Shri. S.P. Muley, Hon’ble President –
1. This complaint of unfair trade practice, negligence and unwarranted medical treatment for achieving conception is made against Opposite Party, Dr. Natchandra Chimote.
2. The facts in short are that the complainants are husband and wife and are residents of Hinganghat. They got married on 28/4/2009. But even after one year of marriage the complainant No. 2 did not conceive. Hence, they approached the OP for treatment on payment of fees. The OP asked them to undertake hormones test. Accordingly hormone test and Sonography of the complainant No.2 were conducted by the OP for Rs. 4500/-. After perusing the report, they were told that her hormone level was imbalanced. It was told to them that male hormones in her were increased, hence, female ovules were not creating. In her menstrual periods only 5-6 ovules were growing and due to poor supply of hormones good ovules were not growing. She was warned if no immediate treatment was taken her male hormones would increase and she would never grow female ovules in future. Further, she would develop moustache and beard. It was said that only after Laparoscopy detail information could be given. For Laparoscopy the OP obtained Rs. 9000/- from them and to send its sample, another Rs. 1500/- was collected. But the OP instead of doing Laparoscopy performed Hysteroscopy on her. This is alleged to be unfair trade practice and illegality.
3. The complainant No.2 was taking treatment from OP as they had faith on him. On Hysteroscopy report they were told that her both fallopian tubes were damaged and closed and therefore she could not conceive naturally. The complainants were advised that Test Tube procedure was only option to have a child. She was told that she would have to undergo 3 cycles for which Rs. 1,80,000/- would have to be paid. That time the complainant No.1 was unemployment and No.2 was also not earning. They took hand loan from their relatives and on 28/11/2010 paid Rs. 1,80,000/- to the OP. But its receipt was not given. Since, economically it was not possible to make up - down from Hinganghat, they took a room on rent for 5 months in Nagpur. On 31/12/2010 the OP performed embryo transfer. For Blastosis they paid Rs. 25,000/- to the OP. Her blood tests were also taken. Out of 4 tests, last one test was negative and so the OP told them that the first cycle was unsuccessful.
5. On 8/3/2011 treatment for second cycle started. For that cycle, another Rs. 25,000/- was incurred on 5 blood tests and Blastosis. That cycle was also proved unsuccessful. On the advise of the OP, treatment was stopped for 6 months. The OP obtained all reports and bills from them and they were told the same would be given after completion of third cycle. Due to unnecessary treatment by the OP the health of the complainant No.2 was deteriorated and she became very weak. Since they were married for 1 years only the advice of the OP to go for Test Tube baby was unwarranted. For that procedure they had to incur huge monetary expenses besides mental and physical agony. Besides, the OP did not give her reports and treatment papers despite repeated demands which is deficiency in their service. For two cycles they incurred Rs. 5 lakhs. They were asked to come again for third cycle. However, they approached Dr. Seema Mandhaniya at Hinganghat, who advised her to go for Laparoscopy. On Laparoscopy report her both fallopian tubes were found to be normal and same were never damaged or closed. After treatment at Mandhaniya hospital the complainant No. 2 got naturally conceived and on 8/9/2012 she delivered a healthy baby girl. As such the OP unnecessarily made them to go for Test Tube baby procedure and literally robbed them. The OP failed to respond to their written and oral notice to give all papers and reports. They have recorded the conversation with the OP in camera. The OP also failed to give compensation. Hence this complaint to claim expenses of Rs. 10 lakhs, which they incurred on treatment, tests, room rent, etc, besides, compensation Rs. 1,00,000/- and litigation cost Rs. 20,000/-from the OP.
6. The OP has filed lengthy written reply to the complaint. Alleging that the complainants have concealed material facts, it is stated the complainant No.2 had undergone surgery for ruptured Appendix Perforation Peritonitis with Tuberculosis and Anti Koch´s treatment for about 8 months. Is is stated, during Anto Koch´s treatment her fallopian tubes got damaged. The complainants had approached the OP in August 2010. It was Dr. Meena Chimote, who examined her and after coming to know about her previous history of surgery and treatment coupled with delayed menstrual cycle, the complainant No.2 was advised to take hormonal test and Sonography. The reports were explained and delivered to them. The reports showed hormonal imbalance and Polycystic Ovarian Syndrome (PCOS) which showed increase in male hormones. Hence, she was advised to take treatment to reduce male hormones, else it would reduce her chances of pregnancy. It is admitted that they were also told that increase in male hormones results in change in voice and hair growth on face. Since delayed menstrual cycle and increase in male hormones were preventing the pregnancy, she was advised to go for Diagnostic Laparoscopy. Its procedure and expenses were explained to them. However, they on their own made inquiry about In Vitro Fertilization (IVF). So they were explained that procedure and greater chances of pregnancy by this procedure. The complainants expressed their willingness to go for IVF. Dr. Meena Chimote advised only Hysteroscopy and it was carried out as there is no role of fallopian tubes in IVF procedure. It is stated, had she opted for IUI procedure then Laparoscopy would have been advised. Admittedly, the complainants deposited Rs. 10,500/- for Hysteroscopy. It is also admitted for 3 cycles of IVF procedure they were asked to deposit Rs. 1,80,000/-, but denied no receipt was given. It is also admitted, for blood test, medicines and Blastocyst (Embryo Transfer) Rs. 25,000/- was deposited.
7. It is admitted her two cycles failed. They were told that there was no guarantee in IVF procedure. Hence, it is denied the treatment was unwarranted and unnecessary. It is stated Polycystic Ovary with Anovulation and adhesion formation due to Tuberculosis were possible factors causing infertility. From the record of hospital at Hinganghat it appears that drilling of ovaries was done to facilitate possible ovulation. On the request of the complainants for 6 months rest the third cycle was deferred. It is denied for two cycles they incurred expenses of more than Rs. 5 lakhs. The complainants abandoned further treatment at OP clinic, but continued at Hinganghat. The complainant No.2 was not in position to conceive normally without treatment. Hence, it is denied she conceived naturally and in normal course.
8. It is further sated, Dr. Meena Chimote is a qualified and experienced doctor. At no point of time the complainants were given guarantee of success. The complainants, in order to reduce expenditure on account of Laparoscopy and Hysteroscopy, both costing Rs. 23,500/-, chose to go for IVF and therefore Dr. Meena Chimote advised only Hysteroscopy which cost Rs. 10,500/-. It is alleged the complaint is filed only to defame the OP and to extract amount. Thus denying unfair trade practice, deficiency in service or unwarranted treatment, it is submitted to dismiss the complaint.
9. Heard learned counsels for both the sides in detail. Perused documents, rejoinder, and medical literature on the subject. Following points arise for our determination and we have given our findings thereon for the reasons given below.
POINTS : FINDINGS
1. Whether the OP, instead of conducting Laparoscopy : No
conducted Hysteroscopy on the complainant No. 2 ?
2. Whether the fallopian tubes of the complainant No.2 was : No
totally damaged to rule out natural conception ?
3. Whether the complainant No. 2 was unnecessarily made to : Yes
undergo IVF procedure for conception ?
4. Whether the OP failed to supply treatment papers to the : Not proved
complainant ?
5. What order ? : As per final order.
REASONS
POINT No. 1:-
10. Before we enter into the disputed facts, it would be convenient first to set out admitted facts. The complainant No.2 was having infertility problem and therefore she had approached the OP sometime in the month of August 2010. The complainant 2 was advised to get hormone test conducted. The hormones test revealed hormones imbalance in her and she was told that male hormones (testosterone) in her body was high, and if prompt treatment was not taken she might develop facial and body hair. It is also an admitted fact that the OP did not conduct Laparoscopy on the complainant No.2 and only hysteroscopy was done. Thereafter by IVF procedure treatment was conducted on her, but both the cycles were failed. During two cycles Blastocyst (Embryo transfer) was done. Later the complainant No.2 went to the hospital of Dr. Seema Mandhaniya at Hinganghat where Diagnostic Laparoscopy was done on her. After few months she begotten and delivered a girl child.
11. Laparoscopy, also known as Diagnostic Laparoscopy, is a surgical diagnostic procedure in which operation is performed in the abdomen or pelvis using small incision with the aid of a camera. Hysteroscopy is the inspection of the uterine cavity by endoscopy with access through the cervix. Both these procedures are used for detecting the cause of infertility and the course of treatment. Since Laparoscopy involves surgical procedure under general anaesthesia it costs more than Hysteroscopy procedure. IVF, commonly known as Test Tube baby, is a process of fertilization to help a woman get pregnant.
12. It is specific case of the complainants that the OP had orally told them that Laparoscopy would be conducted, but in fact, only Hysteroscopy was done. Thus, the OP misrepresented them about the procedure and the complainants were charged for Laparoscopy, but in fact, Hysteroscopy was done. The cost of Laparoscopy is more than the cost of Hysteroscopy. On perusal of the documents it cannot be denied that only Hysteroscopy was done. Even the OP has also admitted it in his reply. The question is whether the OP had really told the complainants that Laparoscopy would be done but instead Hysteroscopy was done and that too without informing them. In this respect there is no cogent evidence, except bare version of the complainants. In the first appointment letter dated 6/10/2010 (document 2) by the OP, only Hysteroscopy procedure was advised. Therefore, we are not convinced with this allegation of the complainants that though they were informed Laparoscopy would be done but in fact only Hysteroscopy was done. Hence, the first point is answered in the negative.
POINTS No.2 & 3:-
13. Now coming to these two crucial points, it is the allegation of the complainants that when Hysteroscopy was done, the complainant No.2 was told that her both fallopian tubes were damaged and therefore she could not conceive naturally. According to the OP, the complainant No. 2 was suffering from delayed periods / infrequent menstruation (Oligomenorrhea) and had undergone operation at Hinganghat on 13/1/2010 for ruptured Appendix Perforation Peritonitis with Tuberculosis and had taken Ante Koch´s treatment for a period of 8 months. It is submitted, that was possible indication of damage to fallopian tubes. The complainants have not disclosed about this disorder and treatment. But if the document No. 21, the first examination report of the complainant No. 2 by Dr. Meena Chimote, filed by the OP, is perused, there is mention of Perforation Peritonitis and Ante Koch´s treatment for 8 months at Dr. Mandhaniya hospital. This examination report was of dated 5/8/2010 when the complainants first time went to the clinic of the OP. So, this fact cannot be denied that the complainant was under treatment for tuberculosis. Ante Koch´s is a treatment of TB. That means her infertility problem was coupled with TB.
14. The point to be considered is whether treatment of TB for a long period damages fallopian tubes so as to rule out natural conception in a woman. We have been aided with medical literatures by both the counsels. (Polycystic Ovary Syndrome An Update by BN Chakravarty, Indian Journal of Medical Research on Genital tuberculosis in females, Multidisciplinary Opinion on challenges in Medical Management of PCOS, Global Library of women Medicine on Tuberculosis of the Female Genital Tract) All these literatures are on the subject of Genital Tuberculosis, its effect on fertility, treatment, etc. The conclusion is Genital TB is a major cause of infertility in women. The damage to the fallopian tubes can be extensive and irreparable if genital TB is not diagnosed and treated early. Precisely, that is not the issue before us. Fallopian tubes get damaged by TB. But there are various treatments and if treated early there are chances of pregnancy. As per the reply of the OP, the complainant No. 2 was not told that her fallopian tubes were completely blocked but such possibility was expressed to her. However, when Dr. Mandhaniya conducted Laparoscopy on the complainant No. 2 on 6/6/2011, both the fallopian tubes were found normal. Later she conceived and delivered a child on 8/9/2012. So, it can be said that after undergoing treatment of Therapeutic/diagnostic Laparoscopy she successfully conceived. Therefore, a question that crops up in mind is why the OP, in the first place, did not conduct diagnostic Laparoscopy. In the booklet written by the OP and Dr. Meena Chimote it is clearly mentioned that to determine whether fallopian tubes are blocked, diagnostic Laparoscopy is the best and reliable procedure. Chances of blockage of both the fallopian tubes is only 10% and in that case IVF is the only option. It is mentioned therein that by Laparoscopy PCO can be detected.
15. In the Hysteroscopy report the cervix was found dilated, but uterine cavity and cervical canal were normal. Though the complainant No. 2 has denied having Polysystic ovary, in the summary, issued by Mandhaniya clinic, it is mentioned that the complainant had PCO (Polycystic Ovary Syndrome). Because, in the Operation Notes of Mandhaniya clinic there is mention of ¨Flimsy adhesion¨, ¨Ovary PCO- drilling done¨, ¨Supra Umbelical Adhesion¨. PCO is a condition that affects a woman´s hormone levels and it causes to produce higher than normal amounts of male hormones which makes it harder for a woman to get pregnant. The Notes show the complainant No.2 was having Polystic Ovary and drilling was done to facilitate ovulation. The counsel for the OP submitted, this ¨Supra umbilical adhesion¨ is the secretion caused by ineffective bacteria (tuberculosis) resulting in formation of thick film which causes obstruction in functioning of organ and affecting chances of pregnancy. All these submissions are based on medical literature on the subject. Therefore that cannot be disputed.
16. The fact is that the fallopian tubes of the complainant No. 2 were found normal in diagnostic Laparoscopy and later she delivered a child, despite the fact that she had taken treatment of TB. Therefore, the contention of the OP that both fallopian tubes of the complainant No. 2, possibly, were blocked due to treatment of TB must be held to be wrong. There is no evidence to show the fallopian tubes were blocked.
17. The counsel for the OP, further advancing his argument stated, the infertility problem of the complainant No. 2 was severe as she was having uterian TB, which was grade 4 stage in which both fallopian tubes get blocked. In such cases test tube baby is the only option. We, however, do not accede to his submission that the for any reason both the fallopian tubes of the complainant No.2 were completely damaged and blocked. The fallopian tubes were, in fact, affected due to PCO for which drilling was done by Dr. Meena Mandhaniya.
18. Further contention on behalf of the OP is that not only the complainant No.2 had infertility problem, but her husband (complainant No.1) had also problem. His sperm function test was done and it was found that his sperms were sub-fertile. He was therefore advised to take medicines to improve sperm quality. As per report of sperm function test of complainant No.1, there was no difference in normal value and observed value. From this sperm function report the complainant No.1 was capable to impregnate his wife. Thus, this contention of the OP does not appear correct.
19. In the clinic of the OP, IVF procedure was done on the complainant No.2. However, two cycles did not bear any fruits. This IVF procedure was done after conducting Hysteroscopy in which her both fallopian tubes were found normal as per the report of the OP. Under such circumstances, in our opinion, there was no need to go for IVF procedure. The OP should have given her some counseling. The OP in his reply did mention that the complainants were advised Diagnostic Laparoscopy and Hysteroscopy, but they made query about IVF. Hence, they were explained about its procedure and increased chances of pregnancy in IVF. After understanding the same they expressed their willingness to go for IVF since they were desperate for a child. All these facts obviously were orally discussed between them and so there is no evidence. But the counsel for the OP said that this statement of the OP has not been controverted in the rejoinder and therefore it can be taken as admitted fact. Even though there is no denial of this statement in the rejoinder, it cannot be ignored that the very foundation of the complaint is unnecessary IVF procedure, which was done without any urgent and compelling need.
20. In this case expert opinion was obtained from the Govt. Medical College and Hospital, Nagpur. The expert committee opined that normally in all cases of infertility, initially different types of treatments are given. If the patient is aged, course of treatment is to be continued for minimum three months. If the treatments prove failure then only IVF procedure is adopted. Going by the expert report, one can say that IVF should be the last resort when all other treatments are failed. The complainants were not aged persons when they approached the OP and they had been married only one and half years at that time. We doubt whether they were such desperate so as to straightway opt for IVF procedure for pregnancy.
21. Though it cannot be disputed that IVF procedure optimizes the chances of pregnancy in women having infertility problems of severe nature, IVF is not the primary treatment of infertility in women with PCOS. The medical literature on the subject says first line treatment for ovulation induction is clomiphene citrate. The clomiphene citrate is a medication used to treat infertility in women who do not ovulate. Clomophene failure cases are treated either with other medication or with Laparoscopic ovarian drilling. It further says that patient is referred to IVF when at least six attempts of ovulation induction have failed to achieve pregnancy either spontaneously or through IUI. If the cause of infertility co-exists with another cause like male factor defect in addition to anovulation then IVF is the first line of treatment. Since the OP has stated in the reply that he never suggested the complainants to go for IVF, we presume that the complainant No.2 did not have such infertility problem which necessitated to conduct IFV procedure without trying other first line treatments. Ovarian drilling should be performed when Laparoscopy is indicated; this procedure is typically effective in approximately 50% of cases. And that was exactly done by Dr. Mandhaniya successfully. IVF, a high complexity reproduction treatment is the third line treatment and is recommended when the previous interventions fail. The OP did not perform first or second line treatments and straight way agreed with the complainants to perform third line treatment i. e. IVF. This is not expected from the OP. After all it was for the OP to take proper decision regarding treatment.
22. The counsel for the OP relying on a judgment in Dr. Kochar, Senior Consultant Obs, Gynae, Sir Gangaram Hospital, New Delhi v/s Ispita Seal Leisure Valley Apartment Society 2017 SCC OnLine NCDRC 1189 submitted the IFV procedure is a complex procedure and no cure or success is not a negligence. Therefore no liability can be fastened upon treating doctor. He submits the complaint is lodged only because the first two cycles failed. Had she waited for third cycle result she might have conceived by the treatment of the OP. That case was also regarding IVF procedure which did not give successful result. It is observed, as per medical literature success rate of IFV is 13.4% in women less than 35 years of age and 3.6% in women above 35 years. The IVF success rate is highest for women between 24 and 34 as this is the period when they are at their peak fertility levels. In that case the doctor had adopted the standard method of IVF and the patient was properly investigated and given proper medicines. The complainant was taking treatment for infertility since about a decade. After ovulation study by Ultrasonography IVF was advised. The allegations in the present case are different. The allegation in this case is the OP conducted IVF method instead of diagnostic Laparoscopy, which was proved successful in Mandhaniya hospital.
23. The counsel for the OP further tried to convince the forum by contending that the complainants had given their consent for IVF procedure. The copy of consent form is placed on record. However, in view of the nature of allegations, consent for IVF by the complainants does not absolve the OP from his responsibility to provide that treatment which was not only economically viable, but which, as per standard medical procedure was expected to be done.
24. The complainants also tried to support their case with electronic evidence. It is alleged after the complainant No.2 became pregnant they had visited the OP and they had recorded the conversation held between them on a pen camera. Its hard copy in CD along with transcript of conversation is placed on record. The conversation recorded on pen camera was reportedly converted on a CD in a Inter Net Cafe at Hinganghat. A certificate of the owner of the Inter Net Cafe is also filed regarding its correctness. We have watched the CD on laptop and we must say the audio / video is not clear. No affidavit of the owner of the Cafe is filed. There is no report which software was used in converting the video in pen camera to CD. Besides, possibility of distortion of conversation is not ruled out. The pen camera by which the conversation was alleged to have been recorded is also not placed before the forum. Suffice it to say that the CD is not clear and cogent evidence to support the case of the complainants.
25. We cannot turn blind eye to the fact that the complainant No.2 thereafter by diagnostic Laparoscopy got conceived and delivered a baby. Therefore, in our opinion the complainant No.2 was unnecessarily made to go for IFV procedure, which was unwarranted in the given situation. The complainants, therefore suffered not only mental agony but financially also they must have suffered considerably. The conduct of the OP was against medical ethics in putting the complainants under unnecessary financial and mental burden. Both the points are therefore held accordingly.
POINT No. 4:-
26. The complainants have further alleged that the OP did not supply them treatment papers on demand. As stated before this is not the case of only medical negligence in giving treatment, but of unfair trade practice and deficiency in service also. Non handing over of medical records, excessive billing for unwarranted treatment are some of the instances which would come within the purview of deficiency of service. It is specifically alleged that the OP did not provide them all medical papers when they asked for the same. Reliance is laced on Medical Superintendent Lok v/s Santosh 2016 (2) CLT 292. It is held therein that it is the primary responsibility of the hospital to maintain and produce patient record on demand by the patient or appropriate judicial bodies. The treatment papers must be provided on demand by patient or his relative within 72 hours. Failure to provide medical records to patient on demand will amount to deficiency in service and negligence. The OP has denied it and stated all papers were supplied to them. His counsel submitted when the complainants had gone to Dr. Seema Mandhaniya after failure of two cycles, they apprised the doctor the treatments given by the OP, which are reflected in the discharge summary issued by Mandhaniya Hospital.
27. The counsel for the OP contended, the issue of non delivery of papers, for the first time, was raised on 30/5/2012 and thereafter on 9/7/2012 and 20/7/2012 as per documents No. 27, 28 and 30 filed by the complainants. That means, when the complainant No.2 was successfully conceived then only these letters correspondence was made. The legal notice was given when the date of delivery was approaching near. Besides, the complainant No.1 in her affidavit dated 26/4/2017 has specifically stated that in order to take opinion whether the treatment given by the OP was correct and proper they had visited Dr. Mandhaniya Hospital. There they showed all the examination and treatment reports/ papers to Dr. Mandhaniya, who after reading the same advised Laparoscopy. Thus from this affidavit it must be presumed that the OP had given them all papers. We find substance in the contention of the counsel for the OP. there is on other evidence to prove the OP failed to give treatment papers and reports to the complainants. Hence, the point is held in the negative.
POINT No. 5:-
28. The complainants have claimed monetary compensation on various counts, which includes charges for hormone test, Hysteroscopy, two cycles of failed Blastosis, medicines, etc. Besides, Rs 15,000/- is claimed on account of room rent and Rs. 50,000/- for meal expenses, Rs. 35,000/- for journey expenses from Butibori to Nagpur for 5 months and Rs. 6 lakhs compensation for mental and physical agony. Total amount claimed is Rs.10 lakhs. The amount claimed is not only exorbitant but without justification and therefore cannot be allowed.
29. There is no evidence that the complainants had taken a room on rent in Nagpur. No rent receipt is filed on record. There is no evidence what expenses they incurred on meals or their trips from Butibori to Nagpur. The OP did not ask them to approach him; they on their own went to his clinic and on their own consent took treatment from him. However, they are entitled to some extent for compensation as they were unnecessarily made to undertake IVF procedure. In our considered opinion compensation of Rs. 3,00,000/- will be just and proper. Resultantly, the complaint is partly allowed. Hence, the following order.
ORDER
- The complaint is partly allowed.
- The Opposite Party, Dr. Chimote shall pay compensation of Rs. 3,00,000/- (Three Lakhs) to the complainants along with litigation cost Rs. 10,000/-.
- The order shall be complied within 30 days from receipt of copy of the order, else the compensation amount shall carry 9% p. a. interest.
- Copy of the order shall be given to both the parties, free of cost.
