State Consumer Disputes Redressal Commission
Sali George, vs Dr.Usha, W/O Dr.Murali, on 4 November, 2011
Daily Order
Kerala State Consumer Disputes Redressal Commission Vazhuthacaud,Thiruvananthapuram First Appeal No. A/11/153 (Arisen out of Order Dated 28/12/2010 in Case No. CC/02/219 of District Malappuram) 1. SALI GEORGE PUTHIYAMPURATHU VEEDUERUMAMUNDA .P.O,CHUNGATHARA MALAPPURAM KERALA ...........Appellant(s) Versus 1. DR.USHA GYNEOCOLGIST,PRASANTHI HOSPITAL,EDAKKARA.P.O MALAPPURAM KERALA ...........Respondent(s) BEFORE: HONARABLE MR. SRI.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: ORDER
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM
FIRST APPEAL 153/2011
JUDGMENT DATED: 04..11..2011
PRESENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER
SRI.M.K.ABDULLA SONA : MEMBER
Sali George, : APPELLANT
Puthiyampurathu Veedu,
Erumamunda.P.O.,
Chungathara (Via) Malappuram District,
Pin - 679334.
(By Adv.R.S.Kalkura)
Vs.
1. Dr.Usha, W/o Dr.Murali, : RESPONDENTS
Gynecologist, Prasanthi Hospital,
Edakkara.P.O.,MAlappuram District,
Pin - 679331.
2. Dr.Murali,
Prasanthi Hospital,
Edakkara.P.O.,Malappuram
Pin - 679331.
(By Adv.M.C.Suresh)
JUDGMENT
SRI.M.V.VISWANATHAN : JUDICIAL MEMBER The appeal preferred from the order dated 28.12.10 passed by CDRF, Malappuram in OP.219/02.
2. The appellant is the complainant and respondents 1 and 2 are the opposite parties 1 and 2 respectively in OP.No.219/02 on the file of CDRF, Malappuram. The complaint therein was filed alleging deficiency in service on the part of the 1st opposite party Dr.Usha, Gynecologist in performing sterilization operation on the complainant. It is alleged that the complainant became pregnant even after performing sterilization operation by the 1st opposite party at the 2nd opposite party's hospital. Thus, the complainant claimed compensation of Rs.2,75,000/- for maintenance of the child to be born to the complainant, Rs.1,50,000/- for mental agonies suffered by the complainant, Rs.26,000/- towards the expenses for the delivery, and refund of Rs.10,500/- which the opposite parties had collected by way of hospital bills from the complainant and also cost of Rs.8500/-. Therefore, the complainant claimed a total of Rs.4,70,000/- by way of compensation for the negligence on the part of opposite parties.
3. The opposite parties entered appearance before the Forum below and they filed joint written version denying the alleged negligence and deficiency in service on their part. They contended that the sterilization operation was performed on the complainant with utmost care and caution and the said surgery was successful and uneventful; that the said sterilization operation was performed on 7.10.99 with bilateral tubal sterilization by modified pomeroy's technique and that the said surgery was performed along with the caesarian section which was performed for the 2nd delivery of the complainant. It is also contended that the failure of the tubal sterilization cannot be treated as negligence of the 1st opposite party in performing the sterilization operation; but the failure was only due to natural calamity; that no method of sterilization is cent percentage full proof; that the text books and journals denote that sterilization technique may end in failure and the said failure is not the result of negligence of the doctor who conducted sterilization operation. It is further submitted that the failure of the sterilization may be due to recanalisation of the inner segment of the tube and due to fistula formation. Thus, the opposite parties prayed for dismissal of the complaint.
4. The dispute involved in the complaint in OP.219/02 was considered by the CDRF, Malappuram and pronounced the order dated 8th April 2003. The Forum below had also occasion to consider Ext.P1 to P6 documents produced by the complainant in support of her case. On an appreciation of the evidence on records, the Forum below found that there was no negligence on the part of the doctor who performed the sterilization operation and thereby the complaint in OP.219/02, was dismissed. Against the aforesaid order dated 8.4.03 in OP.219/02 the complainant therein preferred an appeal No.578/03 before this State Commission and the said appeal was disposed of vide judgment dated 23.10.09. It was found that the appellant/ complainant failed to prove the alleged negligence on the part of the 1st opposite party/Dr. Usha, gynecologist, Prasanti Hospital, Edakara.P.O., Malappuram district. This State Commission was pleased to afford an opportunity to the complainant to substantiate her case by adducing further evidence. This Commission was also pleased to direct the Forum below to get the report of an expert in this field. The aforesaid direction was given in the light of the decision rendered by the Hon'ble Supreme Court in Martin D'Souza Vs. Mohd Ishfaq (2009 CTJ 352 SC). Thereby, the said order dated 08.4.03 was set aside and the matter remanded to the Forum below for disposal of the same on merits.
5. After the aforesaid remand, the parties entered appearance before the Forum below. The parties to the complaint in OP.219/02 have not adduced any further evidence. As per the direction of the State Commission, the Forum below appointed Dr.Kochunarayani, consultant gynecologist, Moulana Hospital, Perinthalmanna as an expert, vide its order dated 6th November 2010. The expert doctor submitted her expert opinion dated 3.12.2010 stating that female sterilization has 1% failure rate regardless of the methods used. The expert had also given the details of the methods used for female sterilization and also about the percentage of failure. It is reported that the risk/failure persist for many years after the procedure. The aforesaid expert report was marked Ext. C1. The appellant/ complainant filed objection to the expert report stating that expert had no occasion for physical or clinical examination of the complainant. Thus, the complainant prayed for issuing direction to the expert doctor to examine the complainant and submit an expert report. On getting the expert report, the Forum below passed the impugned order dated 28..12..10 dismissing the complaint in OP.219/02. The Forum below was of the view that the failure of sterilization is an accepted complication described in all standard Text Books of Obstetrics and Gynecology and in Medical Journals. The Forum below has also relied on the relevant portions of the medical text referred to by the opposite parties in their version. It is against the said order dated 28..12..2010 dismissing the complaint in OP.219/02, the present appeal is preferred by the complainant therein.
6. We heard the learned counsel for the appellant/complainant and the respondents/opposite parties. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that the Forum below failed to give sufficient opportunity to the appellant/complainant to substantiate her case in support of her pleadings. It is also submitted that Forum below solely relied on C1 expert report and dismissed the complaint in OP.219/02. It is pointed out that Ext.C1 report was filed without examining the complainant/patient and that the Forum below did not consider the objection to C1 report filed by the complainant. Thus, the appellant/complainant prayed for a further remand of the case to the Forum below for fresh consideration and disposal of the same on merits. On the other hand, the counsel for the respondents/opposite parties supported the impugned order dated 28..12..2010 and also the earlier order dated 08.4.03 passed by the Forum below. He much relied on the decision rendered by the Hon'ble Supreme Court in State of Punjab vs. Shiv Ram reported in 2005 (4) KLT 669 (SC) and argued for the position that the complainant has no cause of action for claiming compensation as there was no negligence on the part of the 1st respondent/1st opposite party Dr.Usha, Gynecologist in performing sterilization operation. It is vehemently argued that the failure of sterilization was due to natural cause and the same can be realized by a perusal of Ext.P5 discharge certificate cum treatment certificate dated 13..1..2003 issued from District Hospital, Manjeri. Thus, the respondents prayed for dismissal of the present appeal.
7. There is no dispute that the appellant/complainant Saly George was admitted in 2nd respondent's hospital viz, Prasanthi Hospital, in connection with the 2nd delivery of the complainant. She was admitted in Prasanthi Hospital on 7.10.99. Admittedly the complainant's 1st delivery was under caesarian section. The complainant was subjected for caesarian section on 7.10.99 at Prasanthi Hospital. The aforesaid caesarian section was done by the 1st respondent/1st opposite party Dr.Usha, the Gynecologist attached to Prasanthi Hospital. Along with the caesarian section, sterilisation operation was also performed on the complainant. The complainant was discharged from said hospital on 16.10.99. The aforesaid facts are not in dispute.
8. The case of the appellant/complainant is that she again became pregnant, even after sterilization operation performed by the 1st opposite party Dr.Usha. According to the complainant, the sterilization operation failed due to the negligence of the 1st opposite party Dr.Usha in performing the caesarian procedure.
9. It is a settled position that the burden is upon the complainant who alleges negligence on the treating doctor/operating surgeon. It is to be noted that the complainant would get the cause of action for the complaint, due to the failure of sterilization on account of negligence. It is further to be noted that mere failure of sterilization operation cannot be treated as a cause of action for the complainant. It is held by the Hon'ble supreme Court in State of Punjab vs. Shiv Ram that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. It is further held that the surgeon cannot be held liable unless the plaintiff alleges and proves that the surgeon had assured 100% success after the surgery and that the complainant/plaintiff permitted performance of the sterilization procedure on the basis of such assurance. But in the present case on hand, there is nothing on record to show that the complainant was given any such assurance by the 1st opposite party Dr.Usha regarding the cent percentage success of sterilization procedure. The opposite parties in their written version categorically contended that no such assurance was given to the complainant regarding cent percentage success of the sterilization procedure. The Medical authorities on this subject would show that the methods or techniques adopted for sterilization operation/procedure are not fool proof and that there is the risk of failure of the sterilization.
10. The operating surgeon/treating doctor can be made liable only if it is established that he was negligent in performing the said surgery. The aforesaid burden of proof is upon the complainant who alleges negligence. But in the present case on hand, the complainant has not adduced any such evidence to substantiate her case that the 1st opposite party Dr.Usha was negligent in performing the sterilization operation or that the procedure adopted by the 1st opposite party was not the proper procedure to be followed by an expert Gynecologist and Obstetrician.
11. A perusal of Ext.P5 discharge certificate/treatment certificate issued from District Hospital, Manjeri would make it abundantly clear that the complainant had under gone sterilization operation previously and the said sterilization ended in failure because of the fact that the complainant again became pregnant and her 3rd delivery was at District Hospital, Manjeri under caesarian section. It would also show that the caesarian section was performed on 15..1..03 and the complainant was discharged from that hospital on 23.1.03. It is categorically stated in Ext.P5 discharge certificate cum treatment certificate that she had undergone sterilization procedure and that on the left side there was evidence of previous sterilization procedure. It is also specifically stated in Ext.P5 that on the right side of the tube there was evidence of recanalisation and the same was adhered to ovary. Thereby the doctor at district Hospital, Manjeri performed sterilization procedure on the complainant. There is no whisper in Ext.P5 document regarding negligence on the part of the 1st opposite party or any doctor in performing previous sterilization procedure. It is also to be noted that Ext.P5 document was produced from the side of the complainant. The aforesaid document would only support the case of the 1st opposite party. The said document will negative the case of the complainant regarding negligence on the part of the 1st opposite party in performing sterilization procedure. So, the materials available on record would justify the contention of the opposite parties that there was no negligence on the part of the opposite parties in performing sterilization procedure on the complainant on 7.10.99. The forgoing discussion and the findings thereon would make it clear that there was no negligence on the part of the 1st opposite party Dr.Usha in performing sterilization procedure on the complainant on 7.10.99. It would in turn negative the case of the appellant/complainant regarding negligence on the part of the respondents/opposite parties. 12. The learned counsel for the appellant/complainant requested for remanding the matter to the Forum below for adducing further evidence in support of the case of the complainant. Ext.P5 document is sufficient enough to non suit the complainant. She had no case that the entries in Ext.P5 discharge certificate issued from District Hospital, Manjeri are not correct. There is no reason to doubt genuineness and correctness of Ext.P5 discharge certificate. The Forum below can be justified in dismissing the complaint in OP.219/02. No purpose will be served by remitting back the matter to the Forum below for affording an opportunity to the complainant to substantiate her case of negligence on the part of 1st opposite party. The materials on record would show that the failure of sterilization was not due to the negligence of the 1st opposite party. If that be so, the complaint in OP.219/02 is liable to be dismissed.
13. The forgoing findings are supported by the decision rendered by the Hon'ble Supreme court in State of Punjab vs. Shiv Ram reported in 2005(4)KLT 669 (SC). The apex court had occasion to refer to various medical authorities on this subject. The Hon'ble Court had also considered the various techniques adopted for performing sterilization procedures. It had also l considered the reasons for failure of sterilization. It is held that it is an accepted fact that methods/techniques are not cent percent 'failure free'. It is also held that the failure rate may vary from method to method. It is further held that the burden is upon the complainant to prove negligence on the part of the operating surgeon in performing sterilization procedure. It is specifically held that merely because a woman having undergoing sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot held liable for compensation on account of unwanted pregnancy and unwanted child. The complainant herein had the option to continue the pregnancy or terminate the same by undergoing medical termination of pregnancy. She exercised her option and continued the pregnancy. Hence the claim preferred by the complainant for compensation for maintaining and upbringing of the child cannot be upheld. Thus, in all respects the complaint in OP.219/02 deserves dismissal.
12. Ext.C1 expert report would show the chance for failure of sterilization. The expert doctor has only given the general opinion about the success and failure of sterilization procedure and also about the methods being adopted for tubal sterilization. It is the case of the opposite parties that 1st opposite party done the sterilization procedure under modified pomeroy's technique. The expert has also given her opinion about the aforesaid procedure of modified pomeroy's technique. Thus, the Forum below can be justified in relying on the aforesaid expert general opinion regarding sterilization techniques and the chances for failure of sterilization. It is specifically opined that female sterilization has 1% failure rate regardless of the methods used. The Forum below has rightly dismissed the complaint in CC.219/02. This State Commission is of the view that no purpose will be served in making a further remand of the matter to the Forum below. The entries inExt.P5 document is not in dispute. Those entries are sufficient enough to negative the case of negligence put forward by the appellant/complainant. In all respects, the present appeal deserves dismissal.
In the result the appeal is dismissed. The impugned order passed by the Forum below in OP.219/02 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V.VISWANATHAN : JUDICIAL MEMBER
M.K.ABDULLA SONA : MEMBER
ps
[HONARABLE MR. SRI.M.V.VISWANATHAN] PRESIDING MEMBER