FINAL ORDER/JUDGEMENT
SHRI ASHOKE KUMAR GANGULY, MEMBER
This is an application U/s.35 of the C.P. Act, 2019.
The brief fact of the case is that the complainant is the father of the test tube baby Ms. Archisa Das who was born at Belle Vue Clinic, Kolkata after getting fertilized at Kolkata OPD SRL Ltd., Indira IVF Hospital Pvt. Ltd., 3rd Floor, Pataka House, 57B, Park Street, Kolkata – 700016 on 15.12.2017. But unfortunately Ms. Archisa Das has become a Beta Thalassemic Patient duly diagnosed by the Institute of Child Health, 11, Biresh Guha Street, Kolkata – 700017 on 26.09.2018 and by Medgenome Labs Ltd., 258/A, Bommasandra, Hosur Road,, Bangalore – 560099 on 27.11.2018. The complainant submits that the normal practice before giving birth of any child through a system of Test Tube Baby, it is extremely necessary to examine the Thalassemia Level(HPLC) of the father as well as the egg donor of the child, which is the basic requirement from the part of a Medical Institution /Hospital. But here in this case no such examination has been done to either the egg donor or to the father of the child before giving birth to Ms. Archisa by the Hospital Authority being the OP which is evident from the report dated 03.07.2019 duly prepared by the Tata Medical Center, 14 MAR (EW), New Town, Kolkata – 700160. Because of such irresponsibility and medical negligencies of the OP the child along with her parents have to suffer throughout their lives in respect of the problem of blood, problems related to liver, splin and so on. The baby’s vein will be stiff after taking blood in several times. The baby’s life will not last long like normal human being. The cost of treatment of this patient is huge which is not possible for the complainant being the father of the child who happens to be a Primary School Teacher only. According to the report of Tata Medical Center dated 03.07.2019 the Hospital Authority should have checked the egg donor’s HPLC before the in- vitro fertilization. The complainant sent Legal Notice dated 07.01.2020 calling upon to pay a sum of Rs.50,00,000/- to him for better treatment and security of the child which has not been responded by the OP. The complainant further submits that no compensation is appropriate to the ill fated child but for better treatment and security of the child the compensation to the tune of Rs.50,00,000./- is very much necessary.
The case has been heard ex parte. As such there is no Written Version on the part of the OP.
Points for Determination
In the light of the above pleadings, the following points necessarily have come up for determination.
1) Whether the OP is deficient in rendering proper service to the Complainant?
2) Whether the OP has indulged in unfair trade practice?
3) Whether the complainant is entitled to get relief or reliefs as prayed for?
Decision with Reasons
Point Nos. 1 to 3 :-
The above mentioned points are taken up together for the sake of convenience and brevity in discussion.
We have travelled over the documents placed on record. Complainant has filed evidence and BNA as per usual procedure.
While perusing the records it is observed that the complainant has furnished the documents issued by the Belle Vue Clinic, Kolkata where from it appears that a female child (Baby of Chumki Das) was born on 15.12.2017 and afterwards she has been named as Archisa Das. The baby got fertilized as a test tube baby at Kolkata OPD SRL Limited, INDIRA IVF Hospital Pvt. Ltd., Park St., Kolkata being the OP herein. The Hysteroscopy Discharge Card dated 01.04.2017 issued by the OP Hospital duly signed by the doctor is enclosed along with series of relevant diagnostic tests done in respect of father and mother of Archisa Das at SRL Diagnostics as referred by the doctor of OP Hospital.
Ms. Archisa Das is thus appeared to be a Test Tube Baby fertilized at the said centre of the OP and was born at the Belle Vue Clinic, Kolkata on 15.12.2017. The child being sick was admitted to the Institute of Child Health on 19.09.2018 for treatment and was discharged on 26.09.2018 with diagnosis of B – Thalassemia. Thereafter on further verification at Medgenome Labs Ltd., Bangalore it was detected also as Thalassemia beta. The patient Archisa Das was thereafter treated at Tata Medical Center , New Town, Kolkata where the assessment was done on 03.07.2019 and the patient was diagnosed as Beta Thalassemia (Final). The Patient Evaluation Summary report of Tata Medical Center is minutely perused where the important evaluation/ assessment done in respect of the patient Archisa Das is mentioned here in below.
History ; 01 yr. 06 month old girl child born by IVF was found to be anemic(Hb 7.2) at the age of 7 months and received 1 unit PRBC transfusion. Her hb became lower at the age of 9 months (3.4 gm%) and was admitted in Institute of Child health under Dr. P.K.Choudhury. HPLC was s/o beta thalassemia homozygous / beta thalassemia HPFH heterozygous condition with splice site variation c.92 + 5G>C(IVS 1 – 5 (G>C) s/o beta thalassemia major. She is receiving regular transfusions to keep Hb>10 gm and has received 11 units PRBC so far. No chelation therapy started. Family has come to TMC for further consultation.
Transfusion requirement ; Once a month.
Birth History :
Pt. is a IVF child and ovum donor is unknown. She was a preterm birth ( 28 weeks ) and birth wt. was 1 kg, she was under ventilation after birth and had neonatal seizure episodes ( 3 – 4 episodes) after birth.
Family history :
Fathers HPLC HbA2 – 5.3%, HbF – 0.4. ( Beta Thalassemia trait)
Father’s profession – Primary School Teacher
Income – 25,000/- per month.
Discussion ;
1 yr 6 month old girl child born by IVF and was diagnosed as a c/o beta Thalassemia and is on transfusion support and has received 11 units PRBC so far. No chelation therapy is started. Family has come to TMC for further consultation. Case d/w Dr. Mammen sir. The child was born by IVF and father is a thalassemia carrier,the infertility center should have checked the egg donor’s HPLC before the in – vitro fertilization but it was not done.
The complainant being the father of Archisa Das has also been tested by Clinical Haematology Service, 4, Gorky Terrace, Kolkata – 700017 and vide their test report dated 08.10.2018 it was commented as Consistent with Beta thalassemia carrier state.
The OP has not contested the case by filing WV within the statutory period as provided under the C.P. Act,2019. Thus, the case runs ex parte against the OP.. Accordingly on the basis of the uncorroborated evidence furnished by the complainant it is established that the patient Ms. Archisa Das being the daughter of the complainant is proved to be a Beta Thalassemia Patient by birth. It has also been proved that the father of Archisa Das is Beta Thalassemia carrier and from the report of Tata Medical Center as detailed above it is established that necessary checking of egg donor’s HPLC was not done before the in – vitro fertilization and as a result of which the unfortunate child has become a patient of Beta Thalassemia and for no fault of her she will have to suffer throughout her life. It is also mentioned in the report that the patient Archisa Das will have to undergo Blood Transfusion once a month which is a painful treatment and needs huge costs which is practically impossible for a father who happens to be a Primary School Teacher. The innocent child has become a victim of the situation and will suffer lifelong for the callous, careless and irresponsible attitude of the OP Hospital. A simple test of Thalassemia in respect of the persons involved in the process of fertilization for test tube baby would have saved the life of the unfortunate child Ms. Archisa Das from the lifelong sufferings and for that serious lapses, the OP Hospital cannot avoid their liability. This is actually a professional misconduct on the part of the OP Hospital. The expenses to be incurred throughout the life of the patient Ms.Archisa Das is beyond the capacity of the father who happens to be a Primary School Teacher only. It is fact that None can foretell how long a person will alive. It is herein the case of Ms. Archisa Das whose life span cannot be foretold. But it can be foretold that there will be huge expenses to be incurred throughout the life so long she will alive for her treatment and survival on regular basis which is not possible for the family to bear with. The tragedy is not ending here. The child will remain dependent on others so long she is alive, that too is possible only if she has the monetary support of her own. The child has lost her normal life, her social life and even her conjugal life also which are permanent loss and cannot be compensated by money. Parent of Ms. Archisa Das will have their lifelong agony for the sufferings of their child. Considering all these aspects as mentioned above we feel that a reasonable amount of compensation for treatment, maintenance and livelihood of the child is very much necessary which has to be borne by the OP Hospital only.
In this regard the judgement of the Hon’ble NCDRC under reference 2022(3) CPR 58 (NC) in the matter of Udayan and Ors. V M/S Imaging Point and Ors. Vide Consumer Case No. 74 of 2009 decided on25.05.2022 is relevant in connection with this case..
In the said judgement under Para 33 it is mentioned that “It is well settled principle of justice that in case where negligence is evident, the principle of res ipsa loquitur operates and the complainant does not have to prove anything as the thing(res) proves itself. In such a case, it is for the opposite party to prove that he has taken care and done his duty to repel the charge of negligence. Thus to reduce such errors and patient grievances, there is need for overall national guidelines from academic bodies (ICMR) or the government(health).
The Hon’ble Commission has elaborately explained the compensation in Para 34 which speaks as follows.
Compensation :
34.” Damages” is the legal word for the loss or harm that result to a person from the wrongful acts of another person. To remedy that damages, the law compensates the victim through a monetary award. Damages are then split into two major types: Compensatory and punitive. Compensatory damages are designed to compensate the victim for specific types of injuries for which assigning a monetary value is fairly easy, such as medical bills, loss of wages and loss of future earning capacity. Compensatory damages can also include non economic damages like pain and suffering, loss of consortium, and loss of enjoyment of life. Punitive damages do not compensate the victim ; rather, they are designed to punish wrong doers for behaviour that is considered to be willful, wanton or egregious.
Keeping the overall views expressed in the said judgement including Economic and Non economic damages we are of the opinion that the innocent child who has been made deceased throughout her life deserves just and fair compensation.
Accordingly the OP Indira IVF Hospital Pvt. Ltd.is directed to pay Rs.50,00,000/- to the complainant as compensation. The child is at present 5 years old. In view of that, Rs.40,00,000/- shall be kept in the form of Fixed Deposit in any Nationalized Bank (preferably State Bank of India) in the name of Ms. Archisa Das till she attains majority. The balance amount of Rs.10,00,000/- shall be paid to the parents of Ms.Archisa Das towards mental agony and allied expenses. The parents can draw periodic interest on the FD for the regular health check up, treatment and welfare of their child.
In the light of the above observations and findings, we are of the considered view that the complainant has established the case against the OP. All the points under determination are answered accordingly.
In the result, the Consumer Complaint succeeds .
Hence,
Ordered
That the complaint case is allowed ex-parte against the OP with the following directions:-
- The OP Indira IVF Hospital Pvt. Ltd. is directed to pay a sum of Rs.50,00,000/- to the complainant as compensation for treatment, maintenance and livelihood of Ms.Archisa Das and also towards mental agony of the parents for the sufferings of their child. Out of Rs.50,00,000/- , Rs.40,00,000/- will be kept in the form of Fixed deposit in any Nationalised Bank preferably State Bank of India till she attains majority and Rs.10,00,000/- towards mental agony of the parents and allied expenses.
2. The OP is further directed to pay Rs.10,000/- to the complainant as litigation costs.
The above order is to be complied by the OP within 90 days from the date of the order. In the event of non compliance of the order, liberty be given to the complainant to put the order into execution U/ss 71 & 72 of the C.P. Act,2019.
The judgment be uploaded to the website of the Commission forthwith for perusal of the parties. Copy of the Judgement be supplied to the parties free of cost as per C.P.Act.
