DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  17^th day of March 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P, Member       

              : Sri.V.P.Anantha Narayanan, Member      Date of filing: 06/11/2015

                                                      (C.C.No.163/2015)    

Sathyabhama,

W/o Madhavan,

Thottupalam,

Nellikalkad House,

Erimayur (PO),

Alathur Taluk,

Palakkad District.                                                     -        Complainant

(By Adv.P.K.Anitha)

Vs 

1.  Dr.C.K.Leela,

     Taluk Hospital,

     Alathur.

(By Adv.V.K.Venugopalan)

2.  The Superintendent,

     Taluk Head Quarters Hospital,

     Alathur.

3.  The Director,

     Hospital Development Committee,

     Govt.Hospital, Alathur.

4.  Director of Health Services,

     Thiruvananthapuram.

5.  Govt.of Kerala- Rep.by

     District Collector, Palakkad                                  -        Opposite parties

     (For OP2 to 5 by Adv.M.Ramesh)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

            The complainant had two children, aged 15 years and 14 years respectively and she is a housewife without any job.  Her husband is working as a coolie for daily wages.  Since they are not in a position to raise another child after 2^nd delivery, they decided to do PPS and got admitted in Taluk Hospital, Alathur on 28.03.2003 as I.P No.3675.  On 29.03.2003, PPS was done by 1^st opposite party.  During the post operative period she had severe abdominal pain and was managed in the hospital till 04.04.2003 as inpatient and discharged on 04.04.2003.  After 10 years she was affected with severe vomiting and abdominal pain.  Though she consulted local doctors she was given only symptomatic treatment.  As there was no improvement, the complainant approached Dr.Sunanda at Alathur Maternity Hospital and admitted as IP 540/13.  Then the doctor advised for routine blood and urine investigation along with pregnancy test.  As the test result was positive, she came to realize that she was pregnant.  The doctor then advised for an ultra sound scan which was done on 19.07.2013 which revealed that she was pregnant by 12-15 weeks.  She was not in good health condition to do MTP (Medical Termination of Pregnancy).  The complainant was shocked on knowing that she was pregnant at this age after a long gap of 10 years of PPS which caused mental depression.  It caused her a great shame before the public.  Later on 11.12.2013, she got admitted in Medical College Hospital, Trichur and delivered a baby boy on 23.12.2013.  There the doctors did a second time PPS with complete cut and removal and closure of fallopian tubes (total salpinjactomy) on 24.12.2013 and discharged only 27.12.2013.  As the PPS done earlier at the Taluk Hospital, Alathur was a total failure, the complainant had to undergo severe discomforts and ailments and was forced to keep the pregnancy and deliver a child.  Now because of the 3^rd pregnancy and related complications and trauma undergone by her, the complainant’s health deteriorated and she is suffering from recurring illness.  The complainant is depending on others for physical as well as financial support for bringing up the child and also for her continuing treatment.  The PPS done by the 1^st opposite party is totally failure.  There is a deficiency of service and negligence on the part of the opposite parties, which cause the complainant to suffer mentally, physically and financially.  Hence all the opposite parties are liable to compensate the complainant.  The complainant sent a registered lawyer notice to the 1^st and 2^nd opposite party demanding compensation to the damages caused to the complainant.  After receiving the said notice the 1^st opposite party sent a reply to the complainant stating false allegations.  As the complainant was in a poor condition to meet the expenses for treatment and other allied expenses she applied for compensation before the District Medical Officer and accordingly the 4^th opposite party sanctioned an amount of Rs.20,000/- to the complainant on the appraisal of failure of PPS done, which is very meager and not at all sufficient for the negligence or deficiency of service done by the opposite parties. Hence the complainant prays for an order directing opposite parties to pay an amount of Rs.10,00,000/- as compensation for deficiency in service and mental shock and agony to the complainant.   

Complaint was admitted and notices were issued to opposite parties. After accepting the notice all the opposite parties entered appearance. 1^st opposite party filed version contending the following:-

          The complaint is not maintainable. The complaint is barred by limitation and liable to be dismissed in limine on that ground.  As per pleadings, the complainant underwent PPS operation on 29.03.2003 and she admits that she came to know about subsequent pregnancy on 13.07.2013.  Hence even if the complainant had any cause of action against the 1^st opposite party regarding sterilization operation done on 29.03.2003 and later on 13.07.2013 the alleged date of knowledge of subsequent pregnancy it came to an end on 13.07.2015 and the complaint seen filed on 04.11.2015 is thus hopelessly barred by limitation.  The complainant, who had her second delivery at home voluntarily decided to undergo sterilization and reported to Govt.Hospital, Alathur on 28.03.2003 and got admitted on the same day for sterilization operation.  The complainant and her husband decided for sterilization operation after second delivery avoid future pregnancies and the 1^st opposite party had explained the pros and cons of sterilization procedure to the complainant and her husband.  They were informed that no method of sterilization can be relied as absolutely safe and it carries certain risk of failure irrespective of the procedure due to reasons beyond the control of the surgeon.  The decision to adopt tubal ligation for sterilization was taken after detailed deliberations.  In the case of the complainant modified promoray’s technique was recommended being 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%.  After fully aware of the inherent chances of failure of sterilization the complainant and her husband voluntarily agreed and signed the written informed consent.  Under all aseptic care and precaution the 1^st opposite party conducted the sterilization operation under local anesthesia on 29.03.2013.  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.  It is pertinent to note that the complainant remained for a period of 10 years since sterilization operation unequivocally establish the fact that sterilization was complete on both sides tubes and subsequent pregnancy after a period of 10 year is due to natural causes either through re-canalization of tube or due to tubo-peritoneal fistula formation.  The 1^st opposite party had exercised due diligence and utmost care in the sterilization operation of the complainant well evident from the fact that she remained sterile for a period of 10 years in spite of living in cohabitation with her husband.  In the light of the above mentioned facts there was no negligence or deficiency in service on the part of the 1^st opposite party and not liable to compensate the complainant.  The failure of sterilization is an accepted complication well described in all standard text books of Obstetrics and Gynecology and in journals.  It is described in Williams Obsterics, 19^th Edition.  Chapter 62 that 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 4 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 as ovum gains access through a recanalised inner segment of the tube or due to fistula formation.  The accepted failure rate in Pomeray’s techniques is only 0.2-0.4%.  The period in between the sterilization operation and the date of next pregnancy is sufficiently enough so that there might have been reunion of tubes or tuboperaitoneal fistula formula in natural course which is beyond the control of the doctor besides being a medically accepted complication also.  Despite the fact that pregnancy due to failure of a device for sterilization is a legally accepted ground for MTP, the complainant voluntarily opted to continue with the pregnancy cannot be termed her pregnancy as unwanted to claim compensation for the upbringing of the child.  The 1^st opposite party is having qualification MBBS, DGO with an experience of years as a consultant Gynecologist with a renowned service record of having successfully handled sterilization cases.  Therefore the complaint is to be dismissed with cost of the 1^st opposite party. 

2^nd opposite party filed version for and on behalf of 3^rd, 4^th and 5^th opposite parties contending the following:-

The complaint is not maintainable. The complaint is barred by limitation and liable to be dismissed in limine on that ground.   The 1^st opposite party Dr. C.K Leela  is a Senior Gynecologist attached to Taluk Head Quarters Hospital since June 2002 to May 2015. The 1^st opposite party had done around 1000 cases of Post Partum Sterilization (PPS) till March, 2003. The complainant was admitted for Post Partum Sterilization (PPS) was done on 29/03/2003 after proper information and written consent by the husband of the complaint and the complainant. The post operative period was uneventful and the patient was discharged on 04/04/2003 on the 7^th post operative day after removing sutures. After a long gap of 10 years the complainant was again reported at Taluk Head Quarters Hospital, Alathur and registered on 24/07/2013. After reporting to the Hospital she was given proper care and advice. Later this opposite parties come to know that the further treatment of the complainant was at medical College Hospital, Mulankunnathukavu, Thrissur from the complaint filed before this Hon’ble Forum.  The PPS of the complainant was done by 1^st opposite party C.K.Leela by modified Pomeroy’s technique which is the accepted procedure followed in a Govt. sector Hospital. The PPS failure is an accepted complication following sterilization due to spontaneous recanalization and in later years Tub peritoneal fistula leads to later pregnancy. Failure rate of PPS in this technique is 0.4 per hundred women per year. This fact was brought to the notice of the complainant and her husband before the PPS was done on her and a written consent was received from them to undergo the PPS. No specific negligence is attributed to this opposite parties in the complaint except the fact that PPS done on the complainant failed after elapse of 10 years. Hence there is no negligence or deficiency of service from the part of this opposite parties. The cause of failure can well be attributable to the natural functioning of human body and necessarily not due to any failure on the part of the 1^st opposite party.  The complainant underwent PPS operation after signing the consent from in which it is clearly mentioned that the pregnancy can occur even after PPS and it was informed to the complainant and her husband before the PPS. Both the complainant and her husband have signed the consent after fully realizing the consequences of the PPS and after understanding the contents of the consent letter. The complainant applied for compensation for PPS failure before the District Medical Officer of Health, Palakkad  and 4^th opposite party herein sanctioned an amount of Rs. 20,000/- to the complainant.  After examining and verifying the records there is no negligence, dereliction of duty, carelessness and deficiency of service from our side because the complainant had no pregnancy after PPS operation within 10 years from the operation. After that only the complainant conceived which is due to natural function of human body. A major study found that the risk of pregnancy within 10 years after sterilization is about 1.8 per hundred women per year. This risk of sterilization failure is greater for younger women because they are more fertile than older women. In the above case the PPS operation of the complainant was done at an age of 22 years. So chances of PPS failure is more due to natural functioning of human body. Hence there is no deficiency of service from the part of these opposite parties. The complaint is liable to be dismissed with cost to these opposite parties.

Complainant and opposite parties filed their respective chief affidavits. Complainant was cross examined as PW1 and Exts. A2 to A16 marked. Ext A1 marked with objection. 1^st opposite party was cross examined as DW1 and Ext. B1 series and Ext B1.(a) marked from the side of opposite parties.

The following issues that arise for consideration are.

1. Whether there is any negligence or deficiency in service on the part of opposite parties?
2. If so, what are the relief and cost?

Issues 1&2

Heard. Opposite parties admitted that the complainant was admitted for PPS and which was done on 29/03/2003 after proper information and written consent of the complainant and her husband. From the perusal of Ext B1 (a) it is clear that all the information regarding the operation was given by the opposite parties to the complainant and after understanding the same, she and her husband had given independent consent for PPS by affixing their signature on the application. It is also included that sometimes the said operation may become unsuccessful, for the same, the surgeon will not be held responsible. From this, we came to the conclusion that after reading and understanding all the aspects in the consent letter, she and her husband agreed to undergo PPS. Therefore complainant cannot claim compensation for the failure of the PPS done by the 1^st opposite party. Complainant submitted that District Medical Officer sanctioned an amount of Rs.20,000/- to the complainant on the appraisal of failure of PPS done. It cannot be treated as an admission of failure of PPS done from the part of opposite parties.

Complainant submitted that she was shocked on knowing that she was pregnant at this age after a long gap of 10 years of PPS. In this case the PPS operation was done at the age of 22 years. Opposite parties contended that complainant remained sterile for a period of 10 years and subsequent pregnancy after a period of 10 years is due to natural causes either through re-canalization of tube or due to tubo-peritoneal fistula formation. Opposite party submitted that a major study found that the risk of pregnancy within 10 years after sterilization is about 1.8 per hundred and the risk of sterilization failure are greater for younger women because they are more fertile than older women. Therefore, according to opposite parties subsequent pregnancy of the complainant is due to natural causes.

In (2005) 7 SCC State of Punjab V Shiv Ram it is observed that the methods of sterilization so far known to medical science which are most popular and prevalent are not 100 % safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes.  Failure due to natural causes would not provide any ground for claim. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3 of Medical Termination of Pregnancy Act 1971 permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.

Complainant admitted that an ultra sound scan was done on 19.07.2013 which revealed that she was pregnant by 12-15 weeks. So she can very well terminate the pregnancy on 12-15^th week which is legal and permissible under the Medical Termination of Pregnancy Act 1971. She did not do so. Complainant submitted that she was not in a good health condition to do MTP (Medical Termination of Pregnancy). No documentary evidences were adduced by the complainant to prove that she was not in a good health condition to do MTP.  We are, therefore, of the opinion that merely because the complainant has undergone PPS, became pregnant and delivered a child, we cannot attribute deficiency in service on the part of 1^st opposite party on account of unwanted pregnancy or unwanted child. Further, there is no allegation in the complaint that the 1^st opposite party had assured 100 % exclusion of pregnancy after PPS and was only on the basis of such assurance that the complainant was persuaded to undergo PPS.

In the case of Martin F D Souza v Mohd Ishfaq 1 2009 CPJ 32 SC  Hon’ble Supreme Court held that a doctor cannot straight away be held liable for medical negligence simply because a patient has not favorably responded to treatment or surgery has failed.

There is no dispute with regard to the qualification of the 1^st opposite party doctor. 1^st opposite party submitted that the surgery was performed by a technique known and recognized by medical science. No medical record or expert opinion has been produced to establish the negligence of the part of 1^st opposite party.  Therefore, in our opinion, failure due to natural causes would not provide any ground for claim. Under the above circumstances we are of the view that complainant is not entitled to get compensation form the opposite parties. 

Hence, complaint is dismissed without cost.

Pronounced in the open court on this the 17^th day of March 2018.

                                                                                     Sd/-

               Shiny.P.R.

               President 

       Sd/-

               Suma.K.P

                Member 

        Sd/-

V.P.Anantha Narayanan

               Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          -  Original Case sheet of the complainant issued by Hospital

             Development Committee IP No.3675 Govt.Hospital, Alathur (marked

             with objection)

Ext.A2          -  Photocopy of prescription issued by Alathur Maternity & Children’s

             Hospital dated.13.07.2017

Ext.A3          -  Photocopy of lab report dated.13.07.17

Ext.A4          -  Photocopy of scan report (3 No’s)

Ext.A5          -  Admission card issued by Taluk Hospital, Alathur to the complainant

Ext.A6          -  Laboratory report from Integrated Counseling And Testing Centers

             dated.24.07.13

Ext.A7          -  Prescription dated.25.09.2013 issued by Alathur Maternity &

             Children’s Hospital

Ext.A8          -  Lab Report dated.25.09.2013

Ext.A9          -  Prescription dated.08.11.2013 Alathur Maternity & Children’s

             Hospital

Ext.A10- Scan report dated.08.11.2013 (2 No’s)

Ext.A11 -Investigation Form Govt.Medical College Hospital,

             Mulamkunnathkavu, Thrissur (Prescription MCH/TCR)

Ext.A12- Clinical Data (Discharge Summary)

Ext.A13 series – Lawyer notice dated. 23.9.13 issued by complainant’s

                        advocate along with postal receipt and acknowledgement

                        card

Ext.A14- Reply notice sent by 1^st opposite party to the complainant’s advocate

             dated.09.10.2013

Ext.A15- A letter sent by District Medical Officer, Palakkad to the complainant

Ext.A16- Proceedings of the Director of Health Services, Thiruvananthapuram

             dated.15.01.2014

Exhibits marked on the side of Opposite parties

Ext.B1 series -  Case sheet issued by Hospital Development Committee IP

                       No.3675, Govt.Hospital, Alathur

Ext.B1 (a)     -  Consent letter

Witness examined on the side of complainant

PW1   -  Sathyabhama

Witness examined on the side of opposite party

DW1   -  Leela

Cost   

          Nil