National Consumer Disputes Redressal
Dr. P. R. Venugopal vs T. K. Sheena & Ors. on 15 October, 2014
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI. REVISION PETITION NO. 1582 OF 2014 (From the order dated 17.12.2013 in First Appeal No. 679/2012 of State Consumer Disputes Redressal Commission, Kerala, Thiruvananthapuram) Dr. P. R. Venugopal, Mithila House, Chettamcoon, Thalassery, Kerala Petitioner Versus 1. T. K. Sheena, Padmalayam, Olavilam, Post Chokli, Thalasery, Kerala 2. M. Rajeevan, Padmalayam, Olavilam, Post Chokli, Thalassery, Kerala 3. Dr. Azeez, S/o Ali Haji, Chirakkara House, Thalassery, Kerala Respondents BEFORE: HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HONBLE DR. S. M. KANTIKAR, M.D., MEMBER For the Petitioner : Dr. S. Gopakumaran Nair, Sr. Adv. With Mr. K.N. Madhusoodhanan, Advocate For Respondent No.1 : Mr. P. Jegan, Advocate For Respondents 2 & 3 : NEMO PRONOUNCED ON 15th, OCTOBER, 2014 ORDER
PER DR. S. M. KANTIKAR, MEMBER Nourse L J said:
"Of all sciences, medicine is one of the least exact. In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much, in clear and unequivocal terms."
1. The Complainant-1, Smt. T. K. Sheena had undergone Post-Partum Sterilisation(PPS) operation at Central Hospital Tellichary by Dr. P. R. Venugopal (OP-1) on 13.01.2002 and she was discharged on 19.01.2002. Thereafter, she became pregnant, hence filed a complaint against the OP-1, doctor and OP-2, a proprietor of the hospital for a compensation of ₹5,00,000/-. The District Forum allowed the complaint and awarded ₹1,00,000/- towards compensation and ₹ 1,000/- as costs of litigation to the Complainant.
2. Against the order of the District Forum, the OP filed the First Appeal before the State Commission. The State Commission dismissed the Appeal. Hence the OP filed this Revision Petition before this Commission.
3. At the admission hearing, we have heard the Ld. counsel for the petitioner. The counsel submitted that, the OP doctor Venugopal, performed tubectomy operation by Promeroys Method, with all precaution. The Promeroys technique of sterilization is a standard procedure which is being widely followed. However, due to dense adhesions, the fallopian tube on the right side, could not be identified, in spite of prolonged efforts. Hence, tubectomy was not done on the right side. This was immediately informed to the Complainant -2 and relatives. The Complaiant-1 was informed about the same on the next day. The Complainant-1 & 2 and their relatives were very well informed of the fact that since fallopian tube on the right side was not identified, the patient was discharged on 19.01.2002 with advice to do a hysterosalpingogram (HSG) after 3 months, to assess the patency of the tubes. This fact was clearly mentioned in the case sheet of the Central Hospital. It was also advised to the complainants, about the option of vasectomy, in future.
4. We have given thoughtful consideration, perused the medical records, and the evidence on record. We have noted that, there was Ovarictomy operation on right side in the year 1998. The right fallopian tube could not be identified due to the dense adhesions. Such adhesions are possible after any previous surgery. The OP mentioned in his clinical notes about the advice of HSG after months to assess the patency of the tube and if necessary, the next option available for contraception was for the husband to undergo vasectomy.
5. It should be borne in mind that, no doctor could give such assurance in case of female sterilisation, that forms/leads to future pregnancy. Most of the texts and literature mention about failure rate of 0.2% to 0.4%. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of re-sterilisation.
6. In the case State of Punjab Vs Shiva Ram and Ors (2005)7SCC, Honble Supreme Court held in Para 25 We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract, unless the plaintiff alleges and proves that the surgeon had assured 100 % exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.
7. Further in Para 28 it was explained about post tubectomy failure remedies available for the couple as;
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. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Indian Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy.
8. In the case on hand, Dr. Venugopal, was a qualified Gynaecologist. We do not find any negligence committed by him in conducting the tubectomy operation. He has explained about the fact of non-resection of Right fallopian tube, and asked for follow-up by HSG. The patient did not turn up for further investigations as advised by OP-2. The surgery was performed by a technique known and recognized by medical science. Therefore, in our opinion, failure, due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child who has to decide whether, to go for medical termination of pregnancy or not. Once, the woman misses the menstrual cycle, it is expected for the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite.
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.
9. On the basis of forgoing discussion, we do not find any negligence on the part of doctor and the State, therefore, we set aside the orders of both the fora below and allow this revision petition and dismiss the complaint.
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(J. M. MALIK, J.) PRESIDING MEMBER ..
(DR. S. M. KANTIKAR) M. D. MEMBER Mss/10