CONSUMER DISPUTES REDRESSAL FORUM

PALAKKAD, KERALA

Dated this the 17^th day of September, 2012.

Present: Smt. Seena. H, President

: Smt. Preetha. G. Nair, Member Date of filing: 10/10/2011

CC / 170/ 2011

1. Bincy Reji, W/o.Reji Sebastian,

Edathodu, Machamthodu, - Complainants

Mannarkkad, Palakkad.

(BY ADV.Ullas Sudhakaran & Sheji Rajan)

2. Reji Sebastian

Edathodu, Machamthodu,

Mannarkkad, Palakkad.

(BY ADV.Ullas Sudhakaran & Sheji Rajan)

Vs

1. Palana Institute of Medical Sciences,

Kannadi P.O, Palakkad , - Opposite parties

(BY ADV.E.Ramachandran)

2. Dr.Shailaja, Gynecologist,

Palana Institute of Medical Sciences,

Kannadi P.O, Palakkad

now working at Welcare Hospital, Palakkad

(BY ADV.V.K.Venugopalan)

O R D E R

BY SMT. PREETHA. G. NAIR, MEMBER

2^nd complainant is the husband of the 1^st complainant. 1^st complainant was admitted at 1^st opposite party hospital on 11/9/2007 in connection with her 2^nd delivery and while at the hospital her health condition worsened due to Eclampsia, a severe manifestation of toxaemia of pregnancy associated with Fits and Coma. The 2^nd opposite party who attended 1^st complainant advised caesarean section as normal delivery was dangerous for life of both the mother and child. Complainants had requested 2^nd opposite party to sterilization along with L.S.Caesarean Section. On 12/09/2007 the 1^st complainant had undergone sterilization along with 2^nd Lower segment Caesarian section by the 2^nd opposite party. The complainants had remitted a sum of Rs.20,000/- to the 1^st opposite party towards medical bills.

During May 2011 1^st complainant felt some uneasiness and they consulted Dr.Suseela attached to New Alma Hospital, Mannarkkad. On 28/5/2011 the 1^st complainant was subject to Ultra Sonogram and she was diagnosed to be having Intrauterine Pregnancy. Complainants were shocked to know the fact that 1^st complainant is pregnant in spite of the sterilization undergone by her at the 1^st opposite party hospital and conducted by 2^nd opposite party. The doctors in New Alma Hospital had stated that 1^st complainant has to undergo periodical check up as her pregnancy would induce high blood pressure which would in turn adversely affect her health and that of the foetus. Complainants are Christians and abortion is against the mandate of the religion they profess and they have no other option than to retain the foetus undergo full term of pregnancy and to deliver the child by taking all the risk attached to it due to the health condition of 1^st complainant.

Due to the negligence on the part of 2^nd opposite party the complainants are undergoing lot of hardships and mental agony and they have to suffer the same in future also. The health condition called Eclampsia would induce high blood pressure and the same may lead to Kidney failure, Fits, Coma etc. which is highly dangerous for the mother and child and in the event of any of the aforementioned complication that may come up during the term of pregnancy. Also at the time of delivery the expenditure to be incurred and the mental agony and stress the complainants have to undergo would be unbearable. There is also a risk of the child being born with some congenital disorder and the agony of complainants may have suffer would be life long.

The 2^nd complainant is an agriculturist and the 1^st complainant is only a house wife and they are finding it difficult to make both ends meet even with the existing 4 member family. By gods grace even if the complainants are blessed with a healthy child then the complainants may find it difficult to up bring the 3^rd child by providing the child the basic necessities of life with the little means they have. The mental agony and sufferings of the complainants caused due to the deficiency of service and negligence on the part of opposite parties. Complainants sent a notice dated 10/08/2011 to opposite parties. The 1^st opposite party neither caused a reply to be send nor paid the amount as demanded in the notice. 2^nd opposite party had sent a reply stating that there was no deficiency on her part. Hence the complainants seeking an order directing the opposite parties to pay the complainants a sum of Rs.10,00000/- (Rupees Ten Lakh only) towards mental agony and financial burden and pay the cost of the proceedings.

Opposite parties filed version stating the following contentions.

Opposite party No.1 stated that they adopts the contentions raised by the 2^nd opposite party and those contentions may be treated as the contentions of them. Further stated that they had issued a reply notice by registered post which has been acknowledged by the complainant's lawyer.

The 2^nd opposite party stated that the 1^st complainant had been under treatment of her in connection with 2^nd delivery. Since it was her second delivery and they already had a child, the complainant with a view to avoid future pregnancy requested for sterilization along with the delivery. Then the 2^nd opposite party informed the complainants that no sterilization procedure is absolutely credible or reliable and explained the possibility for pregnancy even after sterilization due to re canalization of tubes or due to fistula formation. It was also informed that tubal ligation by Pomeroy's Technique is the widely accepted and advanced sterilization procedure. After fully conversant with the pros and cons of sterilization by tubal ligation, the complainants voluntarily agreed to undergo the procedure and gave written informed consent.

On 12/09/2007 the 1^st complainant Underwent Lower Segment Caesarean Section (LSCS) for the indications of previous history of LSCS and Premature Rupture of Membrane. Under all aseptic care and precautions the 2^nd opposite party conducted LSCS and a healthy male baby weighing 3 Kg was extracted uneventfully. As per the request of the complainant the 2^nd opposite party had also conducted bilateral tubectomy with due care and caution. During the procedure the 2^nd opposite party had identified fallopian tubes on both sides and the same were ligated and cut and sterilization was perfectly done on both sides. The post operative period was uneventful and the 1^st complainant did not develop any problems in connection with tubectomy.

After confirming pregnancy following tubectomy in the year 2011, the complainants did not turn up to consult the 2^nd opposite party and informed the fact only through a lawyer's notice. The admitted fact that the 1^st complainant remained sterile till 2011 points out the fact that sterilization was done with due perfection and expertise. Subsequent pregnancy can occur due to the reasons beyond the control of them either due to the re-canalization of tubes or due to fistula formation. Pregnancy due to failure of a sterilization procedure is a legally accepted ground for Medical Termination of Pregnancy. Even after knowing, about pregnancy in the early stage, the complainants did not resort to MTP solely on account of their alleged religious faith and hence they are not entitled to get any damages on the ground that the child is unwanted.

Caesarean operation was advised to the 1^st complainant for the indications of previous caesarean and PROM and intra operative as well as post operative periods were uneventful. If the health condition of the 1^st complainant was not ideal for being a 3^rd child the doctor who attended her during her antenatal period would not have allowed continuing the 3^rd pregnancy. The 2^nd opposite party did not give any assurance to the complainants that the sterilization procedure undergone by the 1^st complainant is 100% fool proof and that there would not be any chance for pregnancy. The complainants did not disclose the stage of her pregnancy as on the date of filing the complaint. Pregnancy after sterilization is an accepted complication described in all standard text books of Obstetrics Gynecology and in Medical Journals. No method of sterilization is absolutely reliable as pregnancy can occur even after sterilization by an ovum gaining access through a re canalized inner segment of the tube or due to fistula formation. It is settled position that pregnancy following sterilization due to natural causes does not give rise to cause of action alleging unwanted pregnancy. The admitted fact that the 1^st complainant remained sterile for more than three years is indicative of the fact that sterilization was done perfectly on both sides by following accepted medical procedure and subsequent pregnancy can be due to natural causes of either re canalization of tubes or due to tubo-peritoneal fistula. The 2^nd opposite party is having qualification of MBBS and DGO and working as a Gynecologist having experience of 23 years in the respective field.

There was no deficiency in service and no negligence on the part of opposite party No.2 in the treatment of the 1^st complainant. Hence the opposite parties prayed that dismiss the complaint with cost.

Complainants and opposite party filed affidavit Ext.A1 to A8 marked(except A6) on the side of complainants. Ext.B1 series marked on the side of opposite party. 2^nd opposite party was examined as DW1. Interrogatories filed by opposite party. Answers filed by complainants. Both parties filed argument notes. Heard the matter.

Issues to be considered are

1). Whether there is any deficiency in service on the part of opposite parties?

2) If so what is the relief and cost?

Issue No:1 & II

We perused relevant documents on record and heard both sides. There is no dispute that the 1^st complainant approached the 2^nd opposite party at the 1^st opposite party hospital during September 2007. At that time the 1^st complainant was pregnant for her second baby. Ext.B1 case sheet of the 1^st complainant would show that she first approached the 2^nd opposite party on 12/09/2007 and she was discharged from the hospital on 17/09/2007. The 1^st complainant had undergone sterilization along with Lower Segment Caesarean Section on 12/09/2007 by the 2^nd opposite party. It is to be noted that there was no complaint from the side of the complainants about any negligence on the part of the opposite parties in doing the procedure in 2007. Admittedly the 1^st complainant became pregnant in 2011. It is to be noted that the pregnancy during 2011 would show that the sterilization done on 12/09/2007 was a failure. There is nothing on record to show that the failure of the sterilization operation was due to the negligence or carelessness or lapse on the part of the 2^nd opposite party in doing the sterilization operation. In the absence of any such acceptable and cogent evidence it is not or proper to attribute negligence on the 2^nd opposite party doctor who conducted the sterilization operation on the 1^st complainant. On 12/09/2007 Ext.A2 document would make it abundantly clear that the 1^st complainant had sterilization along with 2^nd LSCS conducted by 2^nd opposite party. The 2^nd opposite party as DW1 has also deposed about the sterilization operation done on the 1^st complainant. Also DW1 deposed that there is no negligence on her part with regard to not sending the fallopian tube for histhopathology. Further in re examination DW1 deposed that usually we don't sent to histhopathology examination and the reason is that open surgery is done by identifying the tube. The complainants had not produced evidence to show that Histhopological report is necessary after the sterilization. Further DW1 deposed that she had informed the complainants that there is chance of pregnancy and the complainants has given consent for sterilization. No contradictory evidence produced by the complainants.

It is to be noted that the sterilization was done on the 1^st complainant in September 2007 and that the complainants had not preferred any complaint against the opposite parties who had done sterilization in 2007. This would give an indication that the body condition of the 1^st complainant was of such a nature that she had the tendency to get pregnancy even after sterilization operation. The opposite party No.2 stated that it was only due to the body condition of the 1^st complainant on account of re canalization of the fallopian tubes.

According to the 2^nd opposite party, she had done the sterilization operation on the 1^st complainant with due care and caution and she had cut and removed two pieces of fallopian tube ensuring for the success of the sterilization operation. But unfortunately the 1^st complainant became pregnant even after the sterilization operation because of the body condition of the complainant on account of re canalization of the fallopian tubes or fistula formation. The complainants could not adduce any evidence to substantiate their case that she became pregnant after the sterilization operation only because of the negligence or deficiency of service on the part of 2^nd opposite party. In fact the available evidence on record would show that there was no negligence or lapse on the part of 2^nd opposite party in doing the sterilization operation on the 1^st complainant. There is no expert evidence available suggesting histhopathology examination is necessary for confirming that the removed part is the fallopian tube. The accepted procedure to have sterilization is by doing tubactomy by different methods. It is a settled position that sterilization operation cannot be 100% successful. It is a known fact and medically recognized fact that there is the possibility of failure of sterilization operation on account of re canalization of fallopian tubes.

It cannot be said that the 2^nd opposite party was negligent because she is an experienced doctor and she could exercise her discretion as to which method adopt for the purpose of sterilization. Moreover no evidence has been adduced by complainants to prove negligence of the opposite parties. In the American College of Obstetricians and Gynecologists stated that pregnancy after sterilization may occur without any technical errors. According to this authoritative book the failure of sterilization is not necessarily on account of negligence of the doctor. In the present case the sterilization failed after 3 years and it cannot be attributed to the negligence of the doctor. The Hon'ble State Commission in Dr.Shyamala Mukundan V.Philomina Joseph dated 29/12/2010 held that there was no negligence on the part of 1^st opposite party, Doctor in doing the tubectomy operation on the complainant. In the present case a female baby was born to complainants after 4 years. They should not hold the doctor liable when they have been blessed with this baby.

It has been held by Hon'ble Supreme Court in the case of State of Punjab V.Shiv Ram and Others reported in AIR 2005 SC 3280 that there cannot be any negligence on the part of the doctor in doing sterilization operation because of the fact that the woman who has subjected for sterilization operation became pregnant. It is further held that there cannot be 100% success in doing sterilization operation and there is the risk of failure of sterilization operation and possibility of the woman pregnant becomes pregnant after sterilization operation. Thus it can very safely be held that there was no negligence on the part of opposite party 2. If that be so, there cannot be any vicarious liability on the part of 1^st opposite party.

The forgoing discussions and findings there on would make it clear that we cannot attributed any deficiency in service on the part of opposite parties. Complainants miserably failed to prove their case. In the result complaint dismissed.

Pronounced in the open court on this the 17^th day of September, 2012.

Sd/-

Smt. Seena. H

President

Sd/-

Smt. Preetha.G.Nair

Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1- Copy of Discharge Summary of Paalana Institute of Medical Sciences

Dt.12/09/2007

Ext.A2 - Copy of Certificate issued by 1^st opposite party dt.28/06/2011.

Ext.A3 – Copy of scan report dt.18/06/2011, New Alma Hospital, Mannarkkad.

Ext.A4- Copy of scan report dt.28/05/2011, New Alma Hospital, Mannarkkad.

Ext.A5 series- Cash bills(Original)

Ext.A7- Copy of Lawyer notice dt.10/08/2011, Postal receipts and acknowlegement

card of OP1.

Ext.A8-Reply notice sent by the 2^nd opposite party dt.10/09/2011(Original)

Exhibits marked on the side of opposite parties

Nil

Witness examined on the side of complainant

Ext.B1series-Case sheet of the 1^st complainant (Original)

Witness examined on the side of opposite parties

DW1- Dr.Shilaja.

Cost

No cost allowed