By Jayasree Kallat, Member:

            Complainant has filed this petition alleging negligence on the part of opposite parties.  Petitioner is seeking relief as compensation for the negligent manner in which opposite party had treated the complainant.  The petitioner had occasioned to consult opposite party-1 at the time of her first pregnancy.  The child was taken out through caesarean operation.  The complainant had consulted the first opposite party during her second pregnancy also. The second child also had to be taken out through caesarean operation.  As the petitioner wanted to avoid pregnancy in future, sought the advice of first opposite party.  The first opposite party advised the petitioner that along with the caesarean operation a sterlisation operation also could be conducted to avoid future pregnancy.  First opposite party told the petitioner that it is the safest method and failure is practically nil.  The petitioner agreed to undergo a sterlisation operation.  As per the advice of opposite party-1 complainant got admitted in the hospital of opposite party-2.  On 16-6-2000 she delivered a female child through caesarean operation and on the same day sterlisation operation was also conducted by the first opposite party.  She was discharged on 21-6-2000.  The first opposite party and Doctor attached to the second opposite party told the petitioner that the sterlisation operation was successful.  Contrary to the representation made by the first opposite party and duty Doctors employed by the second opposite party the petitioner became pregnant again.  Petitioner is put to considerable mental agony and pain inconveniences and difficulties due to the fact that she has become pregnant again even after undergoing a sterlisation operation.  As the complainant had to undergo two caesarean operations she had sought the advice of the opposite party-1 and agreed to undergo sterlisation operation to avoid a third pregnancy.  The sterlisation operation performed by the first opposite party on the petitioner on 16-6-2000 from the National Hospital became a failure due to the rash and negligent manner in which the operation was performed by the first opposite party assisted by duty Doctor and staff employed by the second opposite party.  First and second opposite party did not take care and caution, the operation was done in a negligent manner.  The complainant had suffered mental agony and pain.  Considerable mental stress and strain and fear complex developed on the account of complications of a third caesarean operation, the inconvenience and difficulties to which the petitioner may be put due to the third delivery.  The petitioner was anxious about the financial commitments, hospitalization, operation and treatment.  Hence the petitioner has filed this petition seeking compensation and other relief from opposite party-1 and 2.

            First opposite party filed a version denying the averments in the complaint.  There is no negligence or deficiency in service as alleged by the complainant.  The complainant is not entitled to get any relief.  First opposite party denies the averments in Para-3 of the complaint.  The complainant got admitted in the second opposite party hospital at her own option. The complainant wanted to avoid the possibility of future pregnancy by sterlisation operation and first opposite party had clearly informed about the pros and cons of sterlisation operation in detail.  The fact of inherent risk of failure involved in sterlisation operation that is likely to occur in about 0.2 to 0.4% of case was made known to the complainant and her relatives.  The complainant agreed to undergo sterlisation after getting fully conversant of all these facts.  The second delivery of the complainant was by caesarean operation.  Tubal sterlisation operation of the complainant was conducted by modified pomeroys method under all aseptic precaution and with due care and caution.  Fallopian tubes on both sides were completely sterlised.  The postoperative period was uneventful and the complainant was discharged on 21-6-2000.  After two and a half years was her next pregnancy.  The fact that the complainant became pregnant in spite of sterlisation operation cannot be a pointer to the negligence of the first opposite party.  The reunion of tubes or fistula formation and the chance of an ovum gaining access through a recanalised inner segment of the tube causing pregnancy can occur in natural course during the said period of two and a half years.  It is not caused due to any negligence or carelessness in conducting the operation but due to an unavoidable complication likely to occur for about 0.2 to 0.4% of sterlisation cases.  Opposite party-1 denies the averments contained in Para-4 of the complaint.  The first opposite party had done the sterlisation operation with due diligence and care and before conducting the operation the complainant was well informed about the pros and cons of tubel sterlisation operation and chances of failure involved in it.  A written informed consent was also obtained from the complainant before the operation.  Complainant had voluntarily agreed and signed the consent form.  She was fully conversant of the risk factor in such operation. If the pregnancy were unwanted she would have informed the first opposite party at the early stage of pregnancy.  At the early stage of pregnancy unwanted pregnancy can be terminated by MTP and re-sterlisation done with strict regard to legal and medical formalities.  The act of the complainant herein is highly purposeful and ill motivated.  No method of sterlisation is absolutely reliable or credible and it carries with it the inherent chance of failure irrespective of the procedure adopted.  The failure of sterlisation is a medically accepted complication well described in all standard textbooks of Obstetrics and Gynaecology.  The failure of sterlisation is not caused due to any rashness or negligence on the part of first opposite party or other staff of the hospital, but may be due to spontaneous recanalisation of tube or due to fistula formation, which is a medically accepted complication in tubal sterlisation operation.  The first opposite party denies the allegation in Para-5,6,7 of the complaint.  The amount of compensation claim is highly excessive exaggerated and fanciful without any basis.  The complainant is not entitled to get any relief against the first opposite party since there was no negligence or deficiency on the part of first opposite party at any point of time in conducting sterlisation operation.  The first opposite party requests to dismiss the complaint with cost for filing a frivolous and vexatious complaint.

            The second opposite party filed a version denying the allegations and averments contained in the complaint.  The second opposite party is not a necessary party in this case.  There is no allegation against the second opposite party regarding the facilities provided and services rendered by the second opposite party.  The complainant had approached the first opposite party during the first pregnancy when the first opposite party was at the Medical College Hospital.  Complainant also admits that she had consulted the first opposite party during her second pregnancy and it is stated in the complaint that as per the advice of first opposite party the complainant got admitted in the hospital of second opposite party.  Neither the second opposite party nor any Doctors attached to the second opposite party hospital advised the complainant about the sterlisation operation.  Second opposite party is not liable or responsible for the loss or inconvenience alleged to have been sustained by the complainant.  Second opposite party denies the fact that first opposite party had conducted the operation in a rash and negligent manner.  The sterlisation operation is not a fool proof method of preventing pregnancy.  There is a probability of pregnancy after sterlisation in a very few number of cases. There are acceptable authorities on this aspect.  The complainant is throwing wild allegations against an experienced and renowned Gynaecologist like the first opposite party  and a reputed hospital at Calicut.  The compensation asked by the complainant is an exorbitant amount.  Second opposite party is not liable to pay any amount as compensation to the complainant.   Second opposite party prays to dismiss the complaint.

            The points for consideration is (1)  Whether there was any negligence on the part of the opposite parties?  (2)  Whether the complainant is entitled to get any relief?

            PW1 was examined and Ext.A1 to A11 were marked on complainant’s side.  RW1 was examined and Ext.B1 marked on opposite parties’ side.

Point No.1:

            The case of the complainant is that she was the patient of opposite party-1 during her first pregnancy.  Her first delivery was by a caesarean operation performed by opposite party-1 as normal delivery was not possible.  The same opposite party-2, Doctor treated her during her second pregnancy also.  Opposite party-1 was at that time working as consultant Gynaecologist at the Hospital of opposite paprty-2.  The second delivery was also a caesarean operation.  Since the complainant wanted to avoid future pregnancy she sought the advice of opposite party-1 Doctor.  Opposite party-1 advised to undergo sterlisation at the time of second delivery.  On 16-6-2000 opposite party-1 conducted the caesarean operation and sterlisation on the complainant at the opposite party-2 hospital with the assistance of the doctors of opposite party-2 hospital.  After a lapse of two and a half years the complainant again became pregnant for third time.  The complainant had specially undergone sterlisation to avoid future pregnancy.  But she became pregnant again for a third time, which caused great mental strain and anxiety to the complainant. Complainant alleges negligence in the manner, which opposite party-1 and the staff and Doctors of the opposite party-2 hospital had conducted sterlisation.  Complainant has approached the Forum seeking compensation for the negligence and deficiency in service done by the opposite parties.  Opposite party-1 has submitted that he has conducted the sterlisation with due care and caution.  Opposite party-1 also submits that the sterlisation was a success for a period of two and a half years.  The complainant became pregnant after two and a half years.  Opposite party-1 submits that he had already informed the complainant and her relatives that this sterlisation is not fool proof enough to be 100% successful.  Failure of sterlisation may occur due to natural causes as explained in standard Text book and Government publications.  A perusal of  Ext.B1 case sheet kept in the hospital of opposite party-2 shows that the complainant and her husband have signed “                                                           “ where it is mentioned that there is a chance for failure of the sterlisation operation.  In case of failure neither the hospital nor the doctors who had done the operation is responsible.

The signature of the complainant, Jyothilakshmi and her husband Sudheer is seen.  PW1 in her deposition Page-2 has admitted “

This clearly shows that complainant and her relatives were aware that the sterlisation was not 100% successful.  There was a slight chance of failure in some cases, which is an accepted fact.  Opposite party-1 affirms that the operation was done by the internationally accepted method.  Under all aseptic precaution and with due care and caution, tubal sterlisation operation of the complainant was conducted by Modified Pomeroys method and the fallopian tubes on both sides were completely sterlised.  Opposite party has produced extracts from Essentials of Contraceptive Technology, a hand book of clinic staff.  In Page-9 to 21 it discusses about Female sterlisation “ Will female sterlisation stop working after a time?  Does a woman who had a sterlisation procedure ever have to worry about getting pregnant again?  This question has been answered.  It mentions that failure rates are probably higher than previously thought”.  The opposite party has also produced Standards for Male and Female sterlisation issued by Technical Operations Division, Department of Family Welfare, Ministry of Health and Family Welfare, Government of India, which also mentions that in the case of sterlisation it has a small chance of failure.  The Book Medico Legal Aspects in Obstetrics and Gynecology published by Federation of Obstetric Gynecology Societies of India.  In page 129 it states that “ In our country Pomeroy’s method is widely practiced.  Pomeroy’s operation is probably the most widely practiced method adopted worldwide.”  The complainant had delivered her third child from Baby Memorial Hospital after which she had undergone sterlisation. In this case also sterlisation was done by the same procedure.  In both sterlisation bilateral partial Salpingectomy was done.  While doing sterlisation a segment of the tube is cut and removed.  RW1 in his deposition Page-2 has admitted this fact. Oppositeparty-1 has stated that 1-2 cm of fallopian tube will be cut and removed.  In the case of the complainant also this method was adopted.  All these facts clearly explains that opposite party-1 has done the sterlisation operation of the complainant in the correct and accepted procedure.  The next point to be looked into is how this failure happens after sterlisation?  Extract from Medico Legal Aspects in Obstetrics and Gynecology it explains the failure.  The overall incidence of failure in tubectomy is 0.4 per 100 women per year.  Failures may occur because a fistulous connection forms between the two arms of a correctly placed ring, or a fistula forms in the proximal end of the transected tube.  Sterlisation done at the time of caesarean section or abortion or soon after delivery may increase the chance of failure.  In the case of the complainant sterlisation was done at the time of caesarean section.  The failure of sterlisation occurs due to natural causes.  After observing all these facts the Forum has come to the conclusion that there was no negligence or deficiency on the part of the opposite parties.

Point No.2:

            The next question to be answered is whether the complainant is entitled for any relief sought in the petition?  Opposite party has produced several Rulings, which states that this type of complaint is apt to be dismissed.  III  (1997) CPJ 382 of CDRC, Tvm a similar case is discussed in case A.P. Joseph and Another Vs Dr. Kunjannamma Mathai and Another.  It is clear that 100% success cannot be expected in the P.P.S. surgery though it is generally considered as the safest method.  In this circumstance the petition was dismissed.  Opposite party has produced Rulings 1997 CPJ 578 also the case was dismissed finding that Family Planning Operation cannot guarantee 100% success and there ware always chances of 5 to 6% failures.  The latest of such cases reported in “1 (2008) CPJ 130( NC) has found that Medical Negligence- Sterlisation operation- Failure of – 100% proof not guaranteed in sterlisation operation- Surgery can fail in exceptional cases- No negligence or deficiency in service proved- No relief entitled.”  Basing on all the evidences before us and all the findings of different Courts we are of the opinion that the complainant is not entitled for any relief sought in the petition.

            In the result the petition is dismissed.

Pronounced in the open court this the 5^th day of June 2009

                                Sd/-                                               Sd/-

                        PRESIDENT                                      MEMBER

APPENDIX

Documents exhibited for the complainant.

A1.   Discharge card dt. 21-6-2000.

A2.   Photocopy of Regd. Notice dt. 3-9-03 to opposite parties-1 and 2.

A3.   Photocopy of reply notice dt. 25-5-05 of opposite party-1.

A4.   Photocopy of regd. Notice dt. 29-9-03.

A5.   Discharge card dt. 19-11-03.

A6.   Certificate given by O.P.1 to the complainant.

A7.   Histopathology report dt. 19-11-03.

A8.   Discharge card of the Baby of complainant dt. 21-6-2000.

A9.   O.P. ticket issued to the complainant from I,.M.C.H., Calicut.]

A10.  Scan report of Polyclinic, Trissur dt. 29-4-03.

A11.  Prescription of O.P.1 given to the complainant dt. 14-5-03.

Documents exhibited for the opposite party.

B1.  Photocopy of case sheet of National Hospital, Calicut.

Witness examined for the complainant.

PW1.  Jyothi Lakshmi (Complainant)

Witness examined for the opposite party.

RW1.  Dr. S. Bhadran (First opposite party)

                                                                                    Sd/- President

                                    // True copy //

                        (Forwarded/By order)

                                                                        SENIOR SUPERINTENDENT.