Haryana

Kaithal

131/21

Pooja - Complainant(s)

Versus

Dr.D.P Gupta Dev Nursing Home - Opp.Party(s)

Sh.Anand Parkash Gupta

21 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL COMMISSION, KAITHAL

 

                                                                   Complaint No.    131 of 2021.

          Date of Instt.:      03.06.2021. 

                                                                    Date of Decision:21.11.2023.

 

1. Smt. Pooja age 24 years wife of Sh. Kuldeep;
2. Kuldeep age about 27 years son of Sh. Gulab,

both resident of Village Manas, Tehsil and District Kaithal.

                                                                                       …Complainants. 

                                                Versus

 

1. Dr. D.P. Gupta (M.S.) c/o Dev Nursing Home, Karnal Road, Kaithal.
2. Dev Nursing Home, Karnal Road, Kaithal, through Dr. D.P. Gupta.
3. The New India Assurance Company Limited, above Vijay Bank, Ambala Road, Kaithal, through its Branch Manager. 

                   ...Opposite Parties.

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 CORAM:  SMT. NEELAM KASHYAP, PRESIDENT.

                   SMT. SUMAN RANA, MEMBER.

                   SH. SUNIL MOHAN TRIKHA, MEMBER.        

         

Present:           Shri Anand Parkash Gupta and Shri Abhishek Gupta, Advocates                      for the complainant.

    Shri C.S. Gupta, Advocate for the opposite parties.

                      

ORDER

 

(NEELAM KASHYAP, PRESIDENT)

 

                   The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 1986, with the averments that complainant No.1 was suffering from pain in abdomen and she contacted with the OPs and OP No.1 advised for Ultrasound and after receiving the report of Ultrasound OP No.1 told to the complainants that there is appendix and he same required operation. On 23.08.2020, complainant No.1 got admitted by OPs in their hospital for appendix and tubectomy operation and on the advice of opposite party No.1 so many testing/investigations including several blood and urine tests were got conducted on complainant No.1 before appendix and tubectomy operation. The appendix and tubectomy operation of complainant No.1 was done by OP No.1 on 23.08.2020 and she was discharged on 25.08.2020 and spent about Rs.30,000/- on the operation, medicines and testing etc. After some time, complainant No.1 felt pain in her abdomen, then complainants visited OPs No.1 & 2 at their hospital, with the complaint of fever, abdominal pain, vomiting and anxiety and after examination OP No.1 conducted some tests of her and also prescribed some medicines. On 04.12.2020 she again visited OPs at their hospital with the complaint of abdominal pain, anxiety, high fever, uneasiness and vomiting and feeling of presence of some foreign material in her abdominal and after check up, OPs conducted several tests upon the complainant No. 1 and told her that there is no foreign material in the uterus of the complainant No.1 and some medicines were prescribed by Op No.1. On 08.01.2021 they are again visited OPs with the same complaints as before and her ultrasound was conducted by Dr. S.K. Singal of Haryana Diagnostic Centre, Ambala Road, Kaithal and told to the complainants that complainant No.1 is pregnant with a 22 weeks mature fetus. After receiving the report from Dr. S.K. Singal OP No. 1 referred the complainant No.1 to Dr. Mrs. Chawla, Civil Hospital, Kaithal for further treatment. There is clear cut negligence on the part of OPs No.1 & 2, being medical practitioner, as they failed to check up the complainant No.1 properly before conducting the tubectomy operation and also failed to advise her for screening of Pregnancy test and because of that the complainants have to give birth to one more child and moreover her delivery became complicated/risky and the same is only because of the negligence and improper medical advice of OPs. This way, the Ops are deficient in service.  Hence, this complaint is filed.  

2.                Upon notice, the opposite parties appeared before this Commission and filed written statement separately.

3.                OPs No.1 and 2 filed joint written statement, raising preliminary objections regarding maintainability; cause of action; locus-standi; that the patient Pooja arrived in the hospital of OP No.1 on 23.08.2020 in emergency with reference to Dr. Arjun Kalyan along with Ultrasound report dated 21.08.2020 already conducted by Dr. Ashwini Goyaat of Durga Ultrasound and Diagnostic Centre. After clinically examination and scrutiny of said ultrasound report Dr. Arjun Kalyan found that she was suffering from the ailment of appendicitis and advised to undergo immediate appendicectomy operation within any unnecessary delay, as the delay could have let to bursting of appendix and further resulting in disastrous complications of sever peritonitis which may prove fatal to life. OP No.1 was initially reluctant to carry out tubectomy operation along with appendicectomy operation but when complainant No.1 and her husband repeatedly asked that they just want tubectomy operation along with appendicectomy operation at their one risk only to prevent future pregnancy irrespective of prior pregnancy, if any already conceived to save her, from the ordeal of undergoing second operation and subjecting her to anesthesia second time and economic aspect also. As such, in view of their own repeated and persistent request and also considering the ordeal of undergoing second operation to the extent indicated above and particularly when complainants had no problem for prior conception if any, OP No.1 immediately proceeded to order for necessary investigation of urine for pregnancy test and complainants were well apprised and again reminded that it is to be assumed that complainant No.1 is potentially pregnant at the time of sterilization and Tubectomy operation is only designed to prevent future pregnancy irrespective of prior pregnancy if already conceived. The complainants were also made aware about sterilization failure as the fallopian tube which are cut and sealed may reunited and even the relative likelihood of ectopic pregnancy is increased when sterilization failure does occur. As such, when the complainants agreed to accept full responsibility for any pregnancy, it was decided to proceed further including laboratory evaluation and consideration was also given to the assumption that the complainant might be pregnant. Accordingly, already conducted ultrasound report dated 21.08.2021 conducted by Dr. Ashwini Goyat, brought by complainants themselves were carefully examined and found mentioned therein that uterus anteverted and appears normal in size and shape, urine for pregnancy test conducted on 23.8.21 and as per report negative result was available, complainant No.1 was subjected to extensive counseling including about the menstrual history and as per her own version it was located that the menstrual period were normal and regular giving the impression of no evidence of prior early pregnancy even remotely. Accordingly, main “Appendicectomy operation” in emergency was conducted and Tubectomy was also perfectly and correctly carried out while cutting and sealing the fallopian tubes successfully. That there is no deficiency in service on the part of answering OPs and prayed for dismissal of complaint.

4.                 OP No.3, in its written statement stated that the Professional Indemnity Policies No.354400481907000000002 effective from 12.9.2019 to 11.09.2020 was  issued subject to the terms and conditions as contained therein. There is no deficiency in service on the part of OPs No.1 & 2, as concerned doctor had treated and conduced the operation of complainant No.1 at her own requests with due diligence and care in consonance with standard medical norms. The contents of complaint are absolutely wrong and denied.

5.                 In order to prove the case, complainants tendered into evidence affidavit Ex.CW1/A alongwith documents Annexure-C1 to annexure C9.

6.                On the other hand, the OPs tendered into evidence affidavit Ex.RW1/A to RW6/A and documents Annexure R1 to Annexure R15.

7.                Ld. counsel for complainants has argued that complainant No.1 was suffering from pain in abdomen and she contacted with the OPs and OP No.1 advised for Ultrasound and after receiving the report of Ultrasound OP No.1 told to the complainants that there is appendix and the same required operation. He further argued that on 23.08.2020, complainant No.1 got admitted by OPs in their hospital for appendix and tubectomy operation and on the advice of opposite party No.1 so many testing/investigations including several blood and urine tests were got conducted on complainant No.1 before appendix and tubectomy operation, which are Ex.C-5 & Ex.C-6. The appendix and tubectomy operation of complainant No.1 was done by OP No.1 on 23.08.2020 and she was discharged on 25.08.2020 and spent about Rs.30,000/- on the operation, medicines and testing etc. He further argued that after some time, complainant No.1 felt pain in her abdomen, then complainants visited OPs No.1 & 2 at their hospital, with the complaint of fever, abdominal pain, vomiting and anxiety and after examination OP No.1 conducted some tests of her and also prescribed some medicines. He further argued that on 04.12.2020 complainant No.1 again visited OPs at their hospital with the complaint of abdominal pain, anxiety, high fever, uneasiness and vomiting and feeling of presence of some foreign material in her abdominal and after check up, OPs conducted several tests upon the complainant No. 1 and told her that there is no foreign material in the uterus of the complainant No.1 and some medicines were prescribed by Op No.1. He further argued that on 08.01.2021 complainants again visited OPs with the same complaints as before and her ultrasound was conducted by Dr. S.K. Singal of Haryana Diagnostic Centre, Ambala Road, Kaithal Ex.C-9, Ex.C-14 and told to the complainants that complainant No.1 is pregnant with a 22 weeks mature fetus. He further argued that after receiving the report from Dr. S.K. Singal OP No. 1 referred the complainant No.1 to Dr. Mrs. Chawla, Civil Hospital, Kaithal for further treatment. He further argued that OPs No.1 & 2 had done many tests before operation which is mentioned in Ex.C-4, but there is nowhere mentioned in Ex.C-4 that Ops had done any screening of complainant No.1 before the operation. He further argued that there is clear cut negligence on the part of OPs No.1 & 2, being medical practitioner, as they did not follow the guidelines Ex.C17 to Ex.C19 and they also failed to check up the complainant No.1 properly before conducting the tubectomy operation and also failed to advise her for screening of Pregnancy test and because of that the complainants have to give birth to one more child and moreover her delivery became complicated/risky and the same is only because of the negligence and improper medical advice of OPs. In order to support his contentions, he placed reliance upon case laws titled Sunil Jain Versus Zamiruddin (2017) 240 DLT 599 (Delhi High Court) and Sumathi Versus Suganthi (2015) 1 LW 146 (Madras High Court).

8.                Ld. counsel for OPs No.1 & 2 has argued that the patient Pooja arrived in the hospital of OP No.1 on 23.08.2020 in emergency with reference to Dr. Arjun Kalyan along with Ultrasound report dated 21.08.2020 already conducted by Dr. Ashwini Goyat of Durga Ultrasound and Diagnostic Centre. After clinically examination and scrutiny of said ultrasound report Dr. Arjun Kalyan found that she was suffering from the ailment of appendicitis and advised to undergo immediate appendicectomy operation within any unnecessary delay, as the delay could have let to bursting of appendix and further resulting in disastrous complications of sever peritonitis which may prove fatal to life. OP No.1 was initially reluctant to carry out tubectomy operation along with appendicectomy operation but when complainant No.1 and her husband repeatedly asked that they just want tubectomy operation along with appendicectomy operation at their one risk only to prevent future pregnancy irrespective of prior pregnancy, if any already conceived to save her, from the ordeal of undergoing second operation and subjecting her to anesthesia second time and economic aspect also. As such, in view of their own repeated and persistent request and also considering the ordeal of undergoing second operation to the extent indicated above and particularly when complainants had no problem for prior conception if any, OP No.1 immediately proceeded to order for necessary investigation of urine for pregnancy test and complainants were well apprised and again reminded that it is to be assumed that complainant No.1 is potentially pregnant at the time of sterilization and Tubectomy operation is only designed to prevent future pregnancy irrespective of prior pregnancy if already conceived. The complainants were also made aware about sterilization failure as the fallopian tube which are cut and sealed may reunited and even the relative likelihood of ectopic pregnancy is increased when sterilization failure does occur. As such, when the complainants agreed to accept full responsibility for any pregnancy and gave their consent Ex.R-6 and  it was decided to proceed further including laboratory evaluation and consideration was also given to the assumption that the complainant might be pregnant. Accordingly, already conducted ultrasound report dated 21.08.2021 conducted by Dr. Ashwini Goyat, brought by complainants themselves were carefully examined and found mentioned therein that uterus anteverted and appears normal in size and shape, urine for pregnancy test conducted on 23.8.21 and as per report negative result was available, complainant No.1 was subjected to extensive counseling including about the menstrual history and as per her own version it was located that the menstrual period were normal and regular giving the impression of no evidence of prior early pregnancy even remotely. Accordingly, main “Appendicectomy operation” in emergency was conducted and Tubectomy was also perfectly and correctly carried out while cutting and sealing the fallopian tubes successfully. That there is no deficiency in service on the part of answering OPs and prayed for dismissal of complaint. In order to support his contentions, he placed reliance upon case laws titled Civil Hospital & Ors. Versus Manjit Singh & Anr., Special Leave Petition (Civil) No.1658 of 2022 (Supreme Court of India) and M.A. Biviji Vs. Sunita & Ors. (Civil Appeal No.3975 of 2018) (Civil Appeal No.4847 of 2018).  

9.                Learned counsel for OP No.3 has argued that the Professional Indemnity Policies No.354400481907000000002 effective from 12.9.2019 to 11.09.2020 was issued subject to the terms and conditions as contained therein. There is no deficiency in service on the part of OPs No.1 & 2, as concerned doctor had treated and conducted the operation of complainant No.1 at her own requests with due diligence and care in consonance with standard medical norms. The contents of complaint are absolutely wrong and denied.

10.               We have heard ld. counsel for both the parties and perused the case file carefully and minutely.

11.               In the case in hand, the complainants has leveled the allegations regarding failure of tubectomy survey which is medical negligence on the part of OPs No.1 & 2, but it is pertinent to mention here that Tubectomy surgery does not fall under medical negligence. In this regard, we can rely on the case law, produced by learned counsel for OPs No.1 & 2 titled Civil Hospital & Ors. Versus Manjit Singh & Anr., Special Leave Petition (Civil) No.1658 of 2022 (decided by Double Bench of Hon’ble Mr. Justice Hemant Gupta and Hon’ble Mr. Justice Sudhanshu Dhulia), in which, the Hon’ble Supreme Court of India has made reliance on the judgment titled State of Punjab Vs. Shiv Ram & Ors., (2005) 7 SCC 1, wherein, at page No.10, it is specifically mentioned 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. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice”……….“The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination 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”. However, with the above-mentioned observations, the appeal filed by the appellant was allowed and the order passed by the Hon’ble National Commission, New Delhi has been set aside. The facts of the present case is squarely covered under the aforesaid authority cited above, whereas, case laws, produced by learned counsel for the complainant, is not applicable to the present case, being rested on different footings.

12.              So, keeping in view the case law, referred above, we do not find any merits in the present complaint. Consequently, we dismiss the same, with no order to costs. A copy of this order be sent to the parties free of cost. File be consigned to the records, after due compliance.     

Announced in open Commission:

Dt.:21.11.2023.

                                                                                       (Neelam Kashyap)

                                                                                       President.

 

(Sunil Mohan Trikha).             (Suman Rana).              

Member.                                  Member.