PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding the deficiency in service on the part of the Opposite Party No.1 as it performed the operation on the Complainant for sterilization but it was proved to be failure and Complainant got conceived inspite of the sterilization operation performed by Opposite Party No.1 on the Complainant. The Opposite Party No.2 is the Municipal Corporation which runs the Opposite Party No.1 hospital.
2) The facts of the case are that the Complainant was facing financial problems and hence, she decided to undergo family planning operation (sterilization operation) so that she cannot give birth to any child. The Opposite Party No.1 conducted a tubectomy operation on the Complainant but it was failure because of the negligence of Opposite Party No.1 and the Complainant became pregnant inspite of the family planning operation done by Opposite Party No.1 (In para 1 to 3 the Complainant has failed to mention when the tubectomy was performed and when she got pregnant). The Complainant has further submitted that Opposite Party No.2 being the governing body of Opposite Party No.1, it is also responsible for the mistake and errors committed by Opposite Party No.1. Thus, Opposite Party No.1 & 2 are liable for the act of the medical officers who performed the tubectomy operation on the Complainant.
3) In para a) of the complaint the Complainant has stated that she is a regular patient of the Opposite Party No.1 taking Gynecological treatment. On 30/06/03 the Complainant being pregnant, she was admitted for delivery of child in Opposite Party No.1 hospital. Before that she paid the requisite charges for the treatment. On 01/07/03 she delivered a male child. On the same day i.e. on 01/07/03 she was advised for family planning operation (tubectomy). Accordingly she was operated. This operation is called as a tubal ligation (tubectomy).
4) The Complainant has further alleged that no care was taken by the hospital and the behavior was careless. The services given by Opposite Party No.1 were below the standard. The Complainant does not mention whose behavior was careless. It is also mentioned that the duty of the doctor is to provide services as demanded by the patient.
5) In para 9 of the complaint it is averred by the Complainant that in the month of August, she was again pregnant. Presently the Complainant is pregnant since 8 months and may deliver the child in next month. Thus, due to the mistake of Opposite Parties they have caused extra burden of a child for its bringing up in future. The Opposite Parties have committed negligence as they did not take proper care and the tubectomy operation was a failure as the Complainant again became pregnant inspite of the family planning operation performed on the Complainant.
6) The Complainant has assured that the Opposite Party No.1 has committed the following deficiency in its service.
a) Opposite Party No.1 has assured the Complainant that there would not be a birth of a child after the tubectomy operation, but the Complainant became pregnant after tubectomy.
b) Giving inferior quality of service by performing negligent operation.
c) Not attending the Complainant after she became pregnant after the tubectomy.
d) Indifferent, callous attitude towards the Complainant and rude behavior.
e) Giving excuses for the pregnancy after the operation.
f) Compelling the Complainant to incur expenses in taking services.
g) Compelling the Complainant to bring up the child.
7) Finally the Complainant has prayed for the relief as a compensation of Rs.11 Lacs for providing deficient service and again prayed for the following reliefs.
a) Opposite Party No.1 & 2 be directed to bear all expenses for bringing up the child which will be born in next month.
b) Rs.10 Lacs compensation from Opposite Party No.1 for its negligence with 21 % interest.
c) Compensation of Rs.50,000/- from the Opposite Party No.2 for mental agony caused to the Complainant.
d) Rs.50,000/- compensation for deficiency in service rendered by both the Opposite Parties, etc.
8) The Complainant has attached the xerox copies of the following documents to her complaint.
a) Medical case papers dtd.04/07/03, of Opposite Party No.1. follow up card mentioning date of admission as 30/06/03 and date of discharge on 13/07/03, papers regarding tubal ligation medical papers dtd.09/06/03, 16/06/03, 23/06/03, Report of Biochemical investigation dtd.02/06/03, medical paper dtd.06/05/03, 19/05/03 and 02/06/03, 20/07/03, Receipt of Rs.100 dtd.07/03/03. Confidential report dtd.20/01/03, medical report dtd.07/03/03, 20/07/03, x-ray request form dtd.07/03/03.
9) The complaint was admitted and notices were served on the Opposite Parties. The Opposite Parties appeared before this Forum through their advocate and submitted their joint written statement in which they denied all the allegations mentioned in the complaint and specifically stated that the Opposite Party has provided free treatment to the patient and do not charge for their services. The Complainant was also treated free of cost and therefore, the Complainant is not a consumer under the provisions of Consumer Protection Act, 1986.
10) The Opposite Parties have further submitted that the doctors of the Opposite Party No.1 have treated the Complainant with due care and caution. There is no negligence on the part of Opposite Parties.
11) The Opposite Parties have specifically admitted that the Complainant was admitted in the Opposite Party No.1 hospital for delivery of a child on 30/06/03. The Complainant gave birth to a male child. Delivery was done by caesarean section. On 01/07/03, tubectomy was performed on the Complainant. (The Complainant was admitted on 30/06/03 and was discharged on 13/07/03). The Complainant and her husband were willing for tubal legation at the same time (of delivery of the child). After uterine closure, bilateral tubal ligation was done by Pomeroy’s method. Recovery was uneventful. Sutures were removed on 12/07/03 and Complainant was discharged on 13/07/03. She was asked to follow up after 15 days.
12) The Opposite Parties have further submitted that, the consent of the Complainant and her husband was obtained by the Opposite Parties. The Opposite Parties have categorically submitted that, the Complainant has never came to the Hospital or Health Centre when she missed her period and became pregnant and this negligence on the part of the Complainant has caused the Complainant to become pregnant. The Opposite Parties have further submitted that sterilization operations are known to fail in certain percentage (0.4) %.
13) The Opposite Parties have further explained that the sterilization operation was performed by pomeroys technic which is a standard method. The Opposite Parties have also denied that there was any irresponsible behavior of medical experts of the Opposite Parties. The Opposite Parties have further averred that the Complainant had read, understood and signed the Consent Form in Devnagari Script which states that she understands that sterilization operation can fail and she will not hold the doctor and Government or Opposite Parties responsible for it and that she will go to the health centre for examination if she misses the period or become pregnant again. The Complainant is not illiterate as she had signed in Devnagari Script, she has made knowledgeable statement about India’s various problems. She has read the compliant document and verified its contents.
14) It is also submitted by the Opposite Parties that the Complainant has not attended the Opposite Parties Hospital for advice and treatment after getting pregnant and after the sterilization operation.
15) It is further submitted that, there was no any instance of indifferent and rude behavior and callous attitude towards the Complainant. Therefore, the allegations made in this behalf are baseless and without any proof. The allegations are vague and misleading.
16) It was also submitted that the complaint is barred by law of limitation. Finally the Opposite Parties have submitted that this compliant be dismissed with cost. The Opposite Parties have also attached the indoor case papers of the Complainant page 1 to 34 dtd.04/07/03, 30/06/03, consent dtd.30/06/03 singed by the Complainant and her husband, Indoor paper dtd.30/06/03 to 13/07/03, Receipt No.985613 dtd.03/07/03 Receipt for 500 Rs., literature – Practice of Fertility Control, Examination Report dtd.10/07/03 of Dr. M.J. Agnihotri.
17) Thereafter the Complainant and the Opposite Parties submitted their written argument wherein they reiterated the facts mentioned in the complaint and the written statement respectively.
18) We heard the Ld.Advocate for the Complainant. Opposite Party No.1 & 2 remained absent at the time of the oral argument. We perused all the documents produced by all the parties and our findings are as follows -
19) The Complainant has availed the services of the Opposite Party No.1 and the doctors of the Opposite Party hospital had performed the sterilization operation (tubectomy) on the Complainant, at the time of her second delivery i.e. on 01/07/03 when she delivered a male child at the Opposite Party No.1 hospital. Though the Complainant was not mentioned clearly as to when she was conceived and got pregnant, it appears from the entire complaint that she might have been conceived in the June, 2006. As per the averment only she was 3 months pregnant in the month of August. She has suppressed to mention the year in which she was conceived. But from the words used in the complaint it appears that she became pregnant in the month of June, 2006.
20) It is also on record that the Complainant had paid Rs.500/- to the Opposite Party No.1 hospital on 03/07/03 vides Receipt No.985613. Therefore, the contention of the Opposite Parties that the treatment was given free of charge does not hold water. Consequently the Complainant is a consumer within the meaning of Sec. 2(1)(d) of the Consumer Protection Act, 1986.
21) However, we carefully scrutinized all papers submitted by the Complainant as well as Opposite Party No.1 & 2 but we cannot find any documents to show that the Complainant was pregnant. It is the only bare averment in the complaint and the written argument of the Complainant that she became pregnant after the tubecotmy operation performed on her in 01/07/03.
22) The Complainant herself has singed the consent from alongwith her husband at the time of tubectomy operation. In this form the Complainant and her husband has consented the following statement at clause 1 of the consent form.
(2) ‘ही संतती प्रतिबंधक निर्बीजीकर VT शस्त्रक्रिया क्वचित प्रसंगी असफल होऊन गर्भधारणा होऊ शकते. हे मला माहीत आहे व त्यासाठी शासन/रुग्णालय संतती प्रतिबंधक निर्बीजीकरणाची शस्त्रक्रिया करणारे वैद्यकीय अधिकारी यांना मी किंवा माझे नातेवाईक किंवा अन्य कोणतीही व्यक्ती, जबाबदार धरणार नाही. अशी गर्भधारणा झाल्यास मला/माझ्या पत्नीचा वैद्यकीय गर्भपात करुन घेता येतो याची मला माहीती आहे/माहिती दिली आहे. असफल शस्त्रक्रियेमुळे उदभवणा-या परिणामांसाठी शासनास जबाबदार धरणार नाही.
(3) संतती होऊ नये याकरीता वापरात असणा-या अन्य पध्दतीची मला माहिती आहे.
(4) या शस्त्रक्रियेमध्ये किंवा त्यानंतर संभाव्य धोक्याची मला जाणीव आहे.
(5) या शस्त्रक्रियेकरीता पात्र असणा-या बाबतचे नियम मला समजाऊन सांगण्यात आले असून त्यानुसार मी ही शस्त्रक्रिया करुन घेण्यास संपूर्णपणे पात्र आहे.
6) शस्त्रक्रियेनंतर मासिकपाळी चुकल्यास 15 दिवसांत जवळच्या दवाखान्यात/प्राथमिक आरोग्य केंद्रात तपासणी करुन घेण्यात येईल.’
In view of the above consent from the Complainant cannot hold the Opposite Parties responsible for the unsuccessful operation of family planning performed on her.
23) Therefore, in view of the observations mentioned in para 21 and 22 above we find no merit in this complaint. Hence, we pass the following order -
O R D E R
i) Complaint No.25/2007 is hereby dismissed with no order as to cost.
ii) Copy of this order be furnished to both the parties.
