Anitha had already given birth to two babies born with Down Syndrome in Kerala and both of them died within few days of birth.
A screenshot of pre-natal scan
The Kerala State Consumer Disputes Redressal Commission has ordered a Malappuram-based hospital and its doctor to pay ₹50 lahks in compensation to a woman, who gave birth to a child with a 90 percent locomotor disability, after a 17-year legal battle.
The complainant, the mother of the kid born with Trevor’s Disease, had stated nearly two decades ago that neither the hospital nor the doctor informed her of the child’s abnormalities before birth, despite multiple scans.
During the proceedings that lasted for 17-long-years, Kerala Consumer Court established a Medical Board, which concluded that the doctor did not exercise reasonable skill in performing the ultrasound scan. The Board indicated that the deformity could have been detected during the 16-week scan if proper skill had been applied.
Based on the Medical Board’s findings, the commission directed the hospital and doctor to pay ₹50 lakh in compensation and an additional ₹50,000 for litigation costs to the complainant.
It was in 2007 that Anitha Raghavan — who had already delivered two babies with Down Syndrom via caesarian, both of whom had died in the next few days — consulted Dr Mukundan G Menon to ensure that she could give birth to a healthy baby without any complications.
Anitha Raghavan was consulting Dr Menon, who was then a consultant in Feto Maternal Medicine at CIMAR Genetics, Edappal Hospitals at Malappuram’s Edappal. According to the court order, she believed that a third pregnancy was her last chance at giving birth to a healthy child.
After being advised of the risks by several doctors, she approached Dr Menon to help ensure her child was born healthy.
Following the hospital’s advice, Anitha and her husband underwent chromosome analysis, which showed no abnormalities. Encouraged by this, Anitha became pregnant and diligently monitored the foetus’s health. She underwent scans during the tenth, sixteenth, and twenty-first weeks of pregnancy, all of which reported no abnormalities.
On 9 February 2007, a chromosome analysis of the foetus was conducted and too didn’t indicate any abnormality.
Unfortunately, to Anitha’s shock, on 13 April 2007, she delivered a baby boy with abnormally formed limbs. Despite repeated scans, no abnormalities had been detected, and the hospital staff hadn’t indicated any issues. When questioned, according to reports, the hospital authorities could not provide a satisfactory explanation.
Anitha’s final hope of having a healthy child was shattered due to what she believed was gross negligence and a deficiency in service by the doctors. The hospital had promised financial compensation if the child survived for a year, but they failed to honour this promise.
The child, who has survived for more than a year, requires round-the-clock care, preventing Anitha from seeking employment and making her life increasingly difficult.
She believed her and her child’s suffering could have been avoided if the doctors had managed her pregnancy with due care and diligence. If foetal deformity had been detected early, she could have opted for an abortion. When Anitha approached the hospital on 5 May 2008 to discuss the issue, she was turned away.
She believes the hospital acted negligently during her treatment and failed to provide the promised financial assistance. Finally, in 2009, she filed a case against the hospital in the Consumer Commission.
According to the hospital and Dr Mukundan G Menon, the complainant and her husband approached the doctor in February 2006 with a referral from Dr KV Syam Kumar, a Gynaecologist at Government Hospital, Payyannur.
They sought genetic counselling due to a history of bad obstetric outcomes, having lost two babies suspected to have had Down syndrome. Menon, an expert in this area, advised a karyotype test to rule out chromosomal problems, which came back normal. Following this, the doctor informed the couple that they could try for conception and referred them back to their original doctor.
The complainant returned to Edappal Hospitals in October 2006 – approximately eight months later – pregnant with a foetus over ten weeks of gestation age. An ultrasound scan indicated normal foetal growth with an expected delivery date of 6 May 2007. A visit on 24 November 2006 involved a foetal biometry scan, which also showed normal growth parameters.
However, the doctor and the hospital alleged that, on the same day, the doctor informed Anitha about the need for an anomaly scan between 18 to 22 weeks of gestation to detect structural abnormalities but that the complainant did not return for this scan, expressing that she only wanted to rule out Down syndrome.
According to the doctor and the hospital, the complainant did not undergo the anomaly scan as advised.
On 5 January 2007, the complainant returned to the hospital. A biometry scan showed normal foetal growth at 22 weeks and five days gestation. The doctor suggested a foetal blood sampling to definitively rule out Down Syndrome, which was performed successfully and showed normal results. The complainant was informed of this and referred to her original doctor in February 2007.
The complainant returned to Edappal Hospitals a few days later for an antenatal check-up and was admitted until 17 February, 2007. All scans showed normal foetal growth. She was admitted again on 24 March and 4 April, with similar findings.
The hospital stated that all procedures conducted were standard and that they were conducted with due care. The biometry scans ensured proper foetal growth and monitored the placenta due to the complainant’s history of caesarean sections. The complainant’s focus remained on ruling out Down syndrome, not other potential abnormalities.
As the pregnancy progressed, detecting abnormalities became more challenging due to reduced amniotic fluid and the foetus’ position. Furthermore, the Medical Termination of Pregnancy Act of 1971, prohibited termination beyond 20 weeks of gestation.
On 13 April, 2007, Anitha underwent a caesarean section due to complications, and the baby was born with Trevor’s Disease. The hospital argues that termination was not an option after 20 weeks and that ultrasound scans do not provide complete limb views, making detection of certain anomalies difficult.
The hospital denied any negligence or deficiency in service, stating that the complainant received appropriate care and attention. They also denied offering any compensation, as alleged. The hospital sought dismissal of the complaint with costs, asserting that the baby’s condition was not due to their negligence.
During the proceedings, the State Consumer Court established a Medical Board on 18 November 2009, to review the medical records of the complainant and her child. The Board observed that the child was born with significant deformities: the right forearm was absent with only a rudimentary nodule over the right stump, the left forearm was missing, the right leg was short with a talipes deformity, and the left leg was short with a rudimentary foot. Despite these limb anomalies, the child’s growth and mental development were otherwise normal.
“The Committee observed that these anomalies should have been detected by the ultrasound scan done at sixteen and twenty-two weeks since gestation. The gross limb anomalies like the absence of forearm and legs should have been detected by the ultrasound scans if Dr. Mukundan G. Menon had exercised reasonable skill; especially since the liquor volume was normal,” said the commission.
Accepting the Medical Board’s opinion, the Consumer Commission observed that “Since the Medical Board examined the child and reviewed the medical records, concluding definitively that the deformities could have been detected early had reasonable skill been exercised by the 2nd opposite party during the ultrasound scan, it is unnecessary to investigate the actual causes of the deformities any further.”
Therefore, the Commission concluded that the failure of the doctor to exercise reasonable skill during the ultrasound scans led to the late detection of the child’s deformities. This omission resulted in the complainant giving birth to a child with a 90 percent locomotor disability, severely disrupting her life.
“Since the child requires her constant attention and care, she has been prevented from taking up any employment. Her desire to have a normal healthy child was also shattered. The magnitude of the damage to her life is manifold and therefore she seeks compensation. The difficulty of looking after a child like that of the complainant, born with a severe loco-motor disability estimated at ninety percent cannot be overstated, as contended by the counsel for the complainant,” it said.
“The child would require assistance even to answer the calls of nature. As it grows up, the difficulties would only increase manyfold. The prospect of educating the child or even looking after the child properly would be impossible without the assistance of a caring, trained and responsible person. The services of such a person would be difficult to obtain and would certainly entail substantial expenditure. The burden of looking after the child has been cast on the complainant despite all the efforts taken by her to obtain medical feedback concerning the health condition of the child, solely because of the deficiency in service on the part of the opposite parties. Since the 2nd opposite party was at that time working with the 1st opposite party hospital, the 1st opposite party is also vicariously liable for the losses caused to the complainant,” noted the Commission.
The Commission examined the photographs of the child and noted that the child requires constant attention and care. Considering the significant challenges of raising a child with such deformities, the Commission granted the full compensation requested. It directed the hospital and the doctor to pay ₹40 lakh as compensation for deficiency in service and negligence, with interest at 8 percent per annum from 13 July 2009, ₹10 lakh for the mental agony and suffering caused to the complainant, also with interest at percent per annum, and ₹50,000 as litigation costs to the complainant.
(Edited by Neena)
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