USG Report given carelessly amounts to unethical practice and thus costed Rs.15 lakhs to Drs..
(In my opinion, this case is yet again another reason to amend MTP Act)
In a case of ANIL DUTT & ANR. V/s. VISHESH HOSPITAL, INDORE & ORS., the National Commission passed strictures upon the Radiologists / Sonologists for not adhering to the Hippocratic Oath !
Case of the Complainant. :
1. The Wife of the Complainant was under treatment of Doctors during her pregnancy. IT was contended that the concerned sonologists / radiologists gave wrong reports at both occasions after 20 weeks ,which resulted into serious consequences.Namely, the patient was advised for ultrasonography (USG) by Dr. Indira Vyas, a Gynaecologist to ensure well-being of child, it was done on 20.01.2009 by Dr. G.S.Saluja, (the OP3), and reported it as intrauterine 20 weeks and 6 days gestational age, with no abnormal findings. The “Foetal Spine, Trunk & Limbs are Normal”. On the basis of the said report Dr. Indra Vyas continued her regular treatment and check-ups. After 3 months, i.e at 32 weeks of pregnancy, on 22.04.2009, 2nd USG was performed by OP2 Dr.Kushalendra Soni. It was reported as 32 weeks 01 day( + 2 weeks) “ Severe Oligohydramnios” and the “Foetal Spine, Trunk & Limbs are Normal”.
2. When the female-baby was born, she was found not fully developed & her left arm and kidney were missing and even lungs were not completely developed and had fused spinal cord. The foetal weight was only 1500 gm, instead of 2500 gm.
3. The allegation of complainants was that, both the doctors, OP2 and OP3 are qualified Radiologists/Sonologists, but due to casual approach, negligence and lack of care towards the patient, gave wrong reports at both occasions, which resulted into serious consequences. The other Doctors opined that due to wrong USG reports, the no proper treatment was given for mother and child before birth and due to wrong reports, the parents lost their option of MTP. The mother was under shock after seeing her baby and underwent bypass surgery.
4. Hence, the case for Compensation of Rs.1.5 Cr.
Doctors’ Defense :
1.Organ imaging is largely dependent upon position of foetus and to recognise absence of structure that ordinarily could be visualized with most difficulty. Routine ultrasound is the most basic form of prenatal examination and lasts only for about 10 minutes during which the position of foetus cannot be changed to view it from sides.Every qualified radiologist and gynaecologist is fully aware of the inherent limitation of such USG. During the USG performed by him, the foetus was lying on its side, with upper limbs tucked underneath, it was impossible to see that any limbs were missing nor was there any reason to assume or suspect so. The congenital anomaly suffered by the child rather very rare and extremely difficult to detect even with repeated examinations with the best expertise and modern equipment. The routine scan cannot detect such anomalies, it needs advanced targeted or anomaly scan.
2. The anomaly scan should have been directed by the treating Doctor as the type of examination depends upon which examination is requested by the gynaecologist concerned.
1. The National Commission, after going through the medical record, experts opinion and after hearing of parties, allowed the Complaint to the tune of Rs.15 lakhs.
2. It relied upon the Apex Court judgment of V. Kishan Rao Vs. Nikhil Super Speciality Hospital & Anr., 2010 CTJ 868 (SC) , wherein it has been held that only in complicated cases, expert opinion is required.
3. Dr. R.K. Sharma, who is a forensic expert opined that it was a clear case of Medical Negligence where sonologists/radiologists failed in their basic duty to detect congenital malformation. On the contrary, the Expert opinions on behalf of Doctors stated that any amount of detailed study by ultrasonography, may miss the congenital anomaly at the expert hands and cannot amount to negligence with availability of even ultra-modern equipment.
4. The Court observed that the doctors are often reluctant to testify against their colleagues (as the “conspiracy of silence”) and hence true experts opinions are hard to be found.
5. Had the anomaly been detected the parents would have been referred to a tertiary foetal medicine unit for further investigations which would have revealed the presence of other anomalies in addition to the abnormalities of the foetal limbs. The existence of two serious anomalies would have resulted in the pregnancy being terminated.
6. As per their own submissions,of Sonologists that because of tucked position of the foetus, they have not seen the limbs, then how both opined in their “usual” reports as “Foetal Spine, Trunk & Limbs are Normal, the National Commission straightly pointed out the variance.
7. The Doctors failed to exercise the reasonable degree of care and skill during performing USG.The deficiency in service/ breach in duty is proved against Doctors, but the anomaly was not due to the breach of duty as it was pre-existing.
Based on the findings, the court ordered OPs (1,2 and 3) to pay a sum of Rs.15,00,000/- jointly and severally to the complainants. It is further directed that, the OPs shall deposit entire amount in a fixed deposit, in any nationalised bank, in the name of the child and the regular periodic interest accrued on it, be paid to the mother, till the baby attains 21 years.
Rs. 15 lakhs is very paltry sum from point of view of parents. But what was the real negligence on part of Doctors ? Are the limitations of USG are set out in this judgement ? What If anomaly scan is not possible prior to 20 weeks and MTP is not allowed after 20 weeks, who is at fault ?…..
An eye opener for everyone…..
Adv. Rohit Erande
You can read the copy of the judgement by clicking on the following link