Kerala State Consumer Disputes Redressal Commission has directed a Pathanamthitta-based private hospital and two of its gynecologists to pay a child and his parents a compensation of Rs 50 lakh for medical negligence. If interest for the eight years that has passed since the medical negligence complaint was filed is also taken into account, the total compensation would work out to more than Rs 82 lakh.
On January 10, 2015, a first-time mother, through a caesarean conducted at St Luke Hospital (New Life Fertility Centre), Pathanamthitta, gave birth to a boy without the hip and lower limbs. The parents were unprepared for the deformity.
In the ultrasound scans conducted by the hospital on the pregnant mother in 2014 (on September 8, November 12, and December 27, barely a fortnight before the caesarean), no abnormality was detected. In fact, in each of these studies, the foetus's femur (thigh bone) was shown growing in size: at 19 weeks of gestation, 3.03 cm; at 27 weeks of gestation, 5.09 cm; and at 33 weeks of gestation, 6.42 cm.
But when the child arrived, it had no hips and limbs. Nonetheless, the hospital protested the charges of negligence.
Ultra unsound scan
It argued that the scans were done with "due diligence and care". Further, it was argued that ultrasound results cannot be relied upon as "100 percent accurate" and that "all congenital anomalies cannot be detected as it depends upon foetal position, liquor (amniotic fluid) volume and several other factors".
It was also said that the sensitivity of the ultrasound scan, in other words its capability to detect anomalies, would be highly diminished if the amniotic fluid around the foetus was less and the movement of the foetus was minimal.
The hospital had roped in a radiodiagnosis expert who had worked in various medical colleges in Kerala to support its case. He gave evidence that there were instances when disabilities or the absence of lower limbs were unnoticed in the sonogram reports. He also said that the sonographic study was not 100 percent foolproof as "obesity and abdominal wall thickness of the mother" would adversely affect the report.
Anomaly in defence
However, this expert witness of the hospital and the expert witness produced by the parents - the head of the Department of Radiodiagnosis, Government Medical College Thiruvananthapuram - made an observation that weakened the hospital's case. Both said the anomalies could be detected conclusively in what is called an "anomaly scan" taken in the 18th week of gestation.
And both said the hospital had not done the "anomaly scan" that could have identified the abnormalities and given the parents the choice to prevent the birth of a child with severe disabilities.
The Commission also doubted the contention that gynecologists were competent to conduct radiological examination. The increasing size of the femur recorded by the gynecologist in the three scans were held up as evidence of incompetence.
Hospital’s self goal
The Commission also exposed the hospital's move to take cover behind the technicality that the shortage of amniotic fluid would compromise the quality of the scans. If it was so, the Commission asked why it was not noted in the reports.
Since it was not noted, it only means one thing: There was great clarity in the scans. In fact, the movement of the foetus is shown as positive in all the three scans. If there was nothing that could diminish the sensitivity of the scans, the obvious question is: Why were the defects not spotted?
The negligence, therefore, was on two counts. One, the gynecologist who treated the pregnant woman failed to prescribe the "anomaly scan". Two, the second gynecologist's patently wrong observations of the increasing size of the femur.
The Commission then made a damning observation. "On examining these reports only two possibilities could be presumed. One is that the reports were issued without actual examination. And the other, the gynecologist was careless in conducting the examination."
Compensation dilemma
Various factors made it hard to quantify a compensation amount. The child is only seven. The parents will have to suffer perpetual agony. The child will need the attendance of a helper throughout his life.
So the Commission split the compensation into two. Rs 30 lakh for the child, for his future as well as his present needs. The sum will have to be deposited in a nationalized bank in the name of the minor till he attains majority. However, the parents can use the interest for the needs of the child.
And then, Rs 20 lakh for the parents, considering the trauma they will have to suffer the rest of their lives.
This amount, Rs 50 lakh, has to be paid with interest at the rate of 8 percent per annum from March 17, 2015, the date the complaint was filed. Along with interest, the total compensation would work out to more than Rs 82 lakh.
