Samaresh Kumar Mitra, Member.
The fact of the complainant petition is that the complainant after her marriage for the first time gave birth of a female child on 9/5/1999 at District Hospital, Chinsurah; subsequently the baby was named as Swarnali Mukherjee. That the petitioner for the second time became pregnant under the lyons of her husband and gave birth of a male child on 2/1/2012 at District Sadar Hospital, Chinsurah and on the same date, under the opposite party No. 2 “Luest Ligation” done under G.A.
That it was under impression and it was also so advised by the doctor i.e. O.P No. 2 as well as the O.P. No. 1 that after such operation as stated aforesaid, the petitioner would never be conceived inspite of having co-habitation with her husband. Fact remains that after a considerable month of the said operation, the petitioner and her husband took part in co-habitation. Might be, numbers of night, not possible to disclose at this moment but there was free co-habitation with consent of each other between the petitioner and her husband Sri Sandip Mukherjee. That suddenly, after 27/9/2013 the Menstruation period of the petitioner stopped. That the petitioner told the matter to her husband and the latter told her that there was no chance of risk as ligation was done in the District Hospital. That the petitioner thought that might be it was natural that the menstruation was stopped. That on 5/12/2013, the petitioner was feeling uneasy and she found some abnormality in the physic, so the petitioner being accompanied by her husband went to District Sadar Hospital, Chinsurah on 5/12/2013 and the petitioner was asked to undergo pathological test of urine for pregnancy. That petitioner due to her suspect on 3/12/2013 examined the urine at Bharati Diagnostic Centre, Chinsurah and the result of the test became positive. That the petitioner being accompanied by her husband went to Imambara Sadar Hospital wherein a nursing staff in writing stated that the ligation of the petitioner has become failure. That the petitioner visited local Gynecologist who stated that at this stage abortion of the petitioner would become risky for her health.
That the relatives and friends of the petitioner have come to learn that she became pregnant which let them whispering and chuckling towards the petitioner and her husband and the petitioner and her husband become subject of laughter. It is painful for them in respect of social status, physical stability and pecuniary hardship.
That the opposite party no. 2 did not take due care and responsibility at the time of operating the petitioner at the time of ligation of which has brought the petitioner in such unwanted situation. That the petitioner and her husband believed the opposite parties and for future development of life took such steps but now due to deficiency in service on the part of the opposite parties the petitioner have turned into despair, depression and uncertain life prosperity.
That the petitioner during her pregnancy period was not in a position to file the instant case as it was her third pregnancy and doctor advised her to take rest. On 26/6/2014 the petitioner gave birth a male child at Chinsurah Imambara Sadar Hospital. Thereafter she was busy with her new born child and again on 31/12/2015 she has developed some Gynecological problem and for which she has to under gone several medical treatment as well as examination at Chinsurah Imambara Sadar Hospital and other Government Institution. The doctor advised her for operation. Due to all these kind of hazards the petitioner was not able to file the instant case earlier.
That the cause of action of this application arose on 1/1/2012 which has been aggravated on 27/9/2013, 5/12/2013, 26/6/2014 and as such the application is made within the period of limitation.
That the petitioner filed the instant complaint petition praying direction upon the opposite party O.P. No. 1 to pay compensation of Rs. 19,50,000/- to the petitioner and Rs. 50,000/- for litigation cost against opposite party no. 1 and other reliefs as this Forum deems fit and proper.
The opposite party denied all the allegations leveled against them and stated that the statement that the petitioner and her husband believed the opposite party and for future development of life took such steps but now due to deficiency in service on the part of O.P.s, the petitioner have turned into despair depression and uncertain life prosperity, is false, baseless wild allegation and as such denied in between lines.
Fact is that Smt. Sukla Mukherjee w/o Sri Sandip Mukherjee delivered a male child on 2.1.2012 at District Hospital, Hooghly by LUCS. In the same sitting ligation was also performed under G.A. The ligation was conducted by Dr. Tapas Chakrabarty. The petitioner complained of a cessation of menstruation suddenly after 27.9.13 and subsequently she attended at District Hospital Hooghly on 5.12.13 with complaint of Uneasiness and she was directed to test on 3.12.13 the test for pregnancy was positive. She continued with the unwanted pregnancy due to ligation failure and gave birth to a male child on 26.6.14. now it is not very much clear that whether she made any claim for compensation within 3 months from the date of detection i.e. on and from 3.12.13 document and records have been searched pertaining to the case but authority could not find anything in connection with ligation failure of the petitioner. There was/is no deficiency in service by State Govt. As per OT record, Mrs. Mukherjee was operated in District Hospital on 2.1.2012 by Dr. T.K. Chakraborty M.O. (Gyne). Moreover declaration of PHN, UDC-Cum-Typist and Medical Officer attached to P.P. Unit, District Hospital, Hooghly which revealed that no such documents pertaining to ligation failure and claim in respect of
Sukla Mukherjee has been found in receive section and as such no claim as per programme guideline has been initiated by P.P. Unit District Hospital Hooghly. The patient party did not applied for ligation failure in prescribed proforma in terms of file No. Y-11012/01/2013, F.P. Dt. 27.12.13. There is no medical negligence. As such the complaint petition is liable to be rejected with cost.
Both sides files evidence on affidavit, questionnaire followed by reply and written notes of argument which are taken into consideration while passing final order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Smt. Sukla Mukherjee is a ‘Consumer’ of the opposite party?
2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4).Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
(1).Whether the Complainant Smt. Sukla Mukherjee is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The complainant herein is the consumer of the opposite party, as the complainant being the patient of the opposite party No.1 Govt. hospital, received treatment from the opposite party No.2, so she is entitled to get service from the opposite party No.1&2 as consumer.
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.19,50,000/- as complainant prayed a direction upon the opposite party No.1, Rs.19,50,000/- as compensation and a direction upon opposite party no.1 to pay litigation cost of Rs.50,000/- ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?
The case of the complainant in accordance with the complainant petition as well as written notes of argument is that after her marriage for the first time gave birth of a female child on 9/5/1999 at District Hospital, Chinsurah. That the petitioner for the second time became pregnant and gave birth of a male child on 2/1/2012 at District Sadar Hospital, Chinsurah and on the same date, under the opposite party No. 2 “ Luest Ligation” done under G.A.
That it was under impression and it was also so advised by the doctor i.e. opposite party. 2 as well as the opposite party No. 1 that after such operation as stated aforesaid, the petitioner would never be conceived inspite of having co-habitation with her husband. Fact remains that after a considerable month of the said operation, the petitioner and her husband took part in co-habitation. That suddenly, after 27/9/2013 the Menstruation period of the petitioner stopped. Then the petitioner told the matter to her husband and the latter told her that there was no chance of risk as ligation was done in the District Hospital. That the petitioner thought that might be it was natural that the menstruation was stopped. That on 5/12/2013, the petitioner was feeling uneasy and she found some abnormality in the physic, so the petitioner being accompanied by her husband went to District Sadar Hospital, Chinsurah on 5/12/2013 and the petitioner was asked to undergo pathological test of urine for pregnancy. That petitioner due to her suspect on 6/12/2013 examined the urine at Bharati Diagnostic Centre, Chinsurah and the result of the test became positive. That the petitioner being accompanied by her husband went to Imambara Sadar Hospital wherein a nursing staff in writing stated that the ligation of the petitioner has become failure. That the petitioner visited local Gynecologist who stated that at this stage abortion of the petitioner would become risky for her health.
According to this complainant, after ligation operation the petitioner became pregnant so the social status of the petitioner has become lower down in the estimation of public eye. It is painful for them in respect of social status, physical stability and pecuniary hardship. The opposite party no. 2 did not take due care and responsibility at the time of ligation of which has brought the petitioner in such unwanted situation. That the petitioner and her husband believed that due to deficiency in service on the part of the opposite parties the petitioner have turned into despair, depression and uncertain life prosperity. That for such precarious life state the opposite parties are wholly responsible and petitioner claims for Rs. 19,50,000/- for compensation and Rs. 49,000/- for litigation cost.
The opposite party denied all the allegations leveled against them by filing written version and written notes of argument and stated that the statement that the petitioner have turned into despair depression and uncertain life prosperity, is false, baseless wild allegation and as such denied in between lines. Fact remains that Smt. Sukla Mukherjee w/o Sri Sandip Mukherjee delivered a male child on 2.1.2012 at District Hospital, Hooghly by LUCS. In the same sitting ligation was also performed under G.A. The ligation was conducted by Dr. Tapas Chakraborty. The petitioner complained of a cessation of menstruation suddenly after 27.9.13 and subsequently she attended at District Hospital, Hooghly on 5.12.2013 with complaint of uneasiness and she was directed to test on 6.12.2013 the test for pregnancy was positive. She continued with the unwanted pregnancy due to ligation failure and gave birth to a male child on 26.6.14. Now it is not very much clear that whether she made any claim for compensation within 3 months from the date of detection i.e. on and from 3.12.2013 document and records have been searched pertaining to the case but authority could not find anything in connection with ligation failure of the petitioner. There was/is no deficiency in service by State Govt. As per OT record, Mrs, Mukherjee was operated in District Hospital on 2.1.2012 by Dr. T.K. Chakrabarty M.O (Gyne). Moreover declaration of PHN, UDC-Cum-Typist and Medical Officer attached to P.P. Unit, District Hospital, Hooghly which revealed that no such documents pertaining to ligation failure and claim in respect of
Sukla Mukherjee has been found in receive section and as such no claim as per programme guideline has been initiated by P.P. Unit District Hospital Hooghly. The patient party did not applied for ligation failure in prescribed proforma in terms of file No. Y-11012/01/2013, F.P. Dt. 27.12.13. There is no medical negligence. As such the complaint petition is liable to be rejected with cost.
It is well known that a doctor owes a duty of care to his patient. This duty can neither be contractual duty or duty arising out of tort law. In some cases, however, though a doctor patient relationship is not established the courts have imposed a duty upon the doctor. In the words of the Supreme Court every doctor at the government hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life (Parmanand Kataria vs. Union of India).
The duty owed by a doctor towards his patient, in the words of the Supreme Court is to bring to his task a reasonable degree of skill and knowledge and to exercise a reasonable degree of care ( Laxman vs. Trimback). The doctor in other words does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A doctor therefore does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence. Reasonable degree of care and skill means that the degree of care and competence that an ordinary competent member of the profession who professes to have skills would exercise in the circumstance in question. At this stage it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily confirm to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance.
We have until now examined the duty of a doctor in so far as treating a patient is concerned or in diagnosing the ailment. Doctors are however imposed with a duty to take consent of a person/patient before performing acts like surgical operations and in some cases treatment as well. As per the judicial pronouncements, this duty is to disclose all such information as would be relevant or necessary for the patient to make a decision.
The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor which has been fallen below that of reasonable care. In other words the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence once the existence of a duty has been established the plaintiff/petitioner must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. Normally the liability arises only when the plaintiff/petitioner is able to discharge the burden on him of proving negligence. However in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby the thing speaks for itself) might come into play. The necessary conditions of the principle are: 1. Complete control rests with the doctor. 2. It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence which is not. It is a principle in the law of torts. When this principle is applied the burden is on the doctor/defendant to explain how the incident could have occurred without negligence.
The Apex court and the National commission has held that the skill of a Medical practitioner differs from doctor to doctor and it is an incumbent upon the complainant to prove that the appellant was negligent in the line of treatment that resulted the complainant became handicapped and suffered a lot of pain. A judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical care.
According to the Supreme Court, cases both civil and criminal as well as Consumer forum are often filed against medical practitioners and hospitals complaining of medical negligence against doctors, hospitals or nursing homes, hence the latter would naturally like to know about their liability. The general principles on this subject have been lucidly and elaborately explained in the three Judge bench decisions of this court in Jacob Mathews vs. State of Punjab and Anr. (2005) 6 SCC 1. However difficulties arise in the application of those general principles to specific cases. For instance in para 41 of the decision it was observed that, “The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires”. Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also they may disagree on what is a high level of care and what is a low level of care.
The law like medicines is an inexact science. One cannot predict with certainty an outcome in many cases. It depends on the particular facts and circumstances of the case and also the personal notions of the judge who is hearing the case. However the broad and general legal principles relating to medical negligence need to be understood. Before dealing with these principles two things have to be kept in mind. Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover judges usually have to rely on the testimonies of other doctors, which may not be objective in all cases. Since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand for a judge, particularly in complicated medical matters and a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgement but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counterproductive and are no good for society. They inhibit the free exercise of judgment by a professional in a particular situation.
The Ld. Advocate of the complainant during the period of argument referred a case decision of Hon’ble Supreme Court in State of Haryana Vs. Santra AIR 2000 SC 1888 observed that……………… “Smt. Santra was a poor lady who already had seven children. She was already under considerable monetary burden. The unwanted child (girl) born to her has created additional burden for her on account of the negligence of the doctor who performed sterilization operation upon her and, therefore, she is clearly entitled to claim full damages from the state Govt. to enable her to bring up the child at least till she attains puberty”.
After perusing the case record, documents and hearing the arguments it appears that the complainant conceived after ligation operation before the opposite party and she approached the opposite party for getting reliefs but the opposite party took no measure as a result she gave birth another child which caused burden for rearing the said child. Getting no alternative the complainant filed the instant complaint before this Forum praying directions upon the opposite party. According to this complainant the opposite part in reply to the questionnaire stated that ligation operation is permanent method of family planning having a success rate of sterilization is more than 99%. Opposite party by filing written version as well as brief notes of argument assailed that ligation operation is a permanent method of family planning but it has a failure rate. The incidence of failure is less than one pregnancy per 100 women over the 1st year after having sterilization. However a small risk remains beyond the 1st year until women reach menopause. As there are chances of failure, family planning indemnity scheme, family planning division, ministry of health and family welfare, Govt. of India has been provided. Under the scheme claim for compensation has to be made within three months from the date of detection. In the instant case no such claim filed by the complainant as per programme guideline as such no claim has been initiated by P.P. unit District Hospital. It is also stated that to overcome the burden “Failure of sterilization not leading to child birth” scheme was not availed by the petitioner herself. The opposite party further averred that failure of ligation operation is not service within the Consumer Protection Act, so the complainant is not entitled to get compensation.
The opposite party filed a statement of PHN, P.P.unit, DH, Hooghly addressed to Superintendant District Hospital, Hooghly in she stated that no document of ligation failure in respect of Smt. Sukla Mukherjee is available at PP unit of District Hospital, Hooghly. The opposite party also filed a report on failure rate of Tubal Ligation by two specialists M.O. (G&O) and a medical officer of District Hospital, Hooghly in which it is observed that as per Family Planning Division, Ministry of Health & F.W. Govt. of India the normal failure rate of Tubal Ligation leading to pregnancy is 5 per 1000 women. The world scenario is little different and according WHO failure rate of Tubal ligation is (0.1%) i.e. 1000 cases. And the Tubal ligation operation naturally do not have 100% success rate. The opposite party further referred a medical literature in respect of Standards & quality Assurance in sterilization services, published by Family Planning Division in Nov.2014 in 2012 it is stated that the incidence of failure is less than one pregnancy per 100 women over the first year after having the sterilization procedure (5 per 1000). This means that 995 every 1000 women relying on female sterilization will not become pregnant. However, a small risk of pregnancy remains beyond the first year until women reach menopause. The failure over 10 years of use is about two pregnancies per 100 women (18 to19 per 1000 women). Ectopic pregnancy must be ruled out as female sterilization predisposes to this condition. In case of missed menstrual period the clients are advised to report to the health care facility within two weeks for confirmation about the failure of her sterilization procedure. She should be offered MTP and repeat sterilization procedure free of cost or be medically supported throughout the pregnancy if she wishes to continue. From the above discussion it is palpably clear that it is a case of ligation failure on the part of the opposite party no.2 doctor and this forum is to adjudicate the same as to whether the corresponding doctor i.e. the opposite party No.2 & the Chief Medical Officer i.e. the opposite party No.1 is responsible for medical negligence of the complainant.
In the case of State of Punjab Vs. Shiva Ram Ors (2005) 7 SCC, Hon’ble Supreme court held : 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 cannot be held liable in contract unless the plaintiff alleges and proves that 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.
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. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. 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."
Therefore in our opinion, failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child who has to decide whether, to go for medical termination of pregnancy or not. Once the woman misses the menstrual cycle it is expected for 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. Having gathered the knowledge of conception, in spite of having undergone sterilisation operation, if couple opts for bearing the child, it ceases to be an unwanted child.
It should be borne in mind that no doctor could give such assurance in case of female sterilization that forms/ leads to future pregnancy. Most of the texts and literature mention about failure rate of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes or by X-ray examination, or by pathological examination of the materials removed at a subsequent operation of re-sterilization. The opposite party filed the relevant portion of State Family planning Indemnity Schemes in which it is stated that claims arising out of cases of sterilization operations which were detected and reported after 1st April, 2013 will come under the purview of State Programme Implementation Plans. Such claims would be covered as per the respective guidelines of expired policies from 29th November,2005 to 31st March,2013.
The available benefits under the Family planning Indemnity scheme as under:
Section Coverage Limits
I A Death following sterilization (inclusive of death during process of sterilization operation) in hospital or within 7 days from the date of discharge from the hospital. Rs. 2 lakh.
I B Death following sterilization within 8 - 30 days from the date of discharge from the hospital. Rs. 50,000/-
I C Failure of Sterilization Rs. 30,000/-.
I D Cost of treatment in hospital and upto 60 days arising out of complication following sterilization operation (inclusive of complication during process of sterilization operation) from the date of discharge. Actual not exceeding Rs 25,000/- .
II Indemnity per Doctor/Health Facilities but not more than 4 in a year. upto Rs. 2 Lakh per claim.
So from the above discussion the complaint case has no leg to stand in respect of medical negligence of the opposite parties. As there is no question regarding the liability of the opposite party in respect of ligation operation of this complainant so the complainant is not entitled to get any compensation.
4). Whether the complainant proved her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant failed to prove the medical negligence of the opposite party in respect of treatment of this complainant. But the complainant is entitled to get the available benefits under the family planning indemnity scheme according to section IC states as failure of sterilization, limits Rs.30,000/-.
ORDER
Hence, ordered that the complaint case being No.97/2016 be and the same is allowed on contest in part against the opposite party with no order as to cost.
Complainant is directed to submit claim Form in terms of file No. Y-11012/01/2013, F.P. Dt. 27.12.13 before the opposite party No.1
The opposite party no.1 is also directed to accept the Claim Form of the complainant in respect of ligation failure & to proceed the same before the appropriate authority so that the complainant get the amount for ligation failure as early as possible.
No other claim is awarded to this complainant as the medical negligence is not established against the opposite party.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.
