State Consumer Disputes Redressal Commission
Dr. Vasanthy Jayaraj, vs Seema Suresh, on 21 November, 2012
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/535 (Arisen out of Order Dated 05/01/2011 in Case No. CC/03/613 of District Trissur) 1. MOTHER HOSPITAL PULLAZHI.P.O,THRISSUR,REP.BY MANAGING DIRECTOR,DR.ABDUL HAKKIM TRISSUR KERALA ...........Appellant(s) Versus 1. SEEMA SURESH KRISHNA BHAVAN,UDAYA NAGAR,AYYANTHOLE TRISSUR KERALA ...........Respondent(s) BEFORE: SRI.M.K.ABDULLA SONA PRESIDING MEMBER PRESENT: ORDER KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 399/11 & A. 535/2011
JUDGMENT DATED. 21.11.12
PRESENT:-
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
APPEAL NO. 399/11
APPELLANT
Dr. Vasanthy Jayaraj,
Mother Hospital, PO Pullashi, Thrissur
(Rep. by Sri. Adv.M.C. Suresh)
Vs
RESPONDENTS
1. Seema Suresh,
W/o Suresh, Krishna Bhavan,
Udaya Nagar, Ayyanthole,
2. The Managing Director,
Mother Hospital P.O. Pullashi, Thrissur
(R1 Rep. by Adv. Sri. K.D. Babu)
(R2 Rep. by Adv. Sri. S. Reghukumar)
APPEAL NO. 535/11
APPELLANT
Mother Hospital Pvt. Ltd.,
PO Pullashi, Thrissur.
Rep. by Dr. P.A. Abdul Hakkim,
Managing Director.
, (Rep. by Sri. Adv.S. Reghukumar)
Vs
RESPONDENTS
1. Seema Suresh,
W/o Suresh, Krishna Bhavan,
Udaya Nagar, Ayyanthole, Thrissur
2. Dr. Vasanthy Jayaraj,
Mother Hospital, PO Pullashi, Thrissur
(R1 Rep. by Adv. Sri. K.D. Babu)
(R2 Rep. by Sri. Adv.M.C. Suresh)
JUDGMENT
SMT. A. RADHA : MEMBER Both these appeals are preferred from the order dated 5.1.2009 in O.P. 613/2003 on the file of CDRF, Thrissur by the first and second opposite parties respectively. The appellant in 535/11 is the 1st opposite party hospital and the appellant in 399/11 is the 2nd opposite party, consultant gynecologist in the 1st opposite party hospital.
2. The brief facts of the case are that the complainant approached the opposite parties for undergoing laparoscopic sterilization. The complainant was admitted in the hospital on 31.3.2003 and consulted the 2nd opposite party and on examination, details of last menstruation and other details were informed. It is the definite case of the complainant that prior to the conducting of laparoscopic sterilization no pregnancy test was done by the opposite parties. The complainant was discharged from the hospital on 1.4.2003 and soon after the complainant left for Dubai where her husband was residing. After 2 weeks the complainant felt some symptoms of pregnancy and she consulted a doctor at Dubai and narrated the entire details to the doctor and realized that the complainant became pregnant and she was advised to return to her native place in India and contacted the 2nd opposite party who suggested for aborting the pregnancy. As the petitioner was not in a position to undergo abortion under the supervision of the second opposite party, due to lack of confidence and fear, she approached Raji Nursing Home and consulted another doctor where she had undergone abortion. Due to the abortion after laparoscopic sterilization the complainant had to suffer severe pain and sufferings both mentally and physically. This unfortunate incident happened due to the negligence of the second opposite party and the complainant filed this complaint for compensation before the Forum below for an amount of 2 lakhs with 18% interest and also 5000/- as cost of the proceedings.
3. In the written version filed by the first opposite party, it is contended that the first opposite party is a multi-specialty hospital having more than 11 years of reputed service. The doctors and consultants are highly qualified and experienced in their respective fields. The complaint is filed with an ulterior motive to tarnish the reputation of the hospital.
4. The second opposite party in her written statement stated that the complainant consulted the second opposite party on 28.3.2003 and took a detailed history including the date of last menstrual period. She had the last menstrual period on 1st March 2003 and also stated that she had regular cycles and had taken adequate precautions to avoid pregnancy in the form of abstinence. A thorough clinical examination of the complainant was done by the 2nd opposite party. The complainant also revealed that there is no chance of pregnancy and hence the pregnancy test was not conducted. It is also stated that all the relevant pre-operative investigations to conduct a laparoscopic sterilization was done on 29.3.2003 and the petitioner was admitted in the first opposite party hospital on 30.3.2003. There were no pre-operative or post operative complications and the complainant was discharged on the very next day. It is also asserted in the version that even if the pregnancy occurred after sterilization there is no chance of any complication for the patient. The second respondent also offered the complainant medical termination of pregnancy. It is also stated that the possibility of leutal phase pregnancy is not possible to find out even if a pregnancy test is conducted. Since the contraceptive measures were taken by her were not full proof, the pregnancy cannot be ruled out. The pregnancy test was not conducted because the complainant firmly told that there was no chance of pregnancy because she had observed strict abstinence. She had no complaint of missing the periods. The complainant's firm insistence that she had no chance of pregnancy lead to the non- examination of pregnancy test. The laparoscopic surgery was done with utmost care after necessary investigation and pre-anaesthetic evaluation. It is also pointed out that there is no defect in the sterilization operation also. There is no negligence or deficiency in service on the part of the second opposite party as alleged by the complainant and the complainant is not entitled to get any compensation from the second opposite party.
5. The evidence consisted of the oral testimony of the complainant as Pw1 and the opposite parties adduced evidence as Rw1 & Rw2. The documents were marked on the side of the complainant as Exts. P1 to P7. The Forum below came to the conclusion that the second opposite party ought to have conducted the pregnancy test before laparoscopic sterilization.
6. The Counsel for the appellant/1st opposite party in Appeal No. 535/11 submitted that the complainant admitted in the hospital for laparoscopic sterilization and had undergone the operation which was conducted by the second opposite party. It is submitted that the complainant consulted doctor at Dubai and realized that she was pregnant even after the laparoscopic sterilization. The first respondent/complainant returned from Dubai and suggested for undergoing abortion. The Forum below failed to assess that the 1st respondent had not reported to the 2nd respondent/2nd opposite party that her period was missing. In the absence of pleading and evidence to show that the complainant never reported missing of period, the gynecologist cannot be held liable for relying on the clinical history of the complainant. There is no other alternative other than to believe the statement of the complainant regarding the last menstrual date. A doctor cannot be liable for the clinical history given by the complainant. The Forum had as Sagacious view that if the complainant had firm belief and reason to rule out the chance of pregnancy one month after her last LMP the treating doctor cannot be held negligent in not advising U.P.T. There is no reasonable ground to believe that the complainant asked the second opposite party whether she had to wait for 2 or 3 days after ascertaining pregnancy or regarding pregnancy test. It is also clear from her decision to abort pregnancy implies that she did not want to continue the pregnancy. The complainant in her deposition clearly stated that she had no complaint against the hospital. The facilities of the hospital and the treatment was satisfactory and she had no case against the hospital. She raised the complaint against the doctor alone. The counsel also urged that as the complainant had no grievance against the hospital and the treatment given in the hospital as satisfactory, the Forum went wrong in fastening the liability on the appellant/first opposite party. Hence the appeal is to be allowed and dismiss the complaint.
7. The counsel for the appellant/second opposite party in Appeal No. 399/11 vehemently argued that the second opposite party conducted the laparoscopic sterilization after conducting due tests. The detailed history of L.M.P of the complainant, regarding menstrual cycles and abstinence from physical contact with her husband had not given any suspicion or confirmed upon the words of the complainant that she was not pregnant till that period. On believing the words of the complainant, it is admitted that the appellant had not suggested for U.P.T. There is no valid ground to suspect by a responsible doctor to suspect chance of pregnancy on 31.3.2003. In the complainant's case the LMP reported was on 1.3.2003. Further the clinical history of strict abstinence of the complainant also confirmed that she had no chance of pregnancy. The counsel argued that even if a pregnancy test is conducted it will not be clear if the pregnancy happened in leutal phase. The doctor had no other alternative than to believe the statement of the complainant. There is no case for the complainant that the laparoscopic sterilization was failed. It is also in evidence that she had been using copper T for avoiding pregnancy. So the treating doctor cannot be made negligent for not advising for pregnancy test as she had to believe the statement of the complainant. It is also submitted that the complainant is the best person who is well aware of the abstinence. It is normal that if a person comes with missing period, the U.P.T. will be conducted immediately but in this case the complainant had no reason to suspect the chance of pregnancy. It is also clear from her evidence that the complainant did not want to continue the pregnancy and she was ready to undergo medical termination of pregnancy. The complainant had not succeeded in proving any damage or sufferings caused to her by termination of pregnancy conducted. She had not produced any documents to prove that she had undergone M.T.P. Though she had stated that she had undergone M.T.P. at Raji Nursing Home no evidence adduced to prove the case. She had not caused any damage or sufferings after the medical termination of pregnancy. It is also submitted that she left for Dubai after conducting the M.T.P. In the absence of proof of any damage the Forum below is not justified in allowing compensation. The counsel also urged that in the light of evidence of Rw2 which is categorically stated that pregnancy test before sterilization is mandatory only in case where patients report missing periods. The complainant was using Copper T and there is no chance of pregnancy in that case also. The menstruation cycle is 28 to 35 days and the doctor can rely upon the avowal of the patient for assessing whether there had missing periods or not. Rw2 also stated that the pregnancy test would not be reliable if the pregnancy took place during Leutal phase period. Hence the appellant/second opposite party is not liable to pay any compensation to the complainant. The non-production of the treatment records from Raji Nursing home is also fatal to the claim of the complainant. The complainant had not succeeded in proving any breach of duty on the part of the second opposite party. The compensation allowed by the Forum below is excessive. As the case was not proved by the complainant properly and also due to lack of expert evidence is also fatal to the complainant and allowing the complaint by the Forum below is not reasonable and justifiable. Hence the appeal is to be allowed.
8. Heard both the appellant's side. Though notice was issued to the first respondent/complainant the counsel for the respondent appeared once and the case was posted on 17/9, 22/9. ,& 1/11. As there had no representation, this Commission had gone through the documents and having taken into consideration of the rival contentions of the counsel for the appellants, it is an admitted fact that the first respondent/complainant had undergone Laparoscopic sterilization at the appellant/first opposite party hospital under the consultation of the appellant/second opposite party, doctor. The complainant's case is that the appellant/second opposite party had not advised for U.P.T. before the sterilization operation. Two weeks after the sterilization, the first respondent came to know that she was pregnant and she had to return to India for medical termination of pregnancy. The first respondent alleged negligence and deficiency in service on the part of the second opposite party on the ground that the doctor did not advise for the urine test. The respondent had to suffer a lot of pain and had incurred heavy expenses. The shocking news of pregnancy caused deterioration of the complainant's health. The respondent approached the doctor at Raji nursing home as she lost the belief in the second opposite party. The contention of the appellant/first opposite party is that they were conducting the hospital service as a multi-specialty hospital and having good reputation with experienced and qualified doctors. This Commission finds that the respondent had no grievance against the facility or convenience offered by the appellant/first opposite party. The Forum below while allowing the complaint ordered the first opposite party to pay 50,000/- and cost. In the absence of a prayer in the complaint and also in the evidence the compensation ordered to be paid by the appellant/first opposite party is not sustainable. Moreover the complainant gave the history of L.M.P. to the doctor and other details regarding her life. The respondent also firmly confirmed that she was under contraceptives while in physical relation with her husband. It is the respondent herself who ruled out the possibility of pregnancy as she kept abstinence to avoid pregnancy. The appellant doctor on believing the words of the complainant and as there had no complaint of missing periods, the laparoscopic sterilization conducted. The pre- operative investigation to conduct laparoscopic sterilization were done. It is also evident from the deposition of Rw2 that the leutal phase pregnancy is not detectable in the early stage of pregnancy. It is also to be pointed out that no other expert evidence adduced by the respondent/complainant to prove that the U.P.T. was a must in a case where there is no missing case of periods. Further the complainant had not produced the documents of medical termination of pregnancy except the letter from the treated doctor. The treated doctor was also not examined to prove her case. No medical bills or expenses incurred towards the treatment produced by the first respondent/complainant. Under the facts and circumstances of the case, the first respondent/complainant failed to prove that she had suffered financial loss or difficulties due to the laparoscopic sterilization or medical termination of pregnancy.
In the result both the appeals are allowed and the complaint is dismissed and set aside the order passed by the Forum below.
The office is directed to send a copy of this order to the Lower Forum along with the L.C.R. A. RADHA : MEMBER K. CHANDRADAS NADAR: JUDICIAL MEMBER st [ SRI.M.K.ABDULLA SONA] PRESIDING MEMBER