KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.789/04
JUDGMENT DATED 8.2.2011
PRESENT
JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT
SHRI.M.K.ABDULLA SONA -- MEMBER
1. Sarada Nursing Home,
Tailor Street,
Palakkad.
2. Sarada Nursing Home, -- APPELLANTS
Tailor Street,
Palakkad reptd. by
Dr.Sobha Mohankumar)
3. Sarada Nursing Home,
Tailor Street,
Palakkad reptd. by
Dr.Geetha Premkumar)
(By Adv.M.K.George)
Vs.
1. Thasleema.P.Y
W/o K.M.Mohammed Shafi, -- RESPONDENTS
4/548, Kondayan House,
Kalleppulli,
Palakkad.
2. K.M.Mohammed Shafi,
W/0 K.S.Mohammed Hussan,
4/548, Kondayan House,
Kalleppulli, Palakkad.
JUDGMENT
JUSTICE SHRI.K.R.UDAYABHANU,PRESIDENT
The appellants are the opposite parties in OP.84/02 in the file of CDRF, Palakkad. The appellants are under orders to pay a sum of Rs.1 lakh as compensation with cost of Rs.1000/-.
2. It is the case of the complainants/respondents that the first complainant underwent a post partum sterilization operation on 6.11.99 at the hospital of the opposite parties after the delivery of the third child. The PPS was conducted on medical advice and also on account of economic difficulties in bringing up the child. It was assured that the surgery is 100% preventive of pregnancy. But, on 10.9.01 the pregnancy test was positive and she approached the third opposite party who advised termination of pregnancy and another PPS. It is alleged that there was negligence in the performance of surgery and the petitioner has claimed a sum of Rs.4,50,000/- as compensation.
3. The opposite parties have filed a joint version contending that the complainant was told as to the possibility of failure in the limited cases. As per medical science, there is a small percentage of failure which is about 0.2 to 0.4%. No method of sterilization is absolutely reliable. Re- canalisation of the inner segment of the tube or fistula forming can result in the ovum gaining excess through the tube and the patient became pregnant. It was explained to the complainants and consent taken. It is contended that there is no negligence at all on the part of the third opposite party.
4. Evidence adduced consisted of the testimony of PW1, DW1 and Exts.A1 to A 26, C1 to C2.
5. The Forum has relied on the testimony of PW1, the expert cited by the complainant. The Forum has held that Exts.C1 case sheet does not contain the method adopted for the surgery and that there was no histopathological examination of the cut portions of the fallopian tube and hence there was negligence in the performance of the PPS operation.
6. PW1 is a surgeon who is having FRCS and worked in various countries including USA and is working at present as consultant surgeon in certain hospitals and is having 40 years of experience. He has stated that the standard and accepted method of PPS is cutting fallopian tube left and right and marking the same. It should be forwarded to histopathological examination. After cutting the tubes, both sides should be tied with non absorbable material. It is not possible to find from Ext.B1 (Sic. Exts.C1) as to what method was adopted for PPS. The surgeon should have recorded the same in the case sheet. It has to be confirmed that the incisions are made on the fallopian tube itself. Adjacent to the fallopian tube there is another structure called round ligament which appears like fallopian tube. Instead of fallopian tube if round ligament is cut the purpose of PPS is lost. If PPS is not done properly, the failure rate will increase. The standard failure rate is 0.2% to 0.4%. If an experienced obstetrics surgeon conduct the PPS the failure rate will be low. Only such an experienced surgeon can differentiate between fallopian tube and the round ligament. He has also mentioned that the nature of suture is also not noted. If absorbable suture is used the chances of recanalization are more. He has stated that in the United States it is the general surgeons who is conducting more of gynecological surgeries. It was brought out in the cross examination that he cannot say as to what are the different method of PPS.
7. DW1 is the retired Professor of the gynecology of Medical College Hospital. She is having 20 years of experience and is working in private hospitals. She also stated that there used to be about 0.1 to 0.3 % of failure as noted in the Text Book of Obstetrics Gynecology by Dutta. She has stated that usually it is not the practice to send the cut portions of the tube for hystopathological examination and only in the cases of suspected diseases the same is done. She has also stated that the round ligament and fallopian tube should not be confused and there are methods to identify the same. The end of the fallopian tube will be free and in the back of the same there will be ovary. The round ligament will be also separately identified. She has admitted that in Ext.C1 case sheet it is only mentioned as PPS done and that no particular method is mentioned. She has also stated that it is not practice to mention the nature of the suture used. There are chances of pregnancy, if the suture is loose or subsequently broken. It is stated that out of so may PPS done by her, only two have failed. In Exts.C1 case sheet of the opposite party/hospital it is mentioned that PPS was done on 4.11.99 under general anastasia/ under IV Ketamine ie; anesthetic used. It is seen that the complainant was then aged 26 years. As per Ext.A16, the report of ultra sound scan taken on 10.11.01 it is mentioned that the complainant is pregnant by more than 4 months. It is after 2 years that the complainant became pregnant again.
8. Ext.A 25, the discharge card with respect to the subsequent delivery, it is mentioned that subsequent to the birth of child she had another PPS under general anastasia. Evidence of partial salphingectomy done earlier is seen on both sides, it is noted. As per Ext.A 24 Baby’s Health Record, she has given birth to a baby on 2.5.02. As per Ext.A12 OP card dated 1.10.01 the test for pregnancy was positive.
9. We find that DW1, the former Professor of Gynecology at Medical College Hospital has stated that it is not the practice to sent the specimen of every PPS to histopathological examination. The practice of sending the specimen of histopathological examination as in USA as stated by PW1 is not in existence in Kerala as per the testimony of DW1 which we find no reason to discard. As pointed out for the counsel for the appellant, in State of Punjab V. Shiv Ram 2005 (4) KLT 669 (SC) it was held that the cause of action for claiming compensation in case of failed sterilization operation arise 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. The apex court in the above said decision has considered various types of sterilization and different methods of PPS and the failure rate of the above methods. It is also noted therein vide the authorities on the subject, generally no female sterilization should be considered permanent and none of the methods/techniques are 100% failure free and that failure rate may vary from method to method. The various methods of PPS are noted at page 752 to 756 in Williams Obstetrics, 22nd edition. Therein also failure rates are noted. We find that in Ext.A25 the discharge card of the second opposite party hospital wherein she gave birth to the child subsequent to PPS and wherein the first complainant again underwent PPS it is only mentioned as PPS done. There is no evidence except presumption as to negligence on the part of the third opposite party/Gynecologist. The qualification and competence of the gynecologist has not been challenged. Of course, particular method used ought to have been mentioned in the case sheet. The fact remains that whatever be the method used there is a failure rate. The gynecologist who attended the delivery vide Ext.A 25 was not examined. Only the gynecologist who conducted the subsequent delivery could have provided direct evidence as to any negligence on the part of the gynecologist who conducted PPS earlier.
10. In the circumstances, we find that the order of the Forum cannot be sustained. The same is set aside. The appeal is allowed.
The office will forward the LCR to the Forum along with the copy of this order.
JUSTICE K.R.UDAYABHANU -- PRESIDENT
M.K.ABDULLA SONA -- MEMBER
