Tamil Nadu

South Chennai

76/2007

Nalani Kamalika Kahawandala - Complainant(s)

Versus

C.Geetha Haripriya - Opp.Party(s)

M/S.S.Vijay Anand

30 May 2018

ORDER

                                                                        Date of Filing  : 16.02.2007

                                                                          Date of Order : 30.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                                : MEMBER-I

 

C.C. No.76 /2007

DATED THIS WEDNESDAY THE 30^TH DAY OF MAY 2018

                                 

Nalani Kamalika Kahawandala

(Nee Manatunga),

W/o. Mr. Jayantha Kahawandala,

No.19/1A, Hirimbura Lane,

Galle,

Sri Lanka.                                                                       .. Complainant.         

                                      

                                                               ..Versus..

 

Dr. C. Geetha Haripriya,

M.D., D.G.O., MRCOG (Lon),

No.6, Venugopal Avenue,

Spurtank Road,

Chetput,

Chennai – 600 031.                                                    ..  Opposite party.

          

Counsel for the complainant       :  M/s. S. Vijay Anand & another

Counsel for the opposite party   :  M/s. V. Gowri

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act, 1986 praying to return the medical treatment charges of Rs.2,00,000/-, to pay a sum of Rs.18,00,000/- towards compensation for loss and injury and to pay the cost of the complaint.

1. The averments of the complaint in brief are as follows:

                The complainant submits that she came to Chennai on 10.04.2005 for investigation and left Chennai on 18.04.2005.  During that period the complainant briefed the opposite party regarding her primary infertility and showed all previous reports.  Even on that period, the opposite parry did not have enough time to go through the previous records.   The Opposite party’s Assistant Dr. Ananda Lakshmi had taken her own time to hear the complainant and noted down some factors according to her wish.    The complainant met the opposite party at Prashanth Fertility Research Centre, Chennai   on 11.04.2005 and under her instructions, the complainant had undergone various blood tests and H.S.G.  According to the H.S.G. Report, there was filling defect in the complainant’s uterus and asked the complainant to admit in the Mercury Nursing Home, Egmore, Chennai – 8 for monitoring the complainant and to investigate the defects in the complainant’s uterus.   On 16.04.2005, the complainant underwent a surgical operation known as Histero Laparoscopy.    On 17.04.2005, the opposite party had visited the complainant and explained the nature of the surgery to the complainant.  According to her explanation the opposite party had removed the adhesions of the complainant’s intestinal, ovarian and the uterus.  The opposite party had discharged the complainant from the hospital at that moment and the opposite party had asked the complainant to see her on the following morning at the above said Prashanth Fertility Research Center.  The complainant met the opposite party at the above said center on 18.04.2005 and the opposite party had discharged the complainant and given a date to come again for In Vitro Fertilization (IVF).  On the instructions of the opposite party the complainant came to Chennai on 13.05.2005 and went to the Opposite party’s clinic, wherein Dr. Ananda Lakshmi, Assistant of the opposite party herein had given injections daily but neither the complainant nor any other patients could get any opportunity to meet the opposite party directly.

2.     The complainant further submits that, on 14.05.2005, the opposite party’s Assistant Dr. Ananda Lakshmi had started to give injections.  On the first day, Dr. Ananda Lakshmi had given 20 ml Lupride for down regulation.  On the first day itself, the complainant had a bad impression about the opposite party as she had selected the protocol without considering the complainant’s past reports and the age of the complainant.  The complainant had mentioned the said fact to Dr. Ananda Lakshmi but she did not make any comment regarding that matter.  For down regulation, the opposite party does not have any individual assessment of the patients.  The complainant submits that on 08.06.2005, the above said Assistant, Dr. Ananda Lakshmi had advised the complainant to admit in Prashanth Fertility Research Center for egg retrieval and it was done by the opposite party.  On 10.06.2005, again the complainant had been advised to admit herself for embryo transfer and it had done by the opposite party. On 24.06.2005, serum beta H.C.G. test had done to the complainant to find out the results of IVF and the result was negative and the complainant had no other option but to return to her Country, Srilanka.    The opposite party did not exhibit her skill and capability of the highest degree of skill but shown only a reasonable degree of her skill, while done the above said IVF, which results in its failure.   The  complainant submits that the complainant had consulted Dr. Madara Ralapanawa - Master in Clinical Embryology (Australia) at No.18, School Lane Nawala Srilanka on 10.07.2005 to continue IUI and obtain further  opinion regarding failure of the IVF.  After perusing all her reports, the above said Dr. Madara Ralapanawa had told the complainant that he couldn’t proceed with the IUI after the surgical operation done by the opposite party.  Then he explained to the complainant about the gravity and nature of surgery.  That only after the consultation with the above said Dr. Madara Ralapanawa, she came to the knowledge that the opposite party had done the Salphingectomy bilaterally without the complainant or her husband’s knowledge and consent.  The complainant  submits that she or her husband had no knowledge and being aware of the nature of the surgery and the extent of the harm or risk behind the above said surgery.  The opposite party had not explained about the surgery or its nature to the complainant or to her husband and done the surgery unilaterally without obtaining any consent from the complainant and from her husband.  The opposite party had done the above said surgery intentionally and with gross negligence.  The opposite party had not taken any iota of care while doing the surgery and the opposite party was very careless and done the surgery with the help of her Assistant doctors.  There is no proper diagnosis of egg retrieval.  The opposite party had waited till it comes to the post mature level or if it is not; the opposite party could not pick up all the eggs.  According to the scan report the complainant had 4 follicles in the left side and 2 follicles in the right side from the beginning.  The complainant submits that Embryo had transferred to the uterus at the 4-cell stage but during the investigation time the opposite party had agreed to put it in the blaster cell stage and the opposite party did not want to concern or look into the Histero-Laporascopy reports. 

3.     The complainant by underwent the treatment with the opposite party and subsequent failure of the said medical treatment, she has find the following negligence on the part of  the opposite party. 

1. No individual assessment of the patients.
2. No proper diagnosis of infertility.
3. Same protocol is using for down regulation for all patients and same injection dose is given to all the patients.
4. No rapport between the Radiologist and the opposite party.
5. Radiologist report is inaccurate e.g. see the complainant’s report follicle size on 5.06.2005 is 27/16, on 06.06.2005 is 27/12 and on 07.06.2005 is 27/16.
6. Egg retrieval is not done at the proper time and wasting the best quality eggs.
7. The complainant’s egg quality was good according to the explanation of the IV (all 3 eggs the opposite party have aspirated fertile ones).
8. The opposite party does not have at least 10 minutes to go through the file of a patient (atleast when embryo transfer stage).
9. No transparency in the opposite party’s center (Scan report is hiding from the complainant patient)

4.     The complainant submits that she came to Chennai to do an IVF with the opposite party.  But Dr. Ananda Lakshmi has done the entire show.  Previously, the complainant has done 3 times IVF in Srilanka.  Though it was negative still the complainant have a high regard to that doctors because they have taken their own time and done their maximum.  Their activities were transparent.  The complainant had trusted upon the opposite party but up to the aspiration time, the complainant did not see the colour of the opposite party.  Hence the complainant sent notices dated:02.07.2005 and 07.07.2005 through e-mail to the opposite party but failed to send any reply.  Hence this complaint is filed before this Forum.

5.     The brief averments in the written version filed by the opposite party is as follows:

The opposite party specifically denies each and every allegations made in the complaint and puts the complainant to strict proof of the same. The complaint involves the production of documents, prescriptions and examination of the complainant and the opposite party.  The complaint also fail on the ground of non joinder of necessary parties viz. the hospitals and doctors with whom also the complainant had taken treatment, for proper appreciation, decision and adjudication of the case and on this ground alone the complaint ought to be dismissed in limini.  The complainant has suppressed material facts and has come with the above false complaint with a view to make unlawful gain and profit.   The complainant was suffering from primary infertility and had consulted the opposite party to obtain treatment for primary infertility in April 2005.  The opposite party submits that all the patients who come to this opposite party’s center-Prashanth Fertility Research Center, for treatment for infertility and other treatments connected with pregnancy.  The complainant had already undergone IVF several times in Sri Lanka before coming to the  opposite party.  The opposite party submits that IVF is a procedure where the egg and sperm are fertilized outside the human body.  The main indication for IVF are tubal damage, blocked tubes, endometriosis and low sperm count in the male. 

6.     The opposite party further states that the process involves baseline investigation including blood tests, ultra sound, semen analysis and hysterosalpingogram.  The opposite party further submits that Hystero Laparoscopy was done to the complainant after informed consent and the complainant being an educated person definitely will not go through a procedure without full explanation.   It was only after reviewing the reports and her previously failed IVF’s that a decision to remove the diseased tube was made as this could been one of the causes of her previous failure, age being another factor.  Risk involved in the treatment was properly explained before doing Hystero Laparoscopy and Salpingectomy.   The opposite party further submits that the possibility and the necessity of removing the tubes has been discussed with the complainant during her pre-operation visit.   The complainant was further informed that both her Fallopian tubes were removed as they were very unhealthy, filled with bad fluid, during Histerio Laparoscopy, as any infection may jeopardize her chances of success in IVF it was mandatory to disconnect the diseased tubes.  

7.     The opposite party states that IVF is the treatment given to patients who wants to attain motherhood when fallopian tubes are damaged or absent and the complainant as admitted by her had already undergone IVF procedure in Sri Lanka for the damaged tubes.  The opposite party further submits that the procedure involves down regulating the pituitary gland so that endogenous hormones are suppressed and the hormones given exogenously take over.   Different drugs are used by different centres-Buserlin (suprefacit) Lupride Depot (Luprolide Acetate) Zolodex (GosereLn) etc. Each center has their own drug protocol which gives them the best and desired results.  The opposite party further submits that in the opposite party’s center, the initial investigation for all the patients particularly the IVF patients are reviewed by the opposite party and drug protocols are planned to suit the patients.  The final procedure of egg collection and the embryo transfer were done by the opposite party to the complainant and also spoke to the complainant on and off during the time and days when ultrasound was done to the complainant.  The opposite party further submits that the number of follicles seen on ultrasound does not correlate with the number of eggs retrieved.  Sometimes all follicles may be empty, particularly in older patients and this is called “Empty Follicle Syndrome”.  The opposite party further submits that once eggs are retrieved only 50% to 65% of the eggs fertilse.  And that of the fertilized eggs only 50 to 80% of them continue to grow.  So there is always difference in the  number of follicles and the number of embryos, which is all the more relevant in older woman.  The opposite party further submits that the complainant as per her own admission had already undergone IVF several times in Sri Lanka after being told that IUI will not work for her and only after repeated failed attempts in Sri Lanka the complainant had come to this opposite party for better results as lot of patients from Sri Lanka have conceived after coming to this opposite party’s Prashanth Fertility Research Center.   The fact that Salphingectomy was to be done bilaterally was informed.  Inspite of this, she must not misinterpret, misconstrue the medical information that was given to her and turn around and accuse this opposite party.  The allegations about deficiency in service and negligence are totally baseless.  Therefore, the complaint has to be dismissed.

8.   In order to prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A37 are marked and was cross examined by the opposite party’s Counsel.  Proof affidavit of the opposite party filed and documents Ex.B1 to Ex.B5 are filed and marked on the side of the opposite party.

9.     The points for consideration is:-

1. Whether the complainant is entitled to get refund of a sum of Rs.2,00,000/- expended towards medical treatment as prayed for?

2. Whether the complainant entitled to a sum of Rs.18,00,000/- towards compensation for loss and injury caused due to the negligence and deficiency in service by the opposite party as prayed for?

 

10.     On point:-

Heard both sides.  Perused the records namely the complaint, written version, proof affidavits, documents etc.  The complainant pleaded and contended that she is suffering from infertility and undergone several treatments including IUI, IVF etc at Sri Lanka and with the opposite party is admitted at the time of cross examination also.  Further the contention of  the complainant is that, she came to Chennai on 10.04.2005, and undergone various treatments with the opposite party, since the opposite party failed and neglected to provide and accommodate the complainant in the following manner that is:

1. No individual assessment of patients.
2. No proper diagnosis of infertility.
3. Same protocol is using for down regulation for all patients and same injection dose is given to all the patients.
4. No rapport between the Radiologist and the opposite party.
5. Radiologist report is in accurate.
6. Egg retrieval is not done at the proper time and wasting the best quality eggs.
7. The complainant’s egg quality was good according to the explanation of the IV (all 3 eggs the opposite party have aspirated  fertile ones).
8. The opposite party does not have atleast 10 min to go through the file of a patient (atleast when embryo transfer stage).
9. No transparency in the opposite party’s center. (Scan report is hiding from the complainant patient).

The complainant is constrained to file this case.But on a careful perusal of records, the complainant has not pleaded the said factors in such a manner and proved the alleged negligence.

10. Further the contention of the complainant is that she met the opposite party at Prashanth Fertility Research Center on 11.04.2005 and undergone various blood tests and H.S.G.   According to the H.S.G. Report, Ex.A6 & Ex.A8 there was a filling defect in the complainant uterus which is very clearly admitted in the complaint also.  Hence the opposite party is required to find out the defects and remedies by way of further investigation namely Histero Laparoscopy operation conducted on 16.04.2005 as per Ex.A19; as per the express consent of the complainant Ex.B4, duly signed by the complainant who is a literate practicing lawyer.  Even after the surgery, on 17.04.2005, the opposite party visited the complainant and explained the nature of surgery and removal of adhesions in the intestine, ovarian and the uterus.  Further the contention of the complainant is that for such Histero Laparoscopy operation, no express consent was given; is not acceptable because the complainant herself  admitted in para No.11 of the complaint that “On 17.04.2005, the opposite party visited the complainant and explained the nature of the surgery of the complainant.  According to her explanation, the opposite party had removed the adhesions of intestinal, ovarian, and the uterus”.    It is very clearly seen in Ex. B4 that “I am also giving my consent to do any such procedure or procedures that might have to be carried out during the course of the surgery” proves the express consent for such surgery and its consequential removal of unwanted adhesions came from ovary to uterus caused fillings to the uterus which may be the culprits for better fertility of embryos.   Further the contention of the complainant is that the treatment by the opposite party’ Assistant, Dr. Ananda Lakshmi had administered 20ml of Lupride for down regulation and administration of embryo transfer by the opposite party are of improper diagnosis and non individual assessment; cannot be accepted   for the simple reason, that the complainant without producing the previous treatment record in full and without the knowledge of medical literature, blowing hot and cool simultaneously.   
11. Further the contention of the complainant is that without explaining the nature of surgery and its consequences, the opposite party unilaterally carried out the surgical Histero Laparoscopy operation without any care amounts to gross negligence.  But on a careful perusal of the records relating to treatment and evidence, it is apparently clear that there are fillings adhesions in the uterus as well as ovary, intestine etc. are the culprits for the fertility caused decreasing pregnancy which necessitated the Histero Laparoscopy operation for enhancing the fertility on good faith.  The complainant also admitted that she had undergone repeated long treatment in Sri Lanka and on 16.04.2005, at Prashanth Fertility Research Center and  undergone Histero Laparoscopy operation and thereafter, on June 2005,  the complainant had undergone IVF treatment as per Ex.A31 by way of implanting embryos, during such period also the complainant has not raised any question regarding the Histero Laparoscopic treatment and removal of adhesions fillings in the intestine, uterus etc by removal of fallopian tubes proves that this case is the cherished   afterthought of the complainant.    
12. Further the contention of the complainant is that there is no proper diagnosis egg retrieval and embryo transfer done by the opposite parties; is not acceptable.  Because admittedly, there are fillings, adhesions in the uterus through the fallopian tubes caused the negative results.   The IVF is the treatment given to the patients who wants to attain motherhood when the fallopian tubes are damaged or absent.  The complainant also admitted that she had already undergone IVF procedure repeatedly in Sri Lanka for the damaged tubes.   The complainant also has not preferred to adduce any expert evidence / opinion to prove the alleged negligence against the unchallenged qualified medical practitioner who rightly diagnosed and carried out the treatment.  Equally, the complainant has not whispered anything about the permanent loss or blocked Fallopian Tubes in the case of fertility even at this age of 41 proves that the complainant can take a better chance as the result of removal of adhesions and fillings.

The learned Counsel cited the decision reported in:

Supreme Court of India

Between

Samira Kohli

•  

Prabha Manchanda & another

Held that 

In 32(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment.Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure.The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery.The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision”.

(iv) “There can be a common consent for diagnostic and operative procedures where they are contemplated.There can only be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery”

(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field.It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment”.

In this case as per Ex.B4 and the admission in the complaint in para. No.11, the complainant has given express consent for all consequential procedure in the course of surgery proves that only after the consent by the complainant who is a literate and practising lawyer knowing fully well about her good health, positive approach for pregnancy on goodwill was initiated by the opposite party.  

13.   Further the contention of the complainant is that, the complainant is claiming a sum of Rs. 2,00,000/- towards the expenditure incurred by way of medical treatment.  But the complainant had produced bills to the tune of Rs.1,75,417.25 which is also, reasonable probable expenditure for proper medicine and surgery.  The complainant also claiming a sum of Rs. 18,00,000/-  towards compensation for loss and injury suffered by the complainant due to the negligence of the opposite party.  But the complainant has not proved the actual and pecuniary loss and the nature of injury  much less, special injury.   

14.   The learned Counsel for the opposite party would contend that this complaint is not maintainable either in law or on facts.   Since the complaint involved production of documents, examination of witness, elaborate evidence of both complainant and opposite party and detailed arguments and it should be decided only by Civil Court not by way of summary trial under this Consumer Protection Act; is not acceptable, because the simple point for consideration in this case is only deficiency in service.  It should be decided summarily by this Forum. 

15.   Further the contention of the opposite party is that, this case is barred of non joinder of necessary parties particularly the hospital where in, the complainant availed treatment and the Doctors who have diagnosed and administered treatment.  The Radiologist, Sonologist and other experts who had made tests to the complainant has not been impleaded as parties.   Further the contention of the opposite party is that, she is a competent and well qualified leading Gynaecologist in the field of Fertility Medicine and having obtained her FRCOG from the Royal College of Obstertrics and Gynaecology (London) is not denied by the complainant any where in this case.  Further  the contention of the opposite party is that, the complainant was admitted for primary infertility in the month of April 2005 at  Prashanth Fertility Research Centre, Chennai with the prehistory of treatment and undergone IVF repeatedly in Sri Lanka i.e., the procedure repeatedly administered by using fertilized eggs and sperm outside the human body resulting negative due to tubal damage, blocked tubes, endometriosis and low sperm count in the male.  

16.  

“Qn. No.3. What is IUI treatment?

Ans: It is an Artificial insemination.

Qn. No.4. Howmany IUI procedure you undergone?

Ans: I can’t remember exactly.It may be 10.

Qn. No.5. When the last IUI procedure done?

During December 2004.

Qn.No.9. Do you know the reason for the failure of IUI procedure?

Ans: I do not know.

Qn.No.10. Did you undergone any Laparoscopic treatment previously before undergoing Laparoscopic treatment with the opposite party, If so, how many times?

Ans: Yes, three or four times, I can’t remember exactly.

Qn. No.12. Did you undergone Laparoscopic treatment in the year 1995?

Ans: I can’t remember.

Qn. No.13. Did you undergone Laprotomy treatment in the year 1999?

Ans: Yes, but I do not remember the year.

Qn. No.15. Did you undergone another Laparoscopic treatment in the year 2000?

Ans: I have undergone treatment but I do not remember the year.

Qn. No.17. Whether all procedures done with your consent?

Ans:Yes, with my consent alone all the procedures done.

Qn. No.18. Whether you filed all the reports in this Forum?

Ans: No, I have not filed.

Qn. No.19. Did you not think that the respondents are relevant to this case?

Ans: I have no idea.

Qn. No.20. How many times you undergone IVF treatment?

Ans: Two times IVF and one Frozen Embryo transfer.

Qn. No.21. Do you know the stages of the Frozen Embryo available by you?

Ans: To my knowledge 3 cell stage.

Qn. No.22. Do you know what A25005 spermia?

Ans: Yes, it means No sperms.

Qn. No.23. Is it true that your husband suffered from A250055 spermia?

Ans. Yes. That is the reason I have availed IUI.

Hence the process of investigation including blood tests, ultra sound, semen analysis and hysterosalpingography required for hysteroscopy and laparoscopy operation to improve the pregnancy rate.

17.  

The learned Counsel produced the following medical literatures:

Recurrent implantation failure: definition and management

“Recurrent implantation failure refers to failure to achieve a clinical pregnancy after transfer of at least four good – quality embryos in a minimum of three fresh or frozen cycles in a woman under the age of 40 years. .... Hydrosalpinges are a recognized cause of implantation failure and should be excluded by hysterosalpingogram; if necessary, laparoscopy should be performed to confirm or refute the diagnosis. .... It is now recognized that the live birth rate of patients with hydrosalpinges undergoing IVF is only one-half that of women who do not have hydrosalpinges.Moreover, in a prospective, randomized multicentre trial in Scandinavia in women who had hydrosalpinges and were randomized to have no intervention prior to IVF, the pregnanacy rate was 23.09%, miscarriage rate was 26.3% and live birth rate was only 16.3%; however, in women who were randomized to gave salpingectomy prior to IVF, the corresponding results were 36.6%, 16.2% and 28.6% respectively.The live birth rate was significantly higher than the no-treatment group.In a sub-group of women in whom the hydrosalpinges were visible by ultrasonography, the difference in results appeared more significant.There is, therefore, good evidence that salpingectomy prior to IVF in women with hydrosalpinges improves outcome. ... a direct embryotoxic effect, a mechanical effect whereby the accumulated fluid may flush endometrial receptivity.A study by Seli et al. (2005) showed that the expression of leukaemia inhibitory factor, a cytokine essential for successful implantation, was reduced in the presence of hydrosalpinges, but the expression was restored to normal after salpingectomy. A further study showed that removal of hydrosalpinges may improve endometrial receptivity by restoring normal integrin expression”.

Procedures that can improve IVF outcome

To evaluate the surgical procedures that will influence the outcome of IN vitro fertilization (IVF) and discuss some surgical approaches, including the role of robotic surgery. ... Three specific procedures addressed-surgical treatment of endometriosis, surgical treatment of leiomyoma and surgical treatment of hydrosalpinx.Removal of ultrasound identifiable hydrosalpinx before IVF is supported by randomized clinical trials (RCT). .... There is compelling evidence that removal of ultrasound identifiable hydrosalpinx will improve IVF outcome (pregnancy rates)”.

Adverse effects on hydrosalpinx on pregnancy rates after in vitro fertilization embryo transfer

An extreme form of tubal disease is tubal hydrosalpines, Fluid collection from such structure is knon to increase with controlled ovarian stimulation (1), and this fluid empties into the uterine lumen (2). .... Hydrosalpinx is associated with a reduced chance of implantation and an increased risk of pregnancy loss.The PR for the patients with hydrosalpinx was only half that of patients with tubal factor but without hydrosalpinx.The frequency of hydrosalpinges among IVF-ET patients with tubal infertility appears to be in the range of 10%-13% by ultrasonography.... HSG or operative findings, the incidence is 25% - 30%, ... Although the distal end of hydrosalpinx is blocked, the proximal end is usually in free communicatin with the uterine cavity, may allow a direct flow of microor-ganisms, toxic debris, and lymphocytes into the uterus.Cytokines, prostaglandins, and other agents also may be transferred directly to the endometrium.Aneedotal reports suggest that such a mechanism may be important clinically.Mansour et at. (2) reported the drainage of brownish fluid from the cervix of IVF patients with hydrosalpines, especially in the second half of the cycle these patients could not conceive after IVF-ET. ....Oehninger et at. (23) showed that the best results in IVF-ET were obtained in patients with pure mechanical factor (bilateral tubal ligation)”.

17.  

The learned Counsel cited the decisions reported in

III (2015) CPJ 316 (NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI

•  

VIMHANS HOSPITAL & ANOTHER

•  

ANAND KUMAR JHA & OTHERS

 

“Consumer Protection Act, 1986 –Sections 2(1)(g), 14(1)(d), 21(b)- Medical Negligence – Neurosurgery – Patient paralyzed – Death of patient – Defective consent – Alleged deficiency in service –District Forum allowed complaint – State Commission dismissed appeal – Hence revision – Incomplete or not correctly filled consent form for surgery, appears to be a mere omission and not a major negligence – Complainant was not a lay person, the duty of prudence and care was also casted upon him – It was a planned surgery and there was no force from OP-2/ Doctor for patient to undergo surgery – Cause of death was neither due to surgical complication nor due to any negligence. – However, proper consent, in writing, must be taken from patient/ relatives of patient – Consent form was signed by patient / complainant, without filling up necessary blanks and without striking off unwanted columns – Cost of Rs.50,000/- imposed on Hospital after taking lenient view of the matter.

 

In para No.3:-

“Against the order of the District forum, the Ops filed the First Appeal No1298/06 before the State consumer Disputes Redressal Commission, Delhi.The State Commission dismissed the appeal.Therefore, the petitioners approached hereby the way of Revision Petition”.

In para No.8:-

“In this case, the OP certainly had discussion with the patient about the surgery, thus it was an oral informed consent.The incomplete or not correctly filled consent form for surgery appears to be a mere omission and not a major negligence in this case.The complainant was not a lay person, the duty of prudence and care was also casted upon him.It was a planned surgery and there was no force from the OP-2 for the patient to undergo surgery”.

18.  
19.  

In the result, this complaint is dismissed.No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 30^th day of May 2018. 

 

MEMBER –I                                                              PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	07.04.2005	Copy of ticket confirmation letter from Sri Lankan Airlines to the complainant
Ex.A2	08.04.2005	Copy of Travellers cheques
Ex.A3	10.04.2005	Copy of advance receipt of Hotel Nandini Palace to the complainant
Ex.A4	10.04.2005	Copy of receipt for snacks of Hotel Nandini Palace to the complainant
Ex.A5	11.04.2005	Copy of receipt per day of Hotel Nandini Palace to the complainant
Ex.A6	11.04.2005	Copy of prescription of the opposite party to the complainant
Ex.A7	12.04.2005	Copy of receipts (HSG/LAB/SCAN) by Prashanth Fertility Research Centre Private Limited
Ex.A8	12.04.2005	Copy of receipt (LAB) by Prashanth Fertility Research Centre Private Limited
Ex.A9	12.04.2005	Copy of results by Prashanth Fertility Research Centre Private Limited
Ex.A10	13.04.2005	Copy of receipt (Room charges) by Rathna Complex to the complainant
Ex.A11	14.04.2005	Copy of receipt (Room charges) by Rathna Complex to the complainant
Ex.A12	15.04.2005	Copy of receipt (Room charges) by Rathna Complex to the complainant
Ex.A13	16.04.2005	Copy of cash bill by Bellona Medicals to the complainant
Ex.A14	16.04.2005	Copy of Theatre Replacement Memo by Mercury Nursing Home to the complainant
Ex.A15	16.04.2005	Copy of cash bill by Bellona Medicals to the complainant
Ex.A16	16.04.2005	Copy of cash bill by Mercury Nursing Home to the complainant
Ex.A17		Copy of Hystero Laparoscopy  Result by Mercury Nursing Home to the complainant
Ex.A18	17.04.2005	Copy of Lab Receipt Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A19	17.04.2005	Copy of Discharge Summary by Mercury Nursing Home to the complainant
Ex.A20	18.04.2005	Copy of cash bill by Ratna Complex to the complainant
Ex.A21	18.04.2005	Copy of cash bill by Ratna Complex to the complainant
Ex.A22	18.04.2005	Copy of prescription by the opposite party to the complainant
Ex.A23	14.05.2005	Copy of cash bill by Ramarau Polyclinic & Ambalavana Pharmacy to the complainant
Ex.A24	22.05.2005	Copy of IVF Fertility by Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A25	24.05.2005	Copy of Lab Results by Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A26	04.06.2005	Copy of Encashment Certificate by American Express Foreign Exchange Services India Limited to the complainant
Ex.A27	04.06.2005	Copy of Scan Receipt by Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A28	04.06.2005	Copy of prescription by the opposite party to the complainant
Ex.A29	04.06.2005	Copy of prescription by the Appollo Hospitals, Chennai to the complainant
Ex.A30	04.06.2005	Copy of Result Report by Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A31	08.06.2005	Copy of Discharge Summary by Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A32	10.06.2005	Copy of Examination Report by Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A33		Copy of Post operation Follow-up by the opposite party to the complainant
Ex.A34	24.06.2005	Copy of Pregnancy Test Result by Prashanth Fertility Research Centre Private Limited to the complainant
Ex.A35	02.07.2005	Copy of E-mail letter by the complainant to the opposite party
Ex.A36	06.07.2005	Copy of Prescription / Report by Dr. Madara Ralapanawe to the complainant
Ex.A37	07.07.2005	Copy of E-mail letter by the complainant to the opposite party

 

OPPOSITE  PARTY SIDE DOCUMENTS:  

		Copy of pre-operative status
		Copy of case sheet of the complainant
		Copy of Discharge Summary
		Consent letter of the complainant
		Copy of extract of the medical register

 

 

 

MEMBER –I                                                                      PRESIDENT