( Passed on dated 26th February, 2016 )
Per Shri Atul D. Alsi – Hon’ble President.
The opponents No. 1 & 2 are Doctors by profession provides medical treatment to persons who are not having any issues after marriage by name ICSI Test Tube Baby Centre at Raipur Distt. Chhatisgarh.
2. The complainants No. 1 & 2 are husband and wife. Their marriage is performed on 04/02/1987. The complainants could not get their own child even if the pregnancy was developed in Right side. Philippine Tube in the year February 1990 was removed as it was dangerous to the life of complainant No. 2. The complainant No. 2 was having problem of Thyroid and was having problem in abdomen too.
3. The opponent No. 1 & 2 arranged camp in B. J. Hospital, Ganesh Nagar, at Gondia and invited attention from the families who lost hopes of begetting child (issue) on date 16/04/2014. The complainants No. 1 & 2 were charged Rs.150/- as counseling charges. After going through all case histories advised the applicant that if medical treatment is taken in their Aayush ICSI Test Tube Baby Centre at Raipur. The complainants No.1 & 2 can have their own child even after applicant No.2 has gone period of menopause. After considering all medical report the non-applicant gave assurance that the applicants could have their own child after treatment.
4. The complainant No. 1 & 2 could not got their own child as the treatment conducted by the opponents resulted in negative when complainants No.1 & 2 contacted opponents on 04/11/2014 for recycling the medical treatment the opponents No.1 & 2 demanded additional Rs.1,00,000/- for further medical treatment. The complainants told about assurance given by opponents No. 1 & 2 and requested for concession. The opponents No.1 & 2 abused applicant in filthy language and refused to carry medical treatment without depositing Rs.1,00,000/- for treatment for recycling the 2nd treatment.
5. The complainant claims the expenses of previous treatment which is resulted in negative and therefore claiming the expenses Rs.1,25,000/- and mental torture of Rs.25,000/-.
6. The complaint was registered and issue notices to O. P. No. 1 & 2. After receiving notices the O. P. No. 1 & 2 appeared before the Forum through their counsel and filed their written statement.
7. In the written statement the opponents submitted that the complaint is framed and filed is not maintainable in law. No cause of action arose within territorial jurisdiction of this Forum. None of opposite parties at the time of the institution of complaint actually or voluntarily resides or carries on business or has a branch office or personally works for gain within local limits. The contention has not supported by an expert opinion. Bald and bold statement of a layman would not be sufficient. Failure of a treatment does not amount to negligence in treatment. IVF procedure inherently carries chance of failure as it is dependent upon number of factors beyond control as medical professional. That merely because a treatment has failed cannot by any imagination be stretched to mean that there was negligence.
8. Data available by World Health Organization
In 2014 (the most recent data is available) women having in vitro fertilization (IVF) percentage of cycles started that resulted in a live birth in India (national averages) was : |
* 32.2% for women aged under 35. * 27.7% for women aged between 35-37. * 20.8% for women aged between 38-39. * 13.6% for women aged between 40-42. * 5.0% for women aged between 43-44. * 1.9% for women aged 45 and over. |
It is submitted by the O.P. that, he had never given any assurance to complainant about child as age of complainant No.2 at the time of treatment was above 45 years and as per data available by World Health Organization there was only 1.9% of treatment that resulted in a live birth in India.
9. As per above mentioned table, the possibility to get pregnant by complainant No. 2 was very low falling in category of below 10.
10. It is submitted by O.P in his reply that, the above mentioned camp was arranged by B. G. Hospital, Gondia with intention to provide information regarding birth of child through IVF Technology. The opposite parties were invited the fact that chances of failures are more due to higher age of complainant No.2.
11. It is not disputed that IVF (In Vitro Fertilization) treatment carried on complainant No.2 for getting her pregnant was failed due to higher age, as explained in table mentioned in Para.5 above reply. It is submitted that the fees charged by opposite party for IVF procedure is very reasonable in comparison to other test tube baby centre in India and the fees is predetermined as per package to facilitate the patient so that all expenditure should be under one package. It is further submitted that taking into consideration higher age and low percentage to get pregnant, the opposite party No.2 had gave advice to complainant to chose option of 3 or 5 cycle treatment package which is comparatively low cost if compared to single cycle IVF procedure but the complainant had chosen single cycle IVF treatment. It is submitted that every IVF treatment process needs to be repeated like a single cycle treatment as such the opposite party is unable to provide free or concessional treatment as claimed by complainant. It is not disputed that the opposite party had refused to make re-treatment of IVF procedure without paying re-treatment charges by complainant but it is specifically denied as false and baseless that opposite party No.1 & 2 had abused applicant in filthy language as alleged.
12. The complainants had made allegations against opposite parties in present complaint without filing any expert medical opinion. It is now settled principal of law laid down by Hon’ble S.C. of India cited in III (2005) CPJ 9 (S.C.) that complaint against doctors regarding negligence, may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of negligence on part of treating doctor. The complainants have filed present complaint with only intention to harass opposite party Nos. 1 & 2 and thereby trying to illegally extract money. Hence the complaint is liable to be rejected.
13. It is also submitted in written statement that the present complaint involved complicated issues which requires elaborate scrutiny of documents, recording of evidence of parties including experts which can not be entertained in summary procedure as envisaged under the act, hence the complainant be directed to approach the Civil Court for alleged relief.
14. The complainant filed 15 documents as per list of documents.
15. The O. Ps. have filed five documents as per list at Exh.8.
16. The learned counsel for complainant Mr. M. R. Sule argued that, the complainant No. 2 has got pregnancy in the year 1990 from the married relations. The complainant No. 2 was got operated and her right side Philippine tube got removed. The complainant No. 1 & 2 was examined after depositing the counseling charges of Rs.160/- is the document No. 1. The complainant No. 1 & 2 shown all past medical treatment papers, and the objector No. 1 & 2 assured that the complainant will have their own child if the complainant undergo their IVF or ICSI treatment and for that treatment expenses of Rs.1,00,000/- will be incurred. The O. P. No. 1 & 2 gave 100% guarantee to get pregnancy to complainant No.2 after noticing that M/C is stopped and age factor is crossed its limit of complainant No.2.
17. The O. P. No. 1 & 2 also gave examples of the Subotaz mother. The complainant No. 1 & 2 advised to take further treatment at Raipur in their clinic. The complainant No. 2 was admitted on 27/08/2014 stimulation was done after administering medicine and injection luprid and tablets Indofort Oocyte retrieved (ED) was carried on 25/08/2014. The complainant was taken on table for IVF (in vitro Fertilization) treatment at about 4.30 p.m. after completing IVF treatment on 28 patients. The complainant No. 2 could not bear the pains in IVF treatment as the instrument is inserted in private part of complainant No.2 was giving unbearable pain. The treatment was withdrawn at the request of complainant No.2 without IVF treatment the complainant was advised to visit clinic on 10/09/2014. The discharge summary reveals that Embroys transferred to the uterine cavity of complainant No. 2 on 27/08/2014 by O.P.No.2. One thing is to be noticed here that Embryo Transfer could not done using cooks catheter under USG guidance. The discharge summary report no. where it is mentioned that the complainant No. 2 was treated with and given in vitro fertilization treatment as alleged by the O. P.. The IVF treatment is required complete within 72 hours as the Embryos is collected from womb kept in Test Tube after contacting with semen kept in 37% to 40% temperature for 48 hours for fertilization, and replaced in womb with flexible tube and after 10 days physical check-up to verify the pregnancy.
18. The discharge summary is not reveals that the complainant/patient was admitted on 27/08/2014 at what time and when discharge is given is not mentioned. Which creates doubt that the O.P. has not treated with IVF or ICSI treatment to the complainant. When complainant requested on 10/11/2014 for to complete the IVF treatment which is not done and postponed on 27/09/2014 that time the O.P. claimed Rs.1,00,000/- in addition towards the IVF treatment to be repeated.
19. The complainant is residing at Gondia medical camp was organized by O.P. at Gondia on 16/04/2014. The mode of payment of Rs.10,000/- and Rs.35,000/- for the treatment at Raipur to opposite parties is done by cheque by complainant through Bank i.e. Union Bank of India, Gondia Branch. Hence, this court has got jurisdiction and power to decide the dispute.
20. The act of O.P. is also resulting to medical negligence by not providing the correct information in discharge card it is held in case – Poona Medical Foundation v/s. Marutirao 1995 (I) CPR 661 (IVC).
21. The complainant’s uterus got ruptured when IVF treatment started on 28/09/2014 due pain the IVF treatment got postponed as stopped and withdrawn at the request of complainant hence the O.P. is fully responsible for harm which happened to the complainant which amounts to the O.P. acted rashly recklessly with culpable negligence. M. Veeva v/s. R Lalitha II (1994) CRT 73 (NC).
22. The complainant was suggested for ICSI treatment by O.P. as the complainant had monopaused. But the O.P., according to him given in vitro fertilization treatment which comes under Medical Deficiency in service rendered by O. P. and also negligence in treatment. Held in case Ujjain Charitable Trust Hospital v/s. Ramesh Chandra & Others – III 2003 CPJ 181 (Bhopal).
23. In this case IVF or ICSI treatment is not give to complainant by O.P. on 28/07/2014 and complainant who taken for treatment at 4.30 p.m. and sent out at 4.45 p.m. approximately to give full treatment of IVF the time consuming is near about 45 minutes. As such in this case no expert opinion is required to produce to prove negligence caused on the part of O.P. and the complainant is entitled to receive the compensation of Rs.1,75,000/-.
24. The learned counsel for O. P. Mr. A. N. Vastani argued that, this Forum has no territorial jurisdiction to entertain the present complaint in as much as no cause of action arose within territorial jurisdiction of this Forum. The complainant No. 2 got treatment at Raipur. Further more complainant No. 2 was admitted in hospital at Raipur. The consideration for treatment was paid at Raipur only. Only consultation at Gondia as regard future course of action would not confer jurisdiction upon this Court in as much as the same by no stretch of imagination can be termed as part of cause of action leading to filing of complainant.
25. The entire complaint is eloquently silent as regard any allegation against opposite parties as regard deficiency in service while treatment of complainant No.2 by opposite parties. In absence of basic pleading the complaint is not maintainable and may kindly be rejected in the interest of justice.
26. A bare reading of the complaint makes it unambiguously clear that the same has been filed for recovery of money. Admittedly, complainants asked for concession for second round of treatment which shows that even complainants are aware that there was possibility of failure of treatment. Only on denial of any concession by opposite parties the instant complaint came to be filed to browbeat opposite parties to succumb to their unjustified demand as regard concession. A claim for recovery falls in domain of Civil Dispute and can not be termed as a Consumer Dispute under the Act by any stretch of imagination. As the charge is so grave so should the proof be clear. It is asserted that every unsuccessful operation/treatment can not be considered as negligence of the Doctor. It is very well settled now that onus of proof of negligent act on the part of opposite parties was very heavy on complainants and which they have miserably failed to discharge.
27. In the instant case the complainants have failed to examine any expert witness in support of their allegations. In absence of any medical expert opinion/evidence which could prove the negligence act on the part of opposite parties in conducting the treatment, complainants have failed to prove the negligence or deficiency in service as against opponent parties. The opponent No. 2 had never given any assurance to complainant about child as age of complainant No. 2 at the time of treatment was above 45 years and there was only 1.9% of treatment that resulted in a live birth in India. On the contrary complainants were duly informed and were made aware that they are only taking a chance towards fulfillment of their dream to have a child. The same was explained to complainant No. 2 i.e. Mrs. Jaya Dalwani. The opponent party has routinely doing donor IVF in post menopausal woman with good success rate and its done all over the world routinely.
28. It is further submitted that, the complainant No. 2 namely Mrs. Dalwani had undergone right salpingectomy (removal of right fallopian tube). It is submitted that generally in natural conduction sperm and egg meet in fallopian tube and fertilization takes place in fallopian tube but in ICS (intra cytoplasmic sperm injection) this is done outside human body in lab. So presence or absence of tube does not make any difference. The complainant No. 2 namely Mrs. Dalwani was called on 1st August to center of opposite party for trial transfer. The opposite party had given her with 20 units of injection luprolide acetate injection and also gave injection to complainant No. 2 for taking it at home. The complainant No. 2 starts bleeding on 10th August than she has instructed to reduce the dose of injection to 10 units. The complainant No. 2 took injection leuprolide acetate 20 units from 1st August to 10th August and 10 units from 11th August to 23rd August. Tablet endofort was given twice daily from day 2 of periods to day 10 of period and then thrice daily from day 11 onwards. Endometrial monitoring was done on day 7. Blood test was done in which e2 level was 28.7 and fsh level was 2.97. 4 good quality embryos from donor acolyte and donor sperms were put inside her uterus on 27th August, 2014.
29. The complainant No. 2 was sent home after rest of 2-4 hours in hospital as research suggest there is no need of bed rest after embryo transfer. On the day of embryo transfer the endometrial limning was good and it was triple layered. It is submitted that result of the batch in which complainant was undergone IVF treatment is about 53% which clearly demonstrate that there was no medical negligence or deficiency in medical services on part of opposite party Nos. 1 & 2,
30. It is submitted that total 7 times sonography was done and there was no adverse outcome on health of the patient i.e. complainant No.2, which clearly shows there was no deficiency in medical services and there was no medical negligence. The treatment was given according to standard protocol of donor cycle in which donor is stimulated with follicular stimulating hormones and human menopausal gonadotropins and eggs from donor are collected and sperm is injected in the eggs in lab and embryo formed after two days are than placed in recipient uterus. The donor IVF is expensive as compare to self IVF as compensation has to be paid to donor (as per government guidelines) because donor comes regularly to our centre for 15 days for administration of injections and ovum pick up which is done under anesthesia. The donor had to undergo all the pain, discomfort of injection, loss of wages as she had to undergo ovum pickup for which she was paid.
31. The total cost of treatment is Rs.1,16,800/-. The opposite party had given discount to the complainants and only Rs.95,000/- were charged. The fees charged to complainants for IVF procedure is very reasonable in comparison to other test tube baby centre in India and the fees is predetermined as per package to facilitate the patient so that all expenditure should be under one package. Taking into consideration higher age and low percentage of get pregnant, opposite party had gave advice to complainant to chose option of 3 or 5 cycle treatment package which is comparatively low if compared to single cycle IVF procedure but the complainant had chosen single cycle IVF treatment. Every IVF treatment process needs to be repeated like a single cycle treatment as such the opposite party is unable to provide free or concessional treatment as claimed by complainant for 2nd cycle. The opposite party informed to complainant that they had already given complainants discount of Rs.20,000/- in 1st cycle treatment and now its not possible for them to give more discount. The opposite party had informed to complainants that they have to pay charges for 2nd cycle and if 2nd cycle fails then treatment of 3rd cycle is free, which is policy of their Centre.
32. The pleadings of complainants as well as notice issued by them reveals that what was conveyed was only a possibility. The complainants are literate enough to know that nothing can be 100% guaranteed much less any medical treatment and particularly IVF/ICSE treatment which is depend upon number of factors. The complainants made aware that having regarded to complainant No.2’s age the possibility to get pregnant was very low falling in category of below 10%. Having understood the same the free and clear consent came to be given by complainants for the treatment.
33. Similarly for the very first time, it is sought to be stated that instead of IVF procedure ICSI procedure was done as is apparent from Discharge Form. It is also submitted that, such allegation is being made in ignorance of professional and medical knowledge. The IVF stands for In-vitro fertilization whereas ICSI means Intracytoplasmc Sperm Injection. Admittedly, ICSI is a more modern, sophisticated procedure capable of giving better results and consequently chances of conceiving by a lady are much better results and consequently chances of conceiving by a lady are much better in this mode. The ICSI is a procedure in which male sperm is injected in female egg under high power inverted microscope. Both procedures are scientific ways of artificially forming embryos. The IVF is an old procedure started in 1978 whereas ICSI is much recent and more accurate mode started recently in 2002 capable of giving better results. The viewed from any angle the complaint is out and out without any merits and deserves to be dismissed and may kindly be dismissed in the interest of justice and fair play.
34. After hearing and going through the complaint and reply the following points came to be consideration.
Sr. No. | Points | Findings |
1. | Whether the Forum has territorial jurisdiction to entertain the complaint? | YES |
2 | Whether the complainants have filed expert evidence to prove medical negligency? | NO |
3 | Whether the O.Ps. have committed medical negligency service in treatment with complainant? | NO |
4 | What Order? | As per final order. |
REASONING & FINDINGS
35. The O.P. No.1 had arranged a medical camp at B. J. Hospital, at Gondia and as per available medical papers and history and instructions taken from complainants the course for further treatment further investigation was advice. The vary purpose of camp is to give them further treatment at their equipped hospital. Hence part of cause of action arose at place of medical camp. Hence, Gondia Forum has jurisdiction to entertain the complaint hence issue No.1 is decided accordingly.
36. The complainant has filed a complaint case for negligency of service and the averment in complaint does not disclose that it is a case of recovery of money. Forum is equipped with all laws and procedure, it is Civil and Criminal Court, hence enough competent to decide all types of cases of medical negligency accordingly to summary proceeding
37. The complainant averted in paragraph No.5 of complaint that after considering all medical report the non-applicant gave assurance that the applicants could have their own child. The basic contention of complainant was that after assurance and charging of heavy fees the child can’t be-gotten. Therefore, the contention of O. P. was that the complaint does not contain any word about negligency of service can’t be accepted.
38. The learned Counsel for O.P. argued that, the complainant should have file expert evidence to prove their contention. In medical negligency cases the medical expert opinion of competent doctor or medical board is necessary to prove the deficiency of service. Admittedly, the complainant did not file any documentary opinion of expert doctor on affidavit to prove medical negligency and treatment given by O.P. to support the allegations. The burden definitely cast upon the complainants who have knocked the door of Forum with contention of deficiency of service in conducting treatment. The complainant has not filed any cogent evidence of assurance was given by O.P. that there would be 100% chances of success of pregnancy in a given situation and condition of patient. The complainant has not filed any evidence of expert doctor or any medical literature to prove that the treatment by O.P. was not given according to standard protocol. So also, the complainant could not file any broucher to claim any concession from O.P. on 2nd IVF treatment if 1st IVF treatment was not positive.
39. It is the discretion of doctor which type of treatment is to be given to the patient which is depend upon age and physical condition of patient and circumstances in which it was given. The Doctor has to change the type of treatment as per change of circumstances. The opposite parties have rightly taken the decision for the betterment of patient. The O. P. are highly qualified and expertise in IVF and ICSI treatment and they know which treatment is suitable to patient according to his experience. There is no evidence brought on record by complainant that the complainant was assured to give IVF treatment only. There is no expert evidence brought on record by the complainants that the IVF treatment was one & only suitable treatment to conceive the child. As per Medical Jurisprudence both the treatment such as IVF stands for In-Vitro Fertilization where as ICSI means Intracytophasmile Sperm Injuction are suitable treatment to conceive child. The ICSI is modern treatment and simple procedure with better result and there are more chance to conceive the child. The ICSI is a procedure in which male sperm is injected in female egg under high power inverted microscope. On the contrary, IVF is a procedure in which a female egg is kept in a plastic Petri dish and male sperms are spread around the female egg and one male sperm penetrates he female egg. The sperm penetrates the egg by itself. Both IVF and ICSI are scientific procedure to form embryos. The IVF is an old procedure started in 1978 whereas ICSI is started recently in 2002 capable of giving good result as per medical jurisprudence. Hence, the course of treatment it can’t be called as error of judgment in application of treatment by O. P. If in case of application of either one treatment instead of other it can’t be called as negligency of treatment. A medical practitioner faced with an emergency ordinarily tries his best to redeem the patient out of his suffering. He does not gain anything by acting with negligency or by omitting to do an act. Obviously, therefore it will be for the complainant to clarify make out a case of negligency before a medical practitioner in charged or brought before Forum. No sensible professional would intentionally commit an act or omission which would result injury to the patient as professional reputation of the person is at stake. A Single failure may cost him clear in his carrier. There are so many factors constituted the failure of result, the inadequacies of system, nature and human psychology are also the factors which contributes the forfeiture and desire result. The human body is highly complex not like a machine.
The essential components of negligency as recognized are :-
01. The existence of a duty to take care which is owned by
the defendant to the complainant.
02. The failure to attain that standered of care, prescribed
by the law, thereby committing a breach of such duty
and
03. Damage, which is both casually connected with such breach and recognized by law has been suffered by the complainant.
If the claimant satisfies the Court on the evidence that these three ingredients are made out then the opponents should be held liable in negligency. But the opponents have taken all precautions and steps bonafidely, hence the opponents are not liable to any negligency on their part.
Therefore, the contention of complaint for the negligency of medical treatment can’t be acceptable at all. Therefore, issue No. 2 & 3 decided accordingly.
40. According to Hon’ble Supreme Court in JACOB MATHEW 9DR.0 –VS.- STATE OF PUNJAB – standard to be applied to hold professional negligence on the part of medical professional, failure the use special or extraordinary precautions which might have prevented particular happening can’t be standard for judging alleged negligence. Res- ipsa- loquitur is rule of evidence and operates in domain of law of torts and helps in determining onus of proof in actions relating to negligence.
41. In a Judgment of Hon’ble National Commission, in UPASANA HOSPITAL –VS. – S. FAROOK - it was held that without the expert evidence of doctor by complainant no medical negligency as alleged in complaint is proved and onus to prove lies on complainant.
42. In Punjab State Commission 2000 (CPJ) 517 VOL III in SURINDER KUMAR –VS.- DR. SANTOSH MENON - it was held that in case of deficiency of service in medical negligency onus of proof heavily on complainant-No medical evidence filed on record can’t be considered as medical negligency for every unsuccessful operation is negligent act of Doctor.
43. Therefore, the complainants completely failed to discharge the burden of proof for the medical negligency. The complainants are laymen. The affidavit of complainants can’t be opinion of experts. The documents filed on record can’t establish any case of medical negligency. Every type of medical negligency opinion of expert must be produced to support allegations. No cogent, reliable, healthy acceptable evidence ever filed on record by complainants.
Hence, the complaint is dismissed as per following order.
-: ORDER :-
1. The complainant’s case is dismissed.
2. No order as to costs.
