ORDER

Complaint under  Sec.12 of the CPA 1986 as amended upto date

Per Sh. Rakesh Kapoor, President

          The complainant is a house wife, She had undertaken a Laparoscopic legation sterilization operation at OP -1 hospital on 9.1.2006.  She was assured that the operation was successful and she would not conceive in future.  However, in 2007 she became pregnant and had to give birth to an unwanted child.  She has alleged that this had brought an extra burden of bringing up another child on her as well as her husband.  She had served a legal notice dated 5.4.2008 on OP – 1 but to no result and  approached  this Forum for redressal for her grievance.   

     Initially the complainant had impleaded OP – 1 only but had later on impleaded OP -2, 3 and 4 as parties to the present complaint.  All the OP s have contested the complaint and have denied any deficiency in service on their part.

     OP – 1 in its W.S. has stated as follows under the head “Brief facts” of the case:-

     The complainant was admitted in the day care General Ward of Sir Ganga Ram Hospital under the family planning Camp organized by family welfare department of GNCT of Delhi for litigation (Laparoscopic sterilization) on 9.1.2006.  The process was minor in nature and was performed under General Anaesthesia.  The process was done free of cost and no amount of money was taken from the complainant and, as such, the complainant does not fall within the meaning of consumer under the Consumer Protection Act.  Before the operation it was duly explained to the complainant as well as her husband that chances of failure of operation cannot be ruled out although it is a permanent method of family planning but failure rates have been reported world-wide as well as India.  It is submitted here that as per the guidelines drawn by the Govt., in case of any failure of sterilization a payment of Rs.20,000/- has to be made.  The complainant was duly informed about the risks of failure and further that in case of failure she was not entitled to claim any compensation whatsoever from the opposite party, therefore the complaint filed before this Hon’ble District Forum is in abuse of process of law, it is vexatious in nature and the complaint is not maintainable. 

     OP -1 has denied any negligence on its part and has claimed that the complaint has no merit and is liable to be dismissed.  It has prayed accordingly. 

     In its separate W.S., OP – 2 has also claimed that the complaint is not maintainable as being misconceived and has been filed with malafide intention.

      Paras 4 & 5 of preliminary objections of the W.S. filed by OP – 2 are relevant for the purpose of disposal of the complaint and are re-produced as under:-

4. That it ¡s further submitted that it is necessary to state that no medical procedure guarantees a 100 percent success rate even ¡n the hands of the best Doctors or Surgeons any wherein the world. The failure of a sterilization operation is a common phenomenon in Medical Science World-Wide. Therefore, one of the accepted norms of Medical Science is that a family planning operation may fail causing a pregnancy and resultant child birth, unless the post operative advice of the Doctor is followed, as regards reporting immediately to the medical facility/Hospital upon missing her monthly period/menstrual cycle. As per established medical jurisprudence and several judgments of the Hon’ble Supreme Court of India as well as various Hon’ble High Courts, the operating surgeon(s) and/or the hospital facilities cannot be held guilty of negligence unless it is proved that there was
some flaw in the performance of the operation, and that the specific flaw was caused due to negligence or carelessness of the operating Surgeon. Specific allegations as to the exact nature, manner and extent of the negligence/careleeness that allegedly caused the alleged failure in the procedure hast o be specifically stated by the Complainant, and mere bald and vague allegations cannot make the doctors or hospital
authorities liable. She is admittedly not a qualified medical
Doctor or an Authority on the subject. The onus to prove the medical negligence always lies upon the person making the said allegations. Upon perusal of the plaint it is self evident that no specific allegation has been mace as to in what manner the operating doctor(s) or hospital/Govt authorities were responsible or negligent;  and at what point of time. It is further submitted that the Complainant is required to attach necessary document/evidence in support of her claim of failure of sterilization due to alleged negligence on the part of the operating surgeon. It is notable that the Complainant herself admits that the sterilization operation was a success until almost two years after the procedure was performed.
Thereafter, even if the allegations of the Complainant are
believed, though denied, a subsequent pregnancy is not
impossible. This is due to the natural and inherent capacity of the human body to heal itself over a period of time, as in the case of a patient in coma waking up after a long period of time. It is further submitted that the sterilization operations are performed in millions every year in India and thousands are performed in Delhi itself every year. There will necessarily be some cases where these operations may fail inspite of all due care having been taken and the operation having been performed in the best manner.  However, the percentage of failed cases is only between 0.4 to 0.7 percent, as already stated above, and the same is very small
considering the numbers involved. Therefore, it is a certainty that 0.4 to 0.7 percent of the sterilization procedures are likely to fail and therefore, it cannot be said that in the present case the same was due to negligence on the part of the doctor(s). Chances of pregnancy occurring despite the sterilization operation still remain during the reproductive life of the woman, upto about 45 years of the age due to natural causes as illustrated above. There is no minimum or maximum time limit for the failure of an operation of this nature, and it ¡s impossible to predict which operation would fail and at what point of time due to natural causes. It is necessary to state that in the hospitals under the Govt.of NCT of Delhi/accredited hospitals, the sterilization operations are performed by duly qualified and trained Specialists with Post Graduate Degree in Gynaecology and Obstetrics, having the required/prescribed experience in performing sterilization operations as per the standards laid down by the Govt. of India at facilities/hospital fully equipped to carry out such operations.  The Sir Ganga Ram Hospital is also an accredited hospital and the Doctors who performed the procedure on the complainant were empanelled with the Directorate of Family Welfare to carry out the said sterilization procedure.

5. That without prejudice and in addition to the above it is submitted that there is a Scheme to provide compensation in cases of Sterilization “failure”.  After the Claimant fills up the Application Form and applies for compensation, the case is processed.  In the present case, a letter was written to the complainant asking her to fill up and file the claim Form with the District Health Authorities, but it appears that she has not done so until date.  The District Quality Assurance Committee of the Central District has already recommended the case the complainant, and the ICICI Lombard Insurance Company would compensate the complainant under the specific policy meant for this purpose.  In cases that were operated before 29.11.2015, i.e. the date when the Insurance Schemes came into existence, the compensation of Rs.25,000.00 would be given in each case of sterilization failure. In cases operated after that date, the amount would be Rs.30,000.00.

     OP – 2 has also contested the complaint on merit and has stated that the complaint is liable to be dismissed.  It has prayed accordingly.

     In its W.S. OP – 3 has also claimed that the complaint is false and is liable to be dismissed.

     Para 15 of its reply on merits is relevant for the purpose for disposal of the complaint and is reproduced as under:-

15. Contents of Para No.15 of the petition are denied being wrong and incorrect. However, it is submitted that the failure of sterilization cases is rare. It is further submitted that a safe method even though there are chances of failure/complication in certain -cases. It is further submitted that there is no fool-proof method of

sterilization which guarantee 100% success. The cases for failure can well be attributable to natural function of the human body and is not necessarily attributable to any negligence on part of the surgeon. Authoritative textbooks on Gynaecology and Research have recognized the failure rate dependent on the technique. As per the WHO-Technical document Medical Eligibility Criteria for contraceptives use, there is 0.5% unintended pregnancy following female sterilization after surgery. The Govt. of India has therefore, taken out an insurance policy in pursuance of directions of the Hon’ble Supreme Court in Writ Petition (Civil) No. 209/2003 with the insurance company, to provide the compensation.

     A W.S. is also be filed by OP – 4, who has also stated that the complaint against it is not maintainable and is liable to be dismissed.

     We have heard arguments advanced at the bar and have perused the record.

     At the outset, we may state that the complainant has not alleged any negligence on the part of the doctors/hospital while undertaking the laparoscopic sterilization operation at OP – 1hospital.  The complainant has alleged that since the procedure had failed, she was entitled to compensation prayed for by her.  The OPs have taken a plea that sterilization procedures are not 100% safe and there have been cases all over the world where these procedures have failed and women have conceived due to natural causes.  The OP s have contended that the present complaint is not maintainable simply on the

 allegation of the failure of the procedure undergone by the complainant without any specific allegations of negligence on the part of the doctor who had performed the procedure.  The OPs have pressed into service a judgment of the National Commission titled Luxmi v/s Director of Medical Services 1 (2008) CPJ 460 NC.  The National Commission in the said case observed as under:-

27. 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 woman 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 Act, 1971 is apposite. 

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Explanation II appended to Sub-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.

28. 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.

29. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.

       No judgment to the contrary has been brought to our notice. Therefore relying after the judgment quoted above, we hold that the present complaint is not maintainable.  The same is hereby dismissed.

                   Copy of the order be made available to the parties as per rule. 

File be consigned to record room.

    Announced in open sitting of the Forum on.....................