This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `50,000 as compensation and cost.

          The case of the complainant in brief is as follows:  Complainant was admitted for delivery in opposite party hospital and undergone treatment there by 1^st opposite party. After delivery Laparoscopic sterilization was conducted by 1^st opposite party on 4.1.06. Thereafter, on 7.10.06 when pregnancy test was done the result was positive. Complainant and husband asked about the operation but opposite party insulted her in front of others. The unexpected pregnancy was due to negligence and carelessness on the part of opposite party in conducting the surgery. On 9.10.2006 the complainant admitted in Pariyaram Medical College and conducted MTP on 10.10.2006. Lawyer notice was sent to opposite party but they were not complied with the demands. Hence this complaint.

The case of the 1^st opposite party in brief is as follows:

Complainant and her husband requested him for sterilization. They opted for Tubal sterilization. Pros and cons of tubal sterilization and chances of its failure were clearly explained in detail to them. They w ere informed that no method of sterilization is credible or reliable and that there is an inherent chances of failure in every kind of sterilization operation. Complainant voluntarily agreed and signed consent form. The patient underwent laparoscopic sterilization by bilateral tubal ring application under all aseptic precautions with utmost care and attention. Complainant thereafter visited hospital/2^nd opposite party saying she was pregnant. Another day they came to the residence of the 1^st opposite party to enquire about the present pregnancy. 1^st opposite party explained to them about the recanalisation of fallopian tubes resulting in failure of such procedures. Complainant did not come for further follow up. There is no deficiency in service on the part of opposite parties. Hence to dismiss the complaint.

2^nd opposite party filed version separately but covered the same contents as that of the 1^st opposite party. Hence to avoid repetition details are not written again.

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 evidence adduced by PW1 and DW1, DW2 and documentary evidence Exts.A1 to A24,Ext.X1,X1(a) and X1(b), Ext. B1 to B3.

Issue Nos.1 to 3

          Admittedly the complainant approached opposite parties and admitted to 2^nd opposite party hospital for delivery. After delivery she had been undergone tubal sterilization on 4.1.2006. But on conducting pregnancy test on 7.10.2006 it was found positive result. The case of the complainant is that the failure of operation and the unexpected pregnancy were caused only due to the negligence on the part of 1^st opposite party.  Opposite party on the other hand contended that he had explained to the complainant and her husband pros and cons of tubal sterilization and chances of its failure.

Complainant adduced evidence by way of chief affidavit in tune with the pleadings. Apart from the failure of sterilization and pregnancy thereafter complainant also alleged that opposite party behaved very badly  when he was contacted to ask about the failure of operation. It is also alleged that opposite party did not give any advice regarding future steps.

          Complainant adduced evidence that she had approached 1^st opposite party and upon his direction conducted pregnancy test whereby she realized that she was pregnant. Then complainant and her husband again approached 1^st opposite party and asked about the details of last operation conducted. Complainant alleges that at that time when they asked about the failure of procedure followed 1^st  opposite party behaved rudely in front of others and did not give any advice with respect to future steps.

          Though failure of procedure ring application technique through a laparoscope is the main subject matter of discussion the behaviour of doctor also plays important role in determining the deficiency of service. But except the affidavit evidence of complainant there is nothing to prove that there was such behaviour on the part of the doctor. It is understandable that it is a difficult task to prove the same but without supporting evidence it is not safe to conclude that there was rude behaviour on the part of the doctor believing only the interested testimony of the complainant. Hence the central point remains to be taken into account is mainly depend upon the evidence with respect to the failure of procedure followed in the case of the complainant so as to find whether there is deficiency in service on the part of opposite parties.

The evidence both oral and documentary does not supply materials to prove any wrong committed by the operating doctor. The evidence goes to show that complainant’s allegation focused to establish that the doctor was careless because the procedure happened to be failed. At the same time complainant was not able to bring forth what is the wrong done by the doctor. Certain percentage of failure is a universally accepted phenomenon as far as sterilization operation is concerned. So mere failure of operation as such cannot be treated as negligence on the part of opposite party/doctor. Ext.B1 is the case file of the complainant in opposite party/hospital.Ext.B2 is the consent letter signed by the complainant and her husband. The consent letter reveals that chance of failure of operation has been made known to complainant and her husband at the time of obtaining the consent itself. So mere failure of operation is not enough to  attribute negligence on the  shoulders of opposite party doctor.ExtX1 is the case record of complainant from Pariyaram Medical college Hospital wherefrom she later on underwent Tubectomy operation second time. The consent letter attached to page 2 of Ext.X1 also goes to show that the content is almost same as that of Ext.B3 consent letter attached in ext.B1 case file of opposite party/hospital. It has been clearly written therein the possibility of failure of procedure.What so ever, the probability of failure is a universally accepted factor and thereby mere failure of procedure alone is not sufficient to decide the deficiency in service on the part of opposite party.

Dr.P.V.Jose, Professor of Gynaecology at Medical College Pariyaram adduced evidence as DW2 and Ext.X1 (a) and (b) were marked through him. Ext.X1 is the case record of Smt.Lovely, the complainant from PMC. DW2 deposed that Ext.X1 (a) operation note shows the evidence of previous Laparoscopic sterilization done to the complainant. He further deposed that “I have found earlier sterilisation was scientific and proper. I also noticed that Fallop rings were in proper condition. All procedure has got a failure and that is why the lady became pregnant. There is no other method of female sterilization which is 100% fool proof credible”.  DW2 is an expert in the field. It cannot be ignored. His evidence goes to show that the earlier sterilization that was done from the opposite party hospital was scientific and proper and there is no other method existing for the time being that gives 100% assurance. DW2 further deposed in cross examination that “I have also used the same method to so many patients”. Both DW1 & DW2 were elaborately cross examined but nothing has been brought to show that the reason for the pregnancy is due to the negligence on the part of opposite party/doctor at the time of sterilization. On going through the evidence we are of opinion that complaint was not able to bring out sufficient evidence to establish her case. In the absence of authoritative opinion and supporting evidence it is difficult to say the treating doctor who conducted sterilization operation had been negligent and thereby committed deficiency in service. Thus the issues 1 to 3 are found against complainant.

          In the result, the complaint is dismissed.

                        Sd/-                    Sd/-                     Sd/-                                         

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1. Copy of the lawyer notice sent to Ops

A2 & A3.Post al receipts and postal AD cards

 A4.Reply notice sent by OP

 A5.Copy of discharge summary issued by OP

A6. Inpatient bill issued by OP dt.14.12.05.

A7 & A8. Discharge card issued from Pariyaram Medical college

A9 & 10. Cash bill-Discharge issued from Pariyaram Medical colelge

A11 & 12.OP record issued from Pariyaram Medical college

A13. Prescription issued from OP’s hospital

A14.Clinical lab report of complainant issuead frm Pariyaram Medical college

A15. Hematology report issued from  “     “

A16. Clinical lab report of complainant dt.29.5.06.

A17.OP record issued from Pariyaram Medical College

A18. Cash bill issued from Pariyaram Medical college

A19. Copy of   lab report issued from OP Hospital.

A20 & 23. Cash bills issued from Pariyaram Medical college

A24. Discharge card issued from Pariyaram Medical college Hospital

 Exhibits for the opposite parties

B1.Inpatient case file maintained by OP

B2.Consent letter signed for doing operation

B3.Applicatin submitted for doing Laparoscopic operation.

Exhibits for the court

X1. Case Record maintained in Pariyaram Medical college Hospital

Witness examined for the complainant

PW1. Complainant

Witness examined for the opposite parties:

DW1.Dr.Hariprasad

DW2.Dr.P.V.Jose

                                                  / forwarded by order/

                                                                                                                                           Senior Superintendent