ORDER

 SRI.VIJU.V.R           : MEMBER

          The complainant has presented this complaint before this Commission under section 12 of the Consumer Protection Act 1986. The facts of the case is that the complainant had undergone two deliveries in the first opposite party’s hospital, of which the second delivery was on 08.09.2006 under the treatment of the second opposite party.  After the second delivery, the petitioner had undergone a sterilization operation (Tubectomy operation) on 31.10.2006 conducted by the second opposite party and was discharged on 04.11.2006. By 04.08.2012 the complainant felt pain in her lower abdominal area which developed into severe pain on the subsequent days and hence the complainant underwent a scanning of her abdomen, that the result of which showed symptoms of pregnancy. Immediately the complainant had rushed to the SAT Hospital, Thiruvananthapuram on the same day itself wherein she was admitted as IP.No.129749. After thorough check up and medications she was advised to undergo an operation to remove the foetus. The operation was conducted on 09.08.2012 and was discharged on 14.08.2012. The pregnancy, that too after undergoing sterilization operation is solely due to the negligence on the part of the second opposite party in conducting the operation. Had the operation been done properly with due care and caution the complainant could not have had to undergo the hardships, pain and mental agony due to the subsequent pregnancy. The complainant had to incur a substantial financial loss due to the negligence of the second opposite party. For the purpose of conducting sterilization operation the complainant had to spend about Rs.40,000/- (Rupees fourty thousand only) Apart from the above, the complainant had to spend about Rs.15,000/- (Rupees fifteen thousand only) in connection with the treatment in SAT Hospital, Thiruvananthapuram. The sterilization operation done in the first opposite party hospital was to prevent completely the possibility of further pregnancy. Due to the negligence and carelessness on the part of the second opposite party, the operation ended in failure and as a result of which, the complainant became pregnant and suffered a lot. The aforesaid act of the opposite parties amount to deficiency in service. Hence the complaint.

          3.  The Opposite parties 1 & 2 entered appearance and filed version. The opposite parties 1 &2 averred that the complaint is not maintainable either in law or on facts.  The complainant had been under the antenatal care of second opposite party during the course of her second pregnancy and had a normal vaginal delivery on 08.08.2006. After second delivery, the complainant and her husband expressed their willingness to have sterilization operation. The second opposite party had explained pros and cons of sterilization procedure to the complainant and her husband and informed them that no method of sterilization can be  relied on as being absolutely safe and there is always risk of failure due to reasons beyond the control of the surgeon. The decision to adopt tubal ligation for sterilization was taken after detailed deliberation. In the case of the complainant modified pomoroy’s technique was recommended since it was comparatively simple, safe and effective method but nevertheless having an accepted failure rate of 0.2% compared to other techniques which carry failure rate from 0.5% to 1.6%. The decision to conduct post partum sterilization operation by adopting pomeroy’s technique was apt and proper. The surgery was posted to 31.10.2006 for interval sterilization and she got admitted to the hospital on 30.10.2006. The complainant and her husband were duly informed about the inherent chances for failure and they voluntarily agreed and signed the written informed consent. Under all aseptic care and precaution the second opposite party had done the sterilization operation. Intra operatively both fallopian tubes were identified up to fimbrial end by elevating uterus and then tied and ligated. Intra operative and post operative periods were uneventful and she was discharged on the fifth day after suture removal. The complainant came up once for review on 01.12.2006 and had no special complaints. There after the complainant did not turn up to consult the second opposite party. The allegation that pregnancy after sterilization operation is solely due to negligence on the part of the second opposite party in conducting operation is purposely stated for undue financial gain and is hence denied.  It is submitted that the failure of sterilization is an accepted complication well described in all standard textbooks of obstetrics and gynecology and in journals. No method of tubal sterilization is without failure and subsequent pregnancy, both uterine as well as ectopic, may result. The frequently cited failure rate is four pregnancies per 1000 sterilization procedure whatever be the technique used for sterilization. Such failure is not the result of the negligence of the doctor who conducted the operation. The failure is because an ovum gains access through a recanalised inner segment of the tube or due to tubo peritoneal fistula formation. The accepted failure rate in Pomeroy’s technique is only 0.2-0.4%. The period in between the sterilization operation and the date of next pregnancy is sufficient enough to have a reunion of tubes or tubo peritoneal fistula formation natural course which is beyond the control of the doctor. It is pertinent to note that she remained sterile for a period of more than five years since the sterilization operation which unequivocally establishes the fact that sterilization was complete on both tubes and subsequent pregnancy after a period of more than five years is due to natural causes. The allegation that due to the negligence and carelessness on the part of the second opposite party the operation ended in failure and in the result she became pregnant is highly ill motivated. The sterilization operation of the complainant failed only due to reasons beyond the control of the second opposite party which could be either due to fistula formation or due to re-canalization of tubes as the period in between sterilization operation                                                                                                                                  and subsequent pregnancy is sufficient enough to form such natural changes. The second opposite party cannot be held liable or responsible for the pregnancy which ended in termination and the opposite parties are not liable to pay any amount to the complainant either jointly or severally. There was no negligence or deficiency in service on the part of the opposite parties and there is always risk of failure due to reasons beyond the control of the surgeon.  The financial loss occurred to the complainant due to the negligence of second opposite party is not admitted by opposite parties 1 & 2. Hence the complaint may be dismissed with cost to the opposite parties 1 & 2.

Issues to be ascertained:

1. Whether there is any deficiency in service from the side of opposite parties 1& 2?
2. Whether the complainant is entitled to get the reliefs?

Issues (i) & (ii):- Both these issues are considered together for the sake of convenience. The complainant has filed affidavit in-lieu of chief examination and was examined as PW1 & has produced 5 documents which were marked as Exts.   P1 to P5 . Ext X1was also marked. Exts D1 & D2 were marked during the cross examination of the complainant.The second opposite party has filed affidavit in-lieu of chief examination and was examined as DW1. But complainant was not present for cross examining DW1. The Opposite parties 1 & 2 filed argument notes.

            4. The main contention raised by the complainant is that due to the negligence on the part of 2^nd OP she got pregnant after the sterilization. According to literatures, the tubectomy operation is not a 100% success. There are chances of failure from 0.3% to 7% inspite of the fact that operation was done with due care and caution. There are other alternative methods of female sterilization operation which are recognized by medical science but none of them is a 100% success. There is no evidence that the doctor had given assurance that the operation would be 100% success.

           5.  In the guidelines for service programs for safe and voluntary surgical contraception issued by world Federation of Health agencies for the advancement of voluntary surgical contraception it is stated that there is reported failure rates for tubal occlusion ranging from one to 10 failures per 1000 procedures. Thus, according to it, there is failure of tubectomy operation upto 10 women out of 1000. Hence, the operation is not 100% successful even it is done by best hands because in some cases there is failure and inspite of tubectomy operation, the woman gives birth to a child.

The Honble Supreme court in State of Haryana and others Vs Raj Rani (2005)7 SCC 22 held that:

‘’ childbirth 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 operation is attributable to his negligence and not otherwise.’’

Similarly it has been held by the Apex court in State of Punjab Vs Shiv Ram and others (2005) 7 SCC 1 that

‘’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 childbirth’’.

          6. It is not the case that the surgeon performing the operation was not possessed of the requisite skill which he professed to have possessed, or, he did not act with reasonable competence in the given case. Further there is no allegation that the operating surgeon-OP2- was not competent to perform the operation. Therefore, in view of the law laid down by the Apex court, OP2 cannot be held guilty because there is no evidence that the operation was performed by Dr.Adlin Thankam negligently. Since, according to the medical science, tubectomy operation is not 100% successful, so, in the absence of any evidence of negligence, presumption can not be drawn that the 2^nd OP had acted negligently in performing tubectomy operation upon the complainant.

         7. In the present case there is no cogent and convincing evidence to show that the operating doctor was negligent in any manner while conducting the operation. Hence we have no hesitation to hold that the complainant has failed to substantiate her case.

                Hence the complaint is dismissed. There shall be no order as to costs.

                     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

                       Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of December 2021.

                                                                                          Sd/-

P.V.JAYARAJAN         : PRESIDENT

                                                                                                       Sd/-

  PREETHA .G.NAIR: MEMBER

                                                                                                       Sd/-

VIJU.V.R   : MEMBER

Be/

APPENDIX

CC.NO.111/2013

COMPLAINANT’S WITNESS

Exhibits for the Complainant

OPPOSITE PARTY’S WITNESS

Exhibits for the opposite party

          Ext.D2               - Inpatient Medical Records (Original)

COURT EXHIBITS

                                                                                             Sd/-

                                                                                      PRESIDENT

DISTRICT CONSUMER

DISPUTES REDRESSAL

 COMMISSION, VAZHUTHACADU,

THIRUVANANTHAPURAM

CC.NO.111/2013

ORDER DATED : 30.12.2021