IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 26th day of April, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.161/2010 (Filed on 20.11.2010)
Between:
Rashida Beevi,
Vattakkavu Leksham Veedu,
Mangaram, Konni.
(By Adv. Sony. P. Bhaskar) …. Complainant
And:
1. Managing Director,
Dr. R. Radhakrishnan Nair,
Peoples Clinic & Hospital,
Pathanamthitta.
(By Adv. P.N. Narendranathan Nair)
2. Dr. Valsa Sathyan,
Gynaecologist,
-do. –do.
(By Adv. P.K. Mathew) …. Opposite parties
O R D E R
Smt. K.P. Padmasree (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The case of the complainant in brief is as follows: 1st opposite party is the Managing Director of Peoples Clinic & Hospital and 2nd opposite party is the Gynaecologist attached to that hospital. Complainant approached the 1st opposite party hospital for antenatal check-up at the time of her pregnancy. On 04.06.2009, a female child was born to her at the opposite party hospital under the treatment of 2nd opposite party. On that day itself, she had undergone sterilization operation which was performed by the 2nd opposite party. She was discharged on 12.06.2009. While so, recently complainant felt some physical discomfort and she visited Chitra Hospital, Pandalam for check up and on examination she was found to be 1½ months pregnant. Complainant’s allegation is that the subsequent pregnancy is due to the fault in the operation and treatment done in the opposite party hospital in connection with the sterilization. The matters about the pregnancy was informed to the opposite parties but they evaded by saying lame excuses. The act of the opposite parties caused physical and mental agony to the complainant and it is a clear deficiency in service on the part of the opposite parties. Hence this complaint for the realization of ` 1 lakh as compensation along with cost.
3. The 1st and 2nd opposite parties entered appearance and filed separate versions with common contentions.
4. The opposite parties contented that complaint is not maintainable either in law or on facts. They admit that complainant is the patient of their hospital at the pregnancy period and after her delivery she had undergone sterilization operation in their hospital. But there is no negligence or deficiency of service on their part as alleged. Before the operation, 2nd opposite party explained the complainant and her husband about the sterilization by tubal ligation and its inherent chances of failure involved in it. They were also informed that no method of sterilization procedure is absolutely reliable and every such procedure carries some inherent risk of failure irrespective of the method adopted for the sterilization operation. It was after fully understanding the facts of risk disclosed to them by the 2nd opposite party, the complainant and her husband voluntarily agreed to undergo the same and signed the written informed consent. These aspects are not disclosed by the complainant in her complaint purposely for filing the complaint against the opposite party. There is thus lack of bonafides on the part of the complainant. The method adopted for sterilization is Modified Pomeroy’s Technique which is a universally accepted procedure for sterilization which was done with all aseptic care and precaution. The subsequent pregnancy was not due to any fault in conducting the operation. But it could be because of an ovum gaining access through a recanalised inner segment of the tube or due to the formation of tuboperitoneal fistula which was also informed to the complainant. 2nd opposite party advised the complainant to undergo MTP and resterilisation. But she was not willing for the same and was desirous to continue the pregnancy as she was very much interested in giving birth to a male child. As the complainant didn’t opt for MTP and sterilization, her pregnancy was not unwanted one and she is therefore not entitled to claim compensation. The allegation that the subsequent pregnancy has occurred due to the fault in the operation and treatment done in the hospital of the 1st opposite party is false. There was no fault or failure on the part of the 2nd opposite party. 2nd opposite party is covered by the professional protection scheme of IMA. Therefore if it is found that the complainant is entitled to get compensation, IMA is liable to pay the same. Therefore the IMA is a necessary party. So there is non-joinder of necessary party. Hence the opposite parties are not liable to the complainant and they prayed for the dismissal of the complaint with their cost.
5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
6. The evidence of this complaint consists of the oral testimony of PW1, DW1 and Exts.A1 and A2 series and B1. After closure of evidence, both sides filed their argument notes and they were heard.
7. The Point:- The complainant’s allegation is that she had undergone treatment in 1st opposite party hospital related to her pregnancy and on delivery, she delivered a female baby on 04.06.2009 and on that day she had also undergone a sterilization operation. Following to other physical discomfort she approached Chitra Hospital, Pandalam and on examination she came to understand as having pregnancy for 1½ months. Due to the subsequent unwanted pregnancy complainant suffered a lot of mental and physical agony. The pregnancy is due to the negligent treatment of the opposite parties. Hence opposite parties are liable to the complainant for the same.
8. In order to prove the complainant’s case, complainant filed proof affidavit in lieu of her chief examination along with 1 document. Thereafter, as per the order in IA.172/11 1st opposite party produced 4 documents. On the basis of the proof affidavit, the complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A2(c). Ext.A1 is the photocopy of medical certificate issued by the opposite parties. Ext.A2 is the case sheet of the complaint dated 03.06.2009. Ext.A2(a) is the case sheet of complainant dated 18.07.2009. Ext.A2(b) is the case sheet of the complainant dated 28.04.2009. Ext.A2(c) is the case sheet of the complainant dated 9.01.2009, 11.03.2009 & 27.10.2010.
9. On the other hand, the contention of the opposite party is that the complainant had her regular oriental check-up with the 1st opposite party hospital. The complainant was admitted to the first opposite party hospital for safe confinement on 03.06.2009 and posted for lower segment ceasarean section on 04.06.2009. On the request of the complainant and her husband 2nd opposite party conducted sterilization operation along with lower segment ceasarean. Before the operation, 2nd opposite party informed the complainant and her husband about the pros and cons of sterilization by tubal ligation and its inherent chance of failure amounting to a rate of 0.2% to 0.4% involved in it. After fully conversant with all these facts they voluntarily agreed to it and signed the consent. In the sterilization operation of the complainant, the opposite parties had exercised all reasonable degree of skill and care. Since the alleged pregnancy had only 1½ months history, complainant was advised for MTP, but she is not willing for the same. Therefore, there was no negligence or deficiency in service on their part and hence the complainant is not entitled to get any benefits from the opposite parties.
10. In order to prove the contentions of the opposite party, the 2nd opposite party filed proof affidavit in lieu of her chief examination. On the basis of the proof affidavit the 2nd opposite party was examined as DW1. The document produced by the 1st opposite party was marked as Ext.B1. Ext.B1 is the informed consent for operation, signed by the complainant and her husband.
11. The allegation of the complainant is that due to the negligence of the 2nd opposite party the sterilization done to the complainant was failed which resulted in an unwanted pregnancy to the complainant. The contention of the opposite party is that they have not committed any negligence in the sterilization and this procedure was carried out after explaining the pros and cons and after obtaining informed consent from the complainant and her husband. Their further contention is that chance of failure is medically accepted and the complainant neglected the advice of the opposite party for MTP as the pregnancy is having a history of only six weeks. They also contented that due to the sterilization procedure, the complainant has not sustained any other complications other than the pregnancy.
12. In the light of the contentions of the parties, we have gone through the deposition of PW1 and exhibits marked in this case. Ext.A1 and A2 series marked from the side of the complainant didn’t establish any negligence against the opposite parties. In the deposition of PW1 she admits the execution of B1 and as per Ext.B1 she had given the consent for sterilization after fully understanding the chances of the failure of the said procedure. After executing such a document and in view of the fact that the chances of failure in sterilization is medically accepted, which is not disproved by the complainant and in view of the attitude of the complainant against the advise of medical termination of pregnancy, the complainant cannot be justified in raising such an allegation against the opposite parties. In view of the decision of Hon’ble Supreme Court in State of Punjab Vs. Sivaram reported in 2005 (4) KLT669 (SC) also this complaint is not allowable as there is no other complications proved other than the pregnancy to the complainant due to the sterilization done by the 2nd opposite party. Hence we cannot find any deficiency or negligence from the part of the opposite parties and hence this complaint is not allowable.
13. In the result, this complaint is dismissed. No cost.
Declared in the Open Forum on this the 26th day of April, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Rashida
Exhibits marked on the side of the complainant:
A1 : Photocopy of medical certificate dated 27.10.2010 issued by the
opposite parties in the name of the complainant.
A2 : Case sheet of complainant dated 03.06.2009.
A2(a) : Case sheet of complainant dated 18.07.2009.
A2(b) : Case sheet of complainant dated 28.04.2009.
A2(c) : Case sheet of the complainant dated 9.01.2009,11.03.2009 &
27.10.2010.
Witness examined on the side of the opposite parties:
DW1 : Dr. Valsa Sathyan
Exhibits marked on the side of the opposite parties:
B1 : Authorization for Anesthesia, Operation etc issued to the opposite
party.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Rashida Beevi, Vattakkavu Leksham Veedu,
Mangaram, Konni.
(2) Managing Director, Dr. R. Radhakrishnan Nair,
Peoples Clinic & Hospital, Pathanamthitta.
(3) Dr. Valsa Sathyan, Gynaecologist, -do. –do.
(4) The Stock File.
