| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION-VII DISTRICT: SOUTH-WEST GOVERNMENT OF NCT OF DELHI FIRST FLOOR, PANDIT DEEP CHAND SHARMA SAHKAR BHAWAN SECTOR-20, DWARKA, NEW DELHI-110077 CASE NO.CC/96/16 Date of Institution:- 03.03.2016 Order Reserved on:- 01.05.2024 Date of Decision:- 16.12.2024 IN THE MATTER OF: Smt. Reshma Kamble W/o Havildar. S.N. Kamble, R/o Quarter – WZ908, Second Floor, Naraina Village, New Delhi .….. Complainant VERSUS - Army Hospital (R & R)
Through Commandant Delhi Cantt. New Delhi – 110010 - Base Hospital Delhi Cantt.
Through Commandant Delhi Cantt. New Delhi – 110010 .…..Opposite Parties ORDER - The facts of the present case are that the complainant availed the medical services of OP-1 and 2 Hospitals for the regular check-ups leading up to the delivery of her child. She was admitted to OP-1 on22.07.2014 and gave birth to a child via a successful caesarean operation performed by OP-2.
- The complainant’s case is that on the same day, on the advice of
Dr. Lt. Col. Nagaraja of OP-1she agreed to undergo a Bilateral Tubectomy operation for sterilisation. OP-2 also issued a sterilisation certificate dated 06.08.2014 for the successful surgery (Annexure-A1),after which the complainant was discharged from the OP-1 Hospital.
- The complainant states that after one year and five months of the Bilateral Tubectomy, she felt severe pain in her lower abdomen. She was,therefore, admitted to OP-2 on 30.12.2015.On examination, it was found by the doctors of OP-2 that the right fallopian tube of the complainant showed a blocked tube with a cyst growth which had developed Tubo Ovarian Mass; Ectopic Pregnancy. The complainant has annexed the copies of the ultrasound photos (Annexuure-A3) with her complaint.
- She was taken for an emergency operation, and a salpingectomy operation was performed on 31.12.2015 itself to remove the cyst and Tubo ovarian mass. The complainant was discharged on 02.01.2016 Annexure-4is the discharge summary issued by OP-2 at the time of her discharge.
- Alleging deficiency in service and negligence on the part of the treating Dr. Lt. Col. Nagaraja of OP-1 in performing an unsuccessful tubectomy and lack of care, thereby endangering the complainant’s life and making the complainant undergo the agony of an additional surgery which could have been easily avoided the complainant filed the present complaint before this Forum under section 12 of the Consumer Protection Act, 1986. She seeks directions to the OPs to pay damages to the tune of Rs.15 lakh for mental harassment and physical agony caused to her, along with litigation costs.
- Notice was issued to the OPs, who filed a joint reply wherein the OPs state that the present case is not maintainable as the complainant is the spouse of the servicing Army personnel who has availed of the medical service free of cost and has paid no consideration amount for the treatment and services of the OPs and thus is not a consumer as per the Consumer Protection Act.
- On merits, the OPs allege that the best treatment was given to the complainant during her hospitalisationat the OP-1 and OP-2. The OPs admit that Dr. Lt. Col. Nagaraja, working at OP-1, performed a successful caesarean section operation on the complainant, who was a high-risk diabetic, on 22.07.2014. It was the complainant and her husband who sought a tubectomy, andonly after duly understanding the conditions the complainant and her husband gave consent for caesarean delivery and Tubectomy surgery. The complainant delivered a healthy baby. However, the OPs deny that OP-1 or the treating doctor issued any sterilisation certificate.
- The OPs claim that tubal ectopic pregnancy is a well-known and well-established complication following Tubectomy. Further, the complainant was allegedly advised that after Tubectomy, she should report to OP-1 if there is a missed period for more than two weeks for a possible pregnancy/cyst/tumour. However, the complainant did not report back to OP-1 regarding the same.
- The complainant developed a cyst in her fallopian tube pregnancy after the Tubectomy, which cannot be termed as pregnancy, and the surgery could have been avoided had the complainant reported to OPs soon after missing her periods for two weeks.
- Ectopic pregnancy is discoverable and can be diagnosed as early as 5/6 weeks with transvaginal sonography, which is a long-term complication of tubal sterilisation. As per medical jurisprudence,failure of Tubectomy after one year is not likely due tolocknical errors.Hence, denying that ectopic pregnancy in the complainant was caused by the negligence of OP-1, the OPs seek dismissal of the complaint.
- The complainant filed rejoinder and her affidavit to be read in evidence reiterating the averments as made by her in the complaint. OP-1 filed the affidavit of Major Tejvir Legal&Admn. Executive for OP-1 and OP-2,and OP-2 filed the affidavit of Ld. Col. A. Sobti Legal&Admn. Executive for OP-2. Both OPs repeated their statements as made in their joint reply and also filed the medical literature as Exh.DW2/A (Annexure-II) to show that the complainant’s ectopic pregnancy is a widely accepted complication of tubal surgery and Biopsy ReportEx.DW2/14(Annexure-I). The contesting parties filed their written arguments, and we have heard the complainant. The liberty to address the final oral argument was given to the OPs who did not avail of the same. Hence, the order was reserved.
- We have perused the material on record carefully and considered the facts and circumstances of the present complaint. We find that the complainant,who is the wife of a serving Army Personnel,visited OP-1 and OP-2 for regular check-ups during her pregnancy. On 22.07.2014, she was admitted to OP-1, suffering from labour pains. She was taken for caesarean surgery, which admittedly was successful,and the complainant gave birth to a healthy baby.
- The complainant’s case is not regarding the caesarean operation conducted by the OP-1 doctor. Her grievance is that at the time of delivery,the complainant was advised by Dr. Lt. Col. Nagaraja to undergo a Bilateral Tubectomy operation for future sterilisation. Tubectomy is a surgical procedure that blocks or cuts the fallopian tubes to prevent pregnancy.
- The complainant, on the OP-1 doctor’s advice,underwent the procedure which was performed on her on 22.07.2014 as per Annexure A-1, which is the copy of the sterilisation certificate issued to the complainant under the seal and signature of OP-1 by the treating doctor Dr. Lt. Col. Nagaraja unambiguously falsifying the denial of the OPs that OP-1 did not issue a sterilisation Certificate to the complainant on 06.08.2014.
- The complainant has stated that after one year five months of the Bilateral Tubectomy performed at OP-1, she was admitted to OP-2 with severe abdominal pain on 30.12.2015. On investigation, it was revealed that the complainant had developed a cyst growth in her right fallopian tube, a Tubo ovarian Mass/ectopic Pregnancy. The complainant was immediately taken for an emergency salpingectomy on 31.12.2015 and discharged after treatment.
- Aggrieved by the OP-1 and the OP-1 doctor’s negligence, the complainant filed the present complaint.
- OP-1 and 2 raised a preliminary objection that the complainant had paid no consideration fee for the services availed by her at the OP hospitals and hence was not a consumer under the Act thereby making the present complaint non-maintainable.
- Further, OP-1 and 2 allege that the complainant did not report to OP-1 after missing her period despite giving clear instructions regarding informing OP-1 if such an incident occurs by the treating doctor. The OPs stated that the complainant and her husband had opted for the Tubectomy afterunderstanding the conditions and complications and signed the consent form thereafter. She later on undoubtedly developed a cyst, which cannot be called an ectopic pregnancy, for which she had to undergo an operation,but it was not due to the negligence of the doctor at OP-1 but is a well-known complication of Tubectomy as per medical literature. Hence, the complaint deserves dismissal.
- Before delving into the merits of the case, we feel it prudent to decide the preliminary objection raised by the OPs regarding the complainant not being a consumer,as she had paid no consideration amount to the OPs.
- The present case squarely falls within the ambit of the judgment passed by the Hon’ble National Consumer Dispute Redressal Commission in Revision Petition No.2158 of 2010 in Mrs. AlkaSrivastava and Anr Vs. Base Hospital Delhi Cantt. &Anr.
“14. The OP raised an objection that, the complainant was not a ‘consumer’ on the ground that her husband gets health benefits as free services from the department. But in this context, the landmark judgment in V.P. Shantha’s case Hon’ble Supreme Court clearly held that; 3.Similarly, where, as a part of the condition of service, the employer bears the expenses of medical treatment of an employer and his family members dependent on him, the service rendered to such an employee and his family by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ‘service’ under section 2 (1) (o) of the Act.” - Hence, the complainant is a consumer as she depended on her husband, whose employer had paid for the medical treatment, thus making the treatment she received at the OPs a paid service. We, therefore, do not find any merit in the preliminary objection raised by the OPs in law.
- On merits, we find that as per medical journals at NIH- National Library of Medicine clarify that Tubal sterilisation,thoughvery safe and the most commonly employed permanent method of contraception, but rarely a cyst may develop in the fallopian tube resulting in presentation of patient with acute abdomen.
- The complainant’s case is that after tubal sterilisation at OP-1 by the treating doctor on 22.07.2014. She developed an ectopic pregnancy(an ectopic pregnancy is when a fertilised egg implants itself outside of the womb, usually in one of the fallopian tubes) after 1 year and 5 months, which had to be surgically managed,causing the complainant to face severe physical and mental agony due to the OP-1 doctor’s negligence.
- Further, though rare, ectopic pregnancy may occur after tubal ligation. In some cases, the fallopian tubes can re-join or develop small openings that allow a fertilised egg to enter the tube, leading to an ectopic pregnancy. Tubal ligation is mentioned as one of the risk factors in medical journals. The OPs cannot deny that the complainant,who had undergone permanent sterilisation by Tubectomy, developedthe complication of ectopic pregnancy.
- We feel that the treating doctor of OP-1 employed due care and caution while performing the Tubectomy on the complainant, but the complication of ectopic pregnancy occurred after more than one year of the surgery, which is a known complication of the said surgery.
- This very aspect of complications occurring after a medical procedure and if they constitute negligence has been dealt succinctly in the order passed by the Hon’ble State Consumer Dispute Redressal Commission, Panchkula, Haryana, inSuresh Kumar, Son of Sh. Dharam Singh vs Pt. B.D. Sharma Post Graduate Institute of Medical Sciences, Rohtak on 10 December 2012, wherein it is held as below:-
“In view of the above, we do not think it a fit case to hold the opposite party for any kind of medical negligence and deficiency in service. The medical complications cannot always lead to an inference of medical negligence. Hence, this complaint is dismissed being devoid of any merit.” - Further, OP-2 had no role in treating or managing the patient post-operatively after Tubectomy at OP-1 nor did the complainant have any grievance with OP-2. Hence, we absolve OP-2 of any liability if found in the present case.
- Having considered the facts of this case, we find that the complaint before us squarely falls within the ambit of the aforementioned judgement passed by the Hon’ble State Consumer Dispute Redressal Commission, Panchkula, Haryana (supra). Hence, we dismiss the present complaint, leaving the parties to bear their own costs.
- A copy of this order is to be sent to all the parties as per rule.
- File be consigned to record room.
- Announced in the open court on 16.12.2024.
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