STATE CONSUMER DISPUTE REDRESSAL COMMISSION

BIHAR, PATNA

Appeal No. 533 of 2009

1.  Dr. (Mrs.) Bharti Tiwary, W/o- Dr. Bibhuti Tiwari, the then Associate Professor, Deptt. of Obstetrics and Gynaecology, S.K. Medical College & Hospital, Muzaffarpur at present engaged at Krishnadevi Deviprasad Kejriwal Maternity Hospital, Juran Chapra, Road no. 2, District/Town/- Muzaffarpur

                                                                                                                                           … Opposite Party no. 1/Appellant

2.  The Administrator, Krishnadevi Deviprasad Kejriwal Maternity Hospital, Juran Chapra, Road no. 2, District/Town- Muzaffarpur

                                                                                                                                           … Opposite Party no. 2/Appellant

Versus

Jay Kishore Singh, Husband of Sunita Devi and son of Sri Jagannath Singh, Resident of Village- Gharwara, PO- Gharwara, PS- Majorganj, District- Sitamarhi

                                                                                                                                                  ….  Complainant/Respondent

Counsel for the appellant: Adv. Prakash Kumar

Counsel for the respondent: Adv. Ajay Kumar Singh & Adv. D.K. Sriavastava

Before,

Hon’ble Mr. Justice Sanjay Kumar, President

Mr. Ram Prawesh Das, Member

Dated 05.04.2023

As per Sanjay Kumar, President.

O r d e r

Present appeal has been filed by the appellant/opposite party for setting aside the order dated 22.10.2009 passed by District Consumer Disputes Redressal Forum, Muzaffarpur in Consumer Complaint case no. 25 of 2001 whereby and whereunder the Ld. District Forum has granted compensation of Rs. 2,00,000/- (two lacs) in favour of complainant to be paid by appellant/O.P on ground of medical negligence.

Briefly stated the facts of the case is that on 15.05.1990 the wife of complainant namely Sunita Devi came to the O.P. no. 1 with complaint of complication in pregnancy upon which O.P. no. 1 examined her and advised for medical termination of pregnancy and she was advised for pregnancy test and test was conducted by diagnostic laboratory confirming pregnancy.

Sunita Devi also was also willing for sterilization and after proper examination, O.P. no. 1 advised for MTP with Tube ligation and she was admitted by O.P. no. 2 on 23.05.1990 and was operated for tube ligation through conventional method and was discharged on 30.05.1990. Opposite party no. 2 charged Rs. 750/- for MTP with tube ligation including Anaesthesia and other charges.

Complainant and his patient wife was made aware about chances of tube ligation being unsuccessful.

After about 10 years of sterilization operation Sunita Devi along with her husband came to O.P. no. 1 on 14.11.2000 for medical checkup of pregnancy along with pathological reports and treatment made by other doctors and on examination of pathological report and medical prescription, O.P. no. 1  found that Sunita Devi was carrying  pregnancy of about 8 months and advised medicines and to consult after 1 month.  She gave birth to a child on 16.12.2000 in KDMK Hospital (O.P. no. 2) and total expenses charged was Rs. 530/- and Patient (Sunita Devi) was discharged.

Complainant filed a complaint case no. 25 of 2001 before the Ld. District Consumer Forum, Muzaffarpur for grant of compensation of Rs. 5,00,000/- due to medical negligency of O.P. no. 1 & 2.

Notices were issued to opposite party no. 1 and 2 and they appeared and filed their written statement denying any medical negligence on their part. It was contended that there are several methods of female sterilization, in case of conventional bilateral tube ligation there is chances of recanalization  and the tube ligation may fail.

Expert opinion was called for by the District Consumer Forum from Civil surgeon cum chief Medical officer Muzaffarpur and entire documents were send to him who constituted a Medical Board which comprised of CMO cum CS, M.O. Sadar Hospital and a M.O. (Female) Sadar Hospital with respect to allegation of Medical negligence of O.P. no. 1.

The medical board gave their opinion dated 20.05.2006 that in conventional bilateral tubal ligation, a failure rate of 02-3% is reported. It is not a case of negligence on part of surgeon.

After hearing the parties and considering the material available on record the District Consumer Forum allowed the case of complainant and directed O.P. no. 1 to pay total compensation amount of Rs. 2,00,000/- for medical negligence and deficiency in service

Aggrieved by judgment and order dated 22.10.2009 Passed by District Consumer Forum, Muzaffarpur opposite party 1 and 2 have preferred this appeal before the State Commission.

Appellant /Opposite parties have denied any negligence while performing the sterilization operation.

It is submitted on behalf of counsels for the appellants that District Consumer Forum has erroneously ignored the expert opinion given by the medical professionals that there is probability of ligation failure to the extent of 2-3% and there was no negligence on part of doctor while performing sterilization operation.

The District Consumer Forum has wrongly relied upon the judgment of Apex Court in case of “State of Haryana Vs. Smt. Santra” where the tube ligation was not bilateral as such said case was  not applicable in facts and circumstances of present case where tube ligation has been done through conventional method.

Apex Court in subsequent decision in case of Shiv Ram since reported in 2006(1) CPR 128 vide paragraph no. 25 has distinguished the case of Santra and has held that in case of conventional bilateral tube ligation there is chance of recanalization and the tube ligation may fail. In Santra case operation was not complete. The right fallopian tube was operated upon and the left fallopian tube was left untouched. Even the doctor admitted her negligence. There is no such allegation in present case.

 Counsel for the appellant has relied upon two judgments passed by Delhi High Court and one judgment passed by State Consumer Commission, Delhi in cases of Smt. Madhubala Vs. Govt. of Nct of Delhi Anr Ors. Reported in 118 (2005) DLT 515, 2005(82) DRJ 92, Lok Nayak Hospital Vs. Prema decided on 6 August, 2018 & Sunita Kumar & Anr. Vs. St. Stephen Hospital on 8 May, 2019.

It is submitted on behalf of complainant/respondent that the very fact that complainant conceived even after having gone through sterilization was sufficient enough to establish negligence on part of operating surgeon and hospital. Principle of res ipsa liquiter is applicable and it is for the opposite parties to establish that there was no negligence and deficiency in service.

Heard the parties, and considered the materials available on record as well as order passed by the District Consumer Forum as impugned in this appeal.  

The onus to prove Medical negligence lies largely on the claimant and that this onus can be discharged by leading cogent evidence mere conception and delivery post sterilization is no indication of negligence.

Even after surgery there is chances of failure and for such failure neither the operating surgeon nor the hospital can be held responsible. All sterilization operation has definite failure rate. Even where sterilization surgery is performed by best of doctors, the risk of post sterilization delivery remains. In Martin F.D’ Souza Vs. Mohd. Ishaque since reported in 2009 (3) SCC it has been held that simply because a surgeon has failed, he/she can not be held liable for medical negligence.

There is no allegation that doctor fell short in taking reasonable and due care while performing the sterilization operation resulting in deficiency in operation. Doctor can be held liable for on one of the two findings either he was not possessed of the requisite skill and even if he possessed requisite skill he did not exercise reasonable competence and skill in a given case. There is no such allegation in present case. The doctor who performed the sterilization operation was well qualified and experienced. In the cases cited on behalf of appellant it has been held that it is not a case of res ipsa liquiter.

In the matter of negligence the only point of consideration is to examine if the treating doctor was sufficiently qualified to administer the treatment and while administering the treatment due care has been observed and accepted medical practice has been followed.

For the reasons as stated above the judgment and order dated 22.10.2009 passed by the District Consumer Commission, Muzaffarpur is not sustainable either in law or fact and is accordingly set aside.

Appeal is allowed and complaint case being Complaint Case no. 25 of 2001  filed before the District Consumer Forum, Muzaffarpur is dismissed.

(Ram Prawesh Das)                                                                          (Sanjay Kumar,J)

       Member                                                                                             President

Md. Fariduzzama