D.O.F. 20.05.2005

                                        D.O.O.03.05.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:   Sri. K.Gopalan                 :    President

             Smt. K.P.Preethakumari  :     Member

             Smt. M.D.Jessy                :     Member

Dated this the 3^rd  day of  May   2012

C.C.No.138/2005

1.T.K.Sheena,

  Padmalayam,

  Olavilam,  Pot Chokli,

  Tellicherry.                                                                 Complainants

2.M.Rajeevn,

  Padmalayam,

  Olavilam,  Pot Chokli,

  Tellicherry.

  (Rep. by  Adv.T.K.Gangadharan) 

1. Dr.P.R.Venugopal,

    Midhila,Chettamcoon,

    Tellicherry.                                                  Opposite parties

2. Dr.Azeez,

    Proprietor,

   Central Hospital,

   Old Bus stand, Tellicherry .         

    (Rep. for Ops 1 & 2by Adv.P.Mahamood)

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay an amount of `5,00,000together with the cost of litigation.

          The case of the complainant in nutshell is as follows:  Complainant was taken to Jose Giri Hospital after pregnancy and she was attended by 1^st opposite party. Opposite party diagnosed a cyst in her ovary and advised surgery. She was admitted as a patient from  27.7.99 to 6.8.99 and from there she underwent operation and the 1^st opposite party had done ovariotomy on her. Thereafter she was admitted on 11.10.99 in connection with the delivery. Delivery was attended by1st opposite party and a female child was born. She was discharged on  14.10.99.Second delivery also attended by 1^st   opposite party and she delivered a male child on 12.1.2002.Since she wanted to avoid further delivery she sought  advise from 1^st posit party and according to his advise for PPS she was discharged from JoseGiri Hospital on 13.1.2002 and admitted in central hospital, Thalassery. 1^st opposite party had conducted PPS operation on 13.1.2002 itself and she was discharged from there on 19.1.2002. But she has become pregnant. The tubectomy operation failed due to professional negligence on the part of 1^st opposite party, who is an employee of 2^nd opposite party. Both are liable to compensate the complainants. Hence this complaint.

 Pursuant to the notice opposite parties entered appearance and filed version denying the main allegations of complainants. The brief of the contentions are as follows: 1^st opposite party is a Gynecologist working in Josgiiri Hospital and Central Hospital, Thlaassery.1^st complaint had first normal delivery on 1.12.1999 at Josgiri Hospital, Thalassery which was conducted by 1^st  opposite party. She had again approached 1^st opposite party for second pregnancy at Josgiri Hospital She had an uneventful antenatal period and had a full term normal delivery at Josegiri Hospital. Then requested for post partum sterilization. 1^st opposite party explained the pros and cons of tubal sterilization and chances of its failure. Then she was admitted at central Hospital, Tellciherry since post partum sterilization is not conducted in Josgiri Hospital. After fully conversant with factual situation and the risk of failure involved in such operation she signed the consent form. After informed consent, under all aseptic precautions and with utmost care and attention the left fallopian tube was identified and tubectomy done by pomeroy’s Method.  However the fallopian tube on the right side could not be identified inspite of prolonged effort because of the dense adhesion on that side. Hence tubectomy was not done on the right side and the same mentioned in case sheet. This was immediately informed to the second complainant and relatives and first complainant was informed about the same the next day. The first and second complainant and their relatives were informed of the fact that since the fallopian tube on the right side was not identified; the sterility of the patient couldn’t be assured. She was discharged on 19.1.02 with advice to do a hystero-salpingogram after 03 months to assess the potency of the tube and if necessary the next option available for contraception was to undergo vasectomy. They did not come for doing hysterosalpingogram after three months to assess the potency. The pregnancy occurred not due to any negligence or deficiency in service on the part of opposite party but due to reasons having no connection with the acts of 1^st opposite party. There is no deficiency in service on the part of opposite parties. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1,DW1,DW2 and Exts.A1 to A12 and B1.

Issue Nos.1 to 3

          Admittedly opposite party has done tubectomy to complainant No.1.But afterward she became pregnant and delivered a female child. Complainant alleged that she became pregnant after tubectromy operation conducted by opposite party due to negligence  and deficiency in service on the part of 1^st opposite party whereas, opposite party contended that under all aseptic precautions and with utmost care and attention the left fallopian tube was identified and tubectomy done by pomeroy’s method. The complainants were well informed before the sterilization operation the pros and cons of tubal sterilization and chances of its failure. Moreover, complainants were informed about the fact that tubectromy on the right side was not done. It was clearly mentioned in the case sheet of the central Hospital.     

          Complainant adduced evidence by way of affidavit evidence in tune with the pleadings.PW1/complainant No.1 adduced evidence that  1^st  opposite party advised that PPS operation is better for the sterilization  measures and this operation will not be con ducted in Josgiri Hospital but can be done in 2^nd opposite party hospital where he has also been working as a gynaecologist. PW1 further says that she was then discharged from Josgiri Hospital and admitted in  2^nd opposite party/Central Hospital for conducting PPS operation. Operation was conducted and 1^st opposite party told them that operation was successful. Thus she was discharged on 19.1.02. Affidavit evidence further stated that on 28.1.04 it was found on medical test that she was pregnant. Doctor was of opinion that it was happened due to the failure of PPS operation. She gave birth another child against her wish and pleasure. PW1 states that it is the negligence and deficiency in service on the part of 1^st opposite party such a situation for another delivery occurred. Affidavit evidence states that on 25.7.04 she had sent legal notice to opposite parties. 1^st  opposite party sent a reply to that stating it will follow a detailed reply but no such reply sent thereafter. PW1 states in affidavit evidence that 1^st opposite party never explained to them any possibility of failure of operation and he had not obtained any informed consent from them on the basis of such explanation.

          The affidavit evidence further states that the contention of 1^st opposite party that he has informed the complainant  that left Fallopian tube was identified and tubectomy was done but tubectomy was not done on the right fallopian tube since it could not be identified for reasons of dense adhesion is not correct. It was not at all disclosed to complainants. Complainant/PW1 states that 1^st opposite party never told them that the tubectomy was not done on right side and thus cannot be assured of further pregnancy. It is also false to say that he had advised that in order to avoid children in future vasectomy operation was good. He never advised so. The contention of opposite party that he had advised complainant to meet him after three months but complainant did not meet him is also false He did not give any such advice whereas he had told them that operation was success and no issues will be born in future. Complainant states further that they were not aware of the fact that right fallopian tube was not operated.

          PW1 was elaborately cross examined for opposite party. In the cross examination PW1 deposed that she was admitted in  2^nd opposite party/hospital for only sterilization operation. She has also deposed that opposite party  did not make them aware that it is not possible to make 100% assurance of sterilization. She further deposed that 1^st opposite party never told them the fact that tubectomy was not done on the right fallopian tube. In affidavit evidence also she has stated that those things were not disclosed to them by the 1^st opposite party. In further cross examination PW1 deposed that she was not aware whether or not discharged card was issued and it is not correct to say that she was told that there is possibility of failure of operation. It is also deposed that PW1 was not told to be present after 3 months for doing hystero salpengogram to assess the potency of the tube. She has also deposed that the doctor did not say to take any precaution in the case of intercourse. To another question she answered opposite party did not suggest any other method of treatment to prevent pregnancy for the   non conducting tubectomy on the right side fallopian tube.

          The evidence adduced by complainant by affidavit evidence and the cross examination makes it clear that the complainant has the consistent  case that the failure of operation is due to the negligence of 1^st opposite party and 1^st opposite party doctor never told her or her husband any doubt regarding the possibility of failure of  tubectomy operation. He has also not explained her that the tubectomy has not been done to right fallopian tube since it could not be identified. Other alternative method of treatment or any sort of precaution was also not suggested by 1^st opposite party/doctor. 

          The non identification of the right fallopian tube was found to be  one of the main reason for the failure of  tubectomy operation in the case in hand, though other  possibilities to certain extent cannot be rule out.DW1/Doctor in his cross examination deposed thus: ‘tube identify sN¿m³ [mcm-fT methods D­v.Hm¸-td\p ap³]v Fallopian tube identify sNt¿-­-Xmb Bh-i-y-anÔ. It shows there are several methods to find out the fallopian tube. He has also deposed that there is no need to identify the fallopian tube before the operation. 1^st opposite party has no case that the impossibility of identification of fallopian tube is an accepted complication. Since there are several methods to identify the fallopian tube opposite parties are bound to explain what all methods had been applied in this case to identify the right Fallopian tube? Except contending that right fallopian tube could not be identified in spite of prolonged efforts because of dense adhesion, nothing more has explained. It is pertinent to note that DW1/Docotr is of opinion that there is no need to identify the fallopian tube before the operation. The indication is that it is not a matter of complication. The previous operations were also done by the same doctor. If there was any possibility of trouble in the case of identification enough precautions has to be taken sufficiently earlier,  before operation  since the same is possible. His/Doctor’s own evidence goes to show that “operation-\v ap¼v ultra sound scanning \S-¯n-bm tube Dt­m F¶p And-bm³ km[-y-X-bp­v”. That means it can be ascertained if necessary before the operation itself. He has avoided it only because he is of opinion that there is no need to identify it before operation. When the particular question put to his mouth DW1 answered thus: “Fallopian tube identify sN¿m³ Hm¸-td-j-\p-ap¼v {iaT  \S-¯m-Xn-cp-¶Xp B-b-Xnsâ Bh-i-yT CÃm-¯-Xn-\m-emWv. That does not mean identifications is not necessary but it is possible to identify during operation so that it is not required to identify before operation. If any doubt exist with respect to identification while operation, there is no doubt a prudent doctor would take steps to identify it sufficiently earlier to safeguard the certainity since the identification is admittedly possible before operation by ultra sound scanning. Identification in any way is a ‘must’ without which the operation is not possible. Herein the operation could not be done since the identification was not done. Though it was very well possible by applying different methods. Hence it is quite evident that deficiency in service on the part of 1^st opposite party is responsible for not utilizing the possibilities of certainty of identification of Fallopian Tube. We are of opinion that this itself is sufficient to cast deficiency in service on the part of opposite party in failure of the operation. It is true that the physician would not Assure the patient of  full recovery in every case. But the question arose  is whether or not 1^st opposite party/doctor has exercised the skill which he did  possess with reasonable competence in the given case in hand. It has come out in evidence that there are various ways by which the Fallopian Tubes can very well be identified. What is the reason for not taking initiative to identify the Fallopian Tube before the operation? The explanation is nothing but it is not necessary. If it is not necessary there should not be hurdle because of the same for the smooth conducting of operation. The reason for not identifying, right fallopian Tube during operation was due to dense adhesion. The reason for adhesion suspected was due to additions on Fallopian Tube. 1^st opposite party has similar experience in some other case. Even if 1^st opposite party had occasion to experience the same phenomenon he did not exercise reasonable skill which he did possess in order to make assure the identification of Fallopian Tube for the successful completion of the  operation. The alleged operation for the cyst was also conducted by 1^st opposite party himself. He could have identified Fallopian tube by various methods which he himself deposed during the course of cross examination. The non conducting of any of such methods so as to identify the  fallopian tube before the operation evidently reveals that he did not exercise reasonable degree of care and caution in  the case in hand though he was well aware of the previous history of the patient. If fallopian Tube could be identified before operation the entire picture would have been different. That part of the omission on the side of 1^st opposite party contributes to negligence that amounts to deficiency in service.

          Naturally there arose other questions with respect to the explanations of  pros and cons of tubectomy information regarding precautions to be taken in the light of non conducting tubectomy  to right  fallopian tube etc. requires evidence. Ext.B1 is the document upon which opposite party build up his contention.DW1/Doctor adduced evidence that except the top lines of first page of Ext. B1 the rest of the portion had been written by him. It can be taken that he meant first two pages and last sheet of doctor’s order. Other sheets  seemed written by some body else. Anyhow the case sheet does not show recorded that the pros and cons of tubal sterilization was explained to the patient. It is also not seen any advise to take contraceptive measures. The possibility of non identification or the methods adopted to find out the fallopian tube also had not been recorded. Admittedly the patient was attended by 1^st opposite party in her first delivery. So also the patient underwent a laprotomy for excision of the right sided ovarian cyst by him just prior to the first delivery. The evidence reveals that subsequently she had a full term normal delivery Anyhow if any doubt or possibility of stickness was there as a result or consequence of previous treatment the same would have been seen recorded in the case history of patient in the case sheet. The known history likely to effect or influence the existing treatment it is expected to be recorded in the usual course in the case sheet. The case sheet is seen even not numbered serially. Considering the entirety Ext.B1 cannot be taken as dependable document in its full sense to prove the contentions of opposite parties. DW1 in his cross examination deposed that “ Cu patient\p overtomy operation CXn\p ap¼v \S-¯n-bXp Rm\m-b-n-cp-¶p. .PPS operation\p ap¼v overtomy  operation \S-¯nb Imc-yT F\n-¡-dn-bm-am-bn-cp-¶p. ap¼v overtony operation Ignª  Nne tIÊp-I-fn  fallopian tubesâ apI-fn additions D­m-Im³ CS-bp-­v. Herein 1^st opposite party has clearly suspect that there is possibility of additions on fallopian tube. If that be so precautions should have been taken to identify Fallopian Tube before operation.

          The 1^st opposite party/doctor has the case that he had not assured the complainants that sterilization operation would give  full proof protection from pregnancy and no doctor could give such assurance in case of female sterilizing. It has to be taken into account that as pointed out by the opposite party that the failure of sterilization is an accepted complication described standard text books of Obstetrics and Gynecologist and it is a well known fact that there is Universal failure rate of 0.2% to 0.4%. So it can be assumed that a gynecologist in ordinary course would not give 100% guaranty of sterilization operation. It is not possible to assume, in the present case that the doctor consciously mislead the complainants by giving full assurance of protection, on analyzing the available evidence.

          Moreover, it is a fact that the right fallopian tube has not been subjected to tubectomy whatever may be the reason. It is  quite natural that a doctor under such situation would definitely intimate the same to patient at the earliest one way or the other. May be to relatives immediately. There is no need to hide this fact to the complainants. Opposite party contended that the first and second complainants and their relatives were informed of the fact that tubectomy was not done on the right fallopian tube and the sterility of the patient could not be assured. He has also case that the same was clearly mentioned in the case sheet. 1^st opposite party also contended that the patient was discharged on 19.1.02 with the advise to do a hysteri-salpingogram after three months to assess the potency of the tubes. Admittedly the patient was discharged on 19.1.02. When treating doctor says that advice was given to patient to do a hysteri-salpingogram at the time of discharge there is no need to disbelieve the doctor, in the normal course.

          In every case at the time of discharge every patient will be given discharge summary, which usually contain the guidance for the further treatment. In the present case if any advice given to do a hysteri-salpingogram it would definitely find place in discharge summary if it was issued. But that document which carries high evidentiary value as far as this case is concerned, unfortunately missing before this Forum, one or the other reason. Whether opposite party has issued discharge summary or not is a question which is not proved. Complainants’ case is that she has produced all the documents issued by Central Hospital.

          Ext.A11 is the copy of legal notice sent by complaint to 1^st  and 2^nd opposite party. Both parties received the notice. But 2^nd opposite party did not sent any reply. 1^st opposite party sent reply/ Ext.A12 for name sake by  mere denial stating that detailed reply will be sent to him in a month time. No reply sent thereafter. If the contention taken by the opposite parties are true they need not hesitate to give reply to the allegations of complainant. Non reply of legal notice necessitates the need of confirming each and every point only in the light of supporting evidence. There is no evidence on record to show that discharge summary was issued to complainant. So what all details would have been contained in it, is not a mater to be discussed and decide. No document shows that the complainant was explained the pros and cons of sterilization and risk of its failure. It also cannot be accepted without subject to ascertaining whether or not the discharge summary was issued that the complainant was advised to do hystero-salpingogram. Opposite parties had not raised the case that they have issued discharge summary to complainant at the time of discharge, though a question to that effect put to the mouth of PW1 during cross examination. The examination of DW1 did not contribute much so as to establish the contentions of opposite parties.

          The evidence of DW2 shows that there are several methods to identify fallopian tube before opening the abdomen. He deposes that “ultra sound scan, MRI Scan F.-¶n-§s\  ]e amÀ¤-§-fp­v Colored liquid pump sNbvXpT a\-Ên-em-¡mT”.So it is  quite evident that, enough precautions had not been taken so as to make assure that there will not be problem for identification of fallopian tube, especially in the light of the fact that opposite parties are of opinion that there is possibility for additions on fallopian tube which would evade problem for identification, without which pomeroy’s  technique of sterilization is not at all possible. This negligence on the part of 1^st  opposite party cannot be justified on the ground of 0.2% to 0.4% universal failure rate. The question of identification of fallopian tube cannot be connected with this. That of course, remains as negligence with all the exceptions, within the given circumstances.

          Learned counsel for the complainant very much relied up on the Supreme court decision I(2000)CPJ53(SC) in state of Haryana & Ors. Vs. Smt.Santra herein Doctor held responsible in damages since sterilization operation performed by him was not successful. The facts of the case in hand are almost similar to that of the above stated case. In the above cited case the operation done only to the right Fallopian Tube and left Fallopian tube was not touched where as in the case of complainant in hand left Fallopian Tube was operated leaving right Fallopian tube untouched. The trial court as also the lower Appellate Court  recorded concurrent findings of fact that the sterilization operation performed upon  Smt.Santra was not ‘complete’ as in that operation only the right Fallopian tube was operated upon while the left Tube was left untouched. The courts were of opinion that this exhibited negligence on the part of Medical officer who performed the operation.

          Having regard to elaborate discussion referring several leading decisions Hon’ble S.C hold the view positively that in a country where the population is increasing by the tick of every second on the clock and the government had taken up the family planning as an important programme for the implementation of which it had created mass awakening for the use of various devices including sterilization operation, the doctor - must be held responsible for damges if the sterilization, operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated for sterilization.

          The above view of the Hon’ble Supreme Court is aptly applicable to the present case in hand. What is after all happened in this matter? The sterilization operation performed by  1^st opposite party/doctor happened to be in failure on account of his negligence which  resulted in  another birth in family  creating additional economic  burden on person who had chosen to be operated up on for sterilization. The question of identification in the case in hand could have been totally avoided if an attempt was done to identify the same before the operation itself. Hence there is nothing wrong in concluding that the non identification of Fallopian Tube is absolutely as a result of negligence on the part of 1^st opposite party.

          In the light of the above explanation we find that 1^st opposite party has committed negligence which amounts to deficiency in service.  On consideration of the entirety of the case we are of opinion that an amount of  `1 lakh as compensation will meet the end of justice. Thus issues 1 to 3 are found in favour of complainants. Order passed accordingly.

          In the result, the complaint is allowed partly directing the 1^st opposite party to pay an amount of  `1,00,000 (Rupees One Lakh only) as compensation together with a sum of  `1000 (Rupees One thousand only) as cost of this litigation to the complainants within one month from the date of receipt of this order, failing which the complainant is entitled for 12% interest p.a from the date of filing the complaint  till realization of amount. Complainant is at liberty to execute the order as per the provisions of consumer protection Act.

Sd/- President              Sd/- Member

                                      APPENDIX

Exhibits for the Complainant

A1 & A3.Prescription issued by the  1^st OP.

A2, A4 to A6.Dischrge card issued from Josgiri Hospital,Thalassery.

A7.Clinical history and investigation card issued from central

      Hospital,Thalasery.

A8.Copy of the scan report issued from Puduval diagnostic centre

A9.Pregnancy test report

A10.Discharge slip issued from Govt. maternity Hospital Pondicherry.

A11.Copy of the lawyer notice sent to OP

A12.Reply issued by OP1

Exhibits for the opposite party:

B1.Case sheet issued maintained by 2^nd OP’s Hospital

Witness examined for the complainant

PW1.1^st complainant

Witness examined for the opposite parties

DW1. Dr.Venugopal.P.R.

DW2.Dr.E.V.Azeez

                                                  / forwarded by order/

                                                                                                                                           Senior Superintendent