Maharaja Agrasen Hospital . vs Master Rishabh Sharma .

2. The National Commission vide Judgment and Order dated 10.05.2016 (“impugned Judgment”) allowed the consumer complaint, and held the Appellant No.1 – Hospital, and Appellant Nos. 2 to 4 – Doctors guilty of medical negligence, since they failed to carry out the mandatory check up of Retinopathy of Prematurity (“ROP”) on Respondent No.1- Master Rishabh, who was a pre-term baby, which led to his total blindness. In so far as Respondent No.4- Dr. Rama Sharma, the Gynaecologist is concerned, who had delivered the baby, she was exonerated by the National Commission, and has not been pressed before this Court.

5. The background facts in which the present Civil Appeals have been filed are as under:-

At the time of admission, the general condition of the baby was poor, and was diagnosed as “32 weeks pre-term AGA with HMD”. The baby was treated in the Neo-natal ICU of the Paediatrics Unit and was put on ventilatory support, and Surfactant injections were administered gradually.

5.4 The Respondent No.1-baby stayed in the Appellant No.1-Hospital for almost 4 weeks, and was discharged on 29.04.2005, which was 27 days after birth.

The baby was examined by the Consultant Paediatricians - Dr. G.S. Kochhar and Dr. Naveen Jain/ Appellants No. 2 and 3.

5.6 On 13.07.2005, the Respondent No.2-Complainant brought the baby for a 2nd follow-up visit when he was over 3 months old to the Paediatrics Unit of the General OPD of the Appellant No.1-Hospital. The Respondent No.1-baby was examined by Dr. Manoj on behalf of Dr. G.S. Kochhar. Dr. Manoj advised the Complainants for the BERA scan/test to be conducted.

5.16 Eventually, the Appellant No.1-Hospital provided a copy of the medical records of the baby alongwith the Case Summary on 14.06.2007 after more than 2 years of discharge from the Appellant No.1-Hospital. 5.17 The Respondent No.2-Complainant contends that when she received these records, she was shocked to find that the medical records mentioned an alleged ROP check-up was conducted on 26.04.2005 by Appellant No.4-Dr. S.N. Jha. The Respondent No.2- Complainant contends that no ROP examination was conducted by Appellant No.4-Dr. S.N. Jha. 5.18 On 04.08.2007, the Respondent No.2-Complainant addressed a letter to the Medical Superintendent of Appellant No.1- Hospital. The relevant extract of the said letter is reproduced hereinbelow for ready reference:

5.23 The Medical Board of AIIMS submitted its Report dated 11.05.2012 to the National Commission. The Report states that as per standard guidelines (National Neonatology Forum), new born babies who are born at 32 weeks’ gestation or less, should have their eyes examined at 3-4 weeks of age and more frequent check-ups to be done thereafter. Appellant No.4- Dr. S.N. Jha examined the baby at 24 days of age in accordance with established protocol. If ROP screening 11 does not reveal any ROP, then repeat examination should be performed after 2 weeks. The Report goes on to say that after discharge, the baby was brought twice to the General OPD of the Appellant No.1- Hospital. There is no record to show that the baby was brought after 2 weeks of discharge to the Paediatrics OPD clinic when subsequent progression could been assessed and treated on time.

4. 6.2 The AIIMS Report did not comment about the details of the ROP screening and the follow-up findings. 6.3 The National Commission held that the sequence of events leading to ROP usually takes about 4 to 5 weeks, except in a small sub-set of premature infants who develop rush disease in 2 to 3 weeks. The routine screenings should begin at no later than 4 weeks after birth, and possibly even earlier for infants at higher risk (2 to 3 weeks). It is strongly recommended that one session of retinal screening be carried before Day 30 of the life of any premature baby. The examination should be done with the dilation of the pupil with Tropicamide 0.5% to 1% with Phenylapinephrine 2.5%.

13 6.4 The National Commission came to the conclusion that O.P. No.5/Appellant No.4 did not conduct the ROP screening on the baby. ROP screening is a team-work of the Paediatrician, Opthalmologist and the NICU nurse. There is no medical documentation of the ROP screening procedural details. The O.P. No. 5 should have performed the retinal examination with binocular indirect opthalmoscope on dilation of the pupil with scleral depression to ascertain avascular zone at the periphery of the retina. The National Commission found that nothing was forthcoming from Page 102 of the medical records. It appears to be a bare visual examination done by O.P. No. 5 in haste to cover up the case.

The National Commission was of the considered view that neither the ROP screening was performed, nor was any advice for follow up of ROP given to the Respondent No.2-Complainant/mother. 6.5 The National Commission held that the Respondent No.1-Master Rishabh had been rendered blind for life, which could never really be compensated in 14 monetary terms. The baby had lost his father during the pendency of proceedings in 2013. The Respondent No.2-Complainant had been pursuing the consumer complaint single-handedly for almost a decade.

6.6 The National Commission awarded an amount of Rs.

53,00,000/- to the Respondent No.1-baby by applying the average inflationary principle at a conservative rate of 1% p.a., keeping in mind the fluctuations over the next 59 years. The National Commission awarded an amount of Rs. 10,00,000/- to the Respondent No.2-Complainant/mother who would have to take care of the blind child throughout her life. A further amount of Rs. 1,00,000/- was awarded towards costs of litigation. The National Commission held O.P. Nos. 2 to 5/ Appellant Nos. 1 to 4 to be jointly and severally liable to pay the total amount of Rs. 64,00,000/- within 2 months of the Order. The entire amount would carry interest at the rate of 9% p.a. 15 Out of the total compensation awarded, Rs.

50,00,000/- would be kept in a Fixed Deposit with a nationalised bank till Respondent No.1 attained the age of majority. The periodic interest on the deposit would be paid to the Respondent No.2- Complainant/ mother till the child attained the age of majority. The remaining amount of Rs.

16 On 07.09.2016, the Appellant No.1-Hospital deposited an amount of Rs. 32,00,000/- in this Court. This Court vide Order dated 7.11.2016, directed the amount to be kept in a Fixed Deposit with UCO Bank, which was renewed from time to time. The fixed deposit is due to mature on 17.02.2020.

9.2 As per protocol, ophthalmological examination was advised on 25.04.2005 to rule out ROP, as recorded at Page 100 of the medical records. Appellant No.4-Dr. S.N. Jha, the Senior Ophthalmologist conducted the ROP test on 26.04.2005, who found no ROP in Respondent No.1-baby, as recorded by Appellant No.4 in his handwriting at page 102 of the medical records. It was submitted that the Appellant No.4 had advised a further review/check-up after 2 weeks in the speciality OPD on Wednesay/Saturday between 4 p.m. to 6 p.m. The parents of Respondent No.1-baby were explained all the problems which may develop in a premature baby.

9.3 As per the Discharge Summary at Page 109 of the medical records, the Complainants were advised to bring the Respondent No.1-baby for a ROP and BERA check-up to the speciality OPD on Wednesday/Saturday at 4 pm. 18 9.4 The Respondent No.2-Complainant brought the baby to the General OPD of Appellant No.1- Hospital on 04.05.2005 after 8 days of the first ROP check-up, and not after 2 weeks as advised. Thereafter, the baby was brought on 13.07.2005, which was after 2 months again to the General OPD.

11.2.1 As per medical literature, all infants with a birth weight of less than 1500 grams, or gestational age of less than 32 weeks, are required to be mandatorily screened for ROP, which usually takes about 4 to 5 weeks to be diagnosed. The routine screening should begin no later than 4 weeks after birth, and possibly even earlier for infants at higher risk (2 to 3 weeks). 30 The standard of care is to be judged in the light of the protocols and standard procedures prevailing on the date of birth, and not on the date of trial. 2 11.2.2 In Programme Planning and Screening Strategy in Retinopathy of Prematurity3, published in March 2003 co-authored by Drs. Subhadra Jalali, MS; Raj Anand, MS; Harsh Kumar, MD; Mangat R Dogra, MS;

The said noting is signed by Dr. S.N. Jha – Appellant No.4. There is, however, no time mentioned against this noting.

Wt 1.65 kg FUC 32 weeks preterm AGA with HMD with bilateral pneumothorax with fungal septicemia.

The baby was brought for a further follow up check-up on 13.07.2005, by which time the baby was 3 ½ months old. Even on this visit, the Appellants did not advise or guide the Respondent No.2-Complainant to have the ROP test conducted.

The Complainants had claimed Rs. 1,30,25,000/- as compensation before the National Commission. The National Commission vide the Impugned Judgment awarded a total sum of Rs. 64,00,000/- to the Complainants along with interest.

This Court further directed the Complainant/Respondent No.2 to file an affidavit regarding the education received by the Respondent No.1, and the level of proficiency he had attained.

We direct that the compensation of Rs. 76,00,000/- awarded to the Respondent No.1- Master Rishabh Sharma s/o Mrs. Pooja Sharma (in C.A. No. 6619 of 2016), be utilized in the following manner:

11.5.7 The amount of Rs. 60,00,000/- awarded to Master Rishabh Sharma shall be disbursed in the following manner:

Pending Applications, if any, are accordingly disposed of. Ordered accordingly.