premature baby is not born with ROP. In the case of premature babies, the retina is immature at the time of birth, which is natural at that stage. Only the post-natal developments in the retinal vessels could lead to ROP.

In what circumstances, ROP is required to be done, is also relevant for determination of the same, as both Twin-1 and Twin-2 have become blind for whole life. Even if it is taken that the age of the twins at the time of delivery was 26 to 28 weeks or 32 weeks, in view of confusion about the expected date of delivery, even then opposite parties No.1 to 3 failed to follow the standard medical protocols while treating the twins immediately after their birth.

The court went in details about literature on ROP including going through the AAP recommedations on that matter, which lay down the timing, examination technique,as well as Treatment modalities of ROP. The ocurt also went through the AIIMS NICU Protocols 2010 and NNF guidelines on the matter. the court furtner noted

In view of the settled law, medical literature and guidelines etc. as discussed above, it is clear that ROP screening in babies, who are prematurely born and under weight, is mandatory and due care and caution is required to be exercised while dealing with matter of premature babies.

The court further noted 

The fact remains that irrespective of the gestational age and less weight of the babies, it was mandatory to examine both the infants for ROP screening after birth, who were at the risk, to ensure that ROP screening is done. Merely saying that the parents were advised for the same cannot be accepted. In these circumstances, it can very well be said that much time was wasted by opposite parties No.1 & 2 for doing the needful at the hour of the need.

Even in case of the opthalmologists, the court noted that they too failed to handle the twins with due care and caution and did not do ROP screening

The court then concluded medical negligence on part of all three doctors

The sum and substance of the arguments and medical record as discussed above clearly prove that opposite party No.1 should have liaison with other medical officers, such as Paediatric Ophthalmologist and Retina Specialist, Paediatrician, Anaesthetist and Neonatologist, but opposite party No.1 failed to arrange the same. Rather, it appears that he was unsure what needs to be done in such like a situation. Due to misconceptions, appropriate referral appears to have not been made and the referral at later stage was too late. Timely and accurate screening of ROP condition is of utmost importance because of short window of opportunity during which treatment is effective. Opposite party No.1 failed to do the needful. If referral would have been made timely due intervention would have reduced their avoidable visual impairment, as in premature and under birth weight ROP is preventable and treatable. Opposite parties failed to perform appropriate screening protocol to ensure early detection of ROP in the 1-3 weeks of the birth, resultantly treatment of peripheral ablation of avascular retina with laser or cryotherapy could not be provided to the twins. Hence, opposite parties No.1 to 3 are liable for the medical negligence.

Thus, keeping in view the above discussion and the evidence on record, preponderance of probability and inferences, we hold that the complainants have been able to prove their allegations of deficiency in service and medical negligence against opposite parties No.1 to 3. It is true that medical negligence cases do sometimes involve questions of factual complexity and difficulty and may require the evaluation of technical and conflicting evidence. However, in the present case, the complainants have been able to discharge the onus of proving on a balance of probabilities, the medical negligence and deficiency in service averred against opposite parties No.1 to 3. Thus, it stands clearly proved that opposite parties No.1 to 3 were grossly negligent by not doing ROP screening as per standard medical protocols. Due to sheer negligence and deficiency in service on their part, the Twins have been rendered blind for lifetime. As a result of loss of vision, the whole life of Twins has been pushed to darkness. They will be unable to perform human functions properly as compared to a human having eyesight. They will also be losing joy of life and deprived of wholesome physical activity on account of having blind. They will have to get themselves checked up from the doctors for whole of their life at particular intervals and will be dependable on the mercy of others.

The Medical Literature produced on record and judgments clearly state that Stage- V of ROP is reached by 36 weeks. Even if the plea of opposite parties No.1 & 2 taken to be true for the sake of arguments even then the complainants ought to have been examined within 4 weeks, because as per medical literature, the ROP would have set in by then. The plea taken by opposite parties No.1 & 2 that ROP screening was done is false. In the Discharge Summary issued by them, no details of OP screening are given. As per the law laid down by the Hon'ble Supreme Court it is mandatory to give the report and also write clearly to followup and explain the consequences. However, nothing like this has been done in the present complaints.

Moving to the quantum of punishment, the court went through various decisions including those given by the Supreme Court in order to decide the quantum of compensation. The forum then relief on Hon'ble Supreme Court of India in case V. Krishnakumar (supra) has taken the expectancy of human life to be 70 years, and also designed the formula for compensation. 

Although, the loss of vision cannot be compensated in terms of money, yet in view of law laid down in the above referred authorities, age of the twins, who are just six years old by now and the totality of facts and circumstances of the case, we award lump sum compensation of ₹70,00,000/- each to the complainants/Twins, along with interest at the rate of 7% per annum from the date of filing of the complaints till realization, on account of loss of vision due to sheer medical negligence and deficiency in service on the part of opposite parties No.1 to 3 and resultant mental agony, harassment, avoidable pain, sufferings caused to the complainants and their parents,including medical expenses.

Out of the Rs 70 lakh compensation, the pediatrician was directed to pay Rs 50 lakh per twin, while the first opthalmologist was directed to pay RS 15 lakh each and other opthalmologist was directed Rs 5 lakh compensation The doctors were further ordered to pay the litigation costs separately.