Tamil Nadu

South Chennai

CC/397/2016

Geetha W/o.Easu - Complainant(s)

Versus

The Secretary of Govt, Health and Family Welfare Dept - Opp.Party(s)

R.Arun Kumar, A.Sasi Kumar

09 Sep 2019

ORDER

                                                                        Date of Filing  : 11.07.2016

                                                                          Date of Order : 09.09.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.397/2016

DATED THIS MONDAY THE 09^TH DAY OF SEPTEMBER 2019

                                 

Mrs. Geetha,

W/o. Mr. Easu,

No.1/13, Thattankulam Road,

Madhavaram,

Chennai – 600 060.                                                        .. Complainant. 

                                                                                            ..Versus..

 

1. The Secretary to Government,

Health and Family Welfare Department,

Fort,

St. George,

Secretariat,

Chennai – 600 009.

 

2. The Chief Doctor,

Government Hospital,

Taluk Office Road,

Ponneri,

Thiruvallur District – 601 201.

 

3. Dr. Rajeshwari, DGO,

Medical Officer,

Rajiv Gandhi Government General Hospital,

Park Town,

Chennai – 600 003.                                                 ..  Opposite parties.

 

Counsel for the complainant                 : R. Arunkumar & others

Counsel for the opposite parties 1 to 3 : M/s. P.G. Padmanabhan

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 3 under section 12 of the Consumer Protection Act, 1986 prays to pay a compensation for a sum of Rs.5,00,000/- for negligence in service, mental agony with interest at the rate of 18% till the recovery to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant states that on 02.09.2013, the complainant had undergone sterilization tubectomy operation; which was conducted by Dr. Rajeswari DGO, Government Hospital, Ponneri, Thiruvallur District and the doctor also issued a Family Welfare Certificate No.100/2004 in hospital IP No.4955.  The complainant submits that the 3^rd opposite party Dr. Rajeswari DGO assured that after tubectomy operation, no further pregnancy only on that promise the complainant persuaded to surgery. The complainant submits that to the shock and surprise, the complainant again conceived after tubectomy which was known to the complainant after 3 months only that she is pregnant and confirmed pregnancy by undergoing urine test report dated:18.02.2015 conducted by Government Hospital, Madhavaram, Chennai and further confirmed through scan reports. The complainant submits that the unexpected pregnancy for the third time is only because of the failure of the tubectomy operation conducted by the 3^rd opposite party Dr. Rajeswari, DGO due to which, the complainant was put to irreparable hardship.  The 3^rd opposite party, Dr. Rajeswari ensured both the fallopian tubes have been operated despite the operation the complainant become underwent unwanted pregnancy which attracts medical negligence and deficiency of service leads the complainant claiming compensation of Rs.5,00,000/- there is clear medical negligence and deficiency of service on the part of the doctor; made the complainant mental agony, tension and torture which cannot be ascertained.  

2.     The complainant submits that she has delivered her 3^rd male child in RSRM Hospital, Chennai on 21.08.2015 at 09.34 A.M. named as E. Tharun Vijay and the complainant have also undergone sterilization operation on the same day (21.08.2015) after delivery of the third male child. The complainant submits that  the 3^rd male child got problem of Empty serotum (Right side) since his birth open orchidepeny done in Government Stanley Hospital.   The complainant submits that though the complainant had two female children she had consented to undergo sterilization (TAT) operation to prevent the eggs reaching uterus for implantation through the 3^rd opposite party.   But no complete sterilization or family planning operation was done by the 3^rd opposite party which clearly shows breach of duty of care and medical negligence.  The complainant states that the negligence of the 3^rd opposite party is a “tort” every doctor who enters into medical profession has a duty to act with a reasonable degree of care and skill.  The medical officers entrusted with the implementation of the family planning programme cannot by their negligent act in not performing the complete sterilization operation amount to Sabotage a scheme of national importance.  In India where the population is increasing each second and family planning is a national programme, the doctor as also the state must be held responsible in damages if the sterilisation operation performed by her is a failure on account of her negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilisation.    The act of the opposite parties 1 to 3 amount to deficiency in service and unfair trade practice which caused great mental agony.    Hence, the complaint is filed.

3.      The brief averments in the written version filed by 3^rd opposite party which is adopted by the opposite parties 1 & 2 is as follows:

The opposite parties specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.  The opposite parties state that the 3^rd opposite party is studying her post graduate Surgery course at Rajiv Gandhi Government Hospital, Chennai previously working as medical officer at Ponneri Government Hospital.  The opposite parties state that no consumer relationship is maintained between the complainant and the opposite parties as per the Consumer Protection Act, 1986.  The opposite parties state that as per Section 2(o) of the Consumer Protection Act, 1986 any service rendering at free of charges or under a contract of personnel service, the person will not become a consumer. The complainant was provided free treatment at Government Hospital, Ponneri by the opposite parties.  In view of the statutory provision mentioned above, the complainant has to be dismissed in limine. The opposite parties state that the complainant was admitted to Government Hospital, Ponneri on 01.09.2013 as an inpatient vide I.P. no.4955 with  compliant of pain in the left lower abdomen for the past six months.  She was subjected to T.V. Scan, which revealed ovarian cyst on left side. 

4.     The opposite parties state that the complainant was informed about ovarian cyst on the left ovaries and the same was removed by performing surgery.  After the surgery, she was also informed that the fallopian tubes on the left side is adherent to the uterus and it is not safe to remove or perform tubectomy of the left fallopian tube as it will lead to heavy bleeding and chances for uterine perforation.  The opposite parties state that she was informed that the complainant ovaries on the right side is normal.  On the request of the complainant and her husband for sterilization, the 3^rd opposite party performed right side tubectomy operation.  After getting consent for the planned surgery, left side chocolate ovary measuring 6x5x3 cm. was removed and tubectomy was done on the right fallopian tube.   Hence, the opposite parties state that no complete sterilization was done, because the left side tubectomy was not done thus the medical records in I.P. No.4955 reveals that no complete sterilization or family planning operation was done on the complainant.  Hence, the possibility becoming pregnant was not altogether ruled out.  The opposite parties state the complainant allegation of tubectomy of both fallopian tube is only imaginary and not based on any records Hospital records at Government Hospital, Ponneri in I.P. No.4955 clearly reveals that left side oophrectomy and right side tubectomoy alone done and not complete sterilization. 

5.     The opposite parties state that the certificate family welfare No.10/2004 in hospital I.P. No.4955 on 10.07.2015 was not issued by her.  The opposite parties state that the complainant became pregnant after 1½ years she could have gone to the Government Hospital, Ponneri where she undergone surgery, the doctors would have done MTP but the complainant  continued with her pregnancy and went to Government Hospital, Madhavarm  and RSRM Hospital and delivered a male child shows her intention to have a male child.  The opposite parties state that considering the facts and medical records of the Government Hospital, Ponneri I.P.  Case No.4955 the opposite parties has not committed any negligence.  Therefore there is no deficiency in service on the part of the opposite parties and hence, the complaint is liable to be dismissed.

6.     To prove the averments in the complaint, the complainant has filed proof affidavit as her evidence and documents Ex.A1 to Ex.A10 are marked.  Proof affidavit of the opposite parties 1 to 3 filed and document Ex.B1 alone is marked on the side of the opposite parties 1 to 3.

7.      The point for consideration is:-

Whether the complainant is entitled to a sum of Rs.5,00,000/- towards compensation for negligence of service and mental agony from the opposite parties with interest at the rate of 18% as prayed for?

8.      On point:-

Both the complainant and 3^rd opposite party filed their respective written arguments and adopted by the opposite parties 1 & 2.  Heard their Counsels also. Perused the records namely; the complaint, written versions, proof affidavits and documents.  The learned Counsel for the complainant would contend that on 02.09.2013, the complainant had undergone sterilization tubectomy operation which was conducted by Dr. Rajeswari DGO, Government Hospital, Ponneri, Thiruvallur District and the doctor also issued a Family Welfare Certificate No.100/2004 in hospital IP No.4955 as per Ex.A5.    But as per IP records reveals that tubectomy done only on the right side.  The complainant also admitted with the complaint of lower abdominal pain.  Further the contention of the complainant is that the 3^rd opposite party Dr. Rajeswari DGO assured that after tubectomy operation, no further pregnancy only on that promise the complainant persuaded to surgery, but the complainant has not filed any documents to prove this.  Further the contention of the complainant is that in contra to the assurance given by the doctor she has been conceived again which was also known to the complainant after 3 months that she is pregnant and confirmed pregnancy by undergoing urine test report dated:18.02.2005 conducted by Government Hospital, Madhavaram, Chennai and further confirmed by pregnancy scan reports, it is admitted by the opposite party in their written version, proof affidavit and written argument that the complainant continued her pregnancy to have a male child and not informed anything in Ponneri Hospital.  Further the contention of the complainant is that the unexpected pregnancy for the third time is because of the failure of the tubectomy operation conducted by the 3^rd opposite party Dr. Rajeswari, DGO due to which, the complainant was put into irreparable hardship.  But on a careful perusal of records, it is seen that the complainant was admitted with the pains on the lower abdomen and right fallopian tube alone revealed.   The allegation that the 3^rd opposite party Dr. Rajeswari ensured both the fallopian tubes operated is imaginary and no document to prove the same.   Further the contention of the complainant is that despite operation the complainant had underwent unwanted pregnancy which is clear means of medical negligence and deficiency in service is not acceptable because tubectomy was done only on the right side.   No sterilisation done on the left side.  There is every possibility of pregnancy through one side fallopian tube.  

9.     Further the contention of the complainant is that she has delivered her 3^rd male child in RSRM Hospital, Chennai on 21.08.2015 at 09.34 A.M. named as E. Tharun Vijay as per Ex.A8, Ex.A9 & Ex.A10 and the complainant have also undergone sterilization operation on the same day (21.08.2015) after delivery of the third male child proves that the complainant has not availed sterilisation treatment before Ponneri Hospital. Further the contention of the complainant is that though the complainant had two female child she had consented to undergo sterilization (TAT) operation to prevents the eggs reaching the uterus for implantation through the 3^rd opposite party but no complete sterilization or family planning operation was done by her which clearly shows breach of duty of care and medical  negligence; is not acceptable in the absence of records as well as the IP records are very clear that the complainant was admitted for the treatment of left abdominal pain.  Further the complainant filed a Supreme Court Authority in support of her claim as follows:

(2000) 5 Supreme Court Cases 182

Civil Appeal No.2897/2000 decided on April 24, 2000

Between

STATE OF HARYANA AND OTHERS

-Versus-

SANTRA (SMT)

 

Held that

“Tort – Negligence – Medical negligence – Poor lady already having a number of children (seven in this case) offering herself for complete sterilisation operation at government hospital, operated upon and given a certificate to that effect – However, subsequently she conceiving and giving birth to a female child – At this stage it was found that only her right Fallopian tube was operated upon and the left one was left untouched – In such circumstances, the doctor concerned, held, acted most negligently – Hence, in spite of the parents’ moral and statutory liability to maintain their minor children, the said lady, held, entitled to damages for medical negligence – Case-law discussed – Further held, State was vicariously liable for the negligence of its doctors – Decree of Rs.54,000/- with pendentelite and future interest, upheld – Medical ethics – Duty to act with reasonable care and sill – Liability for negligence – Hindu Law – Hindu Adoptions and Minatenance Act, 1956 Ss. 20 and 23 – Liability of parents to maintain minor children – Muslim Law – Guardianship – Liability of father to maintain minor children – Criminal Procedure Code, 1973, S. 125 – Wprds and Phrases – “Maintenance” – Constitution of India, Art.300 – Vicarious liability of state for acts of negligence of its employees – Consumer Protection Act, 1986, S.2(1) (o) and (g) – Medical negligence”.

10.    The learned Counsel appearing for the opposite parties would contend that the 3^rd opposite party is studying her post graduate Surgery course at Rajiv Gandhi Government Hospital, Chennai previously working as medical officer at Ponneri Government Hospital. The contention of the opposite party is that no consumer relationship is maintained between the complainant and the opposite parties as per the Consumer Protection Act, 1986.  Further the contention of the opposite parties that as per Section 2(o) of the Consumer Protection Act, 1986 any service rendering at free of charges or under a contract of personnel service, the person will not become a consumer therefore, the contention of the opposite parties is that the treatment provided to the complainant is a free treatment at Government Hospital, Ponneri by the opposite parties.  In view of the statutory provision mentioned above, the complainant has to be dismissed in limine.  Further the contention of the opposite parties that the complainant was admitted to Government Hospital, Ponneri on 01.09.2013 as an inpatient vide I.P. no.4955 with a compliant of pain in the left lower abdomen for the past 6 months.  She was subjected to T.V. Scan, which revealed ovarian cyst on left side as per Ex.B1(S). 

11.    Further the contention of the opposite parties that the complainant was informed about ovarian cyst on the right ovaries and the same was removed by performing surgery.  After the surgery, she was also informed that the fallopian tubes on the left side is adherent to the uterus and it is not safe to remove or perform tubectomy of the left fallopian tube as it will lead to heavy bleeding and chances for uterine perforation.  Further the contention of the opposite parties that it was informed  to the complainant that the ovaries on the right side is normal.  On the request of the complainant and her husband for sterilization; the 3^rd opposite party performed right side tubectomy operation, it was admitted by the complainant in his complaint, proof affidavit and written arguments and Ex.B1(S) proves their consent i.e. Tamil Nadu Government Sterilization consent form submitted by the complainant with the opposite parties Ex.B1(S) also reveals the nature of sterilization operation done on the complainant is only on the right side.  Hence, the opposite party has not done entire sterilization, because the right side tubectomy was done; The medical records in I.P. No.4955 also reveals that no complete sterilization or family planning operation was done on the complainant.  The opposite parties (i.e.) the 3^rd opposite party also that informed the complainant that there is a chance of pregnancy after right side Tubectomy because, the left side fallopian tube is intact and Ex.A5 issued by the opposite party also shows sterilization (TAT) done.  Hence, the possibility becoming pregnant was not altogether ruled out.  Further the contention of the opposite parties is that the complainant allegation of tubectomy of both fallopian tube is only imaginary and not based on any records.  Muchless the Hospital records at Government Hospital, Ponneri in I.P. No.4955 clearly reveals that left side oophrectomy and right side tubectomoy alone done and not complete sterilization. 

12.    Further the contention of the 3^rd opposite party is that the certificate family welfare No.10/2004 in hospital I.P. No.4955 on 10.07.2015 was not issued by the 3^rd opposite party.   But in the certificate, it clearly mentioned that operation was successfully done by Dr. Rajeswari, D.G.O.  Further the contention of the opposite parties is that the complainant became pregnant after 1½ years she could have gone to the Government Hospital, Ponneri where she undergone surgery, the doctors would have done MTP but the complainant went to Government Hospital, Madhavarm  and RSRM Hospital and delivered a male child shows her intention to have a male child and willingly continued with her pregnancy.  Therefore, the averment in para No.12 of the complaint clearly reveals the malafide intention of the complainant.  The Government Hospital Madhavaram and RSRM Government Hospital are proper and necessary parties in this complaint, non-impleadment of those hospital the complaint may be dismissed as non-joinder of necessary parties to the complaint.

13.    Further the contention of the opposite parties is that considering the facts and medical records of the Government Hospital, Ponneri I.P  Case No.4955 the opposite parties has not committed any negligence in performing surgery.   The settled provision of law reveals / declares that in case tubectomy operation however scruplously done there are chance of women becoming again pregnant due to many biological factors.   Moreover, the service rendered by the opposite parties are free of charge and the complainant is also availed benefit given by the Tamil Nadu Government Family Welfare Departments proves the complainant cannot maintain this complaint against the opposite parties.  The opposite parties are not liable for any damages as claimed in the complaint.  The complaint may be dismissed and there is no deficiency in service on the part of the opposite parties 1 to 3.  Muchless, no medical negligence is committed by the opposite parties 1 to 3.  The complainant’s allegation that against the opposite parties 1 to 3 in diagnostic, treatment and proper medical care not taken are imaginary.  The compensation claimed is exorbitant. 

14.    As per the decision cited in:

IV (2012) CPJ 778 (NC)

Between

Union of India & others

-Versus-

Om Wati

Held that

          “Consumer Protection Act, 1986 – Sections 2 (1)(g), 21 (a)(ii) – Medical Negligence – Tubectomy operation – Woman become pregnant again – Alleged deficiency in service – State Commission partly allowed complaint – Hence appeal – Merely because a woman having undergone a sterilization operation becomes pregnant does not mean that there was any medical negligence or deficiency in performing surgery – Tubectomy operation can fail – Simply because the operation failed, does not entitle woman to claim compensation – Impugned order set aside”.

&

II (2011) CPJ 500 (T.N.)

Between

Krishnaveni (Dr) & others

-Versus-

Vijaya

Held that  

        “Consumer Protection Act 1986 – Sections 2(1) (d), 19 – Medical Negligence – Operation – Tubectomy – Failure – Consumer – Complainant again conceived – Alleged deficiency in service – District Forum  allowed complaint – Hence appeal – No consideration paid for operation – Complainant not consumer – Order of Fora set aside”.

Considering the facts and circumstances of the case, this Forum is of the considered view that this complaint has to be dismissed.

In the result, this complaint is dismissed.  No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 09^th day of September 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	25.03.2009	Copy of Birth Certificate of the 1st female child
Ex.A2	02.04.2011	Copy of voter ID
Ex.A3	08.03.2012	Copy of Birth Certificate of the 2nd female child
Ex.A4		Copy of Family Health Card
Ex.A5	10.07.2015	Copy of tubectomy operation certificate
Ex.A6	31.07.2015	Copy of legal notice to the opposite parties
Ex.A7		Copy of acknowledgement
Ex.A8	16.04.2016	Copy of Birth Certificate of the 3rd male child
Ex.A9	25.04.2016	Copy of Discharge Summary
Ex.A10		Copy of history of the case

 

 

OPPOSITE PARTIES SIDE DOCUMENTS:-

Ex.B1

01.09.2013

Copy of I.P. Case No.4955

 

 

                              

MEMBER                                                                                                                                                                       PRESIDENT