Ld Advocates for the complainant and OPs are present. The complainant has not filed any document. Judgement is ready and is pronounced in open Commission in 8 pages and 4 separate sheet of papers.
BY - SRI ASISH DEB, PRESIDENT
The complainant is a Citizen of India by birth having the permanent residence at the above noted address which is within the jurisdiction of this Commission. On 12.11.2019, during the pregnancy period, the complainant was admitted to the Nursing Home of the respondent no. 2 under the treatment of the respondent no. 1 for childbearing delivery purpose.At that relevant point of time, the opposite parties advised the complaint and her husband that as the complainant will have two issues after that delivery, the complainant should prefer LIGATION OPERATION in order to prevent pregnancy permanently and assured the complainant that the same is very much safe and no risk factor is there in that operation. As neither the complainant nor her husband is in a condition to maintain more than two children, the complainant, after consultation with her husband as well as other family members, agreed to undergo the proposed LIGATION OPERATION and deposited all amounts & charges for such operation to the opposite parties and accordingly, the LIGATION OPERATION was done on 12.11.2019 at the Nursing Home of the Respondent No. 2. After two years of such Ligation Operation, suddenly the health of the complainant started deteriorating and as such the consulted the opposite party no. 1 on 16.06.2022 where the opposite party no. 1 advised the complainant to do some medical tests and as per the advice of the opposite party no.1, the husband of the complainant took the complainant to Auro Laboratories at Tamluk and all the medical tests were done accordingly as advised by the opposite party no. 1 and thereafter consulted the opposite party no. 1 to show such medical reports. After seeing such medical reports for the first time, the opposite party no. 1 discloses the fact that there was some defects in LIGATION OPERATION and as such the complainant has again become pregnant and immediate surgery is required to save the complainant has again become pregnant and immediate surgery is required to save the life of the complainant. After listening the fact, the family members of the complainant could not trust the O.P. No. 1 for an another surgery and admitted the complainant to Peerless Nursing Home at Tamluk on 22.06.2022 under the treatment of Dr. A. K. Das and on that very day, the said Doctor A.K. Das performed an emergency uterus removal surgery in order to save the life of the complainant.The complainant states that the opposite parties, in connivance with each other, are running this types of practices which might take away the life of the complainant. The complainant and her husband went to the opposite parties for several times for redressal of such incident but no fruitful result came out. Finding no other alternative, on 28.07.2022m, the complainant filed a complaint to the Assistant Director, Consumer Affairs & Fair Business Practices, Purba Medinipur Regional Office at Abasbari, Tamluk, Purba Medinipur and on the basis of said complaint, the Assistant Director tried to settle the issue amicably but no initiative has been taken from the end of the opposite parties to resolve the issue and as such the Assistant Director advised the complainant to file complaint case u/ss. 35(1) of the Consumer Protection Act, 2019 before District Consumer Disputes Redressal Commission. Thus, the Opposite Parties have miserably failed to provide good service to the complainant thereby causing medical negligence, deficiency in service and for that medical negligence and deficiency in service on the part of the Opposite Parties, the complainant has suffered a lot including physical, mental and financial harassment. The cause of action of the complaint arose firstly on 22.06.2022 when the complainant came to know that the complainant has become pregnant in spite of the LIGATION OPERATION as advised by the opposite parties, thus the instant complaint is filed within the prescribed period in terms of the provisions of the Consumer Protection Act, 2019. The complaint is made bonafide and for the ends of justice.There is no other suit/case pending nor has been decided on the same subject matter between the parties by and competent court of law. In the facts and circumstances of this case, the complainant most humbly prays for the following reliefs;To direct the Opposite Parties jointly and severally to return the entire cost incurred by the complainant for several operations, medicine, medical tests, travelling expenses etc amounting to Rs. 1,00,000/-(Rupees One Lac Only) in favour of the complainant; to direct the Opposite parties jointly and severally to pay the exemplary compensation of Rs. 10,00,000/-(Rupees Ten Lac only) to the complainant for deficiency in service, unfair trade practice and medical negligence on the part of the Opposite Parties and for harassment and also for mental pain & agony suffered by the complainant ,to direct the Opposite Parties to pay the Cost of Litigation amounting to Rs. 20,000/-(Rupees Twenty thousand Only) in favour of the complainant; and such other reliefs as the Commission may deem fit and proper in the interest of equity and good conscience.
Notices of the case were served upon the ops. The ops have contested the case through their Ld Advocate by filing Written version against the complaint under the Consumer Protection Act 2019.The opposite parties 1 & 2 submit in a nutshell as follows :-Save and except the statements which are the matters on record all other statements as made in the claim application are very much denied and disputed. The petitioner is put to strict put of such statements as made in the complaint. According to the contesting ops it is a fact the patient Smt. Mousumi Maity Pradhan W/o Sri Pabitra Pradhan a 2nd gravida post LUCS patient was admitted to Mediland Nursing home for delivery of cesarean section and accordingly consent was taken. Before cesarean the couple requested OP No. 1 for ligation operation during cesarean section. The complainant gave there additional consent for ligation and information consent form sent to the cesarean section. Thereafter, OP No. 1 has agreed to do ligation operation during cesarean section for the interest of the couple and for national interest as ligation operation is a part of national sterilization program. It has not been done for the interest of the OP Nos. 1 & 2. The OP No. 1 has never suggested that the ligation operation is completely safe. The Cesarean delivery was done on the basis of employee’s state Insurance Corporation (E.S.I.C.) package. The amount fixed by E.S.I.C. whether OP No. 1 has done litigation or not along with cesarean section. It was a prefixed package case of E.S.I.C. so, there is no question of depositing any amount and charges for such operation. They have made a false and ridiculous allegation against OP No. 1 and OP No. 2. On 16.06.2022 Smt. Mousumi Maity Pradhan came to OP No. 1 and carefully examined her and suspected that it may be Tubal (Ectopic) pregnancy and advised her relevant investigation has to be done with very urgency. Thereafter when OP No. 1 was confirm that it was a case of Tubal Ectopic pregnancy and also advised her to get admission to Mediland Nursing home to remove the effected tube by laparotomy. He also told her that Ectopic pregnancy can not be prevented totally by litigation operation, it can only reduce the incident. Thereafter careful and proper ligation, Ectopic pregnancy and intrauterine pregnancy both may occur by spontaneous presses of tubo peritonal fistula or recanalization and this is universally recognized fact. The patient was advised to get admission immediately to Mediland Nursing home but she did not get admitted. As a responsible Dr. OP No.1 did all the things good for her, OP No. 2 told that sometimes Ectopic pregnancy may occur even after sterilization. The incident of Ectopic pregnancy is lower in such patient than in those who are not sterilized. It is not specific to ligation, it may occur in non-sterilized woman as well. The ops have provided some references in the interest of this case:-
(Ref-1) Berek & Novak’s Gynecology, 16th Edition, Volume-2, Chapter 32 page-817.
(Ref-2) TeLinde’s Operative Gynecology 12th Edition Chaptor 16. Tubal Sterilization, ppage 304,303.
(Ref-3) Hawkins & Bourne Shaw’s Text book of Gynaecology 16th Edition page 294, chapter 21 Ectopic Gestation.
(Ref-4) WHO, Geneva, 1992 Female Sterilization, Title: A guide to provision of service. Title: ISBN 9241544341, page 118-119
The ops have further submitted that the Nursing Home (O.P-2) had provided very good service and homely atmosphere and there was no negligence in their service. There was no negligence of treatment or wrong operation was done by OP-1. There was no expert opinion provided by the petitioners that O.P. has committed negligence of treatment or wrong treatment.The Complaint is baseless, misconceived ,harassing devoid of merit. It is not maintainable and is liable to be dismissed.
Upon reading the pleadings of both parties the following points for determination are framed.
Points for determination are:
1. Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as sought for?
Decision with reasons
Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
We have given thoughtful consideration to the evidence led by both parties , documents on record and WNA filed by the opposite parties.
On careful evaluation of the evidence on record, it appears that the complainant has deposed thatthe complainant, after consultation with her husband as well as other family members, agreed to undergo the proposed LIGATION OPERATION and deposited all amounts & charges for such operation to the opposite parties and accordingly, the LIGATION OPERATION was done on 12.11.2019 at the Nursing Home of the Respondent No. 2. After two years of such Ligation Operation, suddenly the health of the complainant started deteriorating and as such the consulted the opposite party no. 1 on 16.06.2022 where the opposite party no. 1 advised the complainant to do some medical tests and as per the advice of the opposite party no.1, the husband of the complainant took the complainant to Auro Laboratories at Tamluk and all the medical tests were done accordingly as advised by the opposite party no. 1 and thereafter consulted the opposite party no. 1 to show such medical reports. After seeing such medical reports for the first time, the opposite party no. 1 discloses the fact that there was some defects in LIGATION OPERATION and as such the complainant has again become pregnant and immediate surgery is required to save the life of the complainant.
It is evident that the complainant has not filed any money receipt in support of statement to the effect that she deposited all amounts & charges for such operation to the opposite parties and accordingly, the LIGATION OPERATION was done on 12.11.2019. There is no document or any corroborative evidence to the effect thatAfter seeing such medical reports for the first time, the opposite party no. 1 discloses the fact that there was some defects in LIGATION OPERATION. On the other hand the ops have rebutted or countered the version of the complainant stating that the patient Smt. Mousumi Maity PradhanW/o Sri Pabitra Pradhan a 2ndgravida post LUCS patient was admitted to Mediland Nursing home for delivery of cesarean section and accordingly consent was taken. Before cesarean the couple requested OP No. 1 for ligation operation during cesarean section. The complainant gave there additional consent for ligation and information consent form sent to the cesarean section. Thereafter, OP No. 1 has agreed to do ligation operation during cesarean section for the interest of the couple and for national interest as ligation operation is a part of national sterilization program. It has not been done for the interest of the OP Nos. 1 & 2. The OP No. 1 has never suggested that the ligation operation is completely safe. The Cesarean delivery was done on the basis of employee’s state Insurance Corporation (E.S.I.C.) package. The amount fixed by E.S.I.C. whether OP No. 1 has done litigation or not along with cesarean section. It was a prefixed package case of E.S.I.C. so, there is no question of depositing any amount and charges for such operation.
In the instant case the complainant has not produced any payment receipt as a proof of consideration paid to the Doctor op-1 or to the OP-2. The Hon’ble Supreme Court held in Indian Medical Association v. V.P. Shantha & Ors., 1995(SLTSOFT) 561=III(1995) CPJ 1 (SC)=AAIR1996 SC550, case held that “Service rendered at Government Hospital/health centre/Dispensary where no charge whatsoever is made from any person availing the services and all patients (richand poor) are given free service is outside the purview of the expression ‘service’ as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the Hospital/nursing home would not alter the position.” Similar view was taken by Hon’ble Supreme Court in the recent judgment of Nivedita Singh v. Dr. AshaBharati&Ors. 1(2022)SLT68=1(2022)CPJ 69(SC)=Civil Appeal No. 103 of 2021, DOJJ7.12.2021. Thus ,the complainant has not availed of any Service within the meaning ofSection-2(42) of the C P. Act,2019 from the ops.
Moreover, the Complaint is barred by limitation. The surgery had been performed on 12.11.2019, but complaint was filed on 13.12.2022, i.e. after 3 years of cause of action. In the instant case it was not a continuous cause of action. Therefore, in my view the complaint was filed beyond the limitation period as prescribed under Section 69 of the Act, 2019.
Now, let us read the medical literature referred by the lad Advocates for the ops:-
Ref-1) Berek & Novak’s Gynecology, 16th Edition, Volume-2, Chapater 32 page-817.
It is clear that tubal surgery is associated with an increased risk for ectopic pregnancy, what is unclear is whether the increased risk results from the surgical procedure or from the underlying problem. Although tubal sterilization remains one of the most effective forms of contraception and pregnancy is unlikely, failures do occur, when they do, they are more likely to result in ectopic gestation. A large Cochrane review published in 2016 found that depending on the technique, the failure rate of tubal sterilization ranges from 36.5/1,000 procedures (Filshie clip) to 7.5/1.000 procedures (postpartum salpingectomy and unipolar coagulation) (41, The 10-year cumulative incidence of tubal pregnancy after any sterilization procedure is 7.3 per 1.000 procedures (42). The risk depends on the sterilization technique and the woman’s age at the time of sterilization postpartum partial salpingectomy and unipolar coagulation have the lowest rates of ectopic pregnancy.
Ref-2) TeLinde’s Operative Gynecology 12th Edition Chaptor 16. Tubal Sterilization, page 304, 303.
Failure was also noted to be much higher in younger women, who have more reproductive years following their procedures. For women 18 to 27 years old at the time of their procedure, the failure rate was high as 54.3 per 1.000 procedures (bipolar coagulation) compared to women who were 34 to 44 years old at the time of their procedure.
Ectopic risk varies by type of sterilization and age at sterilization; it is also individual to each patient and can be considered in both absolute and relative terms. For women who were not using any type of contraception prior to sterilization and with several risk factors for ectopic pregnancy, their absolute risk and ectopic pregnancy likely declines after a sterilization procedure. Regardless of the specific risk, for women who conceive after undergoing any type of sterilization procedure, especially remotely, ectopic pregnancy needs to be high on the different diagnosis.
Ref-3) Hawkins & Bourne Shaw’s Text book of Gynaecology 16th Edition page 294, chapter 21 ectopic Gestation.
The incidence of ectopic pregnancy has been increasing over the past two decades. It has risen from 1:150 pregnancies to about 1:40-1:25 pregnancies in present times.
Ref-4) WHO, Geneva, 1992 Female Sterilization
Title: A guide to provision of service
Title: ISBN9241544341, page 118-119
Ectopic pregnancy
Ectopic pregnancy (development of a fertilized egg outside the uterus) is a potentially life-threatening complication resulting from sterilization failure. Overall, the incidence of pregnancy following sterilization is very low (see Table 3, page 12). However, 4-64% of these pregnancies are reported to be ectopic as compared with approximately 1% among women who have not been sterilized. Ectopic pregnancies have been reported as early as two months and as late as eight years after sterilization.
Tubal sterilization reversal. No woman should undergo tubal sterilization believing that subsequent fertility is guaranteed either by surgical reanastomosis or by assisted reproductive techniques. These are technically difficult, expensive, not always successful. Pregnancy rates very greatly depending upon age, the amount of tube remaining, and the technology used. Van voorhis(2000) reviewed a number of reports and found the pregnancy rates varied from 45 to 90 per cent with surgical reversals. However, is neosalpingostomy is done for fimbriectomy reversals-the successful pregnancy rate is only 30 per cent(Tourgeman, 2001). Of note, pregnancies that result after tubal sterilization reanastomosis are at risk to be ectopic.
From the reading of above literature it can precisely be stated that the incidence of ectopic pregnancy is not unknown in the case oftubal sterilization. There are risk factors.Failure was also noted to be much higher in younger women, who have more reproductive years following their procedures. For women 18 to 27 years old at the time of their procedure, the failure rate was high as 54.3 per 1.000 procedures (bipolar coagulation) compared to women who were 34 to 44 years old at the time of their procedure. The Complainant was aged about 21 years old at the time of undergoing sterilization procedure; in the said age group of women failure was also noted to be much higher.
It is clearly emerges from the exposition of law that a medical practitioneris not to be heldliable simply because things went wrong from mischanceor misadventureor through an errorof Judgement in choosing one reasonable course of treatmentin preference to other. In the practice of medicine there could be varying approaches of treatment. There could be genuinedifference of opinion. However, while adopting a course of treatment the duty cast upon themedical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given timemedical Practitioner would be liable only where his conduct fell bellow that of the standards of a reasonably competent practitioner in his field. Adverting to the facts of the instant case, the treating Doctor op-1 is a qualified gynecologist, academically fit to conduct the tubal Sterilization. There is no cogent evidence on record to establish that the conduct of op-1 fell bellow the standards of a reasonably competent practitioner in his field.The complainant has failed to establish any element of failure of duty of care or of medical negligence orof ignoring the factors of health care and hygiene against the ops. The case is not maintainable in its present form and in law. The Complainant is not entitled to get any relief in this case. The case is liable to be dismissed.
Thus, both the points for determination are decided against the complainant .
The complaint case does not succeed.
Hence, it is
O R D E R E D
That the CC/176 of 2022 be and the same is dismissed on contest against the ops 1& 2. No order as to costs is passed.
Let a copy of the judgment be supplied to each of the complainant and the OPs free of cost.
