Case Law Details
Dr. Anamika Dixit Vs Ankit Jain & 2 Ors. (NCDRC Delhi)
Conclusion: In present facts the National Commission dismissed the Appeal by observing that the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order.
Facts: In present facts of the case, the present Revision Petition has been filed under section 21(b) of Consumer Protection Act, 1986, against the order dated 05.07.2018 of the State Consumer Disputes Redressal Commission, Uttarakhand
Brief facts of the case are that the Petitioner is a Radiologist and is running her radiology hospital. On 01.03.2013, the Petitioner conducted an ultrasound test of Respondent No.2, who was in 19th week of her pregnancy. The report was prepared and handed over to Respondent No. 2 as per the image reflected in the ultrasound machine as well as in the film developed showing single live foetus present in uterus in healthy condition. On 25.04.2013, the Respondent No.2 went to another doctor who advised fresh ultrasound. The fresh ultrasound was done where a report was given that there were twin live foetuses in the uterus of Respondent No.2. On 27.06.2013, Respondent No.2 gave birth to twin female children in Joshi Hospital, Kashipur. On 26.08.2013, Respondent No.1 (husband of Respondent No.2) sent Legal Notice to the Petitioner claiming Rs.15 Lakhs as compensation for wrong report of ultrasound of his wife.
On 05.03.2014, R -1 & 2 (complainants) filed complaint before the District Forum. The District Forum directed to pay compensation of Rs.75,000/- with interest @7% p.a. from the date of filing complaint i.e. 05.03.2014 till actual date of payment to the complainants for mental and physical loss.
Aggrieved by the said Order dated 27.03.2018 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 05.07.2018 in FA No. 63/2018 dismissed the Appeal.
It was contended by the Petitioner that the present matter arises out of a special medical event of pregnancy involving superfetation and superfecundation which deals with twins of unequal age and size (unusual twinning) and requires expert evidence to understand ultrasound scan done at a particular point of time concerning such pregnancy. It is further contended that the State Commission failed to do a logical analysis of the ultrasound report given by the Petitioner for understanding if there was any breach of duty or care. Rather there was no analysis of facts or law or even an explanation as to how the Petitioner was negligent.
On the other hand, it was contended by the Respondents that the Revision Petition was not maintainable as Revisionary jurisdiction of National Commission can only be invoked when there is any error apparent on the face of records/facts and/or if there is any mistake of law in the impugned order.
The National Commission observed that both the fora below have come to a concurrent finding of negligence on the part of Petitioner herein and given a well-reasoned order. No new law points have been raised. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order.
The National Commission observed that there was no illegality or material irregularity or jurisdictional error in the order of the State Commission. For the reasons stated hereinabove, there were no reasons to interfere with the orders of the State Commission, hence the same was upheld.
FULL TEXT OF THE JUDGMENT/ORDER OF NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
1. The present Revision Petition (RP) has been filed by the Petitioner against Respondents as detailed above, under section 21(b) of Consumer Protection Act, 1986, against the order dated 05.07.2018 of the State Consumer Disputes Redressal Commission, Uttarakhand (hereinafter referred to as the ‘State Commission’), in First Appeal (FA) No.63 of 2018 in which order dated 27.03.2018 of District Consumer Disputes Redressal Forum, Udham Singh Nagar (hereinafter referred to as District Forum) in Consumer Complaint (CC) No. 19 of 2014 was challenged, inter alia praying for setting aside the order dated 05.07.2018 passed by the State Commission in FA/63/2018 and dismissing the CC No. 19/2014 by setting aside the order dated 23.07.2018.
2. While the Revision Petitioner (hereinafter also referred to as Doctor) was Appellant and Respondents No. 1 & 2 (hereinafter also referred to as Complainants) were Respondents No.1 & 2 and Respondent No. 3 (hereinafter also referred to as Insurance Company) was Respondent No.3 in the said FA/2760/2018 before the State Commission, the Revision Petitioner was OP-1 and Respondents-1 & 2 were Complainants and Respondent No. 3 was OP-2 before the District Forum in the CC No. 19/2014.
3. Notice was issued to the Respondents on 23.10.2018. Petitioner filed Written Arguments/Synopsis on 12.04.2023 and written arguments were filed by the Respondents -1 & 2 on 21.04.2023. Counsel for Respondent No. 3 sought exemption from filing her short synopsis on 25.04.2023 on the ground that she is only a proforma party.
4. Brief facts of the case, as emerged from the RP, Order of the State Commission, Order of the District Commission and other case records are that:-
(i) The Petitioner is a Radiologist having MBBS and DMRD (Diploma in Medical Radio Diagnosis) and is running her radiology hospital in name of “AHAD DIAGNOSTIC CENTRE’ at Rudrapur, Udham Singh Nagar, Uttarakhand. On 01.03.2013, the Petitioner conducted an ultrasound test of Ms. Anchal Jain- Respondent No.2, who was in 19th week of her pregnancy. The report was prepared and handed over to Respondent No. 2 as per the image reflected in the ultrasound machine as well as in the film developed showing single live foetus present in uterus in healthy condition.
(ii) On 25.04.2013, the Respondent No.2 went to another doctor who advised fresh ultrasound. The fresh ultrasound was done in Urmila Nursing Home by Dr. Rajeev Chauhan, who gave report that there are twin live foetuses in the uterus of Respondent No.2. On 27.06.2013, Respondent No.2 gave birth to twin female children in Joshi Hospital, Kashipur.
(iii) On 26.08.2013, Respondent No.1 (husband of Respondent No.2) sent Legal Notice to the Petitioner claiming Rs.15 Lakhs as compensation for wrong report of ultrasound of his wife.
(iv) On 05.03.2014, Respondents -1 & 2 (complainants) filed complaint before the District Forum.
5. Vide Order dated 27.03.2018 in the CC No.19 of 2014, the District Forum accepted the complaint against Dr. Anamika Dixit (R-1 before the District Forum) and directed to pay compensation of Rs.75,000/- with interest @7% p.a. from the date of filing complaint i.e. 05.03.2014 till actual date of payment to the complainants for mental and physical loss. Respondent -1 was also directed to pay Rs.3000/- as litigation costs to the complainants.
6. Aggrieved by the said Order dated 27.03.2018 of District Forum, Petitioner appealed in State Commission and the State Commission vide order dated 05.07.2018 in FA No. 63/2018 dismissed the Appeal.
7. Petitioner has challenged the said Order dated 05.07.2018 of the State Commission mainly on following grounds:
(i) the State Commission has committed grave error in law as well as fact by dismissing the Appeal of the Petitioner in such a casual manner. The State Commission failed to appreciate the law laid down by the Hon’ble Supreme Court in U.Manjunath Rao Vs. U. Chandrashekhar & Anr. 2017 (15) SCC 309, it was held that “Thus, in the first appeal the parties have right to be heard both on the questions of facts as well as on law and the first appellate court is required to address itself to all the aspects and decide the case by ascribing reasons.”
(ii) The State Commission failed to apply its judicious mind in dismissing the first appeal of the petitioner in such a casual manner.
(iii) The State Commission and District Forum have committed error in law by not appreciating the law laid down by the Hon’ble Supreme Court in cases of medical negligence. The Hon’ble Supreme Court in Jacob Mathew Vs. State of Punjab & Anr. 2005 (6) SCC 1, has held that:
“(1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ‘duty’, ‘breach’ and ‘resulting damage’.”
The State Commission and District Forum failed to test the case on above principles. The duty entrusted upon the Petitioner has been done by her and there is no breach of any kind in the duty and there is non-resulting damage which is sine qua non for proving medical negligence.
(iv) The question whether two fetuses as claimed by Respondent No.2 were visible on the date of ultrasound i.e. 01.03.2013 in machine of Petitioner can only be determined by a panel of export doctors and not in casual way as determined by the District Forum by counting hand and feet of unborn child.
(v) The State Commission and District Forum failed to appreciate the fact that there was no omission on the part of the Petitioner she made reports in accordance with the images reflected in the ultrasound machine and which was later on provided to the Respondent No. 2.
(vi) The State Commission and District Forum failed to appreciate the law laid down by the Hon’ble Supreme Court in Senthil Scan Centre V. Shanthi Sridharan (2010) 15 SCC 193, held that ultrasound is not a perfect depiction of foetus and scan result cannot be 100% conclusive as it is often difficult to examine some foetal areas for several reasons. In this case the State Commission and District Forum has not appreciated the law laid by the Hon’ble Supreme Court and has misguided itself in applying analogy that if one unborn child is seen why second unborn was not seen.
(vii) The State Commission and District Forum failed to appreciate that the complaint was filed with ulterior motive to harass the Petitioner. Respondents 1 & 2 failed to prove that there has been any damage on account of alleged report except making statements that children born were weak. The Respondents have not produced prescription of any doctor to suggest that there was unusual change in course of medication after knowledge that there were two unborn children in the uterus. There is no iota of evidence to suggest that health of children in womb or of their mother deteriorated in 55 days after which second ultrasound was done. It is an admitted fact by Respondent No.2 that she was having illness during pregnancy and birth of weak child has no reasonable connection with the ultrasound report. The Revision is bonafide and in interest of justice.
8. Heard counsels of both sides. Contentions/pleas of the parties, on various issues raised in the RP, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.
8.1 It is contended by the Petitioner that on 01.03.2013 the Petitioner conducted ultrasound test on Respondent No. 2 on medical advise of Dr. Annu Pathak for the status of the foetus at 19th week of pregnancy. On the basis of image reflected in ultrasound machine and the film obtained the report mentioned “single live intrauterine gestation of 19 weeks and 6 days size. After 55 days, i.e. on 25.04.2013, the Respondent No.2 got second ultrasound done at Urmila Nursing Home Ultrasound Centre, Jaspur and the report was given by Dr. Rajeev Chauhan mentioning “twin live intra-uterine gestation of average 27+ weeks. On 27.06.2013, the Respondent No. 2 gave birth to two children in Joshi Hospital, Kashipur. After sending a registered legal notice on 26.08.2013 for wrong ultrasound report, the Respondents filed complaint before the District Forum on 05.03.2014.
8.2 It is contended that the present matter arises out of a special medical event of pregnancy involving superfetation and superfecundation which deals with twins of unequal age and size (unusual twinning) and requires expert evidence to understand ultrasound scan done at a particular point of time concerning such pregnancy. It is further contended that the State Commission failed to do a logical analysis of the ultrasound report given by the Petitioner for understanding if there was any breach of duty or care. Rather there was no analysis of facts or law or even an explanation as to how the Petitioner was negligent. The State Commission failed to appreciate that the foundation for fastening liability or negligence as per the complaint was wholly conceived as per the second report which was conducted 55 days later and hence only an expert advise which was deemed needless by the State Commission could have provided a better insight as to whether there was any breach; of duty or care for attributing negligence in terms of report prepared on 01.03.2013. The standard care is to be judged in the light of knowledge available at the time of the incident, and not a the time of trial. The Petitioner has relied upon various judgments passed by the Hon’ble Supreme Court in support of her contentions.
8.3 On the other hand, it is contended by the Respondents that the Revision Petition is not maintainable. As per Law, the revisionary jurisdiction of National Commission can only be invoked when there is any error apparent on the face of records/facts and/or if there is any mistake of law in the impugned order. Upon bare perusal of the order dated 27.03.2018 passed by the District Forum, it is apparently clear that the District Forum duly considered the documents placed on record viz affidavit as well as photocopy of excerpts from book of ‘Ultrasonography in Obstetrics and Gynaecology’ authored by ‘Peter W. Callen’ . Similarly, the State Commission also, after having appreciated all the documentary evidence/proofs as placed on record by the Petitioner and Respondents and as have been a part of record of District Forum came to the conclusion that there has been a negligence on the part of the Petitioner and the Petitioner Dr. Anamika Dixit has not taken enough care and seriousness in doing ultrasound and gave a report. The orders of both District Forum and well as State Commission do not, in any manner, suffer from any infirmity, there is no error apparent on the face of facts and records and/or mistake of law. On the sole ground the Petitioner is liable to be dismissed. It is also contended that from the report given by the Petitioner it can be discerned that hands and feet of the fetus has been shown normal and complete details of one child has been given the ultrasound report. The child in the uterus was of 19 weeks 6 days i.e. 5 months and all organs of the child were visible and normal as per the ultrasound report of the Petitioner. Accordingly, the Respondents showed the reports to their Gynecologist –Dr. Annu Pathak and on the basis of report given by the Petitioner, medicines and further course of action have been prescribed to the Respondent No. 2.
8.4 It is also contended by the Respondents that despite having following the due course and all the medications, the condition of Respondent No. 2 deteriorated and she started to suffer from extreme weakness, nausea and had severe pain in lower abdomen. Even after proper medication and proper care as per the suggestion of Gynecologist, the pain continued and accordingly the Respondents deemed it appropriate to consult another doctor for proper suggestion. Thereafter, the Respondents consulted Dr. Sima Chauhan in Jaspur, who suggested Respondent-2 for another scan/ultrasound from different place. On 25.04.2013, ultrasound was done by Dr. Rajeev Chauhan who in his reported stated that “Twin live intra-uterine gestation of average 27+ weeks (EDD) as per larger fetus” and accordingly it was concluded that the earlier report of ultrasound dated 01.03.2013 done by the Petitioner was absolutely wrong and the Petitioner has not exercised due and ordinary care as she ought to have exercised while conducting the ultrasound. On 27.06.2013 Respondent No.2 gave birth to two girl child who were extremely weak, malnourished and underdeveloped. Due to negligent and casual attitude of the Petitioner conducting ultrasound and reckless act of furnishing wrong ultrasound report to Respondents, Respondent No.2 could not get proper medication and the fetus in womb remained underdeveloped because of proper nourishment. Due to the acts and omissions on the part of the Petitioner, the Respondents had to go through tremendous mental and physical agony as mother as well as children had to go in severe medication and treatment for which only the Petitioner is liable. The District Forum as well has State Commission have rightly held that the Petitioner was negligent and have not exercised due and ordinary care as Petitioner was expected to while conducting the ultrasound.
8.5 It is further contended by the Respondents that the present petition is absolutely false and frivolous and liable to be dismissed. The argument of the Petitioner that the present matter requires expert evidence, is absolutely flawed inasmuch as in the present case the negligence on the part of the Petitioner is very apparent. It is a fact that all organs of the foetus are visible at the age of 5 months whereas the Petitioner, who was required to conduct thorough examination at the time of Level –II ultrasound scan, could not even locate the twins during the scan, which clearly shows that the Petitioner was negligent and the negligence is apparent in the present case, more so in the light of the subsequent ultrasound report and delivery of twins of Respondents. The judgments relied upon by the Petitioner are not applicable in the present case and rather favours the case of the Respondents.
8.6 It is contended by Respondent No. 3 that Insurance Company is a Proforma Party and both the Fora below have not passed any adverse order against Respondent No. 3.
9. The State Commission in its order has observed as follows:-
“7. There is no dispute with regard to the fact that in the ultrasound report of complainant No. 2 issued by the appellant, it was mentioned that there is only one baby in her womb. It is also not disputed that the complainant No. 2 had given birth to two babies. The complainant No. 2 was prescribed medicines by the doctor taking into consideration the ultrasound report issued by the appellant, wherein only one baby was shown in her womb and when the health of complainant No. 2 deteriorated and she consulted another doctor, who advised her to get her ultrasound test done at some other laboratory and after getting the ultrasound done, it transpired that there are two babies in the womb of complainant No. 2. Between the period of the report issued by the appellant and the second ultrasound report, i.e., for a period of 55 days’, the complainant No. 2 was not in know of the fact that there are two babies in her womb and as the doctor had prescribed her medicines according to only one baby in her womb, the second baby in the womb could not be properly looked after and could not be taken proper care of.
8. Since there were two babies in the womb of complainant No. 2, she was required to take extra precaution, as in the case of twins in the womb, the delivery turns into high risk delivery and in the case of twins in the womb of a female, the doctor advises certain other precautions to be adopted by the said female.”
10. The State Commission has relied upon judgment of this Commission in “Bombay Hospital and Medical Research Centre Vs. Sharifabi Ismail Syed and others”; I (2008) CPJ 432 (NC) and Nehra (Dr.) Vs. Shalini Vij and others; IV (2008) CPJ 230 (NC), State Commission also took due note of judgment of Hon’ble Supreme Court in Senthil Scan Centre Vs. Shanthi Sridharan and another; III (2011) CPJ 54 (SC), relied upon by the Appellant (Petitioner herein) and after considering all the facts and circumstances, came to a finding that District Forum has passed a reasoned order.
11. We have also gone through the order of the District Forum. It has taken due note of various contentions raised by the Petitioner herein and given a speaking and well-reasoned order and came to a finding that due to wrong report of Respondent No.1 (Petitioner herein), the complainant could not receive best treatment and care in spite of being in care of doctors. When there are two foetuses, life of a pregnant woman is on ‘high risk delivery’.
12. In the present case, both the fora below have come to a concurrent finding of negligence on the part of Petitioner herein and given a well-reasoned order. No new law points have been raised. As was held by the Hon’ble Supreme Court in Rubi Chandra Dutta Vs. United India Insurance Co. Ltd. [(2011) 11 SCC 269], the scope in a Revision Petition is limited. Such powers can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order. In Sunil Kumar Maity Vs. State Bank of India & Ors. [AIR (2022) SC 577] held that “the revisional jurisdiction of the National Commission under Section 21(b) of the said Act is extremely limited. It should be exercised only in case as contemplated within the parameters specified in the said provision, namely when it appears to the National Commission that the State Commission had exercised a jurisdiction not vested in it by law, or had failed to exercise jurisdiction so vested, or had acted in the exercise of its jurisdiction illegally or with material irregularity.”
13. We find no illegality or material irregularity or jurisdictional error in the order of the State Commission. For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, we find no reason to interfere with the orders of the State Commission, hence the same is upheld. Accordingly, the RP is dismissed. Parties to bear their respective costs.
14. The pending IAs in the case, if any, also stand disposed off.
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