State Consumer Disputes Redressal Commission
Dr. Shyamala Mukundan, W/O Mukundan, vs Smt. Philomina Joseph, on 29 December, 2010
Daily Order
First Appeal No. 643/2004 (Arisen out of Order Dated null in Case No. of District ) Shymala Mukundan Vs. Philomina Joseph BEFORE: Sri.M.V.VISWANATHAN PRESIDING MEMBER PRESENT: Dated : 29 Dec 2010 ORDER Disposed as Allowed
KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 643/2004
JUDGMENT DATED: 29-12-2010
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANTS
1. Dr. Shyamala Mukundan, W/o Mukundan,
Gynaecologist, Jesna Hospital, Payyannur,
Kannur District.
2. The Managing Director,
Jesna Hospital, Payyannur, Kannur District.
(Rep. by Adv. Sri. M.K. George)
Vs
RESPONDENT
Smt. Philomina Joseph,
W/o Babu Joseph,
Panapuzha Amsom Desom,
(Via) Mathamangalam.
(Rep. by Adv. Sri. M. Sasindran & Sri. Sreejith S. Nair)
JUDGMENT
SHRI . M.V. VISWANATHAN : JUDICIAL MEMBER Appellants were the opposite parties and respondent was the complainant in OP No. 402/1999 on the file of CDRF, Kannur. The complaint therein was filed alleging medical negligence and deficiency of service on the part of the first opposite party in doing sterilization operation (tubectomy) on the complainant. It was alleged that even after doing the postpartum sterilization operation, the complainant became pregnant and that the pregnancy occurred due to the negligence of the first opposite party Dr. Syamala Mukundan in doing the PPS surgery on the complainant on 10-09-1998. The second opposite party the Managing Director of Jasna Hospital, Payyannur was made vicariously liable for the negligence of the first opposite party.
2. The opposite parties entered appearance and filed separate written versions denying the alleged deficiency of service. They also contended that the complainant is not a consumer coming within the ambit of the Consumer Protection Act and so the complaint is not maintainable. It was further contended that there was no negligence on the part of the first opposite party in doing the sterilization operation and that the failure in the PPS operation cannot be taken as a ground to hold negligence on the part of the doctor in doing the PPS operation. Thus, the opposite parties prayed for dismissal of the complaint.
3. Before the Forum below, the complaint was examined as PW1. Exts. A1 to A20 documents were marked on the side of the complainant. From the side of the opposite parties DW1, the first opposite party Dr. Syamala Mukundan was examined. B1 to B3 documents were also marked on the side of the opposite parties. Ext.X1 Medical Board Certificate issued in the name of the complainant was also marked as Court Exhibit. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 7th June 2004 finding negligence on the part of the first opposite party and thereby directing the opposite parties to pay compensation of Rs. 50,000/- with cost of Rs. 2,000/-. Hence the present appeal.
4. We heard both sides. The learned Counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He vehemently argued for the position that a mere failure of the postpartum sterilization operation cannot be taken as a ground to hold negligence on the part of the doctor in doing the sterilization operation. It is also submitted that failure of sterilization operation is an accepted complication and that the first appellant/first opposite party has done the sterilization operation with due care and caution. He also relied on B1 to B3 documents produced from the side of the opposite parties and prayed for setting aside the impugned order passed by the Forum below. On the other hand, the learned Counsel for the respondent/complainant supported the impugned order passed by the Forum below and submitted that there was negligence on the part of the first opposite party Dr. Syamala Mukundan in doing the PPS operation on the respondent/complainant. Thus, the respondent/complainant prayed for dismissal of the present appeal.
5. There is no dispute that the respondent/complainant approached the first opposite party Dr. Syamala Mukundan at the second opposite party/hospital during September 1998. The respondent/complainant was pregnant for her second baby. Ext.B1 case sheet of the complainant would show that the complainant first approached the first opposite party Dr. Syamala Mukundan on 07-09-1998 and subsequently she was admitted in the second opposite party/hospital on 10-09-1998 and she was discharged from that hospital on 17-09-1998. The MTP (Medical Termination of Pregnancy) and tubectomy were done on the complainant by the first opposite party Dr. Syamala Mukundan. The MTP with tubectomy was done on 10-091998. The aforesaid operation was uneventful. It is to be noted that there was no complaint from the side of the complainant about any negligence on the part of the opposite parties in doing the said procedure in 1998. Admittedly, the complainant became pregnant in 1999. It is to be noted that the pregnancy during 1999 would show that the MTP and tubectomy done on 10-09-1998 was a failure. There is nothing on record to show that the failure of the sterilization operation was due to the negligence or carelessness or lapse on the part of the first opposite party Dr. Syamala Mukundan in doing the sterilization operation. In the absence of any such acceptable and cogent evidence it is not just or proper to attribute negligence on the first opposite party Dr. Syamala Mukundan who conducted the sterilization operation on the complainant on 10-09-1998.
6. The discharge card (Ext.A8) issued from Indiraj Memorial Co-operative Hospital, Payyannur would show that the complainant Philomina was admitted in that hospital on 06-09-1994 and discharged on 15-09-1994. It would also show that on 06-09-1994 at 9.45 p.m the complainant delivered a female child having a weight of 2.3 kg and thereafter postpartum surgery was done on the complainant. After getting the wound healed she was discharged from that hospital. A8 document would make it abundantly clear that the complainant had postpartum sterilization operation during September 1994. But, she became pregnant in the year 1998. The first opposite party as DW1 has also deposed about the previous postpartum sterilization operation done on the complainant. The first opposite party had also taken such a contention in her written version. It is to be noted that the PPS was done on the complainant in September, 1994 and that the complainant has not preferred any complaint against the doctor who had done PPS in September 1994. This would give an indication that the body condition of the complainant was of such a nature that she had the tendency to get pregnancy even after sterilization operation. This circumstance would support and strengthen the case of the first opposite party that the complaint was having high fertility capacity and that the complainant became pregnant after the sterilization operation not because of the negligence of the doctor in doing the sterilization operation; but it was only due to the body condition of the complainant on account recanalisation of the fallopian tubes.
7. Ext.B3 histopathology report would show that the first opposite party Dr. Syamala Mukundan had cut and removed two pieces fallopian tubes and the microscopic examination revealed that the specimen was that of two pieces of fallopian tube. It would strengthen the case of the first opposite party that she had done the sterilization operation on the complainant with due care and caution and that she had cut and removed two pieces of fallopian tube ensuring for the success of the sterilization operation. But unfortunately, the complainant became pregnant even after that sterilization operation because of the body condition of the complainant on account of recannalisation of the fallopian tubes. There is nothing on record to attribute negligence on the part of the first opposite party in doing the aforesaid sterilization operation on the complainant on 10-09-1998
8. The complainant could not adduce any evidence to substantiate her case that she became pregnant after the sterilization operation only because of the negligence or deficiency of service on the part of the first opposite party Dr. Syamala Mukundan in doing the sterilization operation. Infact, the available evidence on record would show that there was no negligence or lapse on the part of the first opposite party Dr. Syamala Mukundan in doing the sterilization operation on the complainant. It would also show that the first opposite party had done everything possible in making the sterilization operation successful.
9. The Forum below found negligence on the part of the first opposite party because of her failure to advise the complainant to have removal of her ovaries or to have hysterectomy done. The aforesaid finding of the Forum below is not supported by any evidence. There is no expert evidence available suggesting hysterectomy or removal of ovaries for preventing pregnancy. The accepted procedure to have sterilization is by doing tubactomy by different methods. It is a settled position that sterilization operation cannot be 100% successful. It is a known fact and medically recognized fact that there is the possibility of failure of sterilization operation on account of recanalisation of fallopian tubes. No medical authority would say that the doctor has to advise the patient to have removal of ovaries or hysterectomy done to prevent pregnancy. The aforesaid finding of the Forum below regarding negligence on the part of the first opposite party because of her failure to advise the complainant to have removal of ovaries or hysterectomy is not supported by any material or medical authority. So, this Commission have no hesitation to set aside the aforesaid finding of the Forum below.
10. It has been held by Hon'ble Supreme Court in the case of State of Punjab Vs Shiv Ram & Others reported in AIR 2005 SC 3280 that there cannot be any negligence on the part of the doctor in doing sterilization operation because of the fact that the woman who was subjected for sterilization operation became pregnant. It is further held that there cannot be 100% success in doing sterilization operation and there is the risk of failure of sterilization operation and possibility of the woman becomes pregnant after such sterilization operation. Thus, it can very safely be held that there was no negligence on the part of the first appellant/first opposite party Dr. Syamala Mukundan in doing the tubectomy operation on the complainant. If that be so, there cannot be any vicarious liability on the part of the second appellant/second opposite party Jasna Hospital, Payyannur.
11. The forgoing discussions and findings thereon would make it clear that the impugned order dated 07-06-2004 passed by CDRF, Kanur in OP No. 402/1999 is legally unsustainable and the same is liable to be quashed. Hence we do so.
In the result, the appeal is allowed. The impugned order passed by the Forum below is set aside and the complaint in OP No. 402/1999 on the file of CDRF, Kannur is dismissed. The parties are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER M.K. ABDULLA SONA: MEMBER Sr. [ Sri.M.V.VISWANATHAN] PRESIDING MEMBER