Infant born with Gross Communication Hydrocephalus: NCDRC absolves Gynaecologist of Medical Negligence

Justice R. K. Agarwal, President of the Commission, and Dr S.M. Kantikar (member) opined in the judgment dated 01.06.2021, that the treating doctor showed a "reasonable degree of skill and knowledge. Therefore, he cannot be held guilty of negligence by any stretch of imagination."

The case concerned the complainant's wife who visited the treating doctor, the Obstetrician & Gynecologist, during her second pregnancy and sought guidance after informing the doctor about her first daughter, suffering from Autism.

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It was submitted by the Complainant that his wife requested the doctor to take every precaution and to carry out possible diagnostic tests to avoid any physical and mental defect to her 2^nd child. For this purpose, the patient remained under the Antenatal care of the treating doctor for a period of nine months.

The doctor conducted the first Ultrasonography (USG) on 13.04.2013 and never advised for a 2^nd level USG, claimed the Complainant. On 24.10.2013, the patient delivered a healthy female baby through normal delivery.

However, a few days after being discharged the complainant noticed that the baby's head had started to swell and consulted a Paediatrician for this purpose. After MRI and other lab investigations, it was diagnosed that the baby was suffering from an incurable congenital disease "Gross Communication Hydrocephalus".

After discussing the matter with few other doctors, the complainant came to find out that Hydrocephalus could have been diagnosed easily during early pregnancy and they could have timely aborted the unwanted pregnancy.

Thereafter, the newborn baby underwent VP Shunt surgery at a different hospital and the shunt was implanted through her head up to her stomach. Soon, the baby developed an infection (meningitis) and again underwent treatment using numerous antibiotics and other medicines. Finally, the Shunt was removed and the baby was discharged on 12.03.2014.

Thus, alleging medical negligence against the gynaecologist and the treating hospital where the baby was born, the complainant prayed for compensation of Rs 2 crore with interest @24 % p.a.

The treating doctor, on the other hand, refuted all the allegations and submitted before the Commission that during the first USG, the baby was found to be normal. However, the doctor had advised for Triple test and USG at 16 weeks of pregnancy, but it was denied by the mother. Later, the patient brought a USG report from a different clinic, and it reported the baby to be normal.

The doctor further added that the patient was irregular during ANC check-up and did not follow the instructions. She was called for anomaly scan after 3 weeks, between 17 to 20^th week of pregnancy but she came late after 18 days when it was 21 weeks 3 days; therefore as per law, the termination of pregnancy was prohibited.

Further submitting that minor changes in the brain's ventricular

size could be spontaneously cured before birth or could be treated after birth, the doctor also pointed out that the complainant didn't file any Medical Certificate about the said anomaly from any Govt. authority.

The counsel for the doctor and hospital also contended that as the first USG report was found to be normal, the treating doctor did not advise for Doppler, NST, and Cardiotocography. However, as there was history of the 1^st child suffering from Autism, the doctor, to rule out congenital fetal anomalies, advised 2^nd level USG and Triple Test on 11.05.2013.

He further argued that to mislead the commission, the complainant intentionally did not file discharge summary of mother and the newborn which mentions the head circumference. If it was the case of congenital hydrocephalus, the baby had a large head and the normal vaginal delivery was not possible, further argued the counsel for the treating doctor.

After listening to all the arguments by both parties, the Commission also noted that the Complainant had not filed the USG images done on 11.05.2013 and the Doppler report. The Complainant only filed one RTI reply by AIIMS regarding general disclosure of antenatal investigations. The Commission pointed out that it was neither an expert opinion nor had any evidential value.

The Commission further noted that the patient did not follow the instructions of the doctor to visit every 15 days and didn't undergo USG and Color Doppler study. In fact, the head circumference, as measured by the Pediatrician was found to be normal.

Moreover, from the record, the Commission found out that after 16 weeks, the patient did not turn up but came to the treating doctor on 19.06.2013 i.e. at 21 weeks 3 days and even if there was any anomaly the termination of pregnancy was not legally allowed in India after 20 weeks.

"If the enlargement of the head, in this case, was started before 20 weeks, the size of the head would have been grossly enlarged and it could be easily detected at the birth," noted the Commission.

The commission further referred to the Apex Court judgment in Jacob Mathew's case, where the Court held,

"When a patient dies or suffers some mishap, there is a tendency to blame the doctor for this. Things have gone wrong and, therefore, somebody must be punished for it. However, it is well known that even the best professionals, what to say of the average professional, sometimes have failures. A lawyer cannot win every case in his professional career but surely he cannot be penalized for losing a case provided he appeared in it and made his submissions."

After going through all the facts and arguments related to the case, the commission opined that the treating doctor advised proper diagnostic tests during pregnancy to rule out anomalies.

"It was a reasonable degree of skill and knowledge. Therefore, he cannot be held guilty of negligence by any stretch of imagination," noted the Commission.

Mentioning that the Complainant failed to conclusively establish deficiency/negligence on the part of the treating doctor / the hospital, the Commission dismissed the Complaint.

To view the original order, click on the link below.