Delhi

North East

CC/476/2015

Smt. Sunita - Complainant(s)

Versus

Mr. Pradhuman Tiwari Managing Director of Muskan Mahila Hospital And IVF Sargosi Center - Opp.Party(s)

22 Jun 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  476/15

 

In the matter of:

	Smt. Sunita W/o Shri Rajesh Kumar R/o:- J-94, Gali no. 5 4th Pusta, Kartar Nagar Delhi-110053	Complainant
	Versus
1.               2.	Mr. Pradhuman Tiwari Managing Director of Muskan Mahila Hospital & IVF Surrogacy Centre A-1, Kh. 133,Main Road, 4th Pusta, Kartar Nagar Delhi-110053   Dr. G.K. Tripathi Muskan Mahila Hospital & IVF Surrogacy Centre A-1, Kh. 133,Main Road, 4th Pusta, Kartar Nagar Delhi-110053 Also at:- Aggarwal Dharmarth Hospital 24/19, Shakti Nagar New Delhi-110007	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

02.12.2015 22.06.2020 22.06.2020

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Brief facts as spelt out in the present complaint are that the complainant aged 36 years was issue less even after twelve years of marriage due to her inability to conceive and therefore had contacted OP1 hospital in May 2014 for seeking conception through In Vitrio Fertilization (IVF) treatment when she was assured by OP2, consultant doctor in OP1 of having specialization in IVF treatment with OP1 having experienced and qualified doctor in this regard. The complainant was regularly visiting OP1 in consultation with OP2 between 30.05.2014  to  18.11.2014 for examination and medical treatment / tests and other checkup on payments made to the tune of  Rs 9,000/- and thereafter also paid a sum of Rs. 1,00,000/- to OP1 hospital for undergoing IVF procedure which amount was duly acknowledged by OP1 and issued a receipt thereof. The complainant has submitted that she was assured by OP1 of refund of the said amount in case the IVF procedure fail. The complainant has submitted that there was no lab or proper machine for testing the IVF procedure in OP1 hospital she was asked to go to ISIS Hospital, Kailash Colony, New Delhi for undergoing the said procedure but here no such procedure was conducting and complainant again returned to OP1 but OP2 never met her or attended to her phone calls. The complainant after undergoing IVF procedure followed all necessary steps but no satisfactory result came out as was evident in the ultrasound TVS report dated 15.12.2014 issued by Naurang Imaging Centre and Path Lab diagnosing complainant with Cervicitis as right ovary was showing a follicular anechaoic cyst in right ovary and thereafter ultrasound report dated 23.06.2015 issued by Galaxy EXL Diagnostic showing follicular cyst in left ovary. The complainant met Dr. Soma Singh in OP1 hospital in May 2015 seeking IVF treatment again but was demanded Rs. 1,00,000/- for doing IVF again.  The complainant lodged several complaints against OP with Director of health department, public grievance commission, DCP East Delhi and MoHFW between June-July seeking appropriate action against OPs but to no avail. The complainant also issued a legal notice dated 29.07.2015 to OPs through her counsel despite receipt of which the OPs failed to respond or act upon. Therefore, as a last resort, complainant alleging deficiency of service and negligence on the part of OPs for failing to conduct IVF successfully, file the present complaint against OPs to refund sum of  Rs. 2,00,000/- for sum paid by complainant to them alongwith compensation of Rs. 5,00,000/- for deficiency of service and negligence and cost of litigation.
2. Complainant has attached copy of prescription dated 30.05.2014, 14.07.2014, 28.08.2014,06.09.2014 and 18.11.2014 by OP1 for complainant, copy of receipt acknowledgment of Rs. 1,00,000/- dated 18.12.2014 issued by OP1 hospital for assurance of IVF procedure, copy of cash receipt amounting to Rs. 9000/- approx. paid by complainant to OPs for visiting and consultation, copy of ultrasound report dated 15.12.2014 and 23.06.2015 and copy of complaints made by complainant to director health, public grievance commission, DCP East and MoHFW and copy of legal notice 29.07.2015 to OPs by complainant’s counsel alongwith postal and courier receipt returned unserved for incomplete address.
3. Notice was issued to the OPs on 16.12.2015 OP1 entered appearance and filed its written statement vide which it took the preliminary objection that the treatment and assurance thereof was made to complainant by OP2 in his personal  capacity and the treatment / procedure was also conducted in hospital of OP2 and not OP1 and therefore the complaint was bad for misjoinder of party as OP1 is not the director of the hospital arraigned as OP1 but is trustee thereof and had not given any assurance to the complainant with respect to IVF treatment even though OP1 hospital was having specialization  in IVF procedure. OP1 submitted that the complainant had conceived after the IVF procedure and therefore no cause of action survived against OP1. OP1 denied complainant having visited its hospital on 30.05.2014 on ground that OP1 was registered with director of health services GNCTD in on 16.04.2015 and prior to its registration, all amount as alleged by complainant was taken exclusively by OP2 in his individual capacity and OP1 denied having issued any receipt of Rs. 1,00,000/- on 18.12.2014 as alleged by complainant urging that OP1 hospital was not even registered on the said date. OP1 denied having given any assurance either of the success of the IVF treatment or refund of money paid for it in case of its failure to the complainant also on the ground that OP1 was not registered / functional at that time so as to issue any assurance or receive any amount on its letter head which apparently was issued by OP2 in his individual capacity using the pad of OP1 hospital.  OP1 urged in its defence that the complainant had conceived as per report dated 15.12.2014 issued by Naurang Imaging Centre which itself showed that IVF treatment was successful and the said fact was apprised by OP2 vide communication dated 27.06.2016 to medical superintendent nursing home, Directorate General of Health Services GNCTD. OP1 has accused the complainant of having cleverly conceived factum of the conception after the treatment conducted by OP2 owing to bad intention and proof of conception was ultrasound report dated 06.01.2015 of lower abdomen of complainant which revealed impression of RPOC’s (retained product of conception). Therefore in light of defence taken, OP1 prayed for dismissal of the complaint. OP2 failed to appear despite service of notice on 06.01.2016 and therefore was proceeded against exparte vide order dated 16.03.2016.
4. Rejoinder to the defence taken by OP1 was filed by the complainant vide which she denied the allegation leveled by OP1 of complainant having conceived post IVF procedure and urge that both OPs had allured her for parting with hard earn money on IVF treatment by assuring of her its success and specialization facility and therefore both the necessary party to the complainant. Complainant submitted that the ultrasound report dated 15.12.2014 only mentions Cervicitis meaning thereby that complainant was suffering from inflammation of the cervix which is the lower end of uterus which opens into the vagina and by no means it implied pregnancy. Therefore complainant prayed for relief claimed.
5. Evidence by way of affidavit was filed by the complainant exhibiting the document filed by alongwith the complaint as Ex CW1/1 to Ex CW1/21.
6. OP2 entered appearance on 20.12.2016 and placed on record order dated 11.11.2016 passed by Hon’ble SCDRC Delhi in RP no. 199/2016 setting aside order dated 19.03.2016 of this Forum and reinstating the defence OP2. OP2 filed its written statement vide which it took the preliminary objection while admitting the factum of the complainant having approached OPs for medical treatment for conceiving a child through IVF technique and submitting that she had conceived post procedure as per medical report of Naurang Imaging Centre but may have undergone abortion for unknown reason, denied OPs liabilities for the same as OP2’s role and course of treatment was limited till conceiving the child by the complainant which since did happen in the present case, the IVF technique stood successful due to proper care and caution exercised by OP2 while dealing with the case of complainant and therefore urged no deficiency of service on its part. OP2 in rebuttal to complainant’s averment of having visited OP1 and making payment of Rs 1 lakh for IVF treatment to OP2, submitted that the entire procedure for IVF was conducted as ISIS hospital Kailash Colony, New Delhi since OP1 hospital, though built but was not registered or equipped at the relevant time i.e. December 2014 for undertaking IVF procedure. OP2 urged in its defence that to the complaints lodged by the complainant with various government authorities, OP2 vide explanation dated 27.06.2016 had apprised the complainant having conceived successfully through IVF technology. OP2 therefore prayed for dismissal of the complaint.
7. OP2 has attached copy of replay dated 27.06.2016 to directorate general health service GNCTD and copy of ultrasound report dated 06.01.2015 showing RPOC.
8. Rejoinder to the defence taken by OP2 was filed by the complainant vide which the complainant denied conception or abortion thereafter or that the IVF procedure was conducted at ISIS Hospital near Kailash Colony Delhi and alleged that the OP2 never cared about the complainant or attended to her for checkup compelling her to visit other hospital for checkup on extra expenditure. The complainant however, in rejoinder on merits admitted that she had conceived but due to carelessness and                   non-cooperative attitude of OPs and its failure to provide proper care and checkup, the pregnancy was not stable and further that the role of OPs did not end at mere conceiving to terms IVF as successful but it required proper care, tension and checkup of concerned hospital which since the OPs failed to act, therefore they have committed deficiency of service and complainant therefore prayed for relief claimed.
9. Evidence by way of affidavit was filed by OP2 exhibiting documents relied upon as Ex OP2W1/1 to OP2W1/2.
10. Evidence by way of affidavit was filed by OP1 exhibiting the documents relied  as Ex OPW1/1 to OP1W1/2
11. Written arguments were filed by all parties in reassertion / retaliation of their respective grievance / defence .
12. During the course of oral arguments, both OPs submitted that OP1 hospital was not registered at the time of complainant approached them for IVF procedure in May 2014 and even till December 2014 when the said procedure done, since OP1 got it registration with the government only on 16.04.2015 and therefore direction of this Forum to file the requisite registration certificate, OPs placed on record copy of registration certificate bearing no. REG.NO./DHS/NH/1297 dated 16.05.2015 issued by directorate of health service GNCTD for the period of 2014 to 2017. Judgment compilation was filed by OPs to buttress their defence.
13. We have heard the rival contentions advanced by all parties and have bestowed our anxious consideration to the record place before us. It is not in dispute that the complainant had approached the OPs in May 2014 for undergoing IVF procedure for child conception as is revealed clearly from the records. The defence taken by OP1 of not being in existence in terms of registration in 2014 is belied / falsified by its own registration certificate issued by GNCTD showing validity of license from 2014-2017 and even otherwise all prescriptions are signed by OP2 on the letter head of OP1 and payment acknowledgement receipt of Rs. 1 Lakh dated 18.12.2014 is under stamp and seal of OP1. From the pleadings placed on record by all parties there is clear contradiction made by the complainant in her rejoinder to written statement of OP2 where in its para 1 to the reply to preliminary objection she denied having conceived and gone for abortion and in para 7 of rejoinder on merits where she admitted having conceived after IVF procedure and this change of stand came about only after OP2 filed its reply vide which he revealed that the complainant had indeed conceived between December 2014 – January 2015 which was revealed by ultrasound report dated 06.01.2015 of the complainant issued by Naurang Imaging Centre which gave the impression of retained product of conception (RPOC). The complainant since the institution of complaint in December 2015 (filed one year after the procedure till) December 2016 when OP2 filed its written statement bringing on record the factum of conception by complainant post IVF, concealed this material fact / evidence from this Forum for one long year which amply proof that she did not approach the Forum with clean hands. Notwithstanding the factum of concealment of conception, let us examine the procedure of IVF, complexity and uncertainties involved in the said treatment. In this regard we are ably guided by the land mark judgment of Hon’ble NCDRC in Dr. M. Kochar Vs. Ispita Seal I (2018) CPJ 41 (NC) decided on 12.12.2017 in FA No. 368 of 2011 which dealt with similar case of IVF failure in a woman aged of 35 years who had alleged deficiency of service on the part of the treating doctor for failed procedure. The Hon'ble National Commission after thoroughly examining the medical text from journals like human reproduction-update, fertility and sterility and such like medical literature was of the considered view that IVF is a complex series of procedure used to treat fertility and assist with conception of child and involves steps like ovulation induction, egg retrieval, sperm retrieval, fertilization and embryo transfer no hospital or treating doctor can give assurance of guarantee of the treatment given the change of failure of IVF and even otherwise as per medical literature the chances of healthy baby using IVF depend on patient’s age and cause of infertility amongst several other factors. In addition IVF can be time consuming, expensive and invasive and the success rate of IVF- egg transplant as per international standard is 3.6% in woman age above 35 years. A woman’s age is the most important factor that influences the success rate of IVF procedure which is highest for woman between 24 and 34 years in which they peak their fertility levels. The Hon'ble National Commission was therefore of the view of “no cure / no success is not a negligence” and therefore allowed the appeal against order of Hon’ble SCDRC which had allowed complainant’s case holding OP liable without any cogent evidence or medical ground. The Hon’ble Delhi SCDRC in Kumkum Vs Sir Ganga Ram Hospital through its MD in CC no. 55/2008 decided on 04.04.2018 on similar IVF failure case relied upon the judgment of Hon'ble National Commission and ruling of Hon'ble Supreme Court in Achyutrao Haribhau Khodwa Vs. State of Maharashtra (1996) 2 SCC 634 and Kusum Sharma Vs. Batra Hospital (2010) 3 SCC 480 in which the Hon'ble Supreme Court observed that if a doctor has taken proper precaution and if negligence cannot be established as culpable of gross, it is well known that no cure, no success is not negligence and therefore dismissed the complaints as devoid of merit. Relying upon the said judgment and ratio laid therein on the aspect of high failure rate / low success rate of IVF procedure, we find the present complaint devoid of merits given the poor success rate of IVF procedure in women aged more than 34 years as was the case of complainant in the present complaint and grievance made therein and therefore dismiss the same with no order as to case.
14. Let the copy of this order be sent to all parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
15.   File be consigned to record room.
16.   Announced on  22.06.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member