By Smt. C.S. Sulekha Beevi, President,

Brief Facts:-

1. Complainant who is working as a high school teacher resides with her husband and two children aged 8 years and 5 years at the time of filing complaint. It is her say that after the birth of the second child she decided not to have children further and approached first opposite party. As per advice of first opposite party Copper T was inserted and she was given instructions to consult at intervals. After some time on examination by first opposite party she was told that the thread of the copper T could not be traced. First opposite party then advised for use of multiload contraceptive device which was inserted in October, 2001. This was done at second opposite party hospital for which charges were paid. It is her case that first opposite party assured her that on use of multiload she will not get pregnant again. But she missed her periods and consulted first opposite party who told her that there was nothing to worry. She did a pregnancy test from a lab outside second opposite party hospital, and the result was positive. When she approached first opposite party with the test result she was advised to do scan. On 04-3-2003 scan was done which confirmed the pregnancy. That first opposite party advised for abortion because the complainant was 37 years old, had rheutamic disease, had bicornuate uterus and had slight bleeding. She consented for the same and got admitted in opposite party hospital on 05-3-2003. On 06-3-2003 first opposite party conducted D& C and sterilization operation. She was discharged on 11-3-2003. That she was given medicines which are contra indicated during pregnancy. First opposite party advised to undergo bed rest for 90 days and complainant followed such instruction. In May, 2003 because of oedema on her legs and the missing of periods she consulted first opposite party who advised to take scan. It was seen from the scan report that the pregnancy was continuing and that the fetus was 18 weeks of gestation. First opposite party opined that since complainant is an elderly lady there is much risk in the pregnancy and referred her to Medical College, Kozhikode along with letter and case sheet. Complainant went to Medical College. From there she was told that the pregnancy could not be terminated at this stage and hysterotomy has to be done. That she is now 8 months pregnant (at the time of filing the complaint). She alleges that the pregnancy happened to continue due to the negligence on the part of first opposite party while doing the D & C and sterilization. That after D & C and sterilization she had availed leave as per Maternity Benefit act. Since the pregnancy continued the leave already availed was accounted as leave with loss of pay and thus incurred loss of salary. That she incurred Rs.10,000/- towards treatment expenses, Rs.5,322/- towards loss of salary. Along with these amounts she claims Rs.4 lakh as compensation.

2. First opposite party filed version denying the allegation of medical negligence. It is submitted that the complainant who was aged 37 years, was first seen by first opposite party in January, 1999, when as per her wish Copper T was inserted. 2 years and 9 months later ie; in September, 2001 on examination the thread of the Copper T was not visible. On 02-10-2001 it was removed and multiload IUCD was inserted. That the patient was informed of the chances of failure and that there was no assurance given by first opposite party that she will not get pregnant again. She came for IUCD check up on 18-12-2001 and found that it was in situ. Thereafter on 04-3-2003 the patient reported with urine pregnancy test done from elsewhere. Her LMP was 09-1-2003. First opposite party examined and advised for scanning. The scan report revealed a bicornuate uterus with Copper T in right horn and gestational sac in left horn. The gestational age was assessed as 6½ weeks. The patient was not keen in continuing the pregnancy and she reported for termination of pregnancy on the very next day. She was admitted on 05-3-2003. D&C with Sterilization was done on 06-3-2003 under general anesthesia after taking full informed consent. The patient was discharged on 11-3-2003 with strict advice to review after one month. The review was suggested keeping in mind the chance of failure of D&C especially since the D&C was done in early gestational age of 6½ weeks and she was informed about this. The review was suggested as part of the care and caution on the side of first opposite party to ensure that pregnancy was terminated. But the patient did not review after 1 month as advised and was lost to follow up. The patient reported only after 3 months on 31-5-2003 when it was found that the pregnancy was continuing. The pregnancy was of 20 weeks gestational age as per her LMP. A scan was done on 31-5-2003 showed the fetal size corresponding to 20 weeks. The scan also showed breech presentation and fluid slight excess in quantity. The patient's husband came and asked for medical report and the same was given to him on 05-6-2003. The particulars of the patient are not known after this point. Denying the allegation in the complaint it is stated that the decision to have Copper T for contraception was taken by the complainant herself and that first opposite party had only explained the possible methods of contraception. The multiload IUCD was inserted for continuing contraception after explaining the chances of failure. That there was no assurance on the part of first opposite party that there would be no chance to conceive at all after using IUCD. That patient was aware of the possibility of failure and had done pregnancy tests on 14-7-2000 and 19-9-2000. She had come for IUCD check on 18-12-2001. Therefore the allegation that she was assured and made to believe that there would not be any possibility of getting pregnant is false. That the complainant herself requested for termination of pregnancy. The allegation that she was given drugs contraindicated during pregnancy are misrepresentation of facts and are strongly denied. The drugs given included antibiotics, analgesics which are routinely prescribed to patient after D&C. These are intended to prevent infection and pain. The termination of pregnancy was at early gestational age of 6½ weeks and there is increased chance of failure of D&C which is an accepted medical fact. If complainant had come for review after one month as advised, the failure of D&C could have been detected and the pregnancy could have been terminated without risk. Complainant came only after 3 months and the termination then was risky considering the health status of the patient. That the continuation of pregnancy resulted from the negligence on the part of complainant in not following advice of first opposite party to come for timely follow up. The expenses stated to have incurred are inflated and hence denied. She has spent only Rs.2,768/- towards IP bill and Rs.600/- towards medicines. A medical certificate was given at her request to obtain leave after MTP. That D&C was done properly with all due care and caution. During the D&C both the horns of the bicornuate uterus were sounded and curetted separately and curettings obtained. The failure of D&C is an accepted medical fact and is especially possible when abortion is done before 7^th week of gestational age. Opposite party has quoted and relied on medical literature in the version. That first opposite party is a paid employee of the second opposite party hospital and that if at all any liability is fixed, the second opposite party is vicariously liable to meet the same. The amount claimed is exaggerated. There is no negligence or deficiency in service on the part of first opposite party.

3. Second opposite party filed a separate version submitting that second opposite party had offered all services properly and there is no deficiency on the part of opposite parties. That the hospital is well equipped in all respects with modern facilities for dealing with problems connected with all disciplines. It is true that first opposite party doctor had treated the complainant and that she was admitted in second opposite party hospital for her ailments. That the doctor who treated her has taken all reasonable care and skill in diagonising her disease and giving treatment tot he best of her ability utilizing facilities of the hospital. There was no deficiency on the part of opposite parties. The amount stated to have been spent for the treatment are false and hence denied. Second opposite party adopted the contentions in the version filed by first opposite party regarding treatment. That opposite parties are not liable to compensate the complainant in any manner.

4. Evidence consists of the oral evidence of complainant who was examined as PW1 and a witness examined on behalf of complainant as PW2. Exts.A1 to A14 marked for complainant. First opposite party was examined as DW1. No documents marked for opposite party.

5. Points for consideration:-

(i) Whether opposite parties are deficient in service.

(ii) If so, reliefs and costs.

6. Point (i):-

The complaint is seen filed by the complainant during the continuation of pregnancy and before the birth of the child. In the affidavit complainant has sworn that on 07-10-2003 she delivered a baby girl. It is stated that the new born did not have anus and that the child had to undergo several surgeries to correct the defect. Complainant alleges that this congenital defect of the child also happened due to the negligence on the part of first opposite party while doing D&C and Sterilization.

7. Through the pleadings and affidavit complainant has put forward several counts of negligence such as, she becoming pregnant even after inserting contraceptive device, the fail to terminate pregnancy after doing D&C, the child born having congenital defect etc. At the time of hearing the counsel appearing for complainant was fair enough to limit the allegations to the following two points only.

(i) That the D&C done by first opposite party on 06-3-2003 did not terminate the pregnancy. The failure of D&C is negligence.

(ii) That having already realized that the patient had bicornuate uterus, first opposite party ought to have referred the patient for scanning after doing the D&C. That if such scan was done after D&C the fail to terminate pregnancy could have been detected and the continuation of the same could be avoided. That the failure on the part of first opposite party to refer the complainant for scan after D&C is negligence.

8. Denying the above allegations of medical negligence the contentions put forward by opposite party can be summarized as under:

(i) The fail to terminate pregnancy after D&C procedure is a recognised problem in medicine. The chances of such fail is greater in medical situations like a) When D&C is done in early gestational age b) bicornuate uterus. That the complainant presented both these situations.

(ii) That after doing D&C and Sterilisation on 06-3-2003 the patient was discharged on 11-3-2003 with strict advice to review after one month. The review was suggested keeping in mind the chance of failure because the D&C was done in early gestational age of 6½ weeks. The review was suggested as part of care and caution on the side of first opposite party to ensure that pregnancy was terminated. But the patient did not review after one month as advised but reported only after 3 months on 31-5-2003. Scan was taken on this day and showed continuation of pregnancy and gestational age of 20 weeks. Complainant posed high risk for termination of pregnancy. Therefore she was referred to Medical College, Kozhikode with letter. From Medical College she was informed about the high risk in doing MTP and was advised for hysterotomy. But the complainant opted to continue the pregnancy at her own wish. That if the complainant had come for review after one month a scan could have been taken. If continuation of pregnancy was then detected, first opposite party could have advised for re-MTP which would have been safe. That first opposite party did not advise for scan immediately after doing D&C, because the hospital did not have a scan facility. The patient will have to be carried to some centre outside the hospital. That the continuation of pregnancy could have been avoided if complainant had followed the advice to review after one month.

9. To avoid repetition the facts are not narrated again. Complainant does not have a case that first opposite party did not possess the requisite qualification. So this aspect does not arise for analysation.

10. Admittedly the D&C conducted by first opposite party on 06-3-2003 failed to terminate the pregnancy. D&C and Sterilization were done on the same day. Complainant has not disputed the method adopted by first opposite party in doing D&C. In fact no challenge has been made in this regard. The only grievance alleged is that the procedure failed to give the expected result of terminating pregnancy. It was argued by the counsel for complainant that if D&C was done in correct manner ti would have terminated the pregnancy. It is his submission that the fail to terminate pregnancy is per se negligence.

11. Per contra, the defense raised by opposite party is that the fail to terminate pregnancy after D&C procedure is an accepted medical problem. It is further submitted that the chances of failure are more when it is done in early gestational age. Ext.A2(b) is the scan report dated, 04-3-2003 which was taken 2 days before D&C. It shows the gestational age is 6.5 weeks and also shows that the uterus of the complainant is bicornuate (ie; having two horns). It is seen stated in Ext.A2(b) that the Copper T is seen in right horn and the foetus is seen in left horn. The doctor who did the scan was examined as PW2. He has deposed as under:

"I am not competent to answer the question whether abortion fail to terminate pregnancy upto a certain percentage, because I am not a gynecologist. From my knowledge and experience with M.B.B.S. I agree to the suggestion that there is a chance of failure of abortion 'അതായത് 15% ഭാഗത്ത് curettage ‍എത്താന്‍ സാധ്യതയില്ല.' The D&C is done without seeing the interior parts of uterus. I am not able to say whether the chance of failure is more before 7^th week of gestation. Anatomic abnormality or bicornuate uterus is one of the reasons for failure. This patient was having bicornuate uterus. D&C can be repeated."

12. PW2 is not a Gynecologist, but a radiologist. His deposition makes it candid that the chances of fail to terminate pregnancy is more in a bicornuate uterus. First opposite party quoted the medical literature in "Manual of Outpatient Gynecology' Fourth edition by Carol S. Havens, M.D. And Nancy D. Sullivan M.S., F.N.P. Published by Lippincott Williams & Wilkins which is as under:

In page 253 and 254 it is seen stated that ' continuing pregnancy' is a medical and surgical complication of abortion.

"Continuing pregnancy: Less than 0.3% of abortions fail to terminate the pregnancy. The problem occurs most often when the abortion is performed before the seventh week of gestation without ultrasound confirmation of complete pregnancy evacuation.

(1) The reasons for this failure include incomplete evacuation, twin pregnancies, ectopic pregnancy, or an anatomic abnormality of the uterus (e.g., bicornuate uterus).

(2) Symptoms include persisting symptoms of pregnancy such as nausea, breast tenderness, fatigue, and increasing uterine enlargement."

13. From the above medical literature as well as the evidence of PW2 we are able to hold that the fail to terminate pregnancy after D&C procedure is an accepted medical problem. It can be gathered that 100% success in MTP is a myth. In the present case, the D&C was done before 7^th week of gestational age and the uterus of the complainant was bicornuate. So the contention of opposite parties that fail to terminate pregnancy is an accepted medical problem and the chance was more by the particular medical situation presented by the complainant is acceptable to us.

14. Counsel for opposite party also relied upon decisions rendered in 2006(1) CPR 128(SC) and 2009(1) CPR 53(NC). The ratio of these decisions is that the methods of sterilization so far known to medical science are not 100% safe and secure. That even if the operation is performed successfully the sterilized woman can become pregnant and this alone will not be a ground for negligence. The Apex Court has also observed that having realized the fact of being pregnant inspite of having undergone sterilization, if the couple opts for bearing the child, it ceases to be an unwanted child. In the present case it is seen from Ext.A9 issued from Medical College that complainant was explained about the high risk involved in doing a second MTP at that stage of pregnancy and that hysterotomy treatment was advised. It is also seen stated in Ext.A9 that 'the patient opted for continuing pregnancy'. Thus first opposite party has rightly decided whether or not to undertake the case and has referred the patient to higher centre for expert management due to the high risk involved. Ext.A6 is the reference letter issued by first opposite party to complainant. We have to say that in Ext.A6 first opposite party has given a detailed history of the patient from 04-3-2003 to 31-5-2003 including the procedures done by her and medications given. This document reflects that first opposite party had nothing to hide and was confident that she has acted bonafidely. From the above discussions we are able to safely conclude that the fail to terminate pregnancy after doing D&C does not amount to negligence on the part of first opposite party.

15. The second allegation of negligence levelled by complainant though not specifically pleaded or affirmed but argued by the counsel at the time of hearing is that first opposite party ought to have referred the patient for scanning after the D&C. It was submitted that if such scan was done after D&C the continuation of pregnancy could have been detected and the same could have been avoided.

16. This contention is countenanced by opposite party who has submitted that the patient was snot referred for scanning immediately after D&C because there was no facility for scan in the hospital and the patient will have to be taken to some centre outside the hospital. It is the definite and consistent case of opposite party that the patient was advised to come for review after one month. Opposite party relied upon the entry in Ext.X1 case sheet dated, 11-3-2003 where it is seen stated as 'Review after one month'. It is submitted that if the patient had followed the advice and had come for review on 10-4-2003 the scan could be done and a re-termination of pregnancy could be advised. But the patient came only after 3 months on 31-5-2003. Scan was taken on this day which showed gestational age of 18 weeks. The re-MTP on examination was risky and unsafe, and therefore she was referred to higher centre.

17. Complainant who was examined as PW1 flatly denied that she was advised for review after one month. It was argued on behalf of the complainant that the entry in Ext.X1 case records is fabricated to suit the case of opposite party. The leaned counsel also laid thrust on Ext.A3 series, which are medical certificates and Fitness certificates seen issued to complainant by first opposite party for the purpose of availing leave and to rejoin duty. It is submitted on behalf of complainant that the Fitness certificates were issued to complainant by first opposite party, and that complainant had consulted first opposite party to collect these certificates. But first opposite party did not advise to do scan on such occasion. This is disputed by DW1 who deposed that the certificates were handed over to the husband of the complainant due to the long standing doctor-patient relationship and that complainant has not come to the hospital to take the certificates. On scrutiny of Ext.A3 documents it is seen that all certificates are original and Ext.A3(c) and Ext.A3(d) are duplications of Ext.A3(a) and Ext.A3(b). Complainant has signed on top of all the certificates and these bear the signature of first opposite party also. Ext.A3(a) medical certificate dated, 04-3-2003 is seen issued for being absent from duty for 42 days with effect from 04-3-2003 for the reason of D&C and sterilization. Ext.A3(c) is a medical certificate again dated, 04-3-2003, issued for being absent from duty for 25 days with effect from 04-3-2003. The reason stated is same. Ext.A3(b) and A3(d) are corresponding fitness certificates dated, 31-3-2003 and 28-3-2003 respectively. The certificates per se speak false on taking into consideration the dates. We do not think it is necessary to delve into the question of legality of the complainant obtaining such certificates or the issuance of such certificates by opposite party. We simply have to say that the dates being fully inconsistent to each other Ext.A3 series are totally unfit to be relied on. Even if we assume the argument of the counsel for complainant that the complainant had consulted first opposite party on 28-3-2003/31-3-2003 to be true this is totally contradictory with the averments in para 10 of the complaint, para 5 of her affidavit and the oral evidence of the complainant herself. PW1 has deposed in cross-examination as follows:

"5-3-2003-ന്ന് എന്നെ D&C-യും sterilization ചെയ്യാന്‍ വേണ്ടി admit ചെയ്തു. അതിന്ന് ഞാന്‍ consent കൊടുത്തിട്ടുണ്ട്. 11-3-2003-ന്ന് discharge ചെയ്തു. ഒരു മാസം കഴിഞ്ഞ് review ചെയ്യാന്‍ പറഞ്ഞു എന്നു പറഞ്ഞാല്‍ ശരിയല്ല. Ext.X1 case sheet-ല്‍ 11-3-2003-ല്‍ discharge ചെയ്തുപോകുംപോള്‍ review after one monthഎന്ന് case sheet-ല്‍ കാണുന്നുണ്ടെങ്കില്‍ അപ്രകാരം എന്നോട് പറഞ്ഞിട്ടില്ല. ഒരു മാസം rest എടുക്കാന്‍ ആണ് പറഞ്ഞത്. Doctor പറയാന്‍ പറഞ്ഞിട്ടുണ്ടോ എന്നറിയില്ല. അപ്രകാരം doctor പറഞ്ഞുവെന്നു പറഞ്ഞാല്‍ ഡോക്ടര്‍ പറഞ്ഞിട്ടില്ല. 10-4-2003-ന്ന് review ചെയ്യണമായിരുന്നു എന്നു പറഞ്ഞാല്‍ doctor പറഞ്ഞിട്ടില്ല. Copper T ഇട്ടപ്പോള്‍ 3 മാസം കൂടുംപോള്‍ doctor-റെ കാണാറുണ്ടായിരുന്നു. ഒരു മാസം കഴിഞ്ഞ് review ചെയ്യാന്‍ ചെന്നില്ല എന്നും 31-5-2003- ന്ന് ആണ് പോയത് എന്നത് ശരിയാണ്. "

18. DW1 has categorically deposed that she has gone to the hospital after discharge only on 31-5-2003. Ext.X1 case records also support this. We can safely say that the argument put forward by the counsel for complainant relying upon Ext.A3 documents is nothing but a frail attempt to blow both hot and cold at the same time. Moreover, the scrutiny of Ext.A1 discharge card produced by complainant shows as under:

"Advice on Discharge: Review after 1 month".

The complainant's own document proves that she is speaking total falsehood. Ext.A1 discharge card along with Ext.X1 case records prove and establish the consistent case of opposite party that complainant was advised to come for review after one month. First opposite party might have been in the firm belief that complainant would report after one month and that she can advice for scan on such day and ensure the termination of pregnancy. The patient did not obey her advice.

19. In this regard counsel for opposite party submitted that the doctor cannot be found fault with when the patient does not obey the advice. The learned counsel also placed reliance on the decision rendered by Apex Commission in 2008 (2) CPR 213 (NC) Anil kumar Gupta Vs. Dr. Mukesh Jain where it was observed as follows:

"Negligence cannot be proved on the basis of surmises and lose evidence—It has to be proved with solid evidence and medical records—The patient is expected to cooperate with doctor and follow his advice strictly to enable the doctor to achieve success in postoperative

care, which is as important as surgery itself."

We fully appreciate and agree with this argument advanced on behalf of opposite party. If the patient does not adhere to the advice of the doctor, does snot appear for timely check up, she cannot later turn around and say that the doctor is negligent. A doctor does not undertake that he will positively cure a patient, nor does he undertake to use the highest degree of skill. It cannot be expected that every physician or surgeon is gifted with extra ordinary skill or they can perform miracles. What is expected is that the procedure adopted by him is accepted to medical practice.

20. Apart from the above, we have to state that complainant has not adduced any expert evidence to prove the allegation of medical negligence. The necessity of adducing expert evidence to prove medical negligence has been highlighted in Martin D' Souza Vs. Mohd Isfaq.

21. The upshot of the entire discussion is that we do not find any medical deficiency on the part of first opposite party. Complainant has failed to establish any case against opposite parties. We find opposite parties not deficient in service.

22. In the result, we dismiss the complaint. There is no order as costs.

Dated this 28th day of October, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1 and PW2

PW1 : Mariya Mathew, Complainant.

PW2 : Dr. Mohanlal.M.G., Sonologist, witness of the complainant.

Documents marked on the side of the complainant : Ext.A1 to A14

Ext.A1 : Discharge card from opposite party to complainant.

Ext.A2 series : Scan report (2 Nos.) from Sonic Images to complainant.

Ext.A3series : Medical Certificate and Fitness Certificate (4 Nos.) from first

opposite party to complainant.

Ext.A4 : Ultrasound Report dated, 16-8-2003 from Image Scan to complainant.

Ext.A5 : Medical certificate dated, 31-5-2003 from first

opposite party to complainant.

Ext.A6 : Reference letter dated, 05-6-2003 issued by first opposite party to complainant.

Ext.A7 : Receipt for Rs.300/- dated, 07-6-2003 from Dr.Dugad's Sono Diagnostic Centre

to complainant.

Ext.A8 : Scan report dated, 07-6-2003 from Dr.Dugad's Sono Diagnostic Centre

to complainant.

Ext.A9 : Outpatient ticket dated, 07-6-2003 from Medical College, Kozhikkode

to complainant.

Ext.A10 : Letter from Holy Family Hospital.

Ext.A11 : Prescription dated, 12-9-2003 from Dr.T.R.Bhavani.M.B.B.S., D.G.O.

to complainant.

Ext.A12 : Discharge Summary dated, 27-4-2004 from Department of Paediatrics Surgery

to B/O complainant.

Ext.A13 : Discharge Summary dated, 22-7-2004 from Department of Paediatrics Surgery

to B/O complainant.

Ext.A14series : Bills (15 Nos.).

Witness examined on the side of the opposite parties : DW1

DW1 : Dr. Sophiya Brillian, first opposite party.

Documents marked on the side of the opposite parties : Nil

Third party document marked : Ext.X1

Ext.X1 : Case sheet.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER