Andhra Pradesh

Chittoor-II at triputi

CC/43/2018

Varaganti Sankara Narayana, S/o Late Madhava Rau - Complainant(s)

Versus

Mathrutva Test Tube Baby Centre, Rep. by its Authorised signatory, - Opp.Party(s)

V.Hari Prasad

23 Oct 2019

ORDER

Filing Date: 25.06.2018

Order Date:23.10.2019

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE TWENTY THIRD DAY OF OCTOBER, TWO THOUSAND AND NINTEEN

 

 

 

C.C.No.43/2018

 

 

Between

 

 

1.         VARAGANTI SANKARA NARAYANA,

            S/o. Late Madhava Rao,

            Hindu, aged about 47 years,

            Advocate by profession.

 

2.         VARAGANTI VEDAVATHI,

            W/o. 1^st Complainant herein,

            Hindu, aged about 39 years,

            House Wife.

 

            Both are residing at:

 

            D.No.23/1217/1, 1st Floor,

            Sodhan Nagar,

            Nellore – 524 003.                                                               … Complainants.

 

And

 

 

Mathrutva Testtube Baby Centre,

A Unit of Max Fertility Health Care Pvt. Ltd.,

Rep. by its Authorised Signatory,

Maa Towers,

D.No.18/302-A & 3020-A1, Bhavani Nagar,

K.T.Road,

Near T.T.D. Administrative Building,

Tiruapti – 517 501                                                                           …  Opposite party.

 

 

 

 

            This complaint coming on before us for final hearing on 04.10.19 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.V.Hari Prasad, counsel for complainants, and Sri.K.Ramesh Babu, counsel for opposite party, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section–12 of C.P.Act 1986, praying for direction to the opposite party hospital, to pay a sum of Rs.20,00,000/- towards fee paid to the opposite party hospital, expenses incurred for medicines and tests conducted on them and for undergoing mental agony besides physical injury due to administering injections, with interest at 24% p.a., besides legal expenses to an extent of Rs.20,000/-

            2. The facts disclosed in the complaint are as follows:- 1^st and                     2^nd complainants are husband and wife. Opposite party is Mathrutva Test Tube Baby Centre at Tirupati. The complainants contacted opposite party hospital on 25.02.2016 for treatment regarding safe pregnancy of 2^nd complainant. At that time, they discussed with one senior consultant by name Meenakshi Jain, with regard to the treatment and to give her opinion. They told to the doctor that if there is guarantee of atleast 60% result, then only they will proceed with the treatment. The said doctor after performing necessary tests on both the complainants, assured safe pregnancy for complainant No.2, and asked them to pay the cost of the treatment, which is Rs.1,50,000/-. The hospital made them to visit several times under the guise of treatment and suggested various medicines and conducted various clinical tests on    2^nd complainant. But, no information was given to them regarding the tests conducted on her or development in the treatment. The 2^nd complainant has followed each and every word of Dr.Meenakshi Jain and took treatment up to 20.03.2018, which is the last visit. During the course of treatment, the doctor has conducted FET on                2^nd complainant on 31.08.2017 and on 09.02.2018 and medicines costing Rs.15,000/- were prescribed each time. Before conducting FET, when the complainants enquired with the doctor, she assured that 2^nd complainant would conceive definitely atleast by 2^nd FET. The opposite party has collected in total Rs.2,10,000/- for conducting FET twice, and for the tests and medicines, complainants have incurred more than Rs.1,00,000/-. For traveling expenses from Nellore to hospital by car, they incurred Rs.80,000/-. On 20.03.2018 also Dr.Meenakshi Jain, prescribed medicines on the ground that heart beat of the foetus is not functioning well. When the complainants questioned the attitude of the doctor, she replied negligently that their hospital is no way responsible for the development of the egg. The 2^nd complainant has consumed various types of medicines including hormones, as prescribed by the doctor Meenakshi Jain. At last, the opposite party hospital refused to give treatment. The doctor responded negligently, and had they know the attitude of the doctor, they would not have proceed to take treatment in the hospital. The hospital accounts department employee by name Vani pressurized the 1^st complainant to pay cash immediately for the treatment. The 2^nd complainant had to pledge her gold ornaments also to pay the hospital bill. The complainants were left to their fate by the hospital authorities after securing money from them. The entire process itself is wrong and hospital authorities are making false promises by taking advantage of the weakness of the persons, who are eager to get children. On 22.02.2018 and on 20.03.2018 the said doctor informed them that heart beat of the foetus is not functioning well. Till more than two months, it is not possible to get the result of heart beat of the baby in the womb, which proves the improper treatment of the opposite party hospital. The doctor Meenakshi Jain made the complainants to believe that several tests are conducted on                   2^nd complainant and several precautions were taken before FET only in order to extract maximum money from the complainants but not to take utmost care and caution to satisfy their customers like the complainants. For every visit Rs.200/- is collected from the complainants as consultation fees. The said doctor Meenakshi Jain used to treat the customers negligently and without proper care and used to hurt their feelings in many ways. Several injections were administered and hormone medicines inducted into her body but without any progress in the treatment. 1^st complainant got issued legal notice on 27.03.2018 informing all these things and demanded the opposite party hospital to pay the amounts covered under the notice, and the same was served upon the 1^st opposite party, who got issued reply with unconnected facts. The treatment given by the opposite party hospital is prima facie wrong for the reasons stated below:-

            i).  When the 2^nd complainant has not responded for a considerable time, the opposite party hospital ought to have informed the said fact to the complainants that the treatment given to 2^nd complainant is not fructified. But the 1^st opposite party and Dr.Meenakshi Jain (O.P.2) never informed such type of advise and every time, she used to give assurance even after failure of the 1^st FET to undergo further cycles.

            ii). Absolutely, there is no record to show what are the steps taken by the opposite party hospital after failure of the 1^st FET to conduct the 2^nd FET. The          2^nd FET was also conducted as like as 1^st FET without taking any precautions and steps for making success of the same. Even in the reply notice also it was simply mentioned that they have taken the precautions before conducting the FETs, but the reply is silent that what are the precautions they have taken and this itself is sufficient to say that no precautions were taken at all.

            iii).  When the semen test conducted on the 1^st complainant, it was mentioned in the report dated 15.08.2017 that it is not good one. If that been so, the opposite party has to confirm before conducting the 1^st FET itself that the semen of the            1^st complainant is fit for conducting FET by confirming the quality of semen. No      2^nd semen analysis test was conducted on the 1^st complainant to first confirm for conducting 1^st FET. That was not done at any time which itself proves the highest negligence on the part of the opposite party hospital.

            iv).  There cannot be any heart beat till completion of 2^nd month of the baby and informing to the complainants on 15^th day that the heart beat of the baby is not good itself shows the wrong treatment and false statement made by Dr.Meenakshi Jain. Only to throw the burden and risk on the complainants such type of false statements are attributed to the 2^nd complainant. There is no reply for this statement in the reply notice sent by the opposite party.

            v).  After conducting the 2^nd FET when the complainants visited the hospital of the opposite party on 23.02.2018, 2^nd complainant’s blood was taken for giving result whether it is positive or negative. But, wonderfully positive report was given for urine test. No urine test was conducted on that day and collected only the blood sample. This itself is sufficient as to how the opposite party mislead the complainants.

            vi).  When according to the tests conducted by the opposite party hospital on the 2^nd complainant, they mentioned that there are fibroids in the uterus and in such a case, without first clearing them, how they conduct the FET for two times. There is no document to prove that they have cleared those fibroids and hence also, the entire treatment itself is without taking minimum care and caution and with an intention to squeeze the money from its customers.

            vii).  This was also confirmed by the own organization of the opposite party Bangalore branch in You-tube by Dr.C.S.Manjunath, Clinical Director, that before conducting the FETs, it is the responsibility of the doctor to take some precautions to remove such type of polyps and fibroids etc. Hence, as per the own organization’s doctor’s speech also, the opposite party did not take such minimum care on               2^nd complainant and conducted the FETs two times as per their whims and fancies and there is no fitness certificate before conducting them. The said doctor C.S. Manjunath also stated that more care and compassionate to the couple has to be taken by the doctors, who treat them than the other treatment couples and through complete evaluation has to be done before doing the IVF process. But, in this case, at every time, the said Dr.Meenakshi Jain used to curse the patients and treat them in a discouraging mode.

            viii).  As per the various experts opinion, when 1^st cycle of IVF is failed, the doctor who treats has to found the reasons for failure of the 1^st cycle and only after confirming that the problem was cured, then only, 2^nd or another cycle has to be attempted and proceed. In this case, absolutely, there is no record to show about the reasons for the failure of earlier IVF process and hence there is utmost negligence on the part of the opposite party hospital.

            ix).  After failure of the 1^st FET, the opposite party never conducted any innovative techniques such as Uterus situation, Fibroids, Genetic issues, Autoimmune issues, Antiphospholipid Syndrome (APS), Systemic Lupus Crythematosis, Alloimmune issues are linked to decreased fertility and HCG administration etc. on the 2^nd complainant and there is no chart of showing such type of innovative techniques by the opposite party, which shows the utmost negligence on the part of the opposite party hospital.

            x).  In the reply notice, the opposite party stated that they have conducted the BHCG test but no such test was actually conducted.

            xi).  Likewise, in the reply notice, the opposite party stated that they have conducted both IVF and ICSI treatments, but the record shows that they never conducted any ICSI treatment. Even for the IVF treatment also, there is no proof according to the records given by them and hence the entire process is unknown to the complainants.

            xii).  In the reply notice, the opposite party further stated that at the time of counselling, they informed about the treatment of taking donor eggs etc. There is no discussion about the nature of treatment by the doctor and the counselling was only for the payment of money in two installments.

            xiii).  Before conducting the FETs in two times, the hospital has obtained the signatures and L.T. of both the complainants and got obtained the Aadhar Cards also. Without first making the signatures, they never conducted any FETs and hence the complainants were made to sign in the unfilled forms compulsorily.

            xiv).  Under date 10.05.2017, the doctor advised the 2^nd complainant to attend Ayurvedic hospital for Panchakarma. Likewise, on one occasion, Unani medicine was prescribed. On 24.07.2016 also, Unani medicine was prescribed. All the time, the     2^nd complainant taken those medicines also and underwent for Panchakarma, but they are no way connected for the IVF and ICSI procedures. When the complainants adopted for the Allopathic Treatment, why the opposite party hospital advised to take alternative medicines and techniques are not at all explained by the opposite party in their reply notice.

            3.  The opposite party hospital extracted money from the complainants, due to which complainants suffered monitory loss as well as undergone mental agony. Due to wrong and improper treatment, 2^nd complainant became nervous and depressed, and loss sustained by the complainants cannot be compensated in terms of money. However, the complainants are claiming Rs.20,00,000/- as damages for giving wrong advise and false treatment without due care and caution, in a negligent manner by Dr.Meenakshi Jain. Hence, the opposite party hospital is liable to pay a total sum of Rs.24,00,000/- to complainants with interest at 24% p.a. from the date of the notice. Hence, the complaint.  

            4.  Opposite party filed the written version contending as follows – At the outset complaint allegations are denied. It is admitted that they are conducting camps only to create awareness about the causes of infertility and treatment process. These camps offer free consultation and counselling to the infertile couples. The allegation in para.3 of the complaint in this regard is specifically denied. It is utter false to say that when the complainants visited the hospital first on 25.02.2016 to get treatment for safe pregnancy, they consulted Dr.Meenakshi Jain and discussed with her about the treatment and sought her opinion regarding guarantee of the treatment and that they would like to proceed with the treatment only if it is assured that there is atleast guarantee of 60% safe pregnancy and on that assurance only they agreed for the treatment. It is denied that the Accounts Section of the hospital did not inform about the cost of the treatment and failed to clarify whether the amount paid includes medicine cost and other medical expenses. It is further denied that hospital made the complainants to visit several times to the hospital unnecessarily and suggested various medicines and clinical tests are conducted on 2^nd complainant, but they did not disclose the details of the tests conducted on her or the progress in the treatment. The hospital authorities have clearly disclosed the complainants about the expenses, which includes investigation, check-ups, doctor fee etc. Further, the hospital authorities are not responsible for the amounts incurred by the complainants towards transport charges of Rs.80,000/-. It is denied that Dr.Meenakshi Jain, simply prescribed medicines, unwanted kit and thrown the paper to the 2^nd complainant and asked her to use the same on the ground that the heart beat of the foetus is not good. It is denied that hospital is making false promises to so many persons, who are eager to get children. It is denied that Dr.Meenakshi Jain made the complainants to believe that several tests are conducted on 2^nd complainant and several precautions are taken before FET and they are all only made to extract maximum money from the complainants, and not to take utmost care and caution to satisfy them on the hospital treatment, and further denied that she treats the customers negligently and in the habit of hurting the feelings of the customers in many ways. It is submitted that the allegations are made in order to defame the name and goodwill of the hospital in the eye of public. The complainant is called upon to prove the allegations made in the sub paras (i) to (xiv) in the complaint. It is stated that complainants visited the opposite party Test-Tube Baby Centre on 19.02.2016 first time with ID No.4555 and when the case history of the 2^nd complainant was taken, it reveals that they were married about 16 years back and blessed with one daughter born in the year 2001. The 2^nd complainant had 3 MTPs and underwent tubectomy (family planning) surgery (open method) in the year 2006. Patient underwent recanalization in the year 2013 for want of more children. On 10.03.2016 TVS done which showed thin endometrial, thickness on D10 of cycle, Antral focticular count 1 and 3 and impression of low ovarian reserve, poor endomental thickness and seedling fibroid in anterior wall of uterus was made. So, the couple were counselled about the progress of ICSI i.e., donor egg for reason of diminished oocytes quality and 50% success rate of ART procedure and they agreed for donor oocytes programme and for the same financial counselling was also done and both of them have signed on set of documents in which 1^st page includes list of charges for IVF and ICSI procedure and they accepted for the same. It is further stated that complainants were given financial counselling also by the hospital authorities and they both have signed set of documents in which 1^st page includes list of charges for IVF and ICSI procedure and they accepted for the same. Further the opposite party submits that once they agreed for the procedure of ICSI + Donor egg and ET, the 2^nd complainant was planned for endometrial preparation with estrogens, as her 1^st baseline scan showed poor endometrial thickness on DIO (natural cycle), 3-4 cycles of estrogen treatment did not yield good endometrial, alternative treatment like Tamoxifen, Intra uterine instillation of Autologus platelets was done to regenerate the endometrium. Patient’s findings were recorded in her case sheet every time and the same was handed over to the complainants and thus they are fully aware of the clinical progress. The investigation and clinical tests done for the couple were very basic like complete blood picture, blood sugars, kidney function test, thyroid profile and the cost of these tests is on par with any clinical lab. Patient undergone two times FET i.e. on 31.08.2017 and 09.02.2018. Before starting the inj progesterone was 0.37 ng/ml. embriyo transfer was smooth and atraumatic. All precautions were taken and intralipid infusion was also given to enhance the success of procedure. This FET resulted in failure and the complainants were counselled and they agreed for second attempt. Accordingly 2^nd FET was done in the month of February 2018 by taking more precautions. After 14 days, pregnancy test showed positive BHCG 672.40. Her repeated visit after 15 days showed a small gestation sac, so patient was advised to take medical abortion method. Then patient was kept in hospital for 5 days after embryo on humanitarian ground without any bed charge and she left as her child suffered some illness. It is further submitted that the patient was registered with ID No.4555 on 18.02.2016 had undergone 1^st FET on 31.08.2017 and 2^nd FET on 09.02.2018. Thus there was long gap of 1 year 4 months and that interval was good enough to abandon the treatment, if they were not happy with the services of the hospital. All these procedure were very elective and not life threatening and were informed to them much in advance. Inspite of all, they keep coming to the hospital voluntarily for treatment. All the procedures were carried out only after obtaining duly written consent from both the complainants. The complainants themselves have accepted in para.2 of their notice that, they informed to the doctor that if they give 60% assurance about success, then only they are ready to take the treatment. 60% of chance means not 100% guarantee. That itself clearly shows that we have counselled them properly regarding the success rate / procedure and financial aspects. The opposite party never assured a delivery of child but they told the complainants the procedure that can be done with specific success rate. Further financial counselling has been clearly given to both of them and they have also agreed the same in writing. Now the complainants came with a different story throwing entire blame on the doctor and the hospital, in order to extract money on all false and untenable allegations. If really they were not satisfied with the procedure and treatment of the doctor in the hospital, they would have taken steps much earlier and not after lapse of about two years of treatment. Throughout duration of the treatment period, each and every visit, they were counselled and guided by the hospital authorities about the treatment and the steps that are being taken and the financial aspects etc., and both of them agreed for the same. It is false to say that hospital gained much monetary income by making false promises to the complainants with regard to getting children through safe pregnancy. It is denied that complainants suffered huge financial loss and undergone mental agony due to wrong and improper treatment and that 2^nd complainant became nervous and depressed. There is no basis for the complainants to claim such huge amount of Rs.20 lakhs towards compensation. The opposite party has got every record for all the tests and treatment given by the hospital and the consent  of the complainants for such treatment. Hence, the opposite party is not liable to pay any amount much less the amount claimed by the complainants. Hence, it is prayed to dismiss the complaint.     

            5.  The 1^st complainant filed the chief affidavit as P.W.1 and marked Exs.A1 to A7. On opposite party side Dr.Meenakshi Jain filed the chief affidavit as R.W.1 and Exs. B1 to B6 are marked.

            6.  The point for consideration is whether there is deficiency in service on the part of opposite party? If so, to what extent the complainants are entitled for the reliefs sought in the complaint?

            7.  Point:-  In the written arguments, the complainants submitted that on 25.02.2016, he and his wife contacted opposite party hospital for the 1^st time and at that time Dr.Meenakshi Jain (R.W.1) discussed with them about the possibility of getting child through artificial method, and further they expressed that if there is guarantee of atleast 60% of positive result, then only they will agree for the treatment and on the assurance given by Dr.Meenakshi Jain, they underwent tests by paying Rs.1,50,000/- for the treatment. It is further contended that there was no proper financial counselling with regard to treatment and the hospital authorities never said whether the amount paid includes medical cost and other incidental expenses. They had to visit number of times to the hospital for the treatment and several clinical tests were conducted on 2^nd complainant and several medicines were given. But, they have not revealed the details of the tests conducted on 2^nd complainant or progress in the treatment. The said doctor did not take proper care of the patient and treated them recklessly. Two FET tests were conducted on 2^nd complainant, one on 31.08.2017 and the other on 09.02.2018, and in between the two tests, medicines were prescribed each time costing Rs.15,000/-. It is contended that the hospital authorities in total collected Rs.2,10,000/-, as against agreed amount of Rs.1,50,000/- for the tests and medicines, and that they had to spend about Rs.80,000/- for travelling in taxi from Nellore to Tirupati due to several visits, and during their last visit on 20.03.2018 R.W.1 examined 2^nd complainant stating that heart beat of the foetus is not normal, and when the complainants questioned about that, the doctor behaved in irresponsible manner and told them that the hospital is not responsible for the development of egg. It is the submission of the counsel for complainant that they have followed each and every word of the doctor to get positive result. Number of injections were also administered on the stomach and hands of 2^nd complainant, besides consuming medicines containing harmones, but atlast they did not get positive result due to the negligent treatment given by the doctor. They had pledged gold ornaments to pay the medical expenses. It is pointed out that the hospital authorities did not reveal the steps taken after the failure of 1^st FET. When the semen test conducted on 1^st complainant, it was mentioned in report dt:15.08.2017 that it is not good one. If that is so, opposite party has to confirm before conducting FET itself that the semen of 1^st complainant is fit for conducting FET by confirming the quality of semen. Second semen analysis conducted on 1^st complainant to first confirm for conducting 1^st FET. This amounts to negligence on the part of opposite party hospital. On 23.02.2018 2^nd complainant blood was taken for giving result whether it is positive or negative, and the result was positive for urine test. No urine test was conducted on that day and collected only blood sample. This is sufficient, to show as to how the opposite party misled the complainants. According to tests conducted by the opposite party hospital on            2^nd complainant, they mentioned that there are fibroids in the uterus. In such a case, without first clearing them, how they conducted FET for two times. It is the responsibility of the doctor to take some precautions to remove such type of polyps and fibroids, and the same was confirmed by Dr.C.S.Manjunath, Clinical Director, in an interview in You-tube. As per various experts opinion, if 1^st cycle of IVF is failed, the doctor who treats has to find the reasons for failure of 1^st cycle and after confirming that the problem is cured, then only 2^nd or another cycle has to be attempted and proceed, and in this case there is no record to show that such precaution was taken by R.W.1. The opposite party never followed innovative techniques such as Uterus situation, Fibroids, Genetic issues, Autoimmune issues, Antiphospholipid Syndrome (APS), Systemic Lupus Crythematosis, Alloimmune issues, which are linked to decreased fertility. In the reply notice, opposite party stated that they have conducted BHCG test, but no such test was conducted and no such report is there. Likewise, in the reply notice, opposite party stated that they have conducted both IVF and ICSI treatments, but the record shows that they never conducted any ICSI treatment. In the reply notice, opposite party stated that at the time of counseling, they informed about the treatment of taking donor eggs. There is no discussion about the nature of treatment by the doctor and the counselling was only for the payment of money in two installments. On the advise of the doctor, 2^nd complainant attended Ayurvedic hospital for Panchakarma and also took Unani medicine. But those medicines and tests are not connected with IVF or ICSI procedures. Why the opposite party hospital advised such alternative medicines and techniques is not explained. Hence, 2^nd complainant became nervous and depressed mentally due to wrong treatment and huge financial loss. It is therefore argued that complaint may be allowed, as prayed for against the opposite party.

            8.  Opposite party in their written arguments submitted that the allegations made in the complaint are false. It is admitted that complainants visited the opposite party Mathrutva Test-Tube Baby Centre on 19.02.2016 for the first time with ID No.4555 and when the case history of 2^nd complainant was perused, it revealed that they were married about 16 years back and blessed with one daughter in the year 2001, and subsequently 2^nd complainant had 3 MTP for personal reasons and underwent tubectomy in the year 2006, and thereafter underwent reconalisation in the year 2013 for want of more children. It is also admitted that on 10.03.2016 TVS done which showed thin endometrial, thickness on DI0 of cycle, Antral focticular count      1 and 3 and impression of low ovarian reserve, poor endomental thickness and seedling fibroid in anterior wall of uterus. So the couple were counselled about the process of ICSI i.e. donor egg for reason of diminished oocytes quality and 50% success rate of ART procedure and they agreed for donor oocytes programme and for the same financial counselling was also done and both of them have signed on set of documents in which 1^st page includes list of charges for IVF and ICSI procedure and they accepted for the same. It is further submitted that 2^nd complainant planned for endometrial with estrogens as her 1^st baseline scan showed poor endometrial thickness on DIO (Natural cycle), 3-4 cycles of estrogen treatment did not yield good endometrial, alternative treatment like Tamoxifen, intra uterine instillation of Autologus platelets was done to regenerate the endometrium. Patient’s findings were recorded in her case sheet every time and the same was handed over to the complainants and thus they are fully aware about the clinical progress. It is further submitted that investigation and clinical tests done for the couple were very basic like complete blood picture, blood sugars, kidney function test, thyroid profile and the cost of these tests is on par with any clinical lab. It is admitted that patient undergone two times FET i.e. on 31.08.2017 and 09.02.2018 and on first FET her endometrial thickness is 8.4 m, S.Progesterone. Inj progesterone was given to the extent of       0.37 ng/ml. Embriyo transfer was smooth and Atraumatic. All precautions were taken and intralipid infusion was also given to enhance the success of procedure. But FET resulted failure and the complainants were counselled and they agreed to go for second attempt. Accordingly, 2^nd FET was done in the month of February 2018 by taking more precautions. After 14 days, pregnancy test showed positive BHCG 672.40. Her repeated visit after 15 days showed a small gestation sac. So patient was advised to continue the medication and repeat scan after 15 days. The repeat scan did not show any featal pole, yok sac. So patient was advised to undergo medical abortion method. Then patient was kept in hospital for five days after embryo transfer on humanitarian ground without any bed charge and she left as her child suffered some illness. There was long gap of 1 year 4 months between 1^st FET and 2^nd FET and that interval was good enough to abandon the treatment if they were not happy with the services of the hospital. The procedure was elective and not life saving and were informed to them much in advance. Inspite of all, they keep on coming to the hospital for taking treatment voluntarily. All the procedures were carried out only after obtaining duly written consent from both the complainants. It is pointed out that even according to complainants, they informed to the doctor that if there is guarantee of 60% positive result, they will agree for the treatment. So, 60% means not 100% guarantee. That itself clearly show that complainants have been counselled regarding the success rate. The opposite party had never given assurance of delivery of child, but they told the complainants the procedure that can be done with specific success rate. It is therefore contended that the complaint is filed unnecessarily to harass the opposite party and to extract money from them. Hence, it is prayed to dismiss the complaint.

            9.  During the course of arguments, the complainant counsel filed literature pertaining to Adenomyosis. Ex.B1 is Discharge Summary dt:07.08.2016, wherein it is mentioned that diagnostic hysteroscopy conducted on 2^nd complainant and USG revealed Anteverted, Bulky Adenomyosis. On the basis of literature pertaining to Adenomyosis, complainants counsel argued that Adenomyosis came as negative and so the doctor would have suggested not to go for the treatment. But instead of that they were wrongly advised to proceed further. We have gone through the medical literature submitted by the complainant under the caption ‘The Impact of Adenomyosis on Women’s Fertility’. The extract is as follows –

“Until recently, adenomyosis has been associated with multiparity, no impaired fertility. Currently adenomyosis is diagnosed with increasing frequency in infertile patients since women delay their first pregnancy until their late 30s or early 40s. Although an association between adenomyosis and infertility has not been fully established, based on the available information, recent studies suggested that adenomyosis has a negative impact on female fertility. Several uncontrolled studies with limited data also suggested that treatment of adenomyosis may improve fertility……”.

 

            The reading of the literature would show that treatment of adenomyosis may improve fertility. So, the contention of the counsel for complainant that if there be uterus adenomyosis, there won’t be any pregnancy cannot be accepted, especially in the absence of medical evidence. The counsel also relied upon a decision reported in Civil Appeal No.2641/2010 [Arising out of SLP(C) No.15084/2009 (SC)] between V.Krishna Rao vs. Nikhil Super Specialty Hospital, wherein it is held as follows – “In the opinion of this Court, before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it cannot be resolved by the members of the Fora without the assistance of expert opinion. This Court makes it clear that in these matters no mechanical approach can be followed by these Fora. Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory”. The complainant counsel pressed into service the above citation in support of his contention that Ex.B1 report itself sufficient to show that Uterus is Anteverted, Bulky Adenomyosis, and there is no need for any expert evidence, and the doctrine of res ipsa loquitur can be applied as per the citation. But, as already stated by us the medical literature relating to Adenomyosis shows that treatment of adenomyosis may improve fertility and it is not as if a woman cannot give birth to a child, if her uterus is affected with Adenomyosis.

            10.  Coming to the documents filed by the complainant Exs.A1 and A2 are the receipts for the payment of money with regard to the tests conducted in opposite party hospital. Ex.A3 is bunch of doctor prescriptions. Ex.A4 is lab test reports. Ex.A5 is legal notice dt:27.03.2018 and the acknowledgement is marked as Ex.A6. Ex.A7 is reply notice issued by the opposite party. There is no dispute with regard to Exs.A1 to A4. However, the contention of the opposite party is that they never forced the complainants to undergo tests and the doctor never misguided them. It is their own decision to undergo tests, to have a child. The opposite party filed Ex.B1 which is Histeroscopy Discharge Summary. Ex.B2 is ICSI Discharge Summary. Ex.B3 is ICSI (FET) Discharge Summary for the 2^nd time issued by opposite party hospital. Ex.B4 is statement of consolidated payment of bills. Ex.B5 is legal notice issued by the complainant dt:27.03.2018. Ex.B6 is reply notice issued by the opposite party dt:15.04.2018.

            11.  The documentary evidence filed by both parties is not in dispute. What is in dispute is the doctor of opposite party hospital unnecessarily misguided the complainants by giving false assurance and extracted money from them. The doctor of opposite party hospital Meenakshi Jain, who has counseled the complainants gave evidence to the following effect - “the complainants were given financial counseling also by the hospital authorities and they both have signed set of documents in which 1^st page includes list of charges for IVF and ICSI procedure and they accepted for the same. Further once they agreed for the procedure of ICSI + Donor egg and ET, the 2^nd complainant was planned for endometrial preparation with Estrogens as her 1^st baseline scan showed poor Endometrial thickness on DIO (Natural cycle), 3-4  cycles of estrogen treatment did not yield good endometrial, alternative treatment like Tamoxifen, intra uterine instillation of Autologus platelets was done to regenerate the endometrum. Patient’s findings were recorded in her case sheet every time and the same was handed over to the complainants and thus they are fully aware about the clinical progress. The investigation and clinical tests done for the couple were very basic like complete blood picture, blood sugars, kidney function test, thyroid profile and the cost of these tests is on par with any clinical lab. Patient undergone two times FET i.e. on 31.08.2017 and 09.02.2018. On first FET her endometrial thickness of 8.4 m, S.Progesterone. Before starting the inj progesterone was 0.37 ng/ml. embriyo transfer was smooth and Atraumatic. All precautions were taken and intralipid infusion was also given to enhance the success of procedure. This FET resulted in failure and the complainants were counseled and they agreed for second attempt. Accordingly 2^nd FET was done in the month of February 2018 by taking more precautions. After 14 days, pregnancy test show positive BHCG 672.40. Her repeated visit after 15 days showed a small gestation sac, so she was advised to continue the medication and repeat scan after 15 days. The repeat scan did not show any fetal pole, yolk sac, so patient was advised to take medical abortion method. Then patient was kept in hospital for five days after embryo transfer on humanitarian ground without any bed charge and she left as her child suffered some illness. I further submit that the patient was registered with ID No.4555 on 18.02.2016, undergone 1^st FET on 31.08.2017 and 2^nd FET on 09.02.2018. Thus there was long gap of 1 year 4 months and that interval was good enough to abandon the treatment if they were no happy with the services of the hospital. All these procedure were very elective and not life saving and were informed to them in much advance. Inspite of all, they keep coming to the hospital and took the treatment voluntarily. All these procedures were carried out only after obtaining duly written consent from both the complainants”.

12.  The above evidence of R.W.1 remained un-challenged, as no material is placed by the complainants to show that the above evidence of R.W.1 is false. As already stated by us, when the complainants themselves are not sure of 100% result and they prepared to undergo tests for pregnancy by artificial means, they cannot blame the hospital for failure to get pregnancy to 2^nd complainant, as there is no certainty for pregnancy. The complainants could have withdrawn from the treatment when the 1^st FET failed, but with the hope of getting child they continued the treatment and underwent FET for the second time. There was a long gap between      1^st FET and 2^nd FET, and at any time complainants could have withdrawn from the treatment, if they are not satisfied, but they did not do so. Only after failure of          2^nd FET, they thought of filing this complaint. It is for the complainants to prove that there is medical negligence on the part of the doctor of the opposite party hospital. The material placed before the Forum is not sufficient to hold that there are lapses on the part of the doctor. Hence, we are of the view that the complainants are not entitled to seek compensation on the ground that there is deficiency in service on the part of opposite party hospital. Accordingly, this complaint is to be dismissed.

13.  In the result, complaint is dismissed. No costs.                    

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 23^rd day of October, 2019.

 

       Sd/-                                                                                                                      Sd/-                                 

Lady Member                                                                                               President (FAC)

 

 

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1:  Varaganti Sankara Narayana (Chief Affidavit filed).

 

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1:  Dr. Meenakshi Jain (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	True copy of Cash Receipts (6) of Mathrutva Test Tube Baby Centre, K.T. Road, Tirupati.
	Photo copies of Bill Cum Receipts (15) of Mathrutva Test Tube Baby Centre, K.T. Road, Tirupati.
	Bunch of Original Doctor prescriptions of  Mathrutva Test Tube Baby Centre, K.T. Road, Tirupati.
	Original copies (7) of Lab Test Reports.
	Legal Notice. Dt: 27.03.2018.
	Acknowledgement in Original.
	Photo copy of Reply Notice issued to the complainants by the opposite party through Advocate. Dt: 15.04.2018.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Original copy of DIAGNOSTIC HYSTEROSCOPY DISCHARGE SUMMARY of Mathrutva Fertility Center, Bhavani Nagar, Tirupati.   Date of Discharge: 07.08.2016.
	Original copy of ICSI DISCHARGE SUMMARY of Mathrutva Fertility Center, Bhavani Nagar, Tirupati. FRESH ET Done on: 31.08.2017.
	Original copies (2) of ICSI (FET) Discharge Summary (2nd Time) of Mathrutva Fertility Center, Bhavani Nagar, Tirupati. FET Done on: 09.02.2018.
	Photo copy of Statement of consolidated payment of bill.
	Legal Notice issued by the complainant to the opposite party. Dt: 27.03.2018.
	Reply Notice issued to the complainants by the opposite party through Advocate. Dt: 15.04.2018.

 

 

                                                                                                                                     Sd/-

                                                                                                                            President (FAC)

    

                                     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

 

 

  Copies to:-   1.  The complainants.

                        2.  The opposite party.