State Consumer Disputes Redressal Commission
Dr. Tuni Moharana vs Lipika Pattasingh, Office Incharge & ... on 21 February, 2007
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA: CUTTACK
C.D. CASE NO.102 OF 2003
Dr.
Tuni Moharana,
W/o.
Dr. Trailokya Nath Moharana,
Village-
Kulakundhei Naugaon,
At/P.O/P.S-
Balugaon, Dist- Khurda.
Complainant.
-Versus-
1. Lipika Pattasingh, Office Incharge,
Parivar Seva Clinic, Plot No.15,
Ashok Nagar, Near Reymond
Room, Bhubaneswar, Dist- Khurda.
2. Dr.
Jyotsna Panda, Qr. No.306,
Manorama Villa, Manorama Estate,
Cuttack-Puri Road,
Rasulgarh,
Bhubaneswar,
Dist- Khurda.
Opposite Parties.
For the Complainant : M/s.D. Samal & Assoc.
For the Opp.Party
no.1 : M/s.
S. Kheti & Assoc.
For the Opp.Party
no.2 : M/s.
R.K. Singh & Assoc.
P
R E S E N T :
THE HONBLE SMT. BASANTI DEVI,
MEMBER
A N D
SHRI SUBASH MAHTAB, MEMBER.
O R D E R
DATE: - 21ST FEBRUARY, 2007.
This complaint has been filed claiming compensation due to medical negligence by Smt. Lipika Patsing, as the Officer Incharge, Pariar Seva Clinic at Plot No.15, Ashok Nagar and Dr. Smt. Jyotsna Panda the Gynecologist attached to said Parivar Seva Clinic at Bhubaneswar opposite party nos.1 and 2 respectively who administered Depot Medroxy Progesterone Acetate, in short DMPA injection in defective manner to the complaint.
2. Complainant Dr. Tuni Moharana, a Homeopathic doctor, has stated in the complaint petition that coming across the advertisement time and again in local news papers of the aforesaid Parivar Seva Clinic in respect to effecting perfect birth control by qualified and efficient Lady Gynaecologist, complainant approached the aforesaid two opposite parties. Opposite Party No.2 after examination advised the complainant to take DMPA injection at interval of three months as an effective birth control majour. According, complainant took her first such injection through opposite party No.2 on 28.03.2000 and next date due for taking such injection was on 28.06.2000 which she took on 26.06.2000 through opposite party no.2 as per her advice.
Though at informal of three months, each subsequent D.M.P.A. injections are to be administered i.e. on 26.09.2000 and three months thereafter on 29.03.2001 yet as per advice of opposite party no.2 the injection due on above date i.e. on 26.09.2000 was administered on her on 29.12.2000. Though, she was told to take the next injection on 22.03.2001 which is due on 29.03.2001, yet she did not take it as she was suffering from may ailments as reaction to the injection taken earlier. Thereafter, as the complainant was not feeling well due to said ailment, she went to opposite party no.1 for check-up and family planning operation on 29.12.2001. After examining the complainant, opposite party no.2 advised her to take further DMPA injection and to regularly take calcium tablet and milk. Reposing confidence on opposite party no.2, complainant took such injections on 29.12.2001, on 27.03.2002 and on 29.06.2002. But though the due date of 4th injection was on 29.09.2002 yet it was given on 10.09.2002 as per advice of opposite party no.2. She did not take the next injection whose due date was 10.12.2002 as she felt movement in her belly, when she was examined by Dr. Kiranbala Yadab at Parivar Seva Clinic, it was found that she is pregnant. In an apprehension that the child in the would be deformed, she concealed taking DMPA injection when Dr. Kiranbala Yadab asked her whether she was taking DMPA injection at internal of three months. Through ultrasound test complainant could know the child in the wounds is five months and five days. She did not go for abortion, the child as per said Doctors advice. The opposite party no.2 given her improper and faulty service in administering fake DMPA injection as a result of which she carried and delivered a child which she did not require, opposite party No.1 has thus vicarious liability, as opposite party no.2 was serving under her at the relevant period. As she gave birth to an unwanted female child due to deficiency in service of the opposite parties, the complainant filed the C.D. case claiming compensation rupees 32 lakhs for the shock, mental and physical pain suffered by her.
3. Both opposite parties have filed written versions separately claiming dismissal of the C.D. case on the ground that they have caused no deficiency in service.
4. Case of the opposite party no.1 as per her written version in brief is that the case is defective for non-joinder of necessary party as the Managing Director of Parivar Seba Sadan a registered Society has not been made a party whereas a paid employee of the said society Lipika Paltasingh (opposite party no.1) who has no administrative control over said Society and opposite party no.2 has been made responsible wrongly describing her as the Officer-in-charge of said society. She admitted that, this registered society has set up regional office at Bhubaneswar being Regional Manager and where qualified lady Gynaecologists having technical knowledge relating to birth control have been appointed to administer medicines / injection to patients like complainant. She was appointed as Senior Educationist and subsequently was re-designated as counseller inter-alia. She was maintaining registers, records, accounts, budgets relating to said clinic and was furnishing all information to the authority which were assigned to her. So, she is no way connected and responsible in respect to administering medicines and injections to any patients by the doctors attached to the clinic.
In these end of the view, complainants allegation against her are false and baseless. She is no way responsible for any loss, injury or damage if actually, have been caused to her by the Parivar Seva Clinic. Moreover, she has left the jobs since 09.04.2003 and therefore is unable to file counter on the information based on Clinics record.
5. Opposite party No.2 has stated as per her written version that said Parivar Seva Clinic is under the control and guidance of Parivar Seva Sansta a voluntary organization of New Delhi where she joined on 01.09.1999 as Senior Doctor. Said Clinic was managed by opposite party No.1. She is a qualified Doctor of Obstetric & Gynecology having MBBS & MD (O&G) degree. She has admitted to have advised complainant to take DMPA injection at interval at three months which is a device for effective and safe birth control. The price of such injection in the open market was rupees 150/- which was being given by this Clinic to its patients in concession at rupees 80/- including consultation charges. After necessary examination of the complainant with her understanding and written consent DMPA injection was given to her properly. The effectiveness of such injection will not be hampered in case each injection is given seven days before or after the due dates.
Therefore, if the complainant was administered DMPA injections on 26.06.2000 instead on 28.06.2000, on 03.10.2000, instead of 26.09.2000 on 29.12.2000 instead of 03.01.2001 and on 22.03.2001 instead of 29.03.2001 it would not lose its effect as the same were given seven days before and after the due dates. She denied that complainant had reaction to these injections as alleged, as no ill effect of these injections are there. However, she had advised her to take calcium tablets and milk regularly to increase physical stamina and strength and to prevent Osteoporosis which is advised normally when one is taking DMPA injection for long period.
She has further stated that she is no way responsible if complainant conceived because she has not given any such injection to her after she resigned from the jobs on 25.01.2002.
She has not given her such injections on 27.03.2002, 29.06.2002 and 10.09.2002. The pregnancy of five months and five days was detected through ultrasound in the month of December, 2002 / January, 2003, so she is not responsible for causing deficiency in service because if one discontinues DMPA which is a temporary contraceptive, for six to nine months, there is possibility of pregnancy.
Several other factors are also responsible for cause of pregnancy. However, as per the medical science all the family planning devices like operation, injection and tablet etc. are not 100% successful. The complainant has not stated how opposite party no.2 is negligent for which she concerned. Thus she has not came up with clean hand. The issue of un-success or success of DMPA injection requires voluminous evidence including medical experts through numerous witnesses. Therefore, complainant for proper redressal would have moved the Civil Court. Thus she had claimed for dismissal of the C.D. case against her.
6. When the case was taken up for hearing, except opposite party no.2, neither the complainant nor opposite party no.1 took part in the hearing, of course, complainant, about twelve days after conclusion of hearing, filed an affidavit of herself through her learned counsel supporting to the averments of the complaint petition. Copies of said affidavits even have not been served on the other side. However, we went through said affidavits, pleadings of the parties and other materials available on record.
7. The points to be decided here are ;
(a) as to whether due to defective administration of DMPA injection to the complainant by opposite party No.2 there is failure of birth control in case of the complainant; and
(b) however both the parties are responsible in causing deficiency in service to the complainant.
8. In respect to the point (a) above it may be stated here that Lipika Pattasingh herself has nothing in respect to administration of DMPA injection to the complainant as a family planning device. According to the complainant she took such injection on 28.03.2000, 26.06.2000, 29.12.2000 and after lapse of one year on 29.12.2001, 27.03.2002, 29.06.2002 and on 10.09.2002 as per the instruction of opposite party No.2.
Opposite party No.2 has stated in the written version that administration of such injection seven days before or after the due dates, shall no way affect to the effectiveness of the injection and there would be n side effect of such injection. She said that DMPA injection, though safe, is not a sure media of sterilization possibility of pregnancy in spite of taking DMPA injection is always there for which various aspects are responsible.
Opposite party No.2 has admitted to have administered only five such injections to the complainant during the tenure of her parting in the Parivar Seva Clinic as she resigned from said post on 25.01.2002 and is not responsible for the pregnancy of the complainant which would have been since June/July, 2002 and was detected during December, 2002/January, 2003.
But, from the xerox copy of the resignation letter filed by opposite party No.2 it is seen that she had intimated Mrs. Sudha Jiwari (MD) Parivar Seva Sadan, Defence Colony, New Delhi, her last working day will be on 28.02.2002. From this, it can be born into mind that when complainant was found pregnant of five months and five days, in December, 2002/January, 2003, she conceived on or about the months of August/September, 2002 leaving no chance to the complainant taking such three monthly DMPA injection through opposite party no.2 prior to her pregnancy. The complainant has not proved that she has taken DMPA injections through opposite party No.2 after 28.02.2002. Even, she has not come up by herself or through her advocate to urge before us at the time of final hearing of the C.D. case that opposite party No.2 was continuing in the Seva Sadan from whom she was taking such injection till she conceived i.e. in the month of August/September, 2002. She even did not establish that due to defective administration of such injections by opposite party No.2 she was subjected to give birth an unwanted child. The xerox copy of the text Postgraduate Obstetrics and Gynecology filed on behalf of opposite party No.2 has made it clear that DMPA injection is not a sure major of complete sterilization. Other factors are responsible to give rise to pregnancy in spite of such injection is taken and DMPA has no major side effect as has been suspected by the complainant. In respect to return of fertility this text enlightens that; The average delay before conception occurs after discontinuation ranges from 5.5 months for DMPA.
9. The complainant has not proved by any means as to how opposite party no.2 is negligent resulting to unwanted pregnancy to her. In such circumstance, negligence in the conduct of opposite party No.2 cannot be attributed. Therefore, complainant is not entitled to any compensation alleging deficiency of service from both the opposite parties in respect to her unwanted pregnancy.
10. Coming upon to aforesaid point (b), complainant has not proved that opposite party No.1 was the authority and in over all charge of Parivar Seva Clinic and responsible for any act and omission of the Seva Clinic.
On total reading of the written version of the opposite parties, we understand that opposite party No.1 is not the authority to represent the Seva Clinic. In this end of the view, opposite party No.1 is not a proper party to this C.D. case. None of the opposite parties are proved to have caused deficiency in service to the complainant.
11. In the result, we find there is no merit in the C.D. case. Hence, the C.D. case is dismissed without cost.
SHRI SUBASH MAHTAB, MEMBER, I agree.