State Consumer Disputes Redressal Commission
Managing Director,Susila Nursing ... vs G.Geetha,Tirunelveli. on 17 March, 2015
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IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MADURAI BENCH.
Present: Thiru.A.K.ANNAMALAI, M.A.M.L.,M.Phil., Presiding Judicial Member
F.A.No.452/2012
(F.A.No.280/2012 on the file of State Consumer Disputes Redressal
Commission, Chennai)
(Against the order in C.C.No.120/2010 dated 14.02.2012 on the file of DCDRF,
Tirunelveli.)
THIS TUESDAY, 17th DAY OF MARCH 2015.
Susila Nursing Home,
Through its Managing Director,
Kamaraj Nagar, Pavoorchatram,
Tenkasi Taluk, Tirunelveli. Appellant/Opposite Party
Vs
G. Geetha,
W/o. R. Gopalan,
D.No.3/78, Anna Nagar 1st Street,
Alangulam Taluk,
Tirunelveli District. Respondent/Complainant
Counsel for Appellant/Opposite Party : M/s. Dr.B. Cheran, Advocate.
Counsel for Respondent/Complainant : Mr.J. Jeyakumaran, Advocate.
This complaint coming before this bench for final hearing on 10.03.2015
and on hearing the arguments of appellant side and upon perusing the material records
this Bench made the following:
ORDER
THIRU. A.K. ANNAMALAI, PRESIDING JUDICIAL MEMBER.
1. The opposite party is the appellant.
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2. The complainant is already having two children and preceding with three abortions aged about 38 years under gone Medical Termination of Pregnancy (MTP) on 16.06.2008 and also under gone Bilateral Tubectomy (BT) - the birth control operation in the opposite party's hospital and she was discharged on the next day with comfortable condition since have menstrual cycle scheduled on 22.01.2010 was not happened even after 10 days the urine test for pregnancy report for 38 days was confirmed and the complainant alleged due to the deficiency of service on the part of the opposite party in performing the Bilateral Tubectomy (BT) the pregnancy was occurred and thereby when she approached the opposite party and she was forced to go for abortion and subsequently she had over bleeding until 19.02.2010 with the result the complainant suffered a lot which cannot be explained in words and she was constrained to go for further treatment in some other hospital and thereby the consumer complaint came to be filed claiming Rs.5,00,000/- as damages for deficiency in service and mental agony and for costs.
3. The opposite party/appellant contended before the District Forum admitting the bilateral tubectomy was done denying the deficiency in service stated that the bilateral tubectomy was done by the qualified experience surgeon with all the assistance of sophisticated well equipped instruments and procedure and in all the sterilization cases 100% success was not assured and in this case possibility of re- canalization leading to pregnancy may occur after the abortion subsequently the treatment at some other hospital was not aware by the opposite party hence the opposite party prayed for dismissal of the complaint.
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4. On the basis of both sides materials and after an enquiry, accepting the contentions of the complainant the District Forum allowed the complaint and directing the opposite party to pay a sum of Rs.2,00,000/- as compensation for mental agony and sufferings caused to the complainant and to pay Rs.5000/- towards cost of the proceedings.
5. Aggrieved by the impugned order, the opposite party/appellant come forward with this appeal contending that the District Forum erroneously allowed the complaint without considering the facts and circumstances of the case the sterilization by tubectomy was performed under the National Health Programme and the Government has tie-up with insurance company and in case of failure of surgery insurance company shall pay the compensation and the insurance company was not added as a party. The sterilization was done on 16.06.2008 and the failure of sterilization had taken place on 22.01.2010 and the complaint was filed on 08.10.2011 after 1 ¾ years after all in the case of failure of sterilization, the only scientific method to prove that the tubes were cut on both sides is by way of laparoscopic inspection. After all the future sterilization can be performed at the same sitting benefitting the complainant/patient. But the District Forum has not allowed the petition in C.M.P.No.365/2011 in C.C.No.120/2010 by order dated 18.01.2012 hence the appeal to be allowed.
6. When the appeal taken up for hearing even though the respondent counsel was represented and in spite of sufficient chances given for arguments not 4 argued the case and after hearing the arguments of appellant side the order being passed on merits.
7. It is the admitted case of both sides that the complainant having precedence of three abortions and having two children under gone medical termination of pregnancy and tubectomy on 16.06.2008 in the opposite party's hospital and she was discharged on the next day the complainant comfortably only after on 01.02.2010 nearly 1 ½ years and she became pregnancy on 22.01.2010 with the foetus of 38 days growth and thereby alleged deficiency in service in the performance of bilateral tubectomy by the opposite party. The opposite party contended that the bilateral tubectomy was done by pomeroy technic by the qualified renowned surgeon Dr. Gunasekaran with the assistance of Dr.Ruba Renuka Gunasekaran and thereby that the surgery was performed in a well and efficient manner. The possibility of pregnancy may occur due to the chances of re-canalization and the sterilization operation will not be 100% success in all cases and there may be failure in certain cases due to various body conditions and re-canalization of fallopian tubes for the purpose proving the same, the opposite party has examined the professor of Gyneacology Department, at Tirunelveli Medical College Hospital, Dr. Ramola as RW.2 before the District Forum Dr.Gunasekaran who performed the surgery also deposed before the District Forum. On perusal of the evidence RW.2 in her cross examination and chief examination stated in all sterilization surgeries being carried on fallopian tube by way of laparoscopy method or otherwise by removing the part of the tube all putting clips and cutting of the tubes and does not 100% successful in all cases and there may be possibility of 0.2% to 1.5% to become 5 pregnancy and in case of such pregnancy re-sterilization to be performed by way of introducing dye method and there is possibility of finding earlier scar and thereby the complainant having done the scan under Ex.A4 the possibility of opening fallopian tube even after sterilization because of natural re-canalization .
8. The learned counsel of the appellant/opposite party argued in this case that the bilateral tubectomy was performed according to the procedure in proper manner and with due care by way of Pomeroy procedure in Bilateral Tubectomy operation and the same is elicited also in the discharge summary under Ex.A1. On perusal of Ex.A1 it is mentioned as follows: - Diagnosis: - For MTP/Bilateral Tubectomy procedure done and in Ex.A3 the Diagnostic test report result as impression "Uterus & Ovaries are normal" from these details it is clear that the bilateral tubectomy was performed properly. The scan report relied upon by the complainant it was taken during the year 2010 on 19.02.2010 in which under Ex.A4 the impression was recorded as "Right tubal block to be considered and Left fallopian tube appear patent" only on that basis alone the complainant has come forward since one of the fallopian tube appears patent that is having open on that basis naturally it would be possible in view of natural re-canalization the complainant alleging deficiency in service against the opposite party.
9. The learned counsel of the appellant/opposite party contended that to prove that the possibility of re-canalization taken up prove only by way of re- sterilization by going for laparoscopy test through which the possibility of re-canalization or otherwise could be found out and in this case even though the opposite party/appellant taken steps for subjecting the complainant for test in C.M.No.365/2011 6 in C.C.No.120/2010 which was dismissed by the District Forum in its order dated 18.01.2012 and thereby it is clear that unless the complainant prove that there was no re-canalization of the fallopian tube by natural way in due course when the opposite party contended that the surgery was performed in well and careful manner and the pregnancy occurred only after 1 ½ years during that intervening period no complaints of any pain or other sufferings due to the surgery performed was reported simply because the complainant become pregnancy even after surgery it cannot be said that only due to the performance wrong sterilization the said pregnancy was occurred. Various medical text books and International reports revealed that all the sterilization surgeries would not be 100% success and there are possibility of failure in sterilization varies from 0.4% in pomeroy's method and 0.3 - 0.6% by laparoscopic method and 7% by Madlener method. Pregnancy occurs either because of faulty technique or due to spontaneous re-canalization.
10. The learned and counsel for the appellant/opposite party relied upon various rulings reported in, (1) 2005 (IV) CPJ 14 - Supreme Court of India - State of Punjab Vs.Shiv Ram & Another.
(2) 1997 (III) CPJ 382 - SCDRC, Kerala - A.P. Joseph & another Vs. Dr. Kunjannamma Mathai & another.
(3) 1998 (I) CPR 300 - SCDRC, Gujarat - Gauridevi Rameshwar Sinh Vs. Family Planning Assn. of India & Ors.
(4) 1999 (III) CPJ 6 - SCDRC, A.P. - Dr.N. Sandhya Rani Vs. M. Kalpana & Another.
(5) III (1999) CPJ 167 - SCDRC, Delhi - Smt. Jaiwati Vs. Parivar Seva Sanstha & Another.
7(6) 2002 (3) CPR 163 - SCDRC, Jharkhand - Nagarmal Modi Sewa Sadan Vs Anita Devi.
(7) 2003 (2) CPR 415 - SCDRC, Madhya Pradesh - Smt. Hardeep Kaur Vs. Dr.Smt.Satindar Saluja.
(8) 2005 (II) CPJ 344 - SCDRC, Bihar - Sushma Devi Vs. Balgobind Viswas.
(9) 2005 (II) CPJ 487 - SCDRC, Chattisgarh - Dr.B. Dubey, Dubey Nursing Home Vs. Mrs. Bhagavati Sharma.
(10) 2006 (III) 74 - SCDRC, Karnataka - Dr.A. Rajasekar Vs. Karibasamma & Ors.
As per the above ruling reports as in serial no.1 in (2005) 7 Supreme Court Cases it is held as follows:-
"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 in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth. The proof of negligence shall have to satisfy Bolam's test (1957) 2 ALL ER 118, 121 D-F, set out in Jacob Mathew case, (2005) 6 SCC 1, at p.19, para 19. Failure due to natural causes would not provide any ground for a 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 the 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. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3 (2) read 8 with Explanation II thereto, of the Medical Termination of Pregnancy Act, 1971 provides under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971."
"The cause of failure of the 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 re-sterilization. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilization operation"
and in view of the same in this case also the complainant failed to establish that only because of the deficiency in the performing of surgery the pregnancy was occurred that for after 2 ½ years of MTP and tubectormy and the surgeon cannot be held liable on account of the unwanted pregnancy that may be failure due to the natural causes no method of sterilization being proof which carrying 100% success would not provide any ground for a claim. Various sterilization operation procedures failure especially their failure readings due to the natural causes depending upon the body condition environmental circumstances and thereby in this case also such thing could have caused the pregnancy. The complainant relied upon the discrepancies in the consent form obtained by the opposite party under Ex.B3 mainly discrepancies in the signature of the complainant and on perusal of the Ex.B3 series containing the application form 9 for giving consent for sterilization prescribed by the Government of Tamil Nadu in the condition No.7 to 10 clearly mentioning that there are possibility of failure in surgery and in case becoming pregnancy within 2 weeks she should report the same in person to the concerned doctor/hospital and there will be termination of pregnancy for the same free of cost and also in case failure surgery under the Government Family welfare Scheme a sum of Rs.20,000/- given by Oriental Insurance Corporation and in those circumstances it is clear in this case the District Forum having carried over by the complainant's family circumstance and other grounds mainly relied upon the report under Ex.A4 series came to the wrong conclusions that the opposite party deficiency in service to the complainant and thereby allowed the complaint which is liable to setting aside the order of the District Forum in view of the forgoing discussions and reasons said as above and accordingly.
11. In the result, the appeal is allowed by setting aside the order of District Forum, Tirunelveli passed in C.C.No.120/2010, dated 14.02.2012. No order as to costs in this appeal.
The Registry is directed to refund the mandatory Fixed Deposit with accrued interest duly discharged in favour of the appellant/opposite party.
Sd/-xxxxxxx A.K.ANNAMALAI, Presiding Judicial Member INDEX: YES/NO AMS/Mdu.Bench/Orders-2015/March.
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