Counsel For Complainant : Mr. D. Kannan, Advocate
Counsel For Opposite Parties : Mr. A.R. Poovannan, Advocate
This Complaint is coming upon before us finally on17.6.2015 in the presence Mr. D. Kannan, Advocate on the side of the complainant and Mr. A.R. Poovannan, Advocate appeared on the side of the Opposite parties 1&2, and upon hearing arguments on the side of the both and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT:
This Complaint has been filed by the Complainant U/S 12 of the Consumer protection Act, 1986 against the opposite party seeking prayer to pay a compensation of Rs.5,00,000/- towards Compensation for mental agony and physical stress with interest at the rate of 12% Per Annum and for Awarding Rs.5,000/- towards the cost of the complaint.
The Brief Facts of the complaint are as follows:
1. The Complainant was admitted in the first opposite party Hospital for lower Segment Caesarian Section (LSCS) as inpatient on 28.08.2010 in IP No. 789076 and a male baby were evacuated and on the same day and sterilization was done on 29.08.2010. Subsequently, after undergoing the medical care, she was discharged on 03.09.2010. On the, same day the second opposite party has given assurance that there will not be any more pregnancy in the life of complainant. But to the shock of the complainant, she was pregnant and attended the first opposite party’s hospital on 28.05.2011 as a out patient in OP. No. 1496369 and the complainant informed the doctor that last month period was on 16.04.2011 then the doctor who advised the complainant to have Ultra Sound Scanning to confirm about the pregnancy. After the checkup, it has been confirmed that the complainant is pregnant and that there is single foetal and it has cardiac activity. The Pregnancy of the complainant was confirmed and also about the failure of the Sterilization operation done by the second opposite party. The failure of the sterilization operation shows that there is a clear negligence. Lethargic attitude and carelessness on the part of the second opposite party, due to the wrong operation, the complainant was put to great loss, hardship, mental torture and mental stress and her health was effected, later on the same day (28.05.2011) MTP (Medical Termination Pregnancy) was done to the complainant. Due to this the complainant was under went much pain and also suffered loss of blood and his physical and mental health was severely affected and the complainant was also worried that a abolished since it is sin. All the above said acts were done only at the instance of the negligence act of the second opposite party. The complainant sent a legal notice to the opposite party’s on 03.06.2011 and it was served. The opposite party’s has sent a preliminary notice dated 06.07.2011 and a detailed reply notice dated 22.08.2011, the reply submitted by the opposite party’s are all with false. Hence, this complaint is filed.
Written Version filed by the Opposite parties 1&2 are as follows:
2 The opposite parties deny each and every allegation/ claim contained in the complaint. Since it is a Hospital attached to the Medical College, the doctors working in the Opposite Party Hospital have additional responsibility of teaching undergraduate and postgraduate students, apart from rendering health care service to the patients. At a given point of time, if one member of the Unit is involved in teaching work, the other doctors will be looking after the patients, or do operative work or attend emergency as may be required. The Unit members share the teaching and clinical work as a team. The complainant and her husband were counseled about the procedure of caesarean section and operation. Two ‘informed consent’ forms, one for caesarian section operation and another for sterilization operation, were duly signed by the complainant and her husband on 29.08.2010. The couple was counseled regarding the various temporary methods of contraception and the permanent method of sterilization operation.
3. The couple was also made aware that like any other surgical procedure, sterilization and inherent risks of complication and that the procedure does have a failure rate and conception could still take place, although very rarely. The couple had signed the ‘informed consent’ for the sterilization operation as well as for the caesarian section operation, after being fully aware of the limitations, risks and complications and alternative choices. The tubectomy procedure was performed by Dr. Preeth, a well trained and qualified obstetrician and Gynecologist and one of the Senior Consultants at the Opposite party Hospital, under standardized conditions using proper technique, instrumentation and care. The surgery was not done by Dr. Usha Rani as stated wrongly by the Complainant. The pomeroy procedure is the preferred procedure because it is simple and effective. It is the technique that is most often adopted after delivery by caesarean section. However, it is subject to the known risk called ‘Recanalisation’, though it occurs rarely.
4. Recanalisation is a natural process (which is beyond human control and may take place rarely in women who had undergone sterilization procedure) wherein the flow in the ‘fallopian tube’ gets restored due to spontaneous reunion of the cut ends of the tube, enabling possibility of pregnancy as it was prior to the sterilization surgery. According to publications, the rate of such occurrence is between 0.4% and 2.5% and the fact of recanalisation being a known risk in sterilization procedure has been well-documented in the medical text books/literatures. The complainant came to the out-patient department of the Opposite Party Hospital on 28.05.2011 and the Gynecologist who attended her confirmed the pregnancy by ultra sound, explained the situation and advised/offered Medical Termination of pregnancy (MTP) and repeat sterilization at the Service Ward of the Opposite Party Hospital where all patients are rendered free health care services. Unfortunately, the complainant did not return to the Opposite Party Hospital, though advised specifically. It appears that she chosen to undergo the procedure elsewhere. Had she come to the Opposite Party Hospital as advised, she would have been admitted, undergone MTP and repeat sterilization, free of cost.
5. The Opposite party’s, therefore submit that under these circumstances, no physician can “ promise” or give “assurance” that pregnancy will not occur after the sterilization procedure, as has been claimed by the complainant. This fact is further highlighted by the ‘consent form’ signed by the patient and the patient’s husband wherein it has been clearly mentioned that” this operation can be a failure and conception could still take place”. Neither such assurance or any promise was given nor could ever be given by any doctor practicing scientific medicine. The allegation made by the complainant in this regard is entirely baseless and false. It is, therefore, reiterated that there has been no deficiency or negligence in relation to the standard of medical care provided to the complainant, more particularly in regard to sterilization procedure. The state of Medical Science as it exists today, does not guarantee 100% fool-proof and 100% fail-safe results after a sterilization procedure. The post-operative period was uneventful, and the complainant was discharged in a comfortable state and after wards she pursued her vocation with no interference or medical problem in her life-style. There is no material to prove that the sterilization procedure was done negligently and that due to the same she became pregnant in 2011. It is important to note that the complainant herein has not even made any single allegation, either in her notice or in the complaint, regarding any problems/sufferings undergone by her due to the sterilization procedure during the post-operative period in the Opposite Party Hospital i.e., from 29.08.2010 to 03.09.2010, or during the period after discharge from the Opposite Party Hospital on 28.05.2011, after conception. The mere fact that she conceived at a later date, even after the sterilization procedure, does not prove negligence in performing the surgery by the Opposite party doctors. So, the allegation made in the complaint are entirely baseless and totally untenable and hence this complaint is liable to be dismissed with exemplary cost.
6. In order to prove the case, the complainant filed her proof affidavit as her evidence and ExA1 to A7 are marked. While so, the proof affidavit filed by the opposite parties and ExB1 (S) is marked.
7. At this Juncture, the vital point for determination \ this forum is,
- Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?
- Whether the Complainant is entitled for any relief as prayer for?
8. Written Arguments submitted on both sides and the copy of the same is furnished to either side. In addition to that Oral Arguments also adduced on both sides.
9. Point No.(I):- 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 opposite party-2, during operation and the same was confirmed and the hospital of the opposite parties on taking ultrasound scan as advised by the doctor of the opposite party -1 on 28.5.2011 as outpatient Ex.A2 (Series) which is marked as Ex.A3, the ultrasound report and immediately MTP was done in the RKB Multi specialty Hospital, Thiruvallur on 3.6.2011 and the discharge summary given by the above said Hospital. The discharge summary issued by the opposite party dated 28.8.2010 is marked as Ex.A1. It is further seen that the complainant immediately issued the Ex.A5, the legal notice dated 3.6.2011 to the opposite parties for claiming compensation and on receipt of the same, the opposite parties have sent the reply notice which as marked Ex A6 & Ex A7 respectively.
10. While so, on careful perusal of the proof affidavit of the opposite parties that though it is admitted regarding the admission of the complainant in the opposite parties Hospital on 28.08.2010 and underwent the sterilization operation on 29.08.2010 and the other connected facts but at the same time it is denied about the deficiency of service in toto by stating that the opposite party’s doctor followed the accepted procedure for performing the sterilization procedure which was conducted under standardized conditions with due diligence and care. The methods of sterilization, so far known to medical science, which are most popular and prevalent, are not 100% safe and secure in spite of operation have been successfully performed and without any negligence on the part of surgeon, the sterilized woman can become pregnant due to natural causes viz., recanalisation ; Recanalisation 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 this fact has also been recorded clearly in the ‘consent’ given by the complainant and her husband in spite of providing standard care and the best treatment to the complainant relating to the sterilization procedure, Recanalization, though rare, had occurred in this case and resulted in pregnancy the mere fact that the complainant conceived at a later date after the sterilization procedure, does not prove negligence in performing the sterilization surgery; and the complainant has not even whispered anything in the complaint regarding any suffering undergone by her due to the Opposite Party’s doctors with “negligence, lethargic attitude, carelessness and wrong operation”, nor has produced any material to prove that the sterilization procedure was done by the Opposite Parties doctors wrongly or negligently and to prove their stand produced Ex.B1 (Series). It is further contended that in spite of the complainant was advised by the opposite parties to admit in their Hospital, the MTP will be done and repeat the sterilization free of cost and unfortunately the complainant did not return to the opposite parties hospital and she chosen to undergo the procedure elsewhere and therefore the complainant is not entitled for any compensation.
11. At this juncture, on careful perusal of the rival submissions put forth on either sides, the only contention raised by the opposite parties is that, there is no deficiency of service on their part and in fact the opposite parties have performed their duties as per the procedure and there is no materials to prove that the sterilization procedure was done negligently. At the outset, it is stated by the complainant that the opposite parties did not even disclosed in their common written version as to what procedure of sterilization operation was done to the complainant and that itself to show that the opposite parties were negligent and wanted to suppress the actual procedure.
12. In such circumstances, this Forum wants to enlighten that the duty cost upon the complainant to prove the actual negligent committed by the opposite parties by means of relevant evidence and on production of expert opinion. It is well 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
13. At this point of time, on going through the documents produced on the side of the complainant, the Ex A3 is the only document obtained from the RKB Multi specialty Hospital, Thiruvallur where the complainant underwent Medical Terminate of Pregnancy (MTP) on 3.6.2011. It is pertinent to note that Ex A3 is the discharge summary given by the RKB Hospital and even in this, there is no ioto of evidence to show that the negligence if any committed by the opposite parties while doing sterilization surgery to the complainant.
14. In furtherance, even though the burden of proof is on the shoulder of the complainant in respect of medical negligence, the complainant has not chosen to take any effective steps to obtain expert opinion till the end of the final. Whereas, the opposite parties had clearly reveals the fact through Ex.B1 (S) regarding the procedure and method adopted for the sterilization surgery with proper technique instrumentation and care also obtained the consent letter from the husband of the complainant on explaining the possibility of complication and failure to the patient complainant and her husband and the same was accepted.
15. 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 0.3% 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 recanalisation is more, when the tubectomy is done immediately after delivery.
16. In order to substainable their view, the Opposite Parties relied upon the following decisions. (1). State of Punjab Vs. Shiv Ram and Orders (2005 (4) CTC 627) S.C. (2). State of Haryana Vs. Raj Rani (2005 (4) CTC 703) S.C. 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 (F.A.No. 36/2012 as 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 Recanalisation. 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.
17. From the foregoing facts and reasons it is crystal clear that the complainant failed to prove the medical negligence through proper and consistent evidence and therefore the deficiency of service not proved. Thus the point no .1 is answered accordingly.
18.Point no.(2 ) As per the decision arrived in the point no. 1, it is concluded that there is no deficiency of service on the part of the opposite parties. But at the same time, it is learnt from Ex. A3, that the complainant underwent the MTP in the MKB Hospital, Thiruvallur and spent Rs. 6000/- towards Hospitalization . At the outset, it is noted from the averments of the complaint that immediate to the suspect of pregnancy even after sterilization surgery the complainant went to the opposite parties hospital for consultation and as advised by the opposite parties, taken ultrasound scan without charges and the report marked as EX.A3, and confirmed the pregnancy and explained the situation and offered Medical Termination of pregnancy and repeat sterilization with no additional cost. But the complainant did not turn up to the SRMC and underwent the MTP in the MKB Hospital, Thiruvallur by not utilizing the service of the opposite parties. Therefore the complainant is not at all entitled for any compensation and cost of expenses. Thus this point no.2 is answered accordingly.
In the result, this complaint is dismissed. No costs.
Dictated directly by the president to the Steno-typist, transcribed and computerized by her, corrected by the president and pronounced by us in the open forum on this the 1st July – 2015.
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MEMBER – I MEMBER-II PRESIDENT
List of Complainant Documents:
Ex.A1. Dt.28.08.2010 - Xerox Copy of Discharge Summary
Ex.A2. Dt.28.05.2011 - Xerox Copy of Out Patient bill
Ex.A3. Dt.28.05.2011 - Xerox Copy of Ultra Sound Report
Ex.A4. Dt.03.06.2011 - Xerox Copy of Discharge Summary of RKB
Multi Specialty Hospital Thiruvallur
Ex.A5. Dt.03.06.2011 - Legal Notice sent by the complainant to the
opposite parties
Ex.A6. Dt.06.07.2011 - Initial reply notice by the opposite parties
Ex.A7. Dt.22.08.2011 - Detailed reply notice by the opposite parties
List of Opposite Parties Documents:
Ex.B1. Dt.28.08.2010 - Xerox Copy of Sri Ramachandra Medical Centre
Record
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MEMBER –I MEMBER –II PRESIDENT
