Jharkhand

Bokaro

CC/18/14

Sabnam Ara - Complainant(s)

Versus

The Manager, Muskan Hospital - Opp.Party(s)

Rashid Akhtar

18 Mar 2023

ORDER

District Consumer Disputes Redressal Commission, Bokaro

Date of Filing-01-02-2018

Date of final hearing-15-03-2023

 Date of Order-18-03-2023

Case No. 14/2018

     Sabnam Ara W/o- Md Shahzad Ansari

     R/o Khetko, Petarwar, Bokaro Steel City District- Bokaro

Vs.

1. The Manager/ Director Muskan Hospital

Ram Nagar Colony chas, Bokaro Steel city, Jharkhand

2. Dr. Richa Soni
3.  

Bokaro Steel City, District- Bokaro (Jharkhand) 827001

 Present:-

                             Shri Jai Prakash Narayan Pandey, President

                  Smt. Baby Kumari, Member

PER- J.P.N Pandey, President

-Order-

1. Complainant has filed this case with prayer for direction to the O.Ps. to pay Rs. 12,00,000/- with interest @ 12% per annum on account of medical negligence on the part of the O.Ps. and to pay Rs. 60,000/- as compensation for various type of harassment and also to pay Rs. 20,000/- as litigation cost.
2. Complainant’s case in brief is that she was admitted in the Muskan  Hospital, Ram Nagar Colony, Chas, B.S. City , Jharkhand on 19.10.2007 for treatment of Menorrhagia and undergone MTP with Ligation, with assurance that there will be no child in future and discharged from that very hospital on 21.10.2007. Further case is that said procedure was done by Doctor Richa Sony (O.P. No.2) thereafter, complainant was again operated in said hospital vide patient No. MHRC/3723 /08/15 and registration no. 3626 who was admitted on 26.08.2015 and diagnosed with non progress labour and treated with L.S.C.S.B/L tubal ligation was repeated, who gave birth of male baby on 27.08.2015 and discharged on 30.08.2015 inspite of ligation done in the year 2007. Further case is that complainant is a poor Muslim who is liable to maintain her son till the age of puberty hence this case is being filed with prayer as mentioned above.
3. O.P. No.1 has filed W.S. mentioning therein that there is no specific scientific and justified allegations in respect to negligence or deficiency in providing service by the O.P. to the complainant and there is no such allegation or evidence rather this case has been filed with wrong allegation. Further reply is that there is no cause of action of the case. Further reply is that on missing the period and knowing about pregnancy complainant has not opted for medical termination of pregnancy rather she opted to give birth of a child, hence she cannot blame any other person. Further reply is that in case of tubal ligation there is failure of 0.4% to 2% in India at different centre and in case of this complainant it was done diligently, prudently with utmost due care and caution in treating her. Further reply is that patient was well explained that procedure for sterilization is having no 100% efficacy hence O.P. cannot be blamed.
4. As per W.S. of O.P. No.2 there is no negligence or deficiency by this O.P. and complainant has not disclosed that how she has implicated this O.P. No.2, rather this case has been filed with false allegation having no cause of action. Further reply is that O.P. No.2 is well qualified and reputed doctor with substantial        goodwill and having long experience. Other facts related to reply of O.P. No.1 in respect to treatment have been mentioned in W.S. of this O.P. which are not being reproduced at this place just to avoid repetition. Hence it is prayed to dismiss the case with cost of Rs. 10,000/- for filing false and vexatious complaint. Again additional W.S. has been filed mentioning therein that complainant has not produced any prescription showing the fact that concerned operation was done by this O.P. rather all papers submitted are related to post operation period and during the relevant period apart from this O.P. other Gynecologist were also working in the Muskan Hospital and non of the prescriptions have been written or singed by this O.P.
5. On the basis of the pleadings of the parties following points are being framed for decision of this case:-

1. Whether there is medical negligence on the part of O.Ps. in respect to this case?
2. Whether complainant is entitled to get any relief as claimed ?

6. Now we would like to discuss both the points together for decision. To prove its case complainant has filed photo copy of final bill of the hospital dt. 30.08.2015, discharge summary dt. 21.10.2007, medical prescription and photo copy other medical reports etc.
7. Complainant has examined herself as PW-1 who states during cross-examination at para 11 that she was not knowing Dr. Richa Sony prior to 19.10.2007. At para 13- she states that she could not know when her menstruation was stopped in the year 2015. PW-2 is the husband of the complainant who states at para 17 that his wife has not informed him about stopping of her menstruation.
8. Both the O.Ps. have also been examined as witness in this case amongst them O.P. No.1 has stated that there is failure rate of 0.4 to 2% of operation related to tubal ligation. During cross- examination at para 29 he states that he could not say that in whose handwriting and signature prescription dt. 13.11.2007 has been prepared.
9. It is a case in which qualification of the doctor and her competence is not in question. Only on the basis that after tubal-ligation in the year 2007 complainant gave birth of a male child in the year 2015 hence presuming it that there is medical negligence on the part of the hospital and doctor this case has been filed. There is no any evidence to show that what type of medical negligence has been committed by the O.Ps. On the other hand it is well recognized position that there is failure rate of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable once in medical science.
10. Ld. Counsel for the O.Ps. have relied on the principles laid down by the constitution bench of the Hon’ble Supreme Court in the case of State of Punjab Vrs. Shiv Ram and Ors. reported in AIR 2005 Supreme Court 3280 and he has also placed reliance on the principles laid down by the Hon’ble Supreme Court on the case reported in AIR 2005 Supreme Court 3279. He has also placed reliance on the principles laid down by the Hon’ble Supreme Court in the case of Civil Hospital & Ors. Vrs. Manjit Singh Anr. Civil Appeal No. 6208/2022 (Arising out of SLP (C) No. 1658 of 2022), Decided on September 6, 2022. In that very case after considering the principles laid down in the case of State of Punjab v. Shiv Ram, (2005) 7 SCC 1  it has been observed at para 6 & 7 of the report that :-

 6. The reliance is placed on the judgment of this court reported as State of Punjab v. Shiv Ram, (2005) 7 SCC 1 to contend that the failed tubectomy surgery is not a case of medical negligence as 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. This Court held as under:—

“28. 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………………..

  30. The cause of action for claiming compensation in cases of failed sterilization operation arises 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. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.”

7. In view of the findings of this Court, the National Commission has erred in law in granting unspecified compensation to the respondent.

11. On the other hand Ld. Counsel for the complainant has placed reliance on the principles laid down by the Hon’ble Supreme Court reported in AIR 2000 Supreme Court 1888. With due respect to the principles laid down in above case we are of the view that said case was decided by two Judge Bench but the principles  reported in AIR 2005 Supreme Court 3280 and AIR 2005 Supreme Court 3289 have been laid down  by   the larger bench of three Hon’ble Judges as it has been mentioned above hence the principles laid down in this case are not helpful for the complainant.
12. In light of above discussion, considering the materials available on record as well as the principles laid down by the Hon’ble Supreme Court in above mentioned cases we are of the view that it is not the case of medical negligence rather there were several options to the complainant for not to give birth of a child but she has not availed it, rather she has willfully opted to give birth of the child. Therefore, we are of the view that it is not a case of medical negligence and complainant is not entitled to get any relief as claimed. Accordingly both points are being decided against the complainant.
13. In the result this case is dismissed on merit and in the facts on the case parties shall bear their own costs.

 

   (J.P.N. Pandey)

                                                                                      President

                                                                                     

         

                                                                               (Baby Kumari)

                                                                                                Member