State Consumer Disputes Redressal Commission
M/S. Kum Kum vs Sir Ganga Ram Hospital on 24 March, 2018
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Hearing: 24.03.2018 Date of decision:04.04.2018 Complaint No.55/2008 IN THE MATTER OF: Mrs. Kum Kum House no.53, Sector-30, Faridabad ....Complainant VERSUS Sir Ganga Ram Hospital Through its managing Director Old Rajender Nagar, New Delhi-110065 ....Opposite Parties HON'BLE SH. O.P. GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER 1. Whether reporters of local newspaper be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes Present: Dr. Alok Kumar Sharma Counsel with Sh. M.C Bhaksh, and Counsel Sh. Bhupinder Singh for the complainant Sh. Anjum Javed, Counsel with Dr. M. Kochar, for the Opposite Parties. PER: SHRI ANIL SRIVASTAVA, MEMBER (G) JUDGEMENT
Smt. Kum Kum W/o Sh. Bhupinder Singh, resident of Faridabad has filed a complaint before this commission, for short complainant, under Section 17 of the Consumer Protection Act 1986 (the Act) against Sir Ganga Ram Hospital, New Delhi, hereinafter referred to as opposite parties, alleging negligence against OPs and the treating doctor for not treating the complainant properly leading to the avoidable complications and praying for relief as under:
It is, therefore most respectfully prayed that an award of Rs.25,00,000/- for damages compensation and Rs. 15,00,000/- for expenditure incurred along with interest @ 18% p.a. till realization may kindly be passed in favour of the complainant and against the respondent directing them to pay the same to complainant in the interest of justice.
The cost of the complaint and other legal expenses may also be passed in favour of the complainant and against the respondent.
Any other or further order which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be passed in favour of the complainant and against the respondent.
Facts of the case are these.
The complainant since could not conceive for 13 years after marriage approached the OPs in February 2004 for some treatment to be able to conceive through IVF (Test tube baby). The OPs assured the complainant of the treatment and accordingly the complainant agreed to undergo the recommended treatment on regular basis which included a few tests. However the respondent brought home to the complainant the risk factor stating that the risk of OVARIAN HYPER STIMULATION SYDROME may be unavoidable in less than 1% cases and accordingly the consent in the prescribed format was obtained. Treatment followed thereafter. But later after the treatment was done to the complainant it was revealed that heavy doses have been prescribed and due to this heavy dose, multiple eggs were created as against the requirement of one and worse happened when instead of removing idle egg, they removed one egg, leaving the idle egg in the ovary, causing weakness to the complainant leading the complainant confined to bed. This was vital impact of the medicines prescribed but the OPs did not take remedial steps, resulting the complainant's admission in ICU where she remained from 05.01.2005 to 03.03.2005. This caused avoidable financial burden on the complainant, all due to the alleged negligence of the OPs.
Later the condition of the complainant became critical and when she could not conceive despite the treatment as recommended having been done, she visited the OPs when the embro was entered for the purpose of IVF which was ultimately found to be of pre-mature stage causing pain in her abdomen. The allegation of the complainant is that OPs did nothing to put an end to the problem caused by entering of embro which was later found by the local Doctors at Bijnor to whom she contacted due to no response attitude of the OPs, as having been entered improperly. This according to the complainant aggravated the inaction and negligence on the part of the OPs. The negligence having been done by the OPs she is entitled for damages caused due to suffering both mental and physical. Accordingly this complaint has been filed for the redressal of her grievances.
OPs were noticed and in response thereto they have filed their written statement resisting the complaint on the ground that the same is false and all the averments made against them are baseless and devoid of merits not supported by any sustainable evidence. All the treatment, the procedure adopted was as per the standard medical procedure. The complainant was attended to and was treated by highly experienced qualified and specialised team of doctors and paramedical staff and further there was no deficiency of service or negligence on their part, as alleged. The complainant had approached them for infertility treatment. She was diagnosed to be suffering from polycystic Ovary Syndrome, which caused irregular menstrual periods with occasional and poor egg formation leading to infertility. Initially, she underwent, conventional treatment which failed to reveal positive results and the complainant and her husband decided is go for in-vitro Fertilization, for which various counselling sessions were conducted with the couple, they were explained about the procedure i.e. in-vitro fertilization which is the union of an egg taken from the concerned woman and sperm taken from her partner/husband in artificial conditions in a laboratory. The union of an egg and sperm results on the formation of an embryo which is transferred to the uterus of the woman which if accepted results in a pregnancy. The process is done in conjunction with strict monitoring of hormone levels with blood tests and follicle scans with ultrasound. An in-vitro fertilization cycle begins with ovarian stimulation wherein a woman begins fertility medications to encourage the development of eggs. The aim of ovarian stimulation is to be able to retrieve multiple eggs so that a substantial number of good quality embryos are formed. The eggs are retrieved by a surgical procedure with the help of vaginal ultrasound. The eggs so retrieved are carefully identified, washed and labelled and kept in an incubator and sperm collected from male partner are added to the eggs to begin the process of fertilization. Thereafter the embryos are transferred to the uterus. Akin to any other surgical procedure in-vitro fertilization also has its complications as well as success rates. However in polycystic ovary syndrome with which the complainant was suffering from there is infrequent egg formation in the absence of medication. With medicines given to stimulate egg formation mostly an exacerbated response is seen, hence the dose of injections is very carefully monitored during the stimulation period with frequent blood testing and ultrasound. Despite the monitoring there is a chance of the patient suffering from Ovarian Hyper-stimulation Syndrome.
Written consent was taken and the couple was duly explained about the possible complications or known risks of the procedure.
Unfortunately despite best possible care, and treatment by highly experienced and qualified doctors, the complainant suffered from a known complication i.e. 'Ovarian Hyper-stimulation Syndrome' and needed hospitalization and she was admitted in Opposite party hospital, and was even given totally free treatment on the request of her husband, who expressed inability to pay. She was discharged on 03.03.2005 in a stable and cured condition.
In fact after 2 months she again visited opposite party and continued under treatment of Opposite Party till July 2006 and she successfully got pregnant due to the treatment of Opposite Party. She never had any complaint against opposite party which means the filing of the complaint is an after-though and with malicious intention.
Both the parties have also filed their evidence reiterating what they have submitted in their pleadings.
The matter was listed before us for final hearing on 24.03.2018 when the counsel from both sides appeared and advanced their arguments. We have perused the records of the case and considered the rival contentions of both sides. It is noted from the records that this Commission passed an order on 05.08.2010 directing that no expert opinion would be called for since the complainant despite time having been allowed has filed no application in this behalf. Infact statement of the ld. Counsel for the complainant has been recorded to the effect that he did not want to seek any expert opinion. The orders so passed is reproduced below:
On earlier occasion (19.04.2010), on the request of counsel for the complainant for filing an application with points of reference and the medical papers for calling opinion of panel of experts we had allowed him time. Now he does not want to seek any expert opinion and submits that the complaint be fixed for arguments and we may make it clear that further he will be given no opportunity for calling the expert opinion, and he will carry the risk of not eliciting experts opinion.
On joint prayer, fixed 17.01.2010 for arguments.
Short question for adjudication in the complaint is whether the OPs were deficient and negligent in treating the complainants.
The OPs had undertaken to do the treatment of infertility on the complainant. The treatment had to be done in various stages and the process was coupled with risk factors. The complainants were duly and categorically informed of the stages of the treatment as also the risk factors involved. The complainant had undergone the treatment with the complete knowledge on the subject. Infact she had also furnished in an unequivocal terms her consent for undergoing the treatment. The treating doctor, who had also made submission before us, is well qualified to take up cases of the kind. There was no infirmity in the entire process. Infact on perusal of the records we are of the opinion that the OPs were diligent in treating the complainant. The doctor attending the complainant has done her job with care and observing all the precautions. There exists no material on record suggesting to the contrary.
The ld. Counsel for the complainant while arguing that the OP-1 and 2 have been negligent in the discharge of their functions, has placed reliance on the judgment of this Commission in the matter of Smt. Ispita Seal versus Dr.(Mrs) M Kochar in CC 240/2001 decided on 28.07.2011 for claiming damages. The State Commission in that case, observing that the treatment of IVF done to the complainant was by a doctor other than Dr. (Mrs) Kochar and secondly a test was done in respect of her husband outside the vicinity of the hospital, the act which in violation of the clear understanding, awarded damages of Rs. 15 Lakhs but facts in the given case are that the treating doctor gave heavy dose and secondly, the embro was entered which according to the complainant was improper. In the given case facts are not apposite to that case. Besides the judgment cited by the counsel for the complainant stands reversed by the Hon'ble NCDRC vide their order dated 12.12.2017 passed in the FA-368/11. No negligence can be attributed since the treating doctor attended to the best of her judgment.
The Hon'ble Supreme Court of India in the matter of AchuIIrao Haribhan Khodwa versus State of Maharastra and as reported in (1996) 2 SCC 634 is pleased to observe that in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. Their Lordship further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor. The mere fact that a patient dies in a hospital does not lead to the presumption that the death occurred due to the negligence of the doctor and in order to make a doctor criminally responsible for death of his patient, it must be established that there was negligence or incompetence on his part which went beyond a mere matter of compensation on the basis of some civil liability and that he did something in disregard for the life and safety of the patient. It is well known that no cure, no success is not a negligence. Thus fastening the liability upon the treating doctor is unjustified.
The Hon'ble Apex Court is pleased to hold in the matter of Kusum Sharma versus Batra Hospital as reported in(2010) 3 SCC 480, as under:
"Negligence is an essential ingredient of the offence. The negligence to be established by the persecution must be culpable or gross and not the negligence merely based upon the error of judgment.
The Hon'ble Supreme Court is pleased to approve the test as laid down in Bolam versus Friern Hospital Management Committee. The relevant principles culled out from the case of Jacob Mathew versus State of Punjab and Anr as reported in (2008) 6 SCC 1 read as under:
Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which prudent and reasonable man would not do, the definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach', and resulting damage.
A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course method of treatment was also available or simple because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.
A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practises. A highly skill professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.
In view of the discussion done and applying the law laid down by their Lordships we are of the considered view that there is no substance in the allegation of the complainant to the effect that the OPs were negligent and accordingly we dismiss the complaint being devoid of merit, leaving the parties to bear the cost.
Ordered accordingly.
Let a copy of this order may be forwarded to the parties free of cost as statutorily required and file be consigned to record.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER (GENERAL) MEMBER (JUDICIAL)