In India, it is a routine practice for diagnostic physicians like Radiologists and Pathologists to provide service to patients only as per the prescribed instructions rendered by the treating physicians. Coupled with the fact that even diagnostic physicians are 'physicians first' in the eyes of law, the service rendering nature of diagnostic branches sometimes creates a problematic situation, especially in private practice where such service is provided in exchange of money. The case that I am going to discuss today -- Anil Dutt & Anr vs Vishesh Hospital & Ors -- brings to the fore this very problem. By the end of this blog, I am sure you will be convinced about the title of the article.
In this case, the patient was advised an obstetric ultrasound scan by the gynaecologist at 20w6d and the prescription read "for an obstetric USG to confirm pregnancy". The first radiologist who performed the scan reported it as completely normal. The gynaecologist subsequently advised a second ultrasound scan at around 35 weeks and the prescription read "Obst-USG". The second radiologist reported the scan as "32 weeks gestation with intrauterine growth retardation and severe oligohydramnios". Upon delivery, the baby had low birth weight (1500 gm) with absent left arm (amelia) and left kidney (unilateral renal agenesis), with fusion anomalies of the spine.
The parents of the baby filed an FIR with the police and also a complaint in National Consumer Disputes Redressal Commission (NCDRC) against the hospital and the two Radiologists, claiming that they were grossly negligent while performing the obstetric ultrasounds, which in turn deprived the complainants the option to consider medical termination of pregnancy (MTP) or to consult a higher centre for better management of the fetus. The complainants also maintained that the misdiagnosis resulted in anxiety, agony and distress for the parents, and a shock to the grandmother who suffered a heart attack due to the same, thus requiring a by-pass surgery at Fortis Hospital, New Delhi with the bill amounting to Rs. 2.5L. The complainants also produced an independent opinion of a Forensic Medicine specialist doctor who deposed that missing such anomalies amounted to gross medical negligence.
While defending itself, the hospital produced opinions of two senior Radiologists from medical colleges to support its claim of no negligence. Both the experts had referenced multiple textbooks of ultrasound (Ultrasonography in Obstetrics and Gynecology by Peter Callen, Rumack's Textbook of Diagnostic Ultrasound, Donald School of Ultrasound in Obstetrics and Gynaecology) to support their views that ultrasound could not always give 100% accurate diagnosis and hence it is not very uncommon to miss fetal anomalies on ultrasound. The hospital produced its brochures showing the modern facilities and equipment, and also the fact that it was accredited to National Board of Examinations for DNB in Radiodiagnosis.
The first Radiologist who performed the 20w6d scan claimed that he had 30 years of experience in practicing ultrasound, and that he had only performed a routine obstetric ultrasound scan and not a targeted anomaly scan because the gynaecologist had not advised the same. He said that unlike targeted scan, a routine scan took just 10 min and it was not expected to detect such rare anomalies on routine scan. To support this claim, the Radiologist referenced Callen's textbook. He also claimed that the fetus was positioned on its side during the examination and hence it was not possible to see the limbs which were tucked away.
The second Radiologist who performed the 35w scan also claimed that the gynecologist had only asked for a routine scan to ascertain gestational age and fetal growth pattern, and thus it was not a targeted anomaly scan. Only a small proportion of gross anomalies can be detected on a routine scan. He claimed that charges for a routine scan were much lower than a targeted scan. He also claimed that even otherwise, the patient did not have an option of MTP because the MTP Act, 1971 did not allow termination after 20 weeks, and hence the complaint itself was misconceived.
The counsel of the Radiologist claimed that ultrasound was an indirect imaging method and accuracy of diagnosis depended upon lot of technical factors beyond the control of the Radiologist. The counsel also raised objection to the opinion expressed by Forensic Medicine doctor since he was not an expert in Radiology but still furnished an expert opinion.
After considering all the facts, the NCDRC concluded as follows:-
1)--The argument of the Radiologists that there should be a specific requisition for targeted scan to detect fetal anomalies, and that they would not automatically perform a targeted scan if the gynaecologist only asked for a routine scan was a "frivolous argument". The commission stated that Radiologists are ethically duty-bound to thoroughly examine every patient and detect fetal anomalies even if the gynaecologist has not specifically asked for the same. Hence, not performing thorough ultrasound examination amounted to negligence. Giving a corollary, the commission stated that if a Pathologist was performing a differential WBC count, he would be ethically bound to report an incidentally noted malarial parasite, even if not asked for.
2)--The commission observed that on the one hand both the ultrasound reports mentioned "Fetal Spine, Trunk and Limbs are normal" and on the other hand the Radiologists deposed that they could not examine the limbs optimally due to unfavorable fetal position. Also, the Radiologists claimed to have measured fetal abdominal circumference and yet missed unilateral renal agenesis. This showed that the Radiologists were casual in their approach and did not exercise reasonable skill and care. As per the commission, the principle of res-ipsa-loquitur was clearly applicable in this case.
3)--The commission observed that doctors are generally reluctant to testify against their own colleagues (conspiracy of silence) and hence it is difficult to find an unbiased opinion in cases of medical negligence. The commission accepted the expert opinion of the Forensic Medicine specialist, and, in fact, remarked that the Radiologist expert opinions did not point at the procedural lapses on the part of the negligent Radiologists.
4)--As per the commission, the argument put forth by one of the Radiologists that MTP was not an option for the patient was indeed a lame excuse and it did not absolve the Radiologists of their responsibility. Had the anomalies been detected earlier, the patient could have been referred to a tertiary fetal medicine unit for better care. The commission stated that the wrong diagnosis shattered the dream of the parents and delivery of the anomalous baby had severe mental impact on the parents and the grandmother.
5)--The commission pointed out that the Radiologists had remarked that routine scans take only 5-10 minutes and cost Rs. 600, whereas targeted scans take about 1-2 hrs and cost Rs. 2000. Also, the hospital had produced brochures showing the hi-tech facilities they had. This, according to the commission, clearly showed the commercial motive of the hospital and the Radiologists, rather than ethical practice.
6)--The commission was of the opinion that many times doctors do not follow the standard operating procedures in a hospital and, due to vicarious liability, the hospital management gets dragged unnecessarily in cases of medical negligence. The commission therefore fixed liability on the Radiologists as well.
The NCDRC ordered the hospital and the Radiologists to pay a compensation of Rs. 15L jointly and severally.
For once, I don't think I need to further elaborate any learning points from this case. The facts speak for themselves -- res ipsa loquitur!
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