Date of Filling : 06.08.2014.
Date of Disposal : 14.07.2016.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S. SUJATHA, B.Sc., … MEMBER - I
Consumer Complaint No.55/2014
(Dated this Thursday the 14th day of July 2016)
Mrs. Ramisha,
W/o. Mr. Srinivasan,
No.252, Mullai Street,
Poompozhil Nagar,
Avadi,
Chennai - 600 062. … Complainant.
/ Versus /
1. M/s. Teja Hospital Multi Specialty Center,
Rep. by its Director,
No.471, MTH Road,
Ambattur,
Chennai - 600 053.
2. Dr. Sarojini Vijayasarathi,
W/o. Dr. N. Vijayasarathi,
No.471, MTH Road,
Ambattur,
Chennai - 600 053. … Opposite parties.
This complaint is coming upon before us finally on 29.06.2016 in the presence of M/s. E. Ezhilarasan, Counsel for the complainant and Mr. A.R. Poovannan, Counsel for the 1 and 2nd opposite parties and having perused the documents and evidences and written arguments of both sides this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 and 2nd opposite parties to seek Rs.19,00,000/- towards compensation for the loss, mental agony, pain and other expenses caused by the negligence of the opposite parties with cost Rs.15,000/-.
The brief averments of the complaint is as follows:-
The complainant is working at Vel Tech Multi Tech College as Accountant H.O.D. The complainant was admitted in the 1st opposite party’s hospital for the delivery of the 2nd child on 22.09.2012 and gave birth to the 2nd child through cesarean on 23.09.2012. Since the complainant and her husband have decided not to have any more children and for that decided to have the family planning procedure and also on the advice of the 2nd opposite party at the time of cesarean itself. Accordingly, the family planning procedure was conducted on 23.09.2012 and was discharged from the hospital on 26.09.2012 on successful completion of the said operation. The 1st opposite party has charged Rs.55,000/- for the cesarean as well as for the family planning. The complainant has believed the words of the 2nd opposite party that the family planning procedure was conducted successfully and she need not worry about any further pregnancy.
2. Subsequently, she felt some abnormality in her stomach and approached the nearby laboratory to know whether she got any pregnancy. The laboratory test has confirmed the pregnancy. Then, the complainant had approached the 1st opposite party for the said cause. The 1st opposite party after taking the medical test confirmed the pregnancy of 41/2 months. The complainant had immediately contacted the 2nd opposite party and asked about her pregnancy. The 2nd opposite party without giving any valid reason simply scolded the complainant that “This will happen to one or two people every year and for that she or the hospital would not be held responsible”. The complainant explained her family situation and economical condition would not be conducive to have another child. For that the 2nd opposite party has told that they will borne all the expenses for the delivery and after the delivery the complainant was asked to leave the child in any orphanage if she has no means to take care of the child. Such a lethargic answer was given by the 2nd opposite party.
3. Since the opposite parties have committed medical negligence and caused irreparable loss to the complainant, she sent a legal notice on 03.10.2013 to the opposite parties. The 2nd opposite party and her husband have replied through on 16.10.2013 stating that it is very common while conducting sterilization procedure that has the failure rate of 7% and further contended that there is no medical negligence on their part, it is only due to the medical complication failure rate. The opposite parties has not taken due care and caution while doing said procedure and not done the said operation in a proper manner. Due to the opposite party’s negligent act, the complainant has to suffer now as well as in the future and caused much mental agony and irreparable loss. The opposite parties have committed a grave medical negligence in conducting family planning procedure. So, they are liable to pay the compensation. Hence, this complaint.
4. The contention of written version of the 2nd opposite party and adopted the 1st opposite party is briefly as follows:-
The complaint is not maintainable either in law or on facts. The opposite parties denied all the allegations made in the complaint except which are all specifically admitted herein. It is true that the complainant was admitted with the 1st opposite party’s hospital for her 2nd delivery on 22.09.2012. Further, it is true that the complainant begotten a male child on 23.09.2012 through caesarean operation. It is true that failure is quite common in case of sterilization operations for which the doctors or the hospitals who performed the operation cannot be held liable. The complainant was not scolded by the 2nd opposite party and it is only a screen play by the complainant to strengthen her case.
5. The allegations that the opposite parties will borne the expenses for delivery and after delivery asked the complainant to leave the child in any orphanage are invented by the complainant to make out a cause of action for this complainant. It is only an attempt by the complainant to extract money and the same is fully denied. The allegation that the procedure was not followed and the 2nd opposite party had caused medical negligence and thus liable to compensate the complainant are all false and denied. The opposite parties could be found guilty only when the doctor had fallen short of the standard of reasonable medical care.
6. That knowing fully well that there is no complication in her case, as the caesarean section was planned on 16.09.2012 itself. If it is labour natural, tubectomy procedures can be done after 72 to 96 hours for the post partum of changes of uterus and tubes to recover. If it is a LSCS (Caesarian) we have to do sterilization, (i.e.) the tubectomy procedure concurrently with the caesarean section only, and the pomeroy’s technique failure rate of 0.4% and the tubectomy operation can be done at anytime, but the first two days of puerperium and particularly convenient because the fundus of uterus is at a high level in the abdomen.
7. The 2nd opposite party submitted for an enquiry with the Government of Tamil Nadu be writing about the failure of the tubectomy case. The State Govt. conducted enquiry, visited the opposite party’s premises, perused all the documents available and spoken to the complainant and submitted detailed report to the Government through, the Joint Director of medical services, Thiruvallur, that there is no negligence or deficiency of service on the part of the 2nd opposite party’s hospital and the doctors.
8. It is evident from the text books, as well from the latest judgementsof the Hon’ble Supreme Court, it is clear that there is no medical negligence on the part of the opposite parties in performing the tubectomy operation. Further, the doctor of the hospital which performed the sterilization procedure cannot be held liable for its failure at any point of time and the remedy open to the complainant is to approach the Government for compensation, which already fixed and granted to various other cases. In any event the opposite parties is not fault and there is no negligence on the part of the opposite parties. The complainant is not bonafide and the complainant is not entitled for any of the relief claimed. Hence this complaint is liable to be dismissed.
9. In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A3 were marked. While so, on the side of the 1 & 2nd opposite parties, the proof affidavit is filed and Ex.B1 to Ex.B4 were marked on his side.
10. At this juncture, the point for consideration before this Forum is:-
- Whether there is any deficiency of service on the part of the opposite party as alleged in the complaint?
- Whether the complainant is entitled for any relief as prayed for?
11. Written arguments had been filed by both sides.
12. Point no.1:-
Regarding this point, this Forum has to consider, whether the deficiency of service on the part of the opposite parties has been proved by the complainant by means of reliable and acceptable manner, which is the bounden duty of the complainant. First of all, on perusal of the complaint as well as the proof affidavit of the complainant, it is learnt that even after the sterilization operation, the complainant got pregnancy which was due to the negligence committed by the 2nd opposite party during operation. In this connection Ex.A3, the discharge summary issued by the 1st opposite party is marked and for the negligent act of the opposite parties the complainant immediately issued Ex.A2, legal notice to the opposite parties for claiming compensation. On receipt of the same, the opposite parties sent reply notice which is marked as Ex.A1.
13. While so, on careful perusal of the proof affidavit of the opposite parties, though it is an admitted fact regarding the admission of the complainant in the 1st opposite party’s hospital on 22.09.2012 for delivery of the 2nd child and underwent sterilization operation and the other connected facts but at the same time, it is denied about the deficiency of service in his written version by stating that the 2nd opposite party followed the correct and acceptable procedure for performing the sterilization operation which was conducted in standardized conditions with due diligence and care. It is further stated by the opposite party side that after obtaining the proper consent of the complainant through Pre - Authorization Request Form, the 2nd opposite party has done the sterilization to the complainant. The Pre - Authorization Request Form is marked as Ex.B1.
14. Moreover, it is stated by the 2nd opposite party that the 1st opposite party’s hospital is a recognized hospital by the District Collector, Chennai for doing Family welfare operation and such proceedings is marked as Ex.B3 and to that effect the Indian Medical Association presented the certificate of appreciation to the 1st opposite party’s hospital is marked as Ex.B4. It is learnt that from the contention of the opposite parties that “the methods of the sterilization so far known to medical science which are most popular and prevalent and not 100% safe and secure inspite of operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes viz; recanalisation, which is a natural process beyond human control and a known risk/ possibility in sterilization procedures which has been well documented in the medical literatures” and therefore, there is neither negligence nor any deficiency in service on the part of the opposite parties and hence, the complainant is not entitled for any compensation.
15. At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that it is an admitted fact that the sterilization operation done to the complainant in the 1st opposite party’s hospital and discharged on 26.09.2012. It is not a disputed one. The complainant has got pregnant evenafter the sterilization performed. In such circumstances, this Forum wants to enlighten that the duty cast upon the complainant to prove the actual negligence committed by the opposite parties by means of relevant evidence and on production of expert opinion. It is well a known fact that in the case of medical negligence, the expert opinion is must and mandatory and then only, this Forum can easily to arrive the conclusion about the deficiency of service and the medical officials.
16. In furtherance, even though the burden of proof is on the shoulders of the complainant in respect of medical negligence, the complainant has not chosen to take any effective step to obtain expert opinion till the end of the final. Whereas, the opposite parties had clearly reveals the fact through Ex.B2 regarding the procedure and method adopted for the sterilization surgery with proper technique instrumentation and care also obtained the Pre-Authorization Request Form the insurer and explaining the risk factors and failure to the complainant. Such facts are not at all vehemently disputed by the complainant.
17. It is further learnt from the written version and the proof affidavit that all the standard methods of female sterilization have an accepted spontaneous, recanalisation rate of 0.4% and it is an inherent risk of the procedure which is beyond the scope of human control. It has also been established in medical literature that the changes spontaneous recanalisaion is more, when the tubectomy is done immediately after delivery.
18. In order to sustainable their view, the opposite parties relied upon the following decisions: State of Punjab Vs. Shiv Ram and Orders (2005 (4) CTC 627) S.C. and the Hon’ble State Consumer Disputes Redressal Commission, Chennai has also held in its order dated: 18.06.2013 in ESI Corporation Hospital, K.K. Nagar, Chennai Vs. S. Vasanthi in F.A. No.36/2012as given below:
With reference to the above details of the case, it is held that on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Child birth in spite of sterilization operation can occur due to negligence of the doctor in performance of the operation or due to certain natural causes such as spontaneous Recanalisaion. Hence, unless it is proved that because of negligently performed sterilization operation, the pregnancy was occurred, the opposite party cannot be held liable for the pregnancy by alleging only because of wrong sterilization surgery. Therefore, the mere fact that the complainant conceived at a later date, even after sterilization procedure does not prove negligence in performing the surgery by the decision.
19. The Hon’ble Supreme Court further held in Shiv Ram’s case “that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only, if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam’s test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to herein above, ordinarily a surgeon does not offer such guarantee”.
20. The Hon’ble Supreme Court was pleased to hold that even “if the tubectomy operation is performed with full care and caution and without any negligence even then there can be failure in tubectomy operations. In such cases it was the duty of the woman once she misses the menstrual cycle to vist the doctor and seek medical advice and if necessary seek termination of pregnancy which was legal and valid. It is further observed that the birth of a child in spite of tubectomy operation does not give a cause of action to the parents of the child”.
21. From the foregoing facts and reasons, it is crystal clear that there could be cases where the tubectomy operations have failed, but that alone is not sufficient to grant compensation to the woman and also the complainant failed to prove the medical negligence through proper and consistent evidence and therefore, the deficiency of service has not been proved. Thus, the point no.1 is answered accordingly.
22. Point no.2:-
As per the decision arrived in point no.1, it is concluded without any hesitation that there is no deficiency on the part of the opposite parties. In respect of medical expenses claimed by the complainant, none of the documents filed to that effect by the complainant before this Forum. It is further seen that from Ex.B1 it clearly reveals the fact that the complainant who is the employer at Vel Tech Multi Tech College as an Accountant H.O.D.. She was very well claimed the expenses from TTK health care services Private Limited under the Medi-claim Policy that is why the complainant could not able to produce the relevant bills regarding the medical expenses and therefore, without any proof for that the expenses cannot be awarded. In this aspect also, the complainant failed to prove her claim. Therefore, the complainant is not entitled for any compensation and other reliefs as prayed in the complaint. Thus, point no.2 is answered accordingly.
23. In the result, this complaint is dismissed. No cost.
Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 14th July 2016.
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 16.10.2013 | Reply notice of the opposite parties | Xerox copy |
Ex.A2 | 03.10.2013 | Legal notice of the complainant to the opposite parties. | Xerox copy |
Ex.A3 | 26.09.2012 | Discharge summary issued by Teja Hospital Multi Speciality Centre | Xerox copy |
List of documents filed by the opposite parties:-
Ex.B1 | 16.09.2012 | Pre-Authorizaiton Request Form of the complainant | Xerox copy |
Ex.B2 | 16.10.2013 | Reply notice of the opposite parties | Xerox copy |
Ex.B3 | 07.06.1989 | Proceeding of the District Collector | Xerox copy |
Ex.B4 | 11.01.2004 | Certificate issued by the Indian Medical Association to the Opposite party’s Hospital | Xerox copy |
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
