DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL) ISBT KASHMERE GATE DELHI
CC/90/2015
Smt. Rekha
W/o Sh. Lakhan Singh
R/o 950 A Baba Farid Puri
West Patel Nagar,
New Delhi – 110008 …..COMPLAINANT
VERSUS
1. M/s Parivar Sewa Clinic
5439, Arya Samaj Road,
Near Kikarwala Chowk,
Dev Nagar, New Delhi – 110005
Through Medical Supdt.
2. Dr. Dham’s Diagnostic Centre
3856/23, Rehgar Pura,
Arya Samaj Road, Karol Bagh,
New Delhi – 110005
Through Dr. Kawal Deep Dham …..OPPOSITE PARTIES
Coram : Ms. Rekha Rani, President
Ms. Manju Bala Sharma, Member
Dr. R.C. Meena, Member
ORDER
Rekha Rani, President
1. Instant complaint was filed by Smt. Rekha (in short the complainant) under section 12 of the Consumer Protection Act 1986 as amended up to date pleading therein that as she already has two children she decided not to have third child. So she approached M/s. Pariwar Sewa Clinic (in short OP 1) to seek advice to obviate risk of third pregnancy. OP 1 advised her to go for injections. OP 1 directed complainant to go to Dr. Dham’s Diagnostic Centre (in short OP 2) for ultra sound. Both the OPs are hand-in-glove with each other and exploited the complainant. She visited OPs in year 2013 and 2014 on various occasions for consultation, medicines, ultrasound etc.
On 15.10.2014 Sterilization (Nasbandi) was performed and OP 1 assured the complainant that there would not be any risk of pregnancy in future. Complainant was surprised by an ultrasound conducted by OP 2 on 17/02/2015 which confirmed that she was pregnant. OPs apologized and assured of best possible medical care and financial aid to the complainant.
However, to the shock and surprise of the complainant, her ultrasound on 07.03.2015 revealed that she was not pregnant. Complainant realized that her baby had been illegally terminated by the OPs through some medicines. She was being thrilled with possibility of having third child in view of the financial assurance given by the OPs. But they did not fulfill their promise.
Hence the instant compliant seeking direction to OPs to pay Rs. 5,00,000/- as compensation to the complainant for causing her agony and towards medical expenses incurred on her treatment in the hands of both the OPs.
2. Notice of the instant complaint was issued to the OPs who appeared and contested the claim vide their separate reply.
3. OP 1 pleaded that complainant used to come to the Clinic of OP 1 situated at Karol Bagh for her unwanted pregnancies and gynecological problems. In Para nos. 4 and 5 of the reply it is pleaded that she was advised to use contraceptive methods available in the interests of her health. It is further pleaded that on 17.02.2014 she came to the clinic of OP No. 1 for third MTP procedure and reported that she was not using any contraceptive method. Further it is pleaded that on 13.10.14 the complainant and her husband visited the clinic of OP 1 and stated that she wanted to undergo sterilization as it was permanent contraceptive method and for which complainant had given her consent and accordingly sterilization was done. Further it is stated that she was advised to come for regular follow up. It is submitted that an ultrasound report dated 17.02.2015 showed a single intrauterine gestation but no fetal node was seen and the status of pregnancy was not confirmed in the absence of fetal node and that she was advised to come after 15 days for a repeat ultrasound so that a decision could be taken after monitoring the progress of pregnancy, if it existed. It is stated that no medicine was prescribed to her on 17.02.2015 or thereafter.
It is further stated that on 07.03.2015 she underwent an ultrasound whereby it was shown that that there was no gestation Sac and No R.P.O.C’s (Retained Product of Conception). It is further stated that complainant reported back to OP 1 clinic on 09.03.2015 informing that she had her periods. Urine pregnancy test was done and it was found negative.
It is further stated that no treatment for MTP was given to the complainant after the Laparoscopic Sterilization. No failure of sterilization was reported by the complainant till date and therefore there is no deficiency in service on the part of OP 1.
4. OP 2 filed separate reply. It is stated that it is a charitable institution and is associated with various charitable institutions for free sewa for the last 15 years and he was given best doctor award in the year 2009. It is further stated that it is running a diagnostic centre which is approved and registered with the Govt. of Delhi. It is submitted that ultrasound was done on reference from OP no. 1 on concessional rates following correct procedure and with the consent of the complainant.
It is further submitted that no fetal node seen was seen in ultrasound report dated 17.02.2015 which amounts to non-confirmation of pregnancy of the complainant. It is denied that any assurance was given to complainant for any financial aid by OP 2. It is denied that OP 2 ever exploited the complainant or caused any deficiency in service.
5. Both sides adduced their evidence by way of affidavits. We have heard Shri Lakhan Sigh Husband of the complainant and Shri Shambhu Chatruvedi Counsel for OP 1.
6. Complainant pleaded that she had been visiting OP 1 and OP 2 in the year 2013 and 2014 on various occasions.
It is pleaded by her that as she already had two children she did not want third child and that to avoid pregnancy she was taking advise of OP 1. It is submitted that OP 1 conducted sterilization on 15/10/2014 and assured that there would be no risk of pregnancy thereafter. She was surprised by ultrasound conducted by OP 2 on 17.02.15 which indicated that she was pregnant. She has alleged that her pregnancy was illegally terminated by OP 1. Ultrasound reports dated 17.02.2015 and dated 07.03.2015 read as under :
NAME : MRS. REKHA AGE/SEX : 24 YRS/F
REF BY: PARIWAR SEWA DATE : 17.02.2015
ULTRA SOUND A.N.C.
Fetal Parameters :
G.SAC - 10 mm G. / Age 4 weeks.
Average G. Age 4 Weeks
Cystic area size of 30 x 24 mm in Lt. ovary? Corpusiuteal cyst.
DECLARATION OF DOCTOR CONDUCTING ULTRASONOGRAPHY
Dr. Kawal Deep Dham declare that while conducting ultrasonograpy of the patient. I have neither detected nor disclosed sex of Fetal to anybody in any manner.
Dr. Kawal Deep Dham Dr. Jaspreet Kaur
Cons Radiologist MBBS, MD
Consultant Biochemist
NAME : MRS. REKHA AGE/SEX : 25 YRS/F
REF BY: PARIWAR SEWA DATE : 07.03.2015
ULTRA SOUND PELVIS
URINARY BLADDER :- is full shows normal walls and lumen.
Uterus :- is anteverted, normal in size measures 4.9 x 2.2 x 3.6 cms.
It shows homogenous echopattern. No S.O.L
No G. Sac. No R.P.O.C’s.
Endometrium is 9 mm in thickness. It is in midline.
No fluid is seen in endometrial cavity.
B/L ADNEXA :- Both ovaries are normal in size, shape and echopattern.
No adnexal mass seen.
No fluid seen in cul-de-sac.
TO BE CLINICALLY CORRELATED AND ASSESSED.
Dr. Kawal Deep Dham Dr. Jaspreet Kaur
Cons Radiologist MBBS, MD
Consultant Biochemist
7. Case of the complainant is that her pregnancy indicated vide ultrasound dated 17.02.2015 was illegally terminated by OP 1. Complainant has not placed any document on record as to what medicines were prescribed to her by OP 1 between 17.02.2015 to 07.03.2015 which allegedly induced termination of her pregnancy.
8. Both the OPs have submitted that ultrasound report dated 17.02.2015 does not indicate that it was confirmed case of pregnancy as no fetal node was seen.
9. Even if case of complainant that she was pregnant on 17.02.2015 is believed there is nothing on record to prove that termination of pregnancy was induced by OP 1 by giving her any medicines. It is submitted on behalf of the complainant that OP was negligent in performing sterilization operation which resulted in pregnancy of the complainant.
10. There is no expert opinion that there was any negligence in performing sterilization operation. It has been observed by Honble Supreme Court in State of Haryana and others Vs Raj Rani (2005)7 Supreme Court Cases 22 that childbirth in spite of a 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. The doctor can be held liable only in cases where the failure of operation is attributable to his negligence and not otherwise. Similarly it has been held by the Apex court in State of Punjab Vs Shiv Ram and others (2005) 7 SCC 1 in Para-D at page 3 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 in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth.
11. It is complainant’s case that doctors performing the operation were not possessed of the requisite skill which he professed to have possessed, or, he did not act with reasonable competence in the given case. Further there is no allegation that the operating surgeon was not competent to perform the operation. Therefore, in view of the law laid down by the Apex court, OP cannot be held guilty because there is no evidence that the operation was performed by Dr. Hemant Kansal negligently. The tubectomy upon the complainant could not be completed as her left tube could not be ligated due to adhesion. Even if operation had been performed successfully then also there could be pregnancy as due to certain natural causes there could be spontaneous canalization. In the present case no evidence has been led that there was any negligence on the part of operating doctor.
12. Chandigarh State Commission in Smt.Shanti and another Vs the Post Graduate Institute of medical education and research, Nehru Hospital and another 1998(1)CPC 216 observed that pregnancy after sterilization is not unknown.
13. In Medical Superintendent Esi vs. Ram Avadh Pal, R.P. No. 613 OF 2007 dated 24.01.2017, facts of the case were that the he wife of the complainant Ram Avadh Pal gave birth to a female child at ESI Hospital, Jhilmil Colony, Vivek Vihar, Delhi on 14.05.2001. After the said birth, the wife of the complainant had undergone sterilization operation at the same Hospital, which was performed by a team of doctors, Dr. Deep Shikha and Dr. Pooja under the supervision of two specialists. A sterilization certificate was issued to the patient vide certificate No. 226176, Code No. 78/AB dated 15.05.2001. It is stated that after some time, when the complainant's wife visited the Indira Gandhi ESI Hospital, Jhilmil Colony, Delhi for check-up on 26.09.2005, she was found to be carrying advance pregnancy for 32-34 weeks approximately. Subsequently, she gave birth to a female child on 06.10.2005 at Aashirwad Nursing Home, Pratap Vihar, Ghaziabad, UP. It has been alleged by the complainant that they were a poor family, having meagre income and they could not afford any other child. With that purpose in mind, the wife of the complainant had got the sterilization operation done in the year 2001, but it was a matter of great shock and mental agony for them to get another child. Alleging medical negligence against the ESI Hospital and its doctors, the complainant filed the consumer complaint in question, seeking directions to the petitioners/OPs to compensate the complainant to the tune of Rs. 7.5 lakhs.
14. National Commission discussed Medico-legal Aspects in Obstetrics and Gynecology deals with medico-legal problems in sterilization operations. Sterilization operation is the most commonly used technique in India, but even in this technique, the failure rate is 0.3%. None of the methods used for sterilization can be stated to provide a 100% guarantee that pregnancy will not occur again.
15. The subject of medical negligence has been discussed in a number of landmark judgments given by the Hon'ble Supreme Court and Hon’ble National Commission from time to time. An order passed by the Hon'ble Supreme Court in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], in the order of the Hon'ble Apex Court in State of Punjab vs. Shiv Ram & Ors. (supra). The principles laid down in the said order say that the basis of liability of a professional in tort is negligence. Unless that negligence is established, the primary liability cannot be fastened on the medical practitioner. In view of the aforesaid judgments, the complaint is dismissed. Copy of this order be sent to the parties as per rules. File be consigned to record room.
Announced this day of 2019.
