State Consumer Disputes Redressal Commission
Rashida Beevi vs Dr.R.Radhakrishnan Nair on 12 December, 2013
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/12/604 (Arisen out of Order Dated 07/06/2012 in Case No. CC/10/161 of District Pathanamthitta) 1. RASHIDA BEEVI VATTAKKAVU LAKSHAM VEEDU,MANGARAM,KONNI PATHANAMTHITTA KERALA ...........Appellant(s) Versus 1. MD,DR.RADHAKRISHNAN NAIR PEOLES CLINIC AND HOSPITAL PATHANAMTHITTA KERALA ...........Respondent(s) BEFORE: HON'ABLE MR. SRI.K.CHANDRADAS NADAR PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SIUSVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL No.604/2012
JUDGMENT DTD :12.12.2013
(Appeal filed against the order in CC.No.161/2010 on the file of CDRF, Pathanamthitta order dated: 26.04.2012)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SMT.A.RADHA : MEMBER
SMT.SANTHAMMA THOMAS : MEMBER
Rashida Beevi,
Vattakkavu Leksham veedu,
Mangaram, Konni APPELLANTS
(By Adv.R.Jagadish kumar &
Dr.P.P.Varghese)
Vs.
1. Managing Director,
Dr.R.Radhakrishnan Nair,
Peoples Clinic & Hospital,
Pathanamthitta.
2. Dr.Valsa Sathyan, RESPONDENTS
Gynaecologist,
Peoples Clinic & Hospital,
Pathanamthitta
(By Adv.M.C.Suresh)
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER Appellant was the complainant in CC.No.161/2010 in the CDRF, Pathanamthitta. The second opposite party was the Gynaecologist attached to the first opposite party hospital .It is alleged in the complaint that she approached the first opposite party a hospital for antenatal check up when she became pregnant. She was under the treatment of the second opposite party. While so the complainant gave birth to a female child at the first opposite party hospital on 04.06.2009. On that day itself the second opposite party performed sterilization operation on the complainant. She was discharged from the hospital on 12.06.2009. Later the complainant felt physical discomfort and she visited Chithra Hospital, Pandalam for check up. On examination the complainant was found to be one and a half months pregnant. According to the complainant the subsequent pregnancy was due to the fault in the operation and treatment done in the first opposite party hospital in connection with sterilization. When the matter was informed to the opposite parties they offered lame excuses. As a result of the deficiency in service on the part of opposite parties the complainant was subjected to physical and mental agony. Hence the complaint for realization of Rs.1lakh as compensation from the opposite parties.
2. Before the District Forum opposite parties 1 & 2 filed separate version raising identical contentions. They admitted that the complainant was a patient in their hospital during her pregnancy and that after delivery sterilization operation was performed on her in their hospital. They contended that there was no negligence or deficiency in service on their part. Before the operation the second opposite party explained to the complainant and her husband about the sterilization by tubal ligation and inherent chances of failure involved in it. They also informed her that no method of such sterilization procedure was absolutely reliable and every such procedure carries with it some inherent risk of failure. It was after fully understanding the risk factor disclosed to them, the complainant and her husband voluntarily agreed to under go the same and signed the written informed consent. The complaint lacks bonafides. The method adopted for sterilization is modified pomeroy's technique which is an universally accepted procedure for sterilization and the procedure was done with all aseptic care and precaution. The subsequent pregnancy was not due to any fault in conducting the sterilization operation. It could be because an ovum gained access through a recanalised inner segment of the tube or due to the formation of tuboperitoneal fistula. This was also informed to the complainant and the second opposite party advised the complainant to under go MTP and Sterilization. But she was not willing to do so and was desirous to continue the pregnancy as she was very much interested in giving birth to a male child. So her pregnancy was not an unwanted one and therefore she is not entitled to claim compensation. It is incorrect to say that subsequent pregnancy occurred due to the fault in the operation and treatment done in the hospital of the first opposite party. The second opposite party is covered by the professional protection scheme of IMA. Therefore if it is found that the complainant is entitled to compensation IMA is liable to pay the same. Hence IMA is a necessary party. The complainant is not entitled to any relief.
3. Before the District Forum the complainant gave evidence as PW1. Exts.A1 & A2 series were marked on her side. The second opposite party gave evidence as RW1. Ext.B1 was marked on the side of the opposite parties. The District Forum as per the impugned judgment held that deficiency in service or negligence on the part of the opposite parties was not established and accordingly dismissed the complaint. Hence this appeal by the complainant.
4. The only question that arises for consideration is whether the respondents had committed deficiency in service and if so whether they are liable to compensate the appellant.
5. Admittedly, the second respondent a gynaecologist attached to the first opposite party hospital was consulted by the complainant during her pregnancy and she gave birth to a female child on 04.06.2009. It is further admitted that the second opposite party performed sterilization operation after obtaining Ext.B1 consent from the complainant and her husband. The grievance of the complainant is that later she was found to be one and a half month pregnant. The allegation is that the subsequent pregnancy happened due to fault in the sterilization operation performed by the second respondent. The said allegation is denied and the definite contention of the opposite parties is that an universally accepted technique of sterilization was adopted in the case of the complainant and the procedure was performed with all aseptic care and precaution. There was no fault in performing the sterilization operation. Risk of failure is inherent in any technique of sterilization and in the case of the complainant the subsequent pregnancy could be because an ovum gained access through a recanalised segment of the tube or due to formation of tuboperitoneal fistula. It also appears that despite the advice to undergo MTP the complainant carried the pregnancy to the full term and delivered a healthy child .On these contentions three aspects require consideration.
6. On merits it may be mentioned that there is no expert evidence as to the cause of failure of the sterilization operation, except that of the second respondent herself. Ext.A1 certificate issued from the first opposite party hospital and signed by the second opposite party shows that the complainant gave birth to a female child on 04.06.2009 in a caesarean section followed by fibrilectomy. Ext.B1 written informed consent was taken before performing the operation for sterilization. The second respondent has taken the contention that an universally accepted technique of sterilization was adopted. There is no contrary evidence. There is also nothing to indicate that there was any negligence or deficiency in service in performing the operation. There are inherent chances of failure in any technique of sterilization operation and it appears that the complainant was one such case.
7. The second aspect is that Ext.B1 shows that the inherent chances of failure in sterilization operation were clearly explained to the complainant and her husband as contended by respondents. So it was after taking informed consent the operation was performed and the complainant was aware of the risks involved.
8. The third aspect is that after failure of the sterilization operation the complainant opted to continue her pregnancy and gave birth to the child. The resultant legal implication is also relevant. It was held in State of Punjab Vs. Shiv Ram 2005 (4) KLT (SC) that merely because a woman who had under gone sterilization operation became pregnant and delivered at child, the operating surgeon or his employer can not be held liable for compensation. Compensation can be awarded only if failure of operation was attributable to the negligence of the doctor. Failure due to natural cause do not provide a ground for claim. It is also held that if the couple opts for bearing the child it ceases to be an unwanted child and hence compensation for maintenance and upbringing of such a child can not be claimed.
9. To the same effect is the decision of the National Disputes Redressal Commission in St.Stephens Hospital & Anr vs. Shalini III (2013) CPJ 217 (NC). It was also pointed out that sterilization operation is not 100% safe and secure and after getting knowledge of consumption inspite of having undergone sterilization operation if the couple opts for bearing child it ceases to be an unwanted child and compensation can not be claimed for maintenance and upbringing of such child. The decision relied on by the learned counsel for the respondents reported in 2009 KHC 4627 (Nizam Institute of Medical Sciences Vs. Prasanth S.Dhananka and others) related to a case of paraplegia due to medical negligence in treatment after a motor vehicle accident.
10. According to the second respondent recanalisation of the inner segment of the tube was the reason for the pregnancy and was due to natural causes. There is no evidence to the contrary. Under the above circumstances and in view of the decisions referred to it is only to be concluded that deficiency in service or negligence on the part of the respondents is not established by the complainant. It follows that there is no merit in the appeal. Hence the appeal is liable to be dismissed.
In the result, the appeal is dismissed but without costs
K.CHANDRADAS NADAR : JUDICIAL MEMBER
A.RADHA : MEMBER
SANTHAMMA THOMAS : MEMBER
Be/
[HON'ABLE MR. SRI.K.CHANDRADAS NADAR] PRESIDING MEMBER