DATE OF FILING : 23.07.2014.
DATE OF S/R : 29.09.2014.
DATE OF FINAL ORDER : 07/01/2016.
Smt. Shyamali Jana,
wife of sukdeb Jana,
residing at 34/4, Nabanaritala 1st Bye Lane, Bagbere, P.S. B. Garden,
District Howrah,
PIN 10. ………... ……………………………………………………… COMPLAINANT.
1. In Charge,
Howrah District General Hospital,
Dept. of Health and Family Welfare Department,
Government of West Bengal, 10, Biplabi Haran Ghosh Sarani,
Howrah 1.
2. Dr. Subroto Samanta,
Gynecologist attached with Howrah District General Hospital,
10, Biplabi Haran Ghosh Sarani,
Howrah 1.
3. Smt. Renuka Sil,
D.N.S./ Sister in Charge/ Nursing Staff,
Howrah District General Hospital,
10, Biplabi Haren Ghosh Sarani,
Howrah 1…. ……………………………………………..…OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak .
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Smt. Shyamali Jana, against the In Charge of Howrah District General Hospital and two others, praying for an award of Rs. 15 lakhs as compensation and Rs. 4 lakhs for causing harassment and agony and Rs. 50,000/- as litigation costs.
- The case of the petitioner is that she is a poor woman and her husband has been working as a daily labourer and she had two sons who were born on 04.05.2006 and 28.04.2013. With consent of her husband, she decided to have no more children and so approached the o.ps. for causing ligation which was done on 30.04.2013 by the o.p. no. 2, Dr. Subrata Samanta in the Howrah General Hospital and she was discharged on 05.05.2013. Subsequently she became pregnant despite the ligation operation made by the o.p. no. 2 with the help of o.p. no. 3, Smt. Renuka Sil being sister in charge. She reported the matter to the o.ps. who told that the ligation was done by them properly and advised the petitioner for causing operation and they again make ligation operation. The petitioner did not agree and filed this application on the ground that the o.ps. are in collusion harassed the petitioner and so she must be compensated by them.
- The o.p. nos. 1 & 2 contested the case by filing a written version denying the allegations made against them and submitted that the case is not maintainable and also it is barred by limitation and also the petitioner is not a consumer. It is the case of the o.ps. that the petitioner, Shyamali Jana, was admitted under Dr. Subrata Samanta on 27.4.2013 and she delivered a male child on 28.4.2013. She wanted to have permanent sterilization of herself with consent of her husband. There was failure of operation for which both the hospital as well as the operating doctor cannot be held liable as she was asked to come to the hospital for follow up and she failing to do so she would be held responsible. After counseling the couple given their consent and bilateral tubectomy operation was done on 30.4.2013 under spinal anesthesia in O.T. of Howrah District Hospital by Dr. Rini Mukherjee. They also submitted before the Forum that our Supreme Court opined that failure in such operation no charge was claimed from the petitioner rather incentive money of Rs. 900/- was paid to the petitioner. Later on she attended the hospital on 15.5.2014 with the urine for BHCG Report which was positive and ultrasonography report showing here carrying fetus 25 weeks 6 days of gestation. She failed to attend the hospital within two weeks of her last menstrual period. Failure in such case is well known and such complication of sterilization operation leading to pregnancy and also there is chance of spontaneous recanalisation. In India large studies reported a failure rate of 0.2 – 1.3% following sterilization and our Supreme Court of India also opined that to detect failure leading to pregnancy at the earliest the patient be advised to report to the facility immediately after missed period. She should be offered MTP and repeat sterilization operation and should be medically supported through out the pregnancy if she so wishes. Thus the case be dismissed against the o.ps.
- The other o.p. no. 3 though served with notice did not appear and file written version and thus the case is heard ex parte against her.
5. Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the case is barred by limitation ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps.?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
6. All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of her case, the petitioner filed evidence in the form of documents which are marked exhibits. It is noticed that Dr. Subrata Samanta held the laparoscopic operation on 30.04.2013 as could be noticed from the documents filed by the complainant. This Forum heard the ld. counsel of both sides who filed the written argument. While the counsel for the petitioner submitted that in spite of laparoscopic sterilization operation she got pregnant which negligent act on the part of the doctor as well as the clinic and thus she is entitled to compensation. The counsel for the o.p. submitted that it is a case which is highly barred by limitation and also the medical literature as well as our Supreme Court categorically opined that a woman having undergone sterilization operation became pregnant and delivered a child and the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy and unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing surgery. The Supreme Court further stated that method of sterilization are most popular and prevalent and 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 became pregnant due to natural causes. Once a woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. The Supreme Court again stated that the cause of action of claiming compensation in cases of failure in sterilization operation arises only on account of negligence of the surgeon and not on account of child birth.
7. In the instant case this Forum had gone through the cases of the parties and the connected literature and judgment of our National Commission as well as Supreme Court wherein it has been specifically opined that failure in the case of sterilization operation does not amount to negligence on the part of doctor because such failure is due to natural causes and the sterilized woman could become pregnant and mother at any later stage. Here is no case that while undergoing operation and also later on the petitioner suffered due to negligent act on the part of the doctor who with due care and caution operated the patient who suffered no injury and passed very peaceful life as stated by her and simply she again got and gave birth to a child never amounted to negligence on the part of either the doctor or the clinic.
In the result, the application fails.
Court fee paid is correct.
Hence,
R D E R E D
That the C. C. Case No. 407 of 2014 ( HDF 407 of 2014 ) be dismissed on contest against o.p. nos. 1 & 2 without cost and dismissed ex parte against the rest without costs.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
