Tamil Nadu

North Chennai

347/2005

Mrs.Swarnam, W/o.Selvam, - Complainant(s)

Versus

RSRM Government Hospital, Rep by its Suprindent - Opp.Party(s)

PONRAM RAJA

31 Mar 2015

ORDER

                                                                   Complaint presented on  :  01.08.2005

                                                                    Order pronounced on : 31.03.2015

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           :        MEMBER II

 

   TUESDAY  THE  31th  DAY OF MARCH 2015

 

C.C.NO.347/2005

 

      Mrs. Swanam,

      W/o. Selvam ,

      53,  Thiruveethiamman Koil,

      4^th Steet, Ernavoor.

       Chennai 600 057.                                                                          

 

                                                                                            …..Complainant

..Vs..

	1.R.S.1.R.S.R.M Government Hospital, Rep.  Rep.by the Superintendent, Chen  Chennai  600 013.
	2.The 2. The Director of Medical Foundation Chep  Chepauk.
	3.The 3. The Secretary to Government, Healt   Health  Department, Fort S  Fort St.George, Chen   Chennai 600 009.	…Opposite parties

 

 

Date of complaint                   :         21.12.2005

Counsel for Complainant           :         M/s. S.J. Jagadev, B. Satish Babu,

Counsel for Opposite parties     :        Mr.Ponram Rajaa,

O R D E R

 

BY PRESIDENT, THIRU K.JAYABALAN, B.SC.,B.L.,  

       Complaint filed  under section 12 of the Consumer Protection Act 1986 for a direction to the opposite parties to pay  a sum of Rs.5,00,000/- as damages of medical  negligence in performing P.S Surgery and to pay Rs.5.000/-  towards cost and legal expenses .  

1. COMPLAINT IN BRIEF :

Complainant married one Selvam  in the year 1998. She was having four children.  5^th Child  was born on 11.08.2001 at RSRM Hospital, Chennai.  She underwent family planning surgery on 16.08.2001 at the above hospital.  Complainant  was confident that she will not become  pregnant. During  February 2004, there was symptoms of pregnancy, she went for medical  test to Ernavoor Health Centre, Thiruvottiyur Municipality.  The Doctors referred the complainant  to opposite parties hospital for scanning.  After scanning on 03.03.2004,doctor informed that  she was four months pregnant.  Ultimately  she delivered  another  male child  at first opposite party hospital. Complainant’s husband is only a coolie, they were unable to manage the  children, that is why she under went family  planning operation at first opposite party hospital. The operation was failure, it is negligence on the part of the first opposite part hospital.  She has to bear expenditure in bringing up the unwanted child.  Therefore she  issued notice to the opposite parties and filed  complaint.

2.WRITTEN VERSION IN BRIEF:

          The  complaint has to be dismissed on the ground that there is no consumer and service provider relationship between the complainant and the opposite parties. The doctors of the 1^st opposite party discharging their duties as medical officers without any default  or deficiency.  The complainant had been treated by the opposite parties hospital without any payment of consideration. Hence CP Act  not applicable to the complainant.  The complaint barred by  limitation, since the  complainant undergone P.S surgery  on 16.08.2001 and complaint filed in the year 2005.   After surgery,  the complainant advised to approach the hospital within 2 weeks from the date of missing of periods. If the complainant approached on missing of her menstrual period, the opposite party would have done MTP( Medical Termination of Pregnancy)  to avoid delivery of the baby to the complainant. Therefore the opposite parties are not responsible for the birth of next child to the complainant on 14.07.2004.   The failure rate in family planning is 0.2% i.e. due to natural  re-canalizaiton of  fallopian tubes as per the medical literature.  Therefore the opposite parties are not committed any deficiency in service  and prays to dismiss the complaint. 

      3. The Complainant had filed  his proof affidavit and documents Ex.A1 to Ex.A8 were  marked  on the side of the complainant.  The opposite parties filed their  proof affidavit and no document marked on their behalf.

 

 

4. THE POINTS FOR CONSIDERATION:

1)  Whether  the opposite parties committed  deficiency in service?

2)   To what relief the complainant is entitled?

5. POINT NO : 1

             It is  an admitted fact  by both the parties are that a family planning surgery  was done  to the complainant on 16.08.2001 in the  1^st opposite party hospital  by the doctors and after surgery  she had symptoms of pregnancy during February 2004 and she went to Ernavoor Health Centre, Thiruvottiyur  municipality and from there referred her to the 1^st opposite party hospital and she undergone scanning and  other medical tests with the 1^st opposite party hospital on 03.03.2004 and it was confirmed that the complainant was 4 months pregnant and ultimately she delivered another male child on 14.07.2004  at the 1^st opposite party hospital. 

             6.The complainant  contended that  she had five children and she did not want any further children because she is hailing from a poor family and her husband is  a coolie and he is the only source of income and in view of that she undergone a family planning  surgery at  the 1^st opposite party hospital and  however  such a surgery was failed, she gave birth an another child  and the very purpose undergoing the family planning surgery  has been defeated and therefore the 1^st opposite party doctors who conducted said surgery committed negligence in service and  the complainant put to mental agony and she is unable to maintain the child due to her economical conditions and  further  the complainant  relied on a judgment  of the Supreme Court reported in   I  (2000) CPJ 53 (SC) (State of Haryana & Ors   Vs Smt.Santra) and in view of the such judgment the opposite parties are committed deficiency in service  and the complainant is entitled for compensation  from the opposite parties.

             7.The opposite parties contended that immediately after such  a family planning surgery every patient including this complainant  were advised to approach the hospital within 2 weeks from the date of missing of her menstrual period and if she had approached the 1^st opposite party hospital they would have conducted MTP to avoid delivery of the baby and further the opposite parties have not committed deficiency in service  in view of the judgment of the Supreme Court  reported in (2005) 7 SCC 1(State of Punjab Vs Shiv Ram and others) and therefore prays to dismiss the complaint.

             8.It is a fact that the complainant  is already having   5 children and she undergone family planning surgery in the 1^st opposite party hospital on 16.08.2001  and after such surgery she become again pregnant and delivered a male child on 14.07.2004. The  judgment relied on by the complainant in I (2000) CPJ 53 (SC), the  Hon’ble Supreme Court held that  the doctor as well as state must be  held responsible in  damages, if sterilization operation performed by him his failure on account of his negligence which is responsible for another birth in family, creating additional economic burden on person who had chosen to operated  upon for sterilization.   The above judgment   was rendered by a  two - Judge Bench decision of the Supreme Court  and the same was distinguished  by the judgment  of the Supreme Court referred by the opposite party reported in ( 2005) 7 (SCC) 1 rendered by full bench  (3 Judges) of the Hon’ble Supreme Court.  So naturally the full bench judgment of the Supreme Court  only can be taken to decide this case.

             9. The full bench laid down in para 25, 28 and 29 are as follows:

25.We  are, therefore,  clearly of the opinion 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 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 hereinabove, ordinarily a surgeon does not offer such guarantee.

        28.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 the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized women can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the penal code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to such-section (2) of section 3 provides:

        “Explanation II – where any  pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”

      29.And  that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act. 1971.

            10.As per the above  observation of the Supreme Court when the complainant in the case in hand unwanted the child, as soon as her menstruation period was stopped as already advised by the opposite party doctors, she could have very well  approached the 1^st opposite party hospital so that they could have examined her and after confirmation of her pregnancy, after getting her consent they could have aborted the child.  Section 3 of medical termination of pregnancy Act 1971 permits for such a termination.  In spite of that the complainant was duly informed after she undergone the family planning surgery she had not chosen to approach the 1^st opposite party.   Further the written version it is specifically pleaded that  though the sterilization is a permanent method of family  planning   the failure  rate is 0.2% .i.e due to natural re-canalization of fallopian tubes as per  the medical literature. Therefore the complainant case may be one such case  that the failure rate is 0.2%  and for which the doctors of 1^st opposite party cannot be attributed that they have committed deficiency in service.  This Supreme Court also observed the above judgment that  sterilization though most popular and prevalent are not 100% safe and secure.    

             11.Further our State Consumer Dispute Redressal Commission, Chennai  also held in  F.A. No. 588/2001  (A. Kamadhenu Vs Dr.Girija Rajkumar, M.B.B.S. D.G.O) and a reported judgment in II (2011) CPJ 500  (Krishnaveni (Dr.) & Ors Vs Vijaya), relied on the above referred from the judgment of the Supreme Court, that the Doctor who conducted the sterilization have not committed negligent Act.

             12.The opposite party contented that the sterilization operation  conducted on 16.08.2001 and whereas the complaint filed in the year 2005 and therefore the complaint is barred by limitation. According to the opposite party the cause of action would be the date of operation i.e in the year 2001.  That cannot be a acceptable mode.  After  undergoing such sterilization operation again she  become pregnant and such a fact known to her at the first instance has to be taken as a cause of action.  In this case the complainant stated in the complaint that she had symptoms of pregnancy during February, 2004 and therefore such a date i.e. February 2004 has to be taken as cause of action.   From that date within a period of 2 years i.e. in the year 2005 itself the complainant filed this complaint  and therefore the contention of the opposite party  that the complainant is barred by limitation  is rejected.

             13.In view of the above referred full bench judgment of the Supreme Court and our  State Commission orders, and also from the documents Ex.A1 to A8, it is held that  the opposite parties have not committed any deficiency in service  and accordingly  this point is answered.

14.POINT NO:2

          Since it is decided above that the opposite parties have not committed any deficiency in service, the complainant is not entitled for any  compensation  from the opposite parties including the cost of the complaint.

In the  result the complaint is dismissed.  No costs.  

Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us on this 31th   day of March 2015.

 

MEMBER-II                                                   PRESIDENT              

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 Dated 11.08.2001           Copy of Discharge Summary

Ex.A2 Dated 16.08.2001           Copy of P.S.done

Ex.A3 Dated  26.02.2004          Copy of letter from Medical Officer, Ernaoor

                                                Medical Centre

Ex.A4 Dated 03.03.2004           Copy of outpatient Chit.

Ex.A5 Dated     NIL                  Copy of Hospital Records

Ex.A6 Dated 17.07.2004           Discharge Summary

Ex.A7 Dated 16.11.2004           Copy of Legal Notice of first Opposite Party

Ex.A8 Dated      NIL                 Copy of Postal Acknowledgement

 

 

MEMBER – II                                                                       PRESIDENT

 

 

 

 

 

 

                                     - NIL - 

 

             MEMBER-II                                                             PRESIDENT