Tamil Nadu

StateCommission

FA/178/2014

R. RAVI AND R. KUMUDHAVALLI - Complainant(s)

Versus

NATARAJ MEDICAL CARE CENTRE P LTD - Opp.Party(s)

S. SARAVANAN

09 Nov 2021

ORDER

IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:    HON’BLE THIRU. JUSTICE.  R. SUBBIAH ,                                     PRESIDENT

                  TMT. S.M.   LATHA  MAHESWARI,                                                       MEMBER

 

F.A.No.178/2014

(Against the order passed in C.C.No.460/2012, dated 29.01.2014 on the file of the District Commission, Coimbatore)

 

TUESDAY, THE 09^th DAY OF NOVEMBER 2021.

 

1.   R. Ravi, S/o. Rathinasamy.

2.   R. Kumudhavalli W/o. Ravi.

      No.4/2, Velaboosary Lane,

      Othakalmandapavam,

       Coimbatore.                                                                                              Appellants/complainants

                                        

                                                                                       Vs

1.   M/s. Nataraj Medical Care Centre (P) Ltd.,

      Madukkarai, Coimbatore – 641 105. 

 

2.   Dr. Kalpana Ravi,

      M/s. Nataraj Medical Care Centre (P) Ltd.,

      Madukkarai,

      Coimbatore – 641 105.                                                                                  Respondents/Opposite Parties

Counsel for the Appellant/Complainant           :  M/s. S. Saravanan, Advocate.   

Counsel for the Respondents 1 & 2/

               Opposite Parties 1 & 2                        :  M/s. V. Sivakumar,  Advocate.  

         This appeal is coming before us for final hearing on 26.10.2021 and on hearing the arguments of both sides and on perusing the material records, this Commission made the following;-

 

ORDER

HON’BLE THIRU. JUSTICE R. SUBBIAH, PRESIDENT.   

1.            This appeal has been filed under section 15 read with section 17(1) (a) (ii) of the Consumer Protection Act, 1986 against the order of the District Commission, Coimbatore  made in C.C.No.460/2012, dated 29.01.2014, dismissing the complaint filed by the complainants/appellants herein.  

2.          For the sake of convenience and brevity, the parties are referred to here as they stood arrayed in the District Consumer Disputes Redressal Commission, Coimbatore (In short, “District Commission”).              

3.         The factual background culminating this appeal is as follows;-  The case of the complainants before the District Commission is that their marriage took place on 26.11.2001. Due to wedlock, the 2^nd complainant gave birth to a male child on 03.10.2003 and the child was named Dhanush. The 1^st complainant was working as a coolly in a moulding company and thereby he was earning a sum of Rs.7,000/- per month.  The 2^nd complainant was working as a teacher in Gengusamy Matriculation School and thereby she was earning Rs.7000/- per month and as they are living below the poverty line, they decided themselves not to have anymore child. The 2^nd complainant along with her husband/1^st complainant went to the 1^st opposite party’s hospital and met the 2^nd opposite party, who was working as a doctor in the 1^st opposite party’s hospital. As per the advice of the 2^nd opposite party, the 2^nd complainant was admitted in the said hospital on 24.04.2012 at 10.15 a.m. as in-patient for undergoing family planning operation.  Subsequently, Blood test, Urine test and Ultra Sonagraphy were taken on the 2^nd complainant on the same day and on 25.04.2012 the 2^nd opposite party performed family planning operation on the 2^nd complainant and she was discharged on 26.04.2012. Again on 01.05.2012 and 03.05.2012, the 2^nd complainant met the 2^nd opposite party doctor who advised the 2^nd complainant with regard to the medications and other related advices.  While so, in such a situation, the 2^nd complainant did not get regular monthly menstrual cycle (periods) and hence, on 02.08.2012 again the 2^nd complainant went to the 1^st opposite party hospital and Ultra Sonagraphy was taken and on examining the said report, the 2^nd opposite party informed the 2^nd complainant that she was carrying matured fetus of 18 weeks and 4 days.  On hearing this, the 2^nd complainant was terribly shocked. The Ultra Sonagraphy taken on 02.08.2012 clearly reveals that even on the date of performing the family planning operation by the 2^nd opposite party, the 2^nd complainant was pregnant. Had the pre-operation care been taken properly by the 2^nd opposite party, the 2^nd complainant would have come to know about the pregnancy of 4 weeks at the first instance of Family Planning Procedure and she would have terminated the fetus before undergoing the operation.  However, when she had come to know about her pregnancy only on 02.08.2012, the 2^nd opposite party insisted for payment of Rs.10,000/- for termination of fetus.  Since the complainants are living in poverty, they were not in a position to pay the said amount and hence the 2^nd complainant approached the KMCH hospital on 07.09.2012.  But, in KMCH, the 2^nd complainant was informed that since the fetus had grown-up to 20 weeks she was not permitted to abort the fetus. Therefore, left with no other option, the 2^nd complainant delivered the child. Since they have to lead a tough life to bring up the child, the 2^nd complainant issued a legal notice to the opposite parties on 24.09.2012 claiming compensation of Rs.75,000/- per year for 18 years totaling a sum of  Rs.5,75,000/- for bringing up the child and Rs.1,00,000/- as compensation for medical expenses and Rs.25,000/- for litigation expenses. On receipt of the above notice, a reply was sent on 04.10.2012 and 03.10.2012 by the opposite parties 1 & 2 respectively denying the allegations of the complainants. Having been dissatisfied with the reply sent by the opposite parties, the complainants filed a consumer complaint before the District Commission claiming direction to the opposite parties 1 & 2 to pay a sum of Rs.5,00,000/-as compensation for mental agony and also  to pay Rs.75,000/- per year for 18 years in total  Rs.13,50,000/- towards the expenses intended to be incurred for bringing-up the child born to the 2^nd complainant and another sum of Rs.1,00,000/- as compensation for medical expenses and Rs.25,000/- as  litigation charges, in total Rs.19,75,000/- from the opposite parties.  

4.      The case of the complainants was resisted by the opposite parties by filing a joint written version contending inter alia that the 1^st opposite party is a reputed hospital in Madukkarai, Coimbatore for the past 35 years. They have been approved to conduct the family planning operation by the Government of Tamil Nadu since 1995.  The 2^nd opposite party is a renowned doctor having vast and good experience of 10 years in performing family planning operation and further she has obtained certificate for conducting Laparoscopic Operation and furthermore she has also participated in several Free Medical Camps. The 2^nd complainant, aged about 29 years came to the 1^st opposite party’s hospital on 24.03.2012 at about 8.30 p.m. for consultation regarding the family planning medical procedure and she was informed of the procedure by the 2^nd opposite party and after detailed consultation she was advised by the 2^nd opposite party to come for operation on the 5^th day when her menstrual cycle is over.  The 2^nd complainant came to the 2^nd opposite party’s hospital on 24.10.2012 and after a preliminary consultation she was admitted in the hospital at 11.15 a.m. on the same day as in-patient for family planning operation through Laparoscopy and she had also undergone necessary medical tests in connection with the same, including Urine Gravindix tests among others which is an essential and compulsory test on the same day. The 2^nd complainant was enquired about her menstrual flow pattern for the last 4 – 5 days from 20.04.2012 till the last menstrual date and the 2^nd opposite party was informed that the blood flow was average and no pain was felt. The Urine Gravindix test was done at first which showed negative and other tests like blood, urine reports including Ultra Sonagraphy showed normal and finally the 2^nd complainant was pronounced fit for surgery. A detailed consent was obtained from the complainants as per the required norms. In fact on 24.03.2012, during the 1^st consultation, it was found that the 2^nd complainant had Cu-T (Copper) insertion at the time when tests were taken and the same was removed on 24.03.2012 subsequently the 2^nd complainant was asked to come for operation after one month i.e., on the 5^th day after completion of her next menstrual cycle and the 2^nd complainant was advised not to have intercourse since the chance of fertility was more because contraception was used. The 2^nd complainant professionally a teacher was informed about all these procedures and was further advised that if the instructions were diligently followed, she can go for work within a short span of time after the Family Planning Operation was done. On 25.04.2012 at 6.30 a.m. Laparoscopy Operation was conducted successfully by this opposite party.  The 2^nd complainant also left the hospital on the next day i.e., on 26.04.2012 after being fully satisfied with the operation.  Thereafter, the 2^nd complainant came to the hospital for follow-up treatment on 01.05.2012 and 03.05.2012 and both the complainants having been fully satisfied went away.  Prior to the operation, the complainants were fully briefed up by the opposite parties about the operation and its success and/or failure.  Both the complainants have given consent for the same and signed in the necessary forms to that effect. The forms that were signed by the complainants included the details about the unfortunate failure of the operation.  Both the complainants were fully aware about the operation. While so, after three months on 02.08.2012, the 2^nd complainant once again came to the hospital and informed the opposite party that she did not have menstrual periods for three months.  Immediately USG scan was taken upon the 2^nd complainant in and by which it was known that she was pregnant and the pregnancy was nearly 18 weeks and 4 days old. The 2^nd complainant was also informed that termination of fetus would be conducted if she needs at free of cost.  For which the 2^nd complainant and her husband stated that they would decide and come after two days. But, unfortunately, they did not do so.  On the other hand, she had issued a legal notice after two months to which a proper reply was sent. Thus, the opposite parties have not committed any deficiency in service and medical negligence and hence sought for dismissal of the complaint.  

5.      Before the District Commission, in order to prove their case, the complainants and the opposite parties have filed their respective proof affidavits. On the side of the complainants, Exhibits A1 to A34 were marked and Exhibits B1 to B5 were marked on the side of the opposite parties.

6.       After analyzing the evidences adduced by both parties, the District Commission held that there was no medical negligence and deficiency in service on the part of the opposite parties and dismissed the complaint.  Aggrieved over the order of dismissal, the present appeal has been filed by the complainants. 

7.     The learned counsel appearing for the appellants/complainants submitted that there was negligence on the part of the opposite parties in performing the family planning operation. The opposite parties should not have done the operation without cleaning the uterus.  The opposite parties have negligently done the operation without properly examining the 2^nd complainant.  The Ultra Sonagraphy taken on 02.08.2012 would show that even on the date of performing family planning operation, i.e., on 24.04.2012 the 2^nd complainant was pregnant for a period of 18 weeks and 4 days.  Had the pre-operative care been taken properly the 2^nd complainant would have come to know that she was pregnant. But, due to careless attitude of the 2^nd opposite party, the 2^nd complainant was not properly diagnosed of her pregnancy through proper pre-operative care examinations. Though the 2^nd opposite party claimed that she gave proper advice to the 2^nd complainant, there is nothing in writing to show that she asked the 2^nd complainant to come to the hospital within 5 days of her menstrual cycle getting over. The complainants are living below the poverty line and so they are striving hard to bring up the child.  But, without considering all these aspects, the District Commission dismissed the complaint which has to be set aside and the complaint be allowed as claimed for.   

8.      Countering the above submissions, the counsel appearing for the opposite parties submitted that as per the normal procedure, prior to performing the family planning operation, Urinary Gravindix Test was conducted with utmost care by the 2^nd opposite party to the 2^nd complainant and the result shows that no such fetus existed in the womb. Hence, the family planning operation was performed to the 2^nd complainant. According to the medical norms, if urinary Gravindix Test shows positive results in respect of the fetus, normally Family Planning Operation will be avoided.  To confirm this aspect, the 2^nd opposite party doctor relied on the texts in HARRISONS PRINCIPLE OF INTERNAL MEDICINE; 16^th Edition pertaining to Diagnosis of Pregnancy – Page 2202.  After a lapse of three months period of Family Planning Operation i.e., on 02.08.2012 the 2^nd complainant again came to the opposite parties hospital and informed the 2^nd opposite party doctor that she did not have regular menstrual periods for the past three months.  After hearing this, the 2^nd opposite party took USG scan of the 2^nd complainant and the result of the USG scan shows that the 2^nd complainant was pregnant and the pregnancy period was nearly 18 weeks and 4 days. The 2^nd opposite party informed the same to the complainants and further the 2^nd opposite party told the complainants that if she needs termination of fetus it would be conducted at free of cost to which the complainants replied that they would decide and come after 2 days but the complainants did not turn up.  After 2 months, the complainants issued a legal notice with false allegations that as if the opposite parties had demanded Rs.10,000/- for termination of fetus to which  a proper reply was sent by the opposite parties. Further, the 2^nd complainant was well-acquainted with the facts of the pregnancy and they waited till the growth of the fetus for their convenience and gave birth to a male child with normal delivery. The deliberate and wilful act of the complainants squarely discloses that they had pre-planned with malafide intention to extract huge money from the opposite parties.  Hence, there is no negligence on the part of the opposite parties and therefore the District Commission has rightly dismissed the complaint and hence, the opposite parties sought for dismissal of the appeal.   

9.       Heard both sides and perused the materials available on record.  Keeping in mind the submissions made on either side, we have carefully gone through the materials available on record. Since we have discussed the facts in detail as above, we refrain from reiterating the same any further in this appeal and only the facts which are germane are discussed hereunder.

10.     The only point for consideration in this appeal is that whether there is any medical negligence on the part of the opposite parties and if this issue is decided that would suffice to dispose of the appeal. Though very many contentions were raised in this case, the crux of the allegations is that on 02.08.2012 when Ultra Sonagraphy was taken it revealed that the 2^nd complainant was pregnant for a period of 18 weeks 4 days as on 02.08.2012. It means even on the date of performing the family planning operation by the 2^nd opposite party she was pregnant.  The opposite parties without taking proper pre-operative care, have performed the Family Planning operation and therefore there is negligence on the part of the opposite parties.  But, according to the opposite parties even as early as on 24.02.2012 when the 2^nd complainant came to  her for the 1^st consultation it was found that the 2^nd  complainant had Cu-T and at the time of tests, the same was removed on 24.03.2012.  The 2^nd complainant was asked to come for operation after one month on completion of 5^th day of menstrual cycle..  The 2^nd complainant was also advised not to have intercourse since the chances for pregnancy would be more upon the removal of CU-T (Copper) insertion.  But, they have not followed the instruction of the 2^nd opposite party and if they had followed the instructions the 2^nd complainant would not have become pregnant.  On the date of operation, Urinary Gravandix tests and other tests were taken. While Urinary Gravandix test shows negative, other tests show normal. Finally, the 2^nd complainant was pronounced fit for surgery and therefore, operation was done. Therefore, the 2^nd opposite party after taking all the tests perfectly performed the family planning operation. Furthermore, when the 2^nd opposite party informed the complainant that if she is ready and willing to terminate the fetus, the operation would be performed at free of cost but there was no proper response from the complainants. This shows that the 2^nd complainant is not willing to terminate the fetus and if at all she is not willing to bear the child, the 2^nd opposite party herself could have terminated the fetus as it is a legal and permissible under the Medical Termination of Pregnancy Act, 1971.  Moreover, sterilisation procedure is also not 100% safe and secure. When the 2^nd opposite party has conducted all the tests perfectly before performing family planning operation on the 2^nd complainant, she cannot be held in any way responsible as there was no medical negligence and deficiency in service on the part of the opposite parties.  Therefore, we do not find any error or infirmity in the order passed by the District Commission and hence we come to the conclusion that the appeal is liable to be dismissed. 

11.      In the result, the appeal is dismissed confirming the order of the District Consumer Disputes Redressal Commission, Coimbatore made in C.C.No.460/2012, dated 29.01.2014.  There shall be no order as to costs in this appeal.   

 

 

 

S.M. LATHA MAHESWARI,                                                                      R. SUBBIAH, 

          MEMBER.                                                                                           PRESIDENT.  

                                                                                       

Index: Yes/No  

TCM/SCDRC/Chennai/Orders/Nov/2021