State Consumer Disputes Redressal Commission
Ispita Seal vs Dr. M. Kochar on 28 July, 2011
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 28.07.2011 Complaint No. C-01/240 Mrs. Ispita Seal Complainant I-241, Sarojini Nagar, New Delhi-110023. Versus Dr. M. Kochar Opposite Party Senior Consultant Obst. Gynae, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi-110060. CORAM: Justice Barkat Ali Zaidi President Mrs. Salma Noor Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice Barkat Ali Zaidi (Oral)
1. Before dealing with the case in hand, we would like to mention that this case has been pervading for more than 10 year. The Consumer Courts were established with the objective of providing swift justice, even though, it may be rough. The foundation of these Foras rested on the premise that they would provide speedy justice, but the very purpose for which they have been established, has been thwarted. One of the main reasons is that the Foras are supposed to write long and detailed judgments. It is a time consuming process, and this is the usual practice, because they expected to write long and broad based judgments. Superior judicial authorities are likely to frown if small and brief judgments are delivered. The tradition of the Privy Council is not being followed.
2. Coming to the case in hand, we feel that the woes and wails of the complaint will be thus highlightened if we narrate her predicament in her own words. We would therefore like to reproduce what has been said in the complaint.
I, Mrs. Ispita Seal wife of Sh Pratapaditya Seal R/o F-2878, Netaji nagar, New Delhi-23. I am residing in New Delhi since 1990 after my marriage. I am a graduate from Ranchi University. I am a house wife and thirty five years old. I am Hindu by birth. The other party is Dr. M. Kochar, Senior Consultant Obst., Gynae, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi-6.
I was admitted for IVF (In vitereo fertilization) in Sir Ganga Ram Hospital, Old Rajinder Nagar, New Delhi on 18-8-1999 and was discharged on the same day after Endro Transfer(ET) done by Dr. M. Kochar. I incurred more than Rs.66,702/- only in total for the IVF which includes Rs.42,252/- approximately as Dr. Kochars fees and services charges and the rest as medicines and lab charges for IVF.
I was married in the month of Feb., 1990. After five months(July), 1990 of my marriage I conceived but unfortunately it was an Ectopic pregnancy. In other words it was tubal pregnancy in which a fertile egg is implanted in the follopean tube instead of its proper place i.e. Uterous. Fortunately it was detected at the early stage and before it raptured inside the body I was operated upon in central Govt. Health Scheme (CGHS), Maternity Hospital, R.K.Puram, New Delhi as such my life was saved. However in this process I Had lost my right side fallopian tube. While discharging me from the hospital after a month or so my doctor who treated me told that I need not to worry as the other fallopian tube is in good condition and patent. In future I may get pregnant and capable to give birth a child as any other women. No precaution or treatment in whatsoever manner is/are required except to maintain a gap of one year.
It may not be out of context to mention that Ectopic pregnancy is a case where after fertilization of the egg in the womens ovaries it implants itself in the fallopian tube instead of its proper place i.e. uterus. Since the fallopian tube is not the proper place for growth of a fetus, in such a case fetus has to be operated in order to save the life of patient.
As per doctors instruction we maintained a gap of one year. After that we consulted our doctor. We were told that we may try for a baby and no treatment as such is required as we both of us were perfectly alright to become a parent.
But I was not so fortunate. I got again pregnant some time in the month of April, 1992. It was again an Ectopic pregnancy. I had to undergo a tortureous major operation in the month of May,1992. This time god was a little bit kind and generous towards me. The doctor could save the fallopian tube as there was enough time to perform a complex operation so that I could produce a child in future.
After the operation doctors conducted different investigations and started treatment to know exactly for what reason I had to suffer Ectopic pregnancy twice within a short period of two years. I started treatment in the month of Jan, 1993 at AIIMS and I remained under their treatment upto Dec.,1995. Thereafter from Feb., 1996 to Feb., 1999 I remained under treatment at CGHS, Specialist Wing, Safdarjung Hospital, New Delhi.
During these six years of treatment all possible treatment/medicines were given to me including two minor operations without any result.
At this point of time I thought that I should get myself treated by a more experienced and famous doctor in this field. I decided to consult Dr. M. Kochar, Senior Consultant Obst. Gyane. I contacted her on telephone at her residence. I was informed that she visits three hospitals in the town which includes Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi-60.
I alongwith my husband went to Dr. Kochars chamber at OPD, Sir, Ganga Ram Hospital, New Delhi alongwith all the prescriptions/documents which I meticulously maintained in a form of a file on 3/3/1999. Cash Memo No.III6 dated 3/3/1999. A copy of the cash memo is placed below at Annexure No.1. On meeting at her chamber I started narrating the whole story. The moment I said that I suffered Ectopic pregnancy twice she abruptly stopped me and said I have understand your problem. I will suggest you to go for IVF which I regularly do here in this hospital. This hospital has an IVF laboratory for this purpose. I said, Doctor, before I think for IVF, I would request you to go through my papers and see, if there are any treatment/medicines which I might have missed and should have been given. She replied in negative, and insisted for IVF only. I was told that IVF was the only option left before me. I accepted her suggestion and decided to go for IVF because I desperately wanted to have a child. I was told by her that the expenditure will be around 65 to 70 thousand of Rupees in total. The amount was quite big for us and beyond our means and capacity. However, I decided to borrow from our friends and relatives.
She wanted me to go through various investigations which includes husbands semen analysis, my sugar level check up, urine, blood group and D&C. She instructed me to do all these investigations at Ganga Ram Hospital only. On enquiry I find that the charges for these investigations were quite high in some cases it is almost double in comparison to other hospitals. I requested her to allow me to get the investigation done at other place so that I can save some money on that, which she vigorously opposed. However, she reluctantly accepted my request but insisted that D&C and all the blood tests, should be carried out by her at the hospital only. D&C was done on 26.6.1999. A sum of Rs.4,220/- was paid by me vide cash memo No.0128758 dated 26.6.1999 (Annexure II). A further Rs.1650/ was paid by me for blood tests (Serum oestradial, Serum , LH, (Serum FSH) vide cash Memo number 252536 dated 3/7/1999(Annexure III). After having done all these tests she found me suitable and perfectly alright for IVF. Before actually she started IVF process, she suggested my husband to get his semen investigated by Microbio and Immology department of the hospital, which my husband did on 21-7-1999 by paying a sum of Rs.200/- vide cash Memo No. 256113 dated 21-7-1999 (Annexure No. IV). The report of the investigation was shown to her on the same day and she found it OK .
Thereafter she asked me to come on 23-7-1999 and to go directly to IVF laboratory which is inside the hospital premises at first floor Room No.102 and 103. As instructed I reached the IVF lab on 23-7-1999 directly early in the morning. I found Dr. Kochar was not there. I was told that now onwards treatment will be given by the staff of the IVF lab only.
A lady nurse in uniform served me a chit bearing no number or signature of any doctor (annex-V) or stamp of the hospital, and asked me to deposit Rs.20,000/- at the cash counter of the hospital, enabling them to start the IVF process. I asked them to give details of Rs.20,000/- asked for. She said Rs.7,200/- is IVF charge, and the rest is the cost of medicines, required for the IVF as first lot. I said that the entire medicines will be purchased by me and will be provided, as and when asked, for. She said then you may deposit Rs.7200/- only. I deposited the amount on the same day i.e. 23-7-1999 (Annexure No. VI vide cash memo no.-129646 dated 23-7-1999. Then I was instructed to come on 2nd day of the period, at 8.30 a.m. My second day of the period, was on 2-8-1999. I reached IVF laboratory early in the morning as directed. From that day IVF process started. I was given three ampules of Matrodin injection and other medicines. A chart was provided for follicle monitoring. A prescription was given to me which does not bear the signature of Dr. Kochar. The same medicines were repeated upto 5th August, 1999. On 6th August, 1999 the medicines were changed. Ultrasound checkup was carried out to monitor the development of eggs for which the injections were administered, but I was never informed about the development of the eggs inspite of my repeated requests. Not only that I was not allowed to meet Dr. Kochar since 2-8-1999 the day one, when IVF process started. In fact all the medicines were administered by the nurses or lab technicians only.
On 6-8-1999 one of the technicians introduced me with a lady as Dr. Raj Gaur who happened to be present, in the IVF Lab. I never met her before, either in the hospital or in the laboratory. She told me that my husband should visit her residence i.e.100-A/1, Gautam Nagar, New Delhi-110049 with Rs.400/- for conducting semen analysis and sperm survival test. My husband who was with me at that time opposed the suggestion, and insisted for conducting the test, in the IVF lab itself. In reply she said that all patients like you, are sent for semen testing at my residence cum laboratory. Your husband is not an exception, he has to visit my residence if you like to see that IVF process goes smoothly.
I had no option but to obey her orders. My husband visited her resident on 8-8-1999. I was told by my husband that there was no laboratory at all in her residence.
There were only a latrine where she had kept some empty glass bottles, and start masterbating. When semen is extracted, collect it in the bottle, and leave it in the self. She was paid Rs.400/- No proper cash Memo, was issued for the amount charged and paid. When my husband insisted for a cash Memo she gave a receipt which bears no S. No. or registration number (Annexure VII). The same may please be perused at Annexure No. VII which is placed below.
The so called sperm survival test report was given on a simple plain paper on the same day by hand (Annexure VIII). It is not known whether she is authorized to conduct such sophisticated and complex investigation in her home, or not. It will be relevant here to mention that the whole IVF process depends upon this very report. However, when I enquired about my husbands semen test result she said it is O.K. All the required injection and medicines were administered to me as per their instruction till 17-8-1999, and I was given an assurance that I am progressing satisfactorily and perfectly all right for the purpose of IVF. It was also stated that my body has responded the medicines quite satisfactorily as per their expectation and I am ready for ET (Embro Transfer) to be done on 18-8-1999.
I was instructed to report to IVF lab on 18-8-1999 at 12 noon after taking meals for ET. On reaching there I found that there three more patients were also called for ET on that date, besides me.
I was told to deposit Rs.24,333/- as IVF charges before the ET is actually done. I deposited the money at cash counter vide cash memo no.0133541 dated 18-8-1999 (Annexure No. IX). We all four patients were given operation theater clothes to wear and completed other formalities, and were taken to IVF room for final implantation of the fertilized eggs in the uterus. At this point of time, all of a sudden I found that one of the patient was called out of the IVF lab, and taken outside the operation theater. Later I came to know from a reliable source, that she happens to be an employee of Sir Ganga Ram hospital itself. She was told that Et will not be done to her on that day, as such she my go and discharged. We remained three patients.
Dr. Kochar came and performed ET on two patients, prior to me. Then it was my turn for ET. She started performing ET and took more than 40 minutes . While ET was being done, Dr. Kochar said to me, and I quote You have developed infection. I was shocked on hearing this. I requested the doctor to stop the process, and I asked the doctor, that I would like to talk my husband who is waiting out side the room. But I was not allowed. Dr Kochar left the IVF lab after completing the ET. I immediately called my husband through one of the sisters present there inside the lab, where I was still lying in the bed, and said that Dr. Kochar has said that I have developed infection in uterus/vegina. My husband immediately went inside the lab and asked for Dr. Kochar. He was told that Dr. Kochar has left for OPD.
My husband rushed to the OPD and found that she is not there. He came back to IVF lab were I was still lying in the bed. He was visibly upset and I was shocked. We both were not in our senses.
My husband again went inside the laboratory. This time he met Dr. Raj Gaur who happened to be present there. He requested her to divulge the truth behind the matter. He also wanted to know how infection has developed, and if it was, why it could not be detected before doing the ET.
She informed us, that infact the infection was found in the solution itself. Why infection has developed she cannot say. However she said that it may be due to your husbands semen, or for that matter it may be anything. When asked then why Dr. Kochar performed ET. She said the question may better be asked to Dr. Kochar who has done the ET.
Then my husband asked Dr. Gaur whether any egg or eggs have been kept for further use. She replied in negative and said all the eggs have been used. My husband then decided to meet Dr. Kochar for a reply. He again went to the OPD and he was told there, that she will come to the OPD at 3.00 p.m. and he may talk to her only at 7.00 p.m. after she finishes all the patients. He was determined to meet her. He waited till 7.00 p.m. and then told by her attendant that she will not talk to him. However, she very reluctantly met him. He asked her to inform him as what exactly had happened and what she had to say about my condition. She in reply said to my husband that your wife has developed infection. My husband asked her then why she carried out the ET, while she knew that infection has developed? She avoided the question and said that she is still hopeful and 50-50 chances are still there. She further said do not worry, if the process fails she will again do the ET, for which eggs have been kept safely. It is another shock for him. Because we had already said to the doctor that no eggs may be kept for future use as it involves further heavy expenditures, which we were not in a position to bear. There were mismatch of statements of Dr Kochar and Dr. Gaur. One of them was definitely telling a lie.
My husband asked Dr. Kochar what we should do now? She asked my husband to give her a piece of paper so that she could prescribe medicines for infection. On finding no paper nearby, she asked for the discharge summary report on, which she prescribed two medicines, and recorded in remarks column that ET done with difficulty (Annexure X) It clearly shows, that she knew that I was suffering from infection, even before she performed ET on that day.
This also indicates that she knew that the patient is suffering from infection, and the ET is not going to be successful.
After examining my blood sample I was given the saddest news of my entire life, that my body had not accepted the ET and I am not pregnant.
Incidentally it may not be out of the context if I mention here, that the other two patients on whom ET was done on that day, were also not conceived.
This incident had totally shattered me mentally. I suffered depression and lost all hope of future. Al the time the question disturbed me, that why the doctor done ET while she confidently knew, that this is not going to implant in my uterus. Had she not done it, on that day, and differed it for a date on which she could have done it, after treating me for infection. This was theoretically possible, and which she as a doctor was bound to do morally. But my fate was written in other words. I had to be cheated by her, and remained barren for the rest of my life time. And I am now a barren woman.
I alongwith my husband tried to meet her several times during the last year, but she never gave us an appointment. I even went to the IVF lab for records. But nothing could be extracted from them. All the time we went there, it was told that the success rate of the IVF is only 15 to 20 per cent. Rest of the couples have to remain unsuccessful and you fall under the category.
I am totally at a loss as to what sort of relief I should pray for. How the opposite part will rectify my loss what I suffered. It is my bad luck that I cannot ask for from the opposite party to rectify or removal of deficiency in services. My loss is irreparable and permanent and cannot be done anything at this stage. I had spent all my money on IVF. I could not try or think for another IVF. I am now over age of IVF. Thus I will be deprived of becoming a mother during this life time. This is not a case of negligence by accident. This is a case of cheating. This is a case of playing with the sentiments of an innocent woman.
This is crime against humanity.
3. The defence by the OPs is that no indifference was shown to the complaint in her dealings and the allegations about the same are misplaced. It is said that this is the complaint of a lady, who is frustrated, because process of entro transfer after fertilization of the egg in her ovaries could not succeed in her case. It is contended by referring some medical treatises that the success rates in such cases at the best is 3% worldwide, and it is just one of those cases where the process could not succeed. It is alleged that there was no negligence or lack of care on the part of the respondent doctor, or the hospital staff, in attending to her, and in implanting the egg in the followpan tube. It is also denied that the respondent told the complainant that she was having an infection in her, vagina or the inner parts thereof.
4. A rejoinder has also been filed from the complainant subsequent of filing the written version by the opposite party, and we would like to quote its para-3, para-4 and para-6 as under ;
Para-3 I reiterate my allegation of negligence on the part of Dr. Kochar and on compliance of set procedure due to which my case was spoiled and resulted in failure of IVF. Dr. Kochar knew that infection had developed either in my vigina/uterus or in the solution containing the egg/s.
It is submitted by the respondent that the tests which were conducted by Dr. Gaur at her residence (100-A/1, Gautam Nagar, New Delhi) were absolutely essential for the work up of the IVF. If it was absolutely necessary, then why the tests were not conducted in the hospital IVF lab itself. Dr. Gaur had done the Test at her residence and charged Rs. 400/- for the Test. What prompted her to do the test, at her residence? Whether she was authorized to do such tests, at her residence by Sir Ganga Ram Hospital? If yes, then why the hospital conducts the IVF when they know that this basic facility does not exist? If no, then why she did so? Respondent has not answered on these points. I, therefore, once again reiterate my allegation of negligence on the part of Dr. Kochar.
Para-4 It is a fact that I was incapable of conceiving normally before going to the respondent for treatment. It is also true that I and my husband was known about the fact that there was no guarantee of success of the procedure and also that of success rate of the IVF in different centres/hospitals of worlds most advanced countries as well as in Indian hospitals where IVF tests are conducted at various States. At the same time this was also a fact that I was within the age limit for IVF. I was patent physically for conceive. My husband was examined by Dr. Gaur and according to her report(which is doubtful) clearly indicates that his semen was absolutely good in all manners, capable to fertile my body eggs. All these points only indicate that had the process been conducted faithfully, there were definitely good chances of my conceiving. There are strong reasons exist which leads to the conclusion that negligence and callousness on the part of Dr. Kochar resulted in failure the IVF process. I strongly reiterate my allegation that Dr. Kochar knew about the developments of infection which had developed at some point of time during the process and also about the fact that the IVF is not going to be resulted in success. But Dr. Kochar preferred to go ahead simply to complete the IVF process so that she could claim her fees and hospitals charges for the IVF process. The doctor should have stopped the IVF process the moment she came to know that I have some infection and could have deffered the date of ET. The crucial ET could have been done at a later cycle after treating me, for the infection which could have resulted in success.
Para-6 The respondent had breached the faith and confidence bestowed to her by me and my husband. She was not faithful towards her noble profession and even to herself.
She performed the IVF on me knowingly well in advance that the process is heading towards a failure. She even not maintained the guide lines and instructions of the hospital regarding IVF which clearly directs the doctor to stop the cycle, if results are not satisfactory. Section 2(i)(g) of Consumer Protection Act, 1986 clearly states and I reproduce performance which is required to be maintained by or under any law for time being According to this provision the doctor was duty bound to stop the IVF procedure at once, the moment she was informed (by the nurse, technical staff or embryologist)) or noticed infection herself ( as she had herself declared) in my reproductive organs or in the solution produced in the IVF lag. Had it been so, I could have saved our hard earned money, which I spent on ET, and could have performed the same process after treating myself for the infection which might have resulted in success.
5. From the side of the complainant has been filed an affidavit and from side of respondent her affidavit and two more affidavits of Dr. Raj Gaur and Dr. Kamal Buckshee have been filed. The doctors in their affidavits have said that requisite process were duly followed in the case.
6. We have heard the complainant and her husband on the one side and Shri Mirza Alam Beg, counsel for the respondent on the other.
7. It is not disputed that the success rate of implantation and fertilization at the most is 35%.
8. The question for determination is whether the process is properly conducted with due care and attention ? One of the most significant point which arises in this connection is that the allegation from the side of complainant that the process of IVF implantation was gone into, even though she was told that she had an infection. The complainant has denied that she was ever told by the respondent that she had an infection. But it will be noticed that the respondent has specifically denied anywhere in her reply or affidavit that she had no infection at the time the IVF process was done. She has not said that she would have IVF process if complainant was suffering from infection. The complainant has alleged that she had even been prescribed medicines for infection and it is alleged that IVF process was done by respondent doctor just to complete the process and to appropriate the fee. It is therefore very likely that the IVF process was completed even when the complainant was suffering from infection.
9. We therefore feel inclined to uphold the contention of the complainant in this regard which makes the respondent doctor amenable to the charge of negligence or deliberate misconduct.
10. It has also to be noticed that the sperm of the husband of the complainant was taken by one Dr. Raj Gaur at her residence in the lavatory which fact has not been denied from the side of the respondent. Even Dr. Gaur has not denied this fact in her affidavit given in evidence. That enhances the possibility of infection entering into the semen, and that shows that proper care and attention was not followed. The sample of semen should have taken in the hospital itself in sterilized environment. That shows that the affidavit of Dr. Raj Gaur of requisite procedure being followed is of a routine nature. Even otherwise such observations without proper investigation are of little value.
11. The affidavits of Dr. Gaur and Dr. Kamal Buckshee cannot therefore be of any help to the respondent. It also appears to us that the complaint of the complainant about the indifferent attitude of respondent Dr. Kochar bordering callousness is not without substance. The complainant has mentioned that Dr. Kochar did not even properly look into her case history which she meticulously maintained in the form of a file, and abruptly and much ado said that she could go for an IVF process.
12. It appears to us from the facts and circumstances that the complainant was not taken into confidence and the care and attention which should be given to a patient was not given by Dr. M. Kochar.
She was throughout indifferent and uncaring, and the allegation in this regard from the side of the complainant seems correct.
13. It is necessary for a doctor to be compassionate and sympathetic to a patient so that the patient feels satisfied, but that does not seem to have been, the case here. The respondent lady Dr. Kochar therefore must be held guilty on this count. Somehow the case was referred for opinion by a Medical Board, though it was not necessary and the Medical Board of Ram Manohar Lohia Hospital under Dr. Bani Sasrkr, Sr. Specialist which gave the following report ;
The success rate of IVF-ET as per international standard is 13.4% in women less than 35 years of age and 3.6% in women above 35 years.
ICMR guidelines were duly followed in this case.
The failure of IVF-ET in the present case is in confirmation with the international standard.
14. It was argued on basis of this report by the counsel for the respondent that the expert opinion is that there was nothing wrong in the conduct of the case. These are general summary observations by the Board before whom all matters were not placed and even a copy of the complaint was not produced, and who have not given any reason and have not displaced the complaints of the complainant. They cannot erase the result of a detailed examination of the facts and circumstances of the treatment undertaken by this Commission, and cannot be a road block, if the Commission finds that there has been negligence, carelessness and indifference on the part of the treating doctor.
15. The consequence is that the respondent lady Dr. M. Kochar becomes liable for damages. Rs. 15 lac have been claimed as compensation by the complainant.
16. Motherhood is one of the strongest female urge and deprivation thereof comes as a great set back and disappointment bringing about frustration of life in its wake. The amount of Rs. 15 lac claimed by the complainant cannot therefore be called excessive.
17. We decree the amount of Rs. 15 lac alongwith the interest @ 9% p.a. from the date of filing the complaint till the date of payment which shall be payable within 30 days from the date of the communication of the order. The respondent Dr. M. Kochar will further pay Rs. 10,000/- as costs.
18. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record room.
19. Announced on 28th day of July, 2011.
(Justice Barkat Ali Zaidi) President (Salma Noor) Member ysc