Edakkad Village,

Kannur 670 007.                                        Complainant

(Rep. by  Adv.T.Nizar Ahamed) 

1. M/s.A.K.G.Memorial Co.op.Hospital,

Talap, Kannur 2.

(Rep.by Adv.V.Balan)

2. Dr.Geetha,

         Gynaecologist,                                     Opposite parties

    A.K.G.Memorial Co.op.Hospital,

Talap, Kannur 2

(Rep. by Adv.T.Ramesh Babu)

3. Dr.Leena, Gynaecologist,

     A.K.G.Memorial Co.op.Hospital,

Talap, Kannur 2

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay

`3, 10,000  as compensation and the cost of this proceedings.

          The case of the complainant in brief is as follows: Complainant admitted to 1^st opposite party hospital on 30.1.2006 for delivery and by caesarian she gave birth to her 3^rd child on 31.1.2006. LSCS sterilization by MTP on the complainant also performed on the same date at the same hospital by the same doctor/2^nd opposite party. But complainant became pregnant again in January 2009 which was confirmed from Govt. Hospital, Kannur. It was reported to 2^nd opposite party and the doctor advised admission. Complainant was admitted in 1^st opposite party hospital on 3.2.2009 and was discharged on 6.2.2009. Really the pregnancy of the complainant was aborted by the opposite party concealing the same from complainant and managed to make believe that there was neither pregnancy nor abortion.  Complainant made all payments for the treatment given by 2^nd opposite party. After the abortion complainant suffered shortage of hemoglobin which was about 6.3 only. Opposite party suggested to give blood following bleeding. When the blood was arranged 2^nd opposite party tried to give complainant O+ve blood. On suspicion her husband insisted to take blood test to find the group and on test it was found her blood group was B+ve. All along the period from 2000 the opposite party had been recording her blood group as B+ve in all the records. Even such grave mistake had not been checked by 2^nd opposite party till it was pointed out by her husband. Even after giving blood bleeding was not stopped and hence asked to undergo surgery that is actually fourth one. Complainant agreed for the surgery since she was told that her health were in danger. Everything was made ready for surgery but when urine was tested it was found +ve. Hence without conducting the fourth surgery complainant was discharged on 6.2.2009 telling her that the scan taken from scan centre was wrong she was discharged without conducting the operation. On 21.1.2010 the complainant found to be pregnant by a urine test at Koyili Hospital, Kannur. Dr.Ramadevi was consulted and the further test as directed by her revealed that she was actually pregnant in the year 2009 and that was actually aborted. Before this test complainant was not aware that it was an abortion done by 2^nd opposite party, suppressing the same from her. The test conducted in Koyili revealed that either 2^nd  opposite party had not conducted the alleged sterilization or it was done defectively. Finally a major operation had to be performed on complainant at the Koyili Hospital where by Zygote was removed from the Fallopian Tube of the complainant. To overcome the complication of removal of remnance of zygote tubes of both sides were cut off. Complainant had suffered sever mental and physical hardships following the enemical neglect of the opposite party. Lawyer notice was sent but opposite party did not comply the same.

Pursuant to the notice the opposite parties except 3^rd opposite party made appearance and filed version separately. 1^st opposite party/AKG Memorial Hospital filed version in the form of counter denying the main allegations of the complainant. The contentions of 1^st opposite party in brief are as follows: Complainant got admitted to 1^st opposite party hospital but 2^nd opposite party doctor did not attend the complainant but it was Dr. Leena who attended the complainant. 2^nd opposite party did not conducted the operation to complainant. After the 3^rd delivery complainant desired to have elective LSCS sterilization by MTP to be performed. She was explained the rare chance of failure in certain cases. In spite of the sterilization complainant was conceived again. Conception after sterilization is a rare phenomenon which is beyond the control of a surgeon. 2^nd opposite party did not advise complainant to get admission in 1^st opposite party hospital. Complainant approached hospital with OP ticket of Govt. District Hospital, Kannur on 3.2.2009 and consulted Dr.Mini P Nair a Gynaecologist who had examined and treated her on 3.2.2009 and 4.2.2009. Dr.Abdulla, the then senior Gynaecologist who claimed to be a relative of the complainant treated her on 5.2.2009 and discharged on 6.2.2009. But there was no positive evidence of pregnancy then. At that point of time opposite party did not treated the complainant. Blood test was not taken at the instance of her husband. If blood group is shown O+ve it was only a clerical error. Before administering the blood, blood group was ascertained from the blood bank and it was found to be B+ve. It is not correct that 2^nd opposite party had aborted the pregnancy of the complainant. It is appeared to be untrue that the complainant conceived in the year 2009. The alleged operation underwent by the complainant at Koyili Hospital between 1.2.2010 and 12.2.2010 is not true. The details given of the operation etc are apparently unbelievable. To remove a Zygot in the fallopian tube an operation as alleged is not required. If at all any operation was done it might have been for some other illness unconnected with the alleged complaint of sterilization. Complainant is not entitled for any compensation. There is no deficiency in service on the part of 1^st opposite party. Hence to dismiss the complaint.

Dr.Geetha/2^nd opposite party filed version separately the content of which is as follow: The averment of the complainant that this opposite party had attended the  3^rd delivery of the complainant and performed cessation operation on 31.1.2006 is not true. She has not advised the complaint to undergo sterilization operation. This opposite party has not performed any sterilization on31.1.2006 on complainant. The averment that all her deliveries were caesarian and were performed by way of surgery on her by this opposite party is totally wrong. This opposite party was not attending the Hospital on 31.1.2006 and not performed Elective LSCS sterilization by MTP on the complainant. Complainant might have been admitted in AKG Hospital on 3.2.2009 and discharged on 6.2.2009. But this opposite party never attended her nor did she perform any operation for abortion of pregnancy. This opposite party is not liable or responsible for the sufferings of complainant if any. In all prescription written b y this opposite party both inpatient and out patient. She used to mention her name after putting her signature in all the case sheets and in prescriptions. Since she had not attended the complainant she is not liable for any remedy. Hence to dismiss the complaint.

Dr.Leena/3^rd opposite party did not appear before the Forum whereby publication was ordered for proper serving of notice.  On production of publication her name was called in open Forum and in consequence of absence declared her exparte.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of PW1 and documentary evidence Exts.A1 to A12 marked on the side of the complainant so also Ext.B1 & B2 marked on the side of opposite parties.

Issue Nos.1 to 3

          Admittedly complainant was admitted in 1^st opposite party/AKG Hospital as inpatient for her 3^rd delivery. After the delivery she underwent Elective LSCS sterilization by MTP. In spite of the sterilization complainant was conceived again. Complainant’s case is that it is the criminal negligence on the part of opposite party that caused the failure of sterilization operation  complainant had also case that when she was reported to 2^nd opposite party  admission was advised in 1^st opposite party hospital. She was then admitted but really the pregnancy was aborted concealing the fact from the complainant and managed to make believe that there was  neither  pregnancy nor abortion. Moreover, during treatment after abortion 2^nd opposite party suggested to give blood following bleeding. When blood was arranged 2^nd opposite party tried to give O+ve instead of B+ve. In the blood group test it was found her blood group was B+ve. Opposite party on the other hand contended that 2^nd opposite party did not attended the complainant and also not conducted the operation. Anyhow she underwent operation there from 1^st opposite party/hospital, whoever conducted the operation. Opposite party took the main contention that conception after sterilization operation is a rare phenomenon which is beyond the control of a surgeon. It was Dr.Abdulla who attended her and no positive evidence of pregnancy was found then. It was also contended that recording of blood group O+ve was only clerical mistake. 2^nd opposite party taken the contention by filing version separately that, she did not attended the delivery of the complainant and the alleged sterilization operation. She was not working there during those days. She did not conduct any operation for abortion of pregnancy.

          Complainant adduced evidence by way of affidavit evidence in tune with her pleadings. Ext.A1 Discharge summary proves that complainant admitted in the AKG Hospital on 30.1.2006 and discharged on 6.2.2006. It reveals that after delivery the Elective LSCS sterilization operation was done on complainant. Sterilization operation was admitted by 1^st opposite party but contended that it was not 2^nd opposite party. Dr.Geetha who attended the complainant but it was 2^nd opposite party Dr.Leena Gynaecologist. The tune leads to presume that the case of 1^st opposite party is that operation was done by Dr.Leena. But they did not clearly state in version that sterilization operation was done by Dr.Leena. So also the recordings ofExt.A1 Discharge summary did not mentioned who had done the sterilization operation. The recording of Discharge summary was incomplete and in an irresponsible manner. The preparation of discharge summary is improper and incomplete which even did not recorded the name of the doctor who had carried out the sterilization operation. We are of opinion that proper recording of Discharge summary is a bounden duty of the hospital / 1^st opposite party. Improper recording in the records like Discharge summary etc. can only be considered as an unfair dealing of the affairs. So that the burden of proof with respect to the doctor who had attended the complaint lies upon shoulders of 1^st  opposite party/hospital, since they are the custodian of the entire documents of the treatment. However, it is an admitted fact that LSCS sterilization by MTP on the complainant was performed from 1^st opposite party/hospital.

          The main allegation of the complainant is that she became pregnant again in January 2009. As per the averment of the complainant the pregnancy after the sterilization was confirmed from Govt. hospital, Kannur. But there is no documentary evidence to show that such confirmation had been done from Govt. Hospital, Kannur. She has stated in affidavit evidence that the documents including scanning report upon which the pregnancy was confirmed from Govt. Hospital, Kannur were given to 2^nd opposite party doctor but the same was not returned to her at the time of discharge.1^st opposite party contended that the complainant approached the hospital with an OP ticket of Govt. District Hospital, Kannur on3.2.2009 and consulted Dr.Mini P Nair a Gynaecologist. Dr.Mini treated her on 3.2.2009 and 4.2.2009. On 5.2.2009 Dr.Abdulla, then Senior  Gynaecologist who claims to be a relative of the complainant treated her on 5.2.2009 and discharged on 6.2.2009. But there was no positive evidence of pregnancy then. It is also contended that 2^nd opposite party had not treated the complainant at that point of time also.

          2^nd opposite party adduced evidence by way of affidavit evidence that complainant was not attended by her. 2^nd opposite party specifically contended that she had not performed any sterilization operation on 31.1.2006 on complainant.

          Complainant has also case that 2^nd opposite party made her believe that the sterilization operation is quite successful and there shall be no pregnancy thereafter. Though it is evident that sterilization operation was carried out from 1^st opposite party/hospital there is no evidence to show that it was done by 2^nd opposite party doctor. There is absolutely no piece of paper or any other evidence that shows 2^nd opposite party doctor conducted the operation. So also no evidence adduced by complainant so as to prove that she had consulted with 2^nd opposite party/doctor and she made believe her that there shall be no failure in sterilization operation. Learned counsel for the complainant argued that if there was any chance of failure in sterilization operation the doctor was absolutely liable to inform the patient and liable to be recorded the same in the case record.Ext.B1 (a) consent letter goes to show that the complainant was informed before the operation the chance of failure. The complainant adduce no evidence to prove that 2^nd opposite party had assured 100 percent success of the surgery and it was up on such assurance complainant had agreed to undergo LSCS sterilization.  Without cogent evidence to prove such an allegation it is difficult to believe that a doctor would give such an offer of guarantee. The possibility of failure cannot be ruled out.

          Hon’ble Supreme Court in State of Hariyana and others Vs.RajRam reported in (2005) 7 Supreme Court cases 22 held following the decision of three judge Bench held in Sate of Punjab Vs.  Shri Ram held that “child birth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as  spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise”. It is also observed by the Hon’ble Supreme Court that “several text books on medical negligence have recognized the percentage of failure of sterilization operation due to natural causes to be varying between 0.3% to 7%”.

          Hon’ble Supreme Court in State of Punjab Vs. Shiva Ram and others held: “Merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of child birth”. It is further held: “Failure due to natural causes would not provide any ground for a claim”.

          Page 4 Para 17 of the judgment (2005) 7SC made clarification that “ There are several alternative methods of female sterilization operation which are recognized by medical service of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However none is full proof and n prevalent method of sterilization guarantee 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon”. Hon’ble S.C has further observed in Para 28 that “the method of sterilization so far known to medical science which are most popular and prevalent is not 100% safe and secure In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized women can become pregnant due to natural causes”.

          So it is not possible to conclude that there is deficiency in service on the part of 1^st opposite party or of operating doctor, whoever he/or she might be merely because complainant became pregnant after having been undergone sterilization operation. Complainant is not entitled for compensation unless she successfully proves that there was 100% assurance of exclusion of pregnancy and it was only on the basis of such assurance that the complainant was persuaded to undergo surgery. There is absolutely no evidence on the part of complainant to show that there was such assurance and she underwent sterilization operation because of the assurance of the doctor. Complainant also failed to establish any sort of negligence in  conducting the operation. In other words complainant failed to establish deficiency of service on the part of opposite parties in respect of the failure of sterilization operation.

          Complainant has also case that after getting pregnant again she approached 2^nd opposite party and on advise she had been treated in  1^st opposite party/hospital from 3.2.2009 to 6.2.2009. During treatment the pregnancy was aborted concealing the fact from the complainant and her relatives. It is proved by Ext.A2 discharge summary that the complaint had been undergone treatment from 3.2.2009 to 6.2.2009 in the 1^st opposite party/hospital. 2^nd opposite party/doctor contended that she had not applied any injection or prescribed medicine to abort the pregnancy of the complainant. Entire allegations of the complainant have been denied by 2^nd opposite party doctor. But affidavit evidence of complainant stated that 2^nd opposite party carried out abortion of complainant.

          1^stopposite party/hospital admitted that complainant approached the hospital with an OP ticket of Govt. District Hospital, Kannur on3.2.2009 and consulted Dr.Mini P Nair a Gynaecologist. It is also admitted that Dr.Mini had examined her and treated her on 3.2.2009 and 4.2.2009. On 5.2.2009 Dr.Abdulla, the then Senior Gynaecologist who claimed to be a relative of the complainant treated her on 5.2.2009 and discharged on 6.2.2009. But there was no positive evidence of pregnancy then. 2^nd opposite party/Doctor contended that she had never attended the petitioner nor did she perform any operation for abortion of pregnancy.3^rd oppsit party/doctor did not filed any version and remained absent through out the trial.

          2^nd opposite party/Dr.Geetha produced Ext.B2 self attested true copy of  certificate issued by  vice principal Medical college Calicut to show that Dr.Geetha was a DIP.N.B Trainee in obstetrics and Gynaecology   course in Calicut Medical College from29.1.1999 to 28.1.2000.

          Though opposite parties 1 and 2 filed elaborate version both of them were silent about the treatment of complainant during 3.2.2009 to 6.2.2009. Even if 2^nd opposite party had never attended complainant, 1^st opposite party has to explain what had happened to complainant during the course of her treatment from 3.2.2009 to 6.2.2009.It has to be taken in to account that the complainant has definite case that the pregnancy had been aborted during this period of treatment. 2^nd opposite party strongly contended she had never attended complainant but her signature is seen in Ext.A2. No satisfactory explanation has been given to that recording.Ext.A2 Discharge summary consist of improper recording. It lacks history and clinical findings. What was diagnosed had not been found place in Discharge summary. Investigations, treatment and conditions on discharge also had not been properly recorded.  It is difficult to understand the purpose for which Ext.A2 Discharge summary had been issued. This deviation from the bounden duty creates doubt. Though not proved beyond doubt complainant’s case cannot be thrown away in the light of the improper recording of discharge summary. The case sheet produced by opposite party Ext.B1 also maintained in an improper way. The treatment and progress sheet reveals nothing with respect to the treatment.

          The case sheet and discharge summary reveals that 1^st opposite party has not taken diligence in maintaining the case records properly. Even the name of the doctor has not been recorded in the case sheet and operation notes. DW2 admitted in cross examination that “ case sheetepT, operation notesepT sNbvX DoctorDsS t]sc-gp-XpT”

          Ext.A2 and Ext.B1 proves that complaint was admitted in 1^st opposite party/hospital on 3.2.2009 and discharged on 6.2.2009. Ext.A7 is the lawyer notice copy sent by the complainant wherein she has categorically alleged that pregnancy was aborted and the same was concealed from her. She was also made believe that there was neither pregnancy nor abortion. Complainant also alleged that the document of finding pregnancy at the Govt. Hospital, Kannur was not returned to complainant.Ext.A8 reply notice admitted the admission of the complainant on 3.2.2009 and discharge on 6.2.2009. Opposite party also replied that necessary and proper  treatment had been given to complainant and the doctors did not suppress any facts. But there was no explanation with regard to the illness for which treatment was done. Ext.A8 did not disclose who advised the admission of complainant on 3.2.2009 and who  treated her and what was her complaint for which treatment was done. Complainant approached the doctor in 1^st opposite party hospital for clearing the doubt of pregnancy. But 1^st opposite party did not explain what was the complaint for which they have done three days inpatient treatment. DW1 in her cross examination deposed that pregnancy test was done and the result was negative. DW1 also admitted that Hemoglobin was less and blood transfusion was done and the blood group is B+ve. She has deposed that blood was given after conducting blood test. Page 9 of Ext.B1 seen recorded blood group B +ve. Complainant’s case is that treating doctor attempted to give O+ve. Ext.A1 shows that blood group is recorded as O +ve. This wrong recording is negligence. However it is a fact that O +ve blood had not been given to complainant. The blood transfusion in that sense did not actually caused damage to complainant. What is relevant at this point of situation is to find evidence, whether or not any treatment for abortion was carried out in 1^st opposite party hospital. Complainant confirmed of the abortion of her 1^st pregnancy after the sterilization operation in 1^st opposite party hospital when she was taken treatment under Dr.Ramadevi at Koyili. Till then she was not under any impression of abortion in 1^st opposite party/hospital since she was made believe otherwise by the operating doctor in 1^st opposite party hospital. When she became again pregnant she approached Dr.Ramadevi and upon her examination it was learned that she had been pregnant and the same did get aborted during her  hospital days in 1^st opposite party hospital from 3.2.2009 to  6.2.2009. The same details conveyed to complainant if deposed before the Forum by Dr.Ramadevi the treating doctor of complainant therein  Koyili Hospital, it would have been enough to convince the Forum and to  come in to a conclusion that the alleged abortion  done from 1^st  opposite party hospital without the consent and knowledge of the complainant. But complainant has not taken initiative to call for Dr.Ramadevi and to examine her as witness so as to place evidence to prove the abortion.Ext.A3, Sonography produced by opposite party does not take anything with respect to the abortion.Ext.A10 also does not speak of anything that of the abortion or of any other details that leads to conclude that complainant had the alleged abortion. If the Dr.Ramadevi was examined and deposed with respect to the abortion, the picture would have been entirely different. Complainant could not succeed in proving her case placing cogent evidence before the Forum. We are also bound to bear in mind the very spirit of the principles derived from the decisions of the Hon’ble Supreme Court and of observation that there is no prevalent method of sterilization that guarantee 100% success in spite of the operation having been successfully perform without negligence.

          In the light of the above discussion and facts, circumstances with the available evidence it can be seen that complainant is not able  to prove her case so as to cast liability upon opposite parties. Thus the issues 1 to 3 are answered against the complainant.

          In the result, the complaint is dismissed.

                           Sd/-                  Sd/-                    Sd/-                                        

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1 & A2. Discharge summary issued from 1^st OP’s Hospital

A3 to A6. Bills  dt.12.2.2010 issued from Koyili Hospital, Kannur

A7.          Copy of the lawyer notice sent to Ops

A8 & A9. Reply notices

A10.        Discharge summary issued from Koyili Hospital

A11.        USG report issued from Koyili Hospital

A12.        Biopsy/cytology report of complainant issued from DDRC

               Piramal

Exhibits for the opposite party:

B1. Case sheet of complainant maintained by 1^st OP

B2. Copy of the certificate issued from Kozhikode Medical College to   

       2^nd OP

Witness examined for the complainant

PW1Complainant

Witness examined for the opposite parties:

DW1.Dr.Geetha Mekoth

DW2. Mini P Nair

                                                 / forwarded by order/

                                                                                                                                           Senior Superintendent