BEFORE THE DISTRICT FORUM:KURNOOL

Present: Sri K.V.H.Prasad, B.A., LL.B., President

and

Smt C.Preethi, M.A., LL.B., Member

Monday the 9^th day of July, 2007

CC.NO.134/2006

S. Noorjahan,

W/o S. Allipeera,

Housewife,

Near Birla Gate, Kurnool.                                                        ... COMPLAINANT

Verses

1)       The Government General Hospital,

          Rep. by its Superintendent, Kurool.

2)       Dr. B. Indira,

          Medical Officer, P.P.P. Unit,

          Government General Hospital,

          Kurnool. Presently working at

          Maternity Hospital, Sultan Bazar,

          Hyderabad.

3)       Dr. Y. Radhika,

          Medical Officer, P.P.P. Unit,

          Government General Hospital,

          Kurnool.    

4)       Dr. V. Radha Lakshmi,

          W/o Ramesh,

          C.A.S.P.P. Unit,

          Government General Hospital,

          Kurnool.                                                              ... OPPOSITE PARTIES

                   This is   complaint   coming   on   this   day  for  orders  in the  presence of  Sri.K.Ravi Kumar and Sri.S.Zubair, Advocate, Kurnool, for complainant, Smt.D.S.Saileela, Advocate, Kurnool for opposite party No.1, Sri.S.shafaqath Hussain, Advocate, Kurnool for opposite party No.2, Sri.B.Murali Manohar, Advocate, Kurnool for opposite party No.3 and Sri.A.Sivaramaiah, Advocate, Kurnool for opposite party No.4 and  upon the  perusing the material papers on record , the Forum made the following.

C.C. No. 134/2006

 (As per Sri K.V.H.Prasad, President)

ORDER

1. This case of the Complainant is filed U/s 11 and 12 of C.P. Act seeking an award direction the Opposite Parties to pay to the Complainant                          Rs. 4,00,000/- towards compensation, damages and medical expenses and interest at 18% P.A. on them and costs of the case alleging deficiency of medical services rendered by the Opposite Party No. 2 and No.4 at the vicarious liability of Opposite Party No.1, in the Tubctomy operation performed to her on 14-04-2001 and 30-03-2005 which failed and lead to her ill health involving huge medical expenditure.
2. In pursuance of the receipt of the notice of this Forum as to this case of the Complainant the Opposite Parties caused their appearance through there counsels and contested the case filing written versions denying there liability to the Complainants claim and seeking for dismissal of the Complainant’s case.
3. Even though the written version of the Opposite Party No.1 admits the performance of double puchture laprosopy on 14-04-2001 the Complainant by Opposite Party No.2 and on its failure same type of operation along with medical termination of pregnancy on 29-03-2005 by Opposite Party No.4 pleads besides to rendering free services, no negligence or defiance in conducting said operation as the  failure rate of said operation is 1% as per the text book of authority on said subject and the committee appointed for probing into the grievances of Complainant as to the failure of Tubctomy family planning operation, also opined the same rate of percentage of failure besides to the ill health nature of the Complainant for recanalisation.
4. The written version of the Opposite Party No.2 disputes the status of the Complainant as consumer to aggitate any deficiency of the service before this Forum as services were render free of cost.  Besides it further pleads any negligence or deficiency of service in performance of said Tubctomy operation to the Complainant,  as there was gap of four years between said sterlizaiton and conception and allege the approved rate of failure as per “ the training module for double puchture laprosopy sterilization operation” published by Commissionerate of Family Welfare, Hyderabad – as  0.7% to 3.8% as it could be attributable to natural and recognized failures such as inherent nature of patient for recanalisation in spite Tubctomy to both tubes as also was held by the committee appointed by Opposite Party No.1 to probe into said failure and hence the failure of Complainant’s operation need not necessarily on account of any negligence of Opposite Parties.
5. The written version of the Opposite Party No.3 flatly denies the allegations of the para No.5 of the original complaint as to her performing any Tubctomy operation to Complainant on 30-03-2005 and there by of her liability to the Complainants claim, as she has merely issued sterilization certificate to the Complainant for the operation performed by the Opposite Party No.4  as incharge of said unit and as the case of the Complainant against her being without any cause of action as to any of her negligence or deficiency  of services in the failed Tubctomy operation of Complainant – seeks dismissal of the Complainant with costs ordering Rs. 10,000/- to her as costs from the Complainant.
6. The written version of the Opposite Party No.4 also disputes the status of the Complainant for redressal of her grievances in the Forum as the services rendered were free of cost and there by out of scope of section 2 (1) (d) of C.P. Act. It denies of any negligence or deficiency  of her services in the Double Puncture Laproscopic Sterilization (D.P.L.S) and Medical Termination of Pregnancy (M.T.P) performed on Complainant on 30-03-2005.  It disputes the alleged treatment the Complainant has under gone on 06-11-2005 at C.N. Hospital has to M.T.P. incurring an expenditure of Rs. 10,000/- as the discharge card of C.N. Hospital does not take mention of M.T.P. to Complainant.  No female sterilization is 100% successful and fool proof and the failure can well be attributable to natural functioning of the human body and the approved rate of failure ranges from 0.3% to 3.80%.  No negligence or deficiency of service on her part in performing said Tubctomy operation as D.P.L.S was done by her to the Complainant by applying fellopion rings to both sides and the committee appointed by Opposite Party No.1 to probe into grievances of the Complainant as to the failure of Tubctomy operation – also opine the said failure was due to inherent nature of Complainant for recanalisation.
7. In substantiation of the contentions while the Complainant has taken reliance on documentary record in Ex.A1 to A6, Ex.X1 and the evidence of the PW1 besides to her sworn affidavit in reiteration of the complaint averments and the replies to the interrogatories exchanged, the Opposite Party side has taken reliance on documentary record in Ex.B1 to B4 and the evidence of the RW1 and 2 besides to sworn affidavits and replies to the interrogatories exchanged.
8. Hence the point for consideration is where the Complainant has made out alleged deficiency of service on the Opposite Parties and there liability to the Complainant’s claim.
9. The Ex.A2 is the discharge card dated 30-03-2005 issued by Government General Hospital, Kurnool on the name of the Complainant – indicates the particulars as to admission, operation and discharge of Complainant on               30-03-2005, 30-03-2005 and 31-03-2005 respectively for failed D.P.L.S., besides to the treatment rendered to Complainant and M.P.T. and D.P.L.S done to Complainant.  It takes mention of its observation as “evidence of D.P.L. on both sides present but fellopion ring not seen on right side”.  The said observation pertains to the situation at the time of the operation conducted on 30-03-2005 an account of the failure of earlier operation.  The Ex.A3 is the discharge card issued by Government General Hospital, Kurnool in the name of the Complainant reflecting therein the operation conducted as D.P.L.S. and the particulars of the admission, operation and discharge as 14-04-2001,               14-04-2001 and 14-04-2001 respectively besides to the treatment and advise rendered to the Complainant.  From the above two Ex.A2 and A3 what remains clear is that the Complainant underwent D.P.L., D.P.L. and M.P.T on the dates in Ex.A2 and A3 respectively and the non visibility of fellopion ring on right side even though there is evidence of D.P.L. on both side.  The possibility for loosening or breaking of the ring creates recanalisation and it occasions when there is infection to the tubes or if the tubes are very thick or at the inherent nature of the patient or if there is manufacturing defect in the ring as per the evidence of the PW1 Dr. K. Raja Sheker with whom the Complainant alleged to have got D.P.L.S. on the failure of the operation cover under Ex.A2.  Hence from this what remains clear is that the failure of D.P.L.S. need not necessarily be on the mere negligence of the surgeon who performed such operation.
10. The evidence of RW1 – Dr. G. Ramanath – who was in the committee for probing as to the failure of D.P.L.S. to the Complainant and who submitted its finding report in Ex.B2 observes no negligence of the surgeon in said earlier operation covered under Ex.A3 and A2.  The evidence of RW2 (The Opposite Party No.4) makes it clear that the said failure of earlier operation covered under Ex.A3 envisages the inherent nature of the patient (Complainant) for recanalisation. 
11. As per the evidence of the RW1 and pleadings of the Opposite Parties no Tubctomy operation is cent percent successful and the recognized rate of failure in case of D.P.L.S. as 0.17% to 3.8% in reference to training modules for D.P.L.S. published by Commissionerate of Family Welfare, Hyderabad. 
12. In the above said circumstances, from the fact of failure of second operation covered under Ex.A2 and the finding as to the state of rings to the fellopion tubes as observed in Ex.A1 and the evidence of the PW1 - it is with the neater of the Complainant to loss rings to fellopion tubes leading to recanalisation.  Therefore what follows in the above state of circumstances as to the probable cause for recanalisation in the case of the Complainant in spite of two D.P.L.S. is her said inherent nature with the tubes which are to hold the rings properly as in the failure operation covered under A3 while the ring to right fellopion tube was not visible, in the D.P.L.S conducted by the PW1 to Complainant on failure of D.P.L.S. covered under Ex.A2 the ring to left fellopion tube was not found.  Hence the above state of circumstances non of the Opposite Party No.2 and No.4 could be found with any negligence or defiance of service in performing D.P.L.S. operations conducted under Ex.A2 and A3 to the Complainant.  When there is any negligence or defiance on the part of Opposite Party No.2 and No.4 there remains any vicarious liability of Opposite Party No.1 as employer of Opposite Party No.2 and No.4 for the failure of D.P.L.S. to the Complainant.
13. The role of the Opposite Party No.3 as is limited to mere issual of sterilization certificate in Ex.A4 for the operation covered under Ex.A2 and not to any defiancies or ngeligencies in any D.P.L.S. performed on Complainant, the case of the Complainant against the Opposite Party No.3 fails for want of proper cause of action.
14. The Complainant alleges that she incurred Rs. 10,000/- towards the treatment she optioned with PW1 subsequent to the failure of D.P.L.S. covered under Ex.A2.   But the evidence of the PW1 says that he rendered medical services at free of cost to the Complainant except charging Rs. 1,000/- towards Anestheist and operation theater charges.  Hence there appears every exaggeration in the said claim of Rs. 10,000/- setup by the Complainant especially when no other substantiating  cogent material even is placed by the Complainant.
15. As held in the earlier paras the failure of earlier D.P.L.S. to the Complainant was not an account of any medical negligenceis or deficiencies of services of the Opposite Party No.2 and No.4 but more probable on account of the inherent nature of the Complainant for recanalisation, what ever expenditure the Complainant might have incurred in any further treatment with others, the Opposite Parties can not be held with any liability to make good of the said incurred expenditure.
16. The liability of the Doctor lies only when there is proper evidence as to medical negligence or lack of proper care in conducting the operation other wise the complaint is not maintainable as per the decision of Hon’ble Nation Consumers Disputes Redressal Commission, New Delhi held in Ravi Narayan Sahoo Vs Dr. V. Jaya Ram Pathra and others reported in I (2004) C.P.J. page 3 (NC).
17. The Hon’ble Supreme Court of India also holds the same in state of Hariyana Vs Raja Rani reported in IV (2005) C.P.J. page 28 (SC) to the effect that the liability of Doctor only in case where failure of operation is attributable to his negligence.  It further holds that fellopion tubes cut and sealed reunite and women may conceive those surgery performed and the surgeon can not be held liable for compensation and the state can not be held vicariously liable.
18. The Hon’ble Supreme Court of India in state of Punjab Vs Siva Ram and others reported in IV (2005) C.P.J. page 14 (SC) holds clearly that nearly because women have under gone sterilization operation became pregnant, operation surgeon or his employer can not be held for compensation an account unwanted pregnancy and a claim in tort sustainable only if there was negligence on the part of the surgeon in performing surgery or surgeon assured 100% exclusion of pregnancy after surgery.
19. Hence in the above state of circumstances as to any medical negligenceis of Opposite Party No.2 and No.4 in performing the D.P.L.S. covered under Ex.A2 and A3 on Complainant and on the other hand the said failure being accountable to the inherent nature of the Complainant and in the light of the supra stated decisions on the liability of the surgeon and their employer, the mere failure of sterilization operation leading to pregnancy does not necessarily mean any medical negligenceies or defianceis of surgeon or the liability of their employer in the absence of cogent proof, the case of the Complainant on the Opposite Parties does not survive for holding any of their liability to the Complainant’s claim.
20.  In the absence of any cogent material to hold the medical negligenceies or defianceis of the Opposite Parties, the material in Ex.A5, A6, Ex.X1, B3 and B4 remains with any relevance for their further appreciation.
21. In the result of the above discussions, for want of cogent proof and evidence as to medical negligence or defiance of service of Opposite Parties in the performance of D.P.L.S operations on Complainant to hold any of their liabilities to the Complainant’s claim, the case of the Complainant is dismissed  with costs.

          Dictated to the Computer Operator, transcribed by him, corrected and pronounced by us Open bench  on this the 09^th day of July, 2007.

    Sd/-                                                                                           Sd/-

MEMBER                                                                                PRESIDENT

APPENDIX OF EVIDENCE

Witnesses Examined

For the Complainant:                                For the Opposite Parties :Nil

List of exhibits marked for the Complainant:-

Ex.A1          Discharge Summary Card of C.N.Hospital, Kurnool.

Ex.A2          Discharge Card dated 31-03-2005 of G.G.Hospital, Kurnool.

Ex.A3          Discharge Card dated 14-04-2001 of Government General

                   Hospital, Kurnool.

Ex.A4          Sterilization certificate issued by Government General Hospital, Kurnool.

Ex.A5          Office copy of Legal Notice dated 16-05-2006.

Ex.A6          Representation letter dated 11-03-2006 along with postal receipts, acknowledgements and returned cover.

Ex.X1          Case Sheet of C.N.Hospital, Kurnool.

PW1            Deposition of PW1 dated 22-12-2006 (Dr.K.Raja Shekar).

List of exhibits marked for the Opposite Parties:-     

Ex.B1          Proceedings of the Superintendent, Government General Hospital, Kurnool.

Ex.B2          Enquiry Committee report dated 28-06-2006.

Ex.B3          Cases Sheet (1 to 35 Pages) of G.G.Hospial, Kurnool.

Ex.B4          Office copy of Reply Notice dated 22-06-2006 of opposite party No.1 to Ex.A5.

RW1            Deposition of RW1 dated 09-04-2007 (Dr.G.Ramnath).

RW2            Deposition of RW2 dated 19-04-2007 (Dr.V.Radha Laxmi).

    Sd/-                                                                                           Sd/-

MEMBER                                                                                PRESIDENT

Copy to:-

1. Sri.M.Azmathulla, Sri.K.Ravi Kumar and Sri.S.Zubair, Advocates, Kurnool

    for complainant.

2. Smt.D.S.Saileela, Advocate, Kurnool.

3. Sri.S.Shafaqath Hussain, Advocate, Kurnool.

4. Sri.B.Murali Manohar, Advocate, Kurnool.

5. Sri,A.Sivaramaiah, Advocate, Kurnool.

Copy was made ready on:

Copy was dispatched on: