State Consumer Disputes Redressal Commission
Santosh vs Dr.Hemant Kansal on 3 December, 2009
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
UNION TERRITORY,
CHANDIGARH.
Appeal
case No.2916/2002/Hry/RBT/1227/2008
Santosh wife of Mange Ram resident of village Dhanchari,
District Hisar.
Appellant
Versus
Dr.Hemant kansal, the then Medical
Officer, General Hospital, Hansi now working as medical Officer, General
Hospital, Hisar.
...Respondent
Appeal U/s 15 of Consumer Protection Act,1986 against
order dated 9.10.2001 passed by Consumer Disputes
Redressal Forum- Hisar
Present: Sh.Naridner Singh Hooda,advocate
for the appellant
Sh.Hemen
Aggarwal,advocate for respondent
Sh.Joginder Singh,AAG alognwith
Sh.Umed Singh, Clerk for General
Hospital, Hansi
BEFORE : Honble
Mr.Justice Pritam Pal, President
Maj.Gen.S.P.Kapoor (Retd.),Member
Mrs.Neena Sandhu,Member
JUDGMENT
3.12.2009 Justice Pritam Pal, President
1. This appeal by complainant Santosh is directed against the order dated 9.10.2001 passed by District Consumer Forum-Hisar whereby complaint case No.560/2001 filed by her was dismissed.
The parties in this judgment hereinafter shall be referred to as per their ranking before the District Consumer Forum.
2. Briefly the facts as set out in the complaint are that the complainant who is a household lady went under tubectomy operation on 16.6.98 conducted by OP vide serial No.67/223. She obeyed all the instructions after the operation as given to her by OP but due to his sheer negligence in conducting the operation, she gave birth to a female child on 7.9.2000. The complainant filed complaint before the District Forum seeking compensation of Rs.3 lacs as she had no source of income to maintain the female child which had born after the tubectomy.
3. On the other hand, the case of Opposite party before the District Forum was that complainant was not consumer as she did not pay any consideration to OP for the sterilization operation which was done free of cost by the Health Department, Govt. of Haryana ; rather she was paid incentive for undergoing sterilization operation under the National Family Welfare Programme.
It was further pleaded that the sterilization operation of the complainant could not be completed since her left tube could not be ligated due to adhesion and as such she was not issued sterilization certificate by any doctor. Only serial number was to be maintained which was a clerical work. Complainant was apprised in simple language about the success rate of tubectomy operation. Since the operation of complainant was not completed, chance of conceiving the pregnancy was there.
4. The District Consumer Forum after going through the file and hearing the learned counsel for parties came to the conclusion that the complaint was devoid of any merit and dismissed the same. Still dissatisfied, complainant had filed appeal before the Haryana State Consumer commission which has now been transferred to this Commission under directions of the Honble National Commission.
5. We have heard learned counsel for the parties and gone through the file carefully. It was contended on behalf of complainant that she went to the hospital for total sterilization and not for partial operation. When complainant could not be operated for left tube the doctor should have advised her to come for second time for the operation of both the fallopian tubes and due to negligence of operating doctor she got conceived and gave birth to an unwanted female child for which she is entitled to get compensation.
6. It is an admitted fact that Smt.Santosh complainant went to General Hospital, Hansi for tubectomy but sterilization operation could not be completed since her left tube could not be ligated due to adhesion. This fact was also mentioned by OP on the Female Sterlization case card, a photocopy of which has been placed on file. Now question to be seen is whether there was any negligence on the part of operating doctor, so that he could be held responsible for damages. There is no expert evidence that there was any negligence in performing the tubectomy operation on the person of Smt. Santosh.
7. Further it has been observed by Honble Supreme court in State of Haryana and others Vs Raj Rani (2005)7 supreme court cases 22 that childbirth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of operation is attributable to his negligence and not otherwise. Similarly it has been held by the Apex court in State of Punjab Vs Shiv Ram and others (2005) 7 SCC 1 in para-D at page 3 that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth.
8. It is not the case that the surgeon performing the operation was not possessed of the requisite skill which he professed to have possessed, or, he did not act with reasonable competence in the given case. Further there is no allegation that the operating surgeon was not competent to perform the operation. Therefore, in view of the law laid down by the Apex court, OP cannot be held guilty because there is no evidence that the operation was performed by Dr. Hemant Kansal negligently. The tubectomy upon the complainant could not be completed as her left tube could not be ligated due to adhesion. Even if operation had been performed successfully then also there could be pregnancy as due to certain natural causes there could be spontaneous canalization. In the present case no evidence has been led that there was any negligence on the part of operating doctor.
9. In the present case there is no cogent and convincing evidence to show that the operating doctor was negligent in any manner while conducting the operation. Faced with this situation and keeping in view the entries incorporated in the medical record photocopy of which has also been retained on the file, we have no hesitation to hold that the complainant has failed to substantiate her case.
10. In view of our foregoing discussion, we find no illegality in the impugned order dated 9.10.2001 passed by the District Consumer Forum and the same is upheld. Consequently, the appeal fails and same is hereby dismissed, leaving the parties to bear their own costs.
Certified copies of this order be communicated to the parties, free of charge. The file be consigned to records.
Announced ( Justice Pritam Pal)(Retd.) 3rd Dec.,2009 President (Maj.Gen.S.P.Kapoor )(Retd.) Member (Mrs.Neena Sandhu) Member js It is an admitted fact that the complainant was operated by a team of doctors i.e. OP No.5 to OP NO.7 on 25.2.98 in Rajindera Hospital, Patiala. At that time Dr.Surjit Kaur Bajwa, respondent NO.5 was the incharge of Gynae and obstetrics unit-II, Rajindera Hospital, Patiala and Dr.Sudesh Goyal and Dr.Jaswinder Bhatia had done tubectomy operation. There was no dispute about it that despite family planning operation, complainant had become pregnant and delivered a male child on 2.11.2001. If complainant did not want to deliver child, then she could have gone for M.T.P. Certainly if she had approached the hospital, then MTP could have been done and she could have got rid of unwanted pregnancy. However, she willingly carried pregnancy and delivered a male child.
12. According to literature, the tubectomy operation is not a 100% success. There are chances of failure from 0.6% to 4.9% inspite of the fact that operation was done with due care and caution. The Honble Supreme court in civil appeal No.5128 of 2002 decided on 25.8.2005 titled State of Punjab versus Shiv Ram & Ors 2005(4)Recent Civil Reports -100 has observed that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can only be sustained if there is negligence on the part of surgeon in performing the surgery. It is not the case that performing surgeon was not possessed of the requisite skill which he professed to have possessed, or ,he did not act with reasonable competence in the given case. Further there is no allegation that lady surgeon was not competent to perform the surgery. There is no evidence that the lady surgeon was negligent in performing surgery.
13. There are other alternative methods of female sterilization operation which are recognized by medical science but none of them is a 100% success. There is no evidence that the lady doctor had given assurance that the operation would be 100% success. On the other hand they have stated in their affidavit that they had told the complainant that operation of tubectomy was not 100% success.
Since, complainant had got conception inspite of having undergone sterilization operation and did not opt for M.T.P. under the Medical Termination of Pregnancy Act,1971,so, she was at fault.
It is an admitted fact that on 29.1.95 respondent(complainant) went to Geeta Nursing Home for tubectomy operation (family planning operation) and she was operated upon by the appellants on the same day and was discharged from the hospital. According to respondent, she was already having two male children but according to the version of appellants, she had been having three male children.
However, this fact is not material.
The further case of respondent is that she became pregnant despite tubectomy operation and gave birth to another child on 25.5.97 i.e. after two years and four months of undergoing tubetcomy operation. The fact that family planning operation certificate was not supplied by the appellants is of no relevancy. The only thing is to be seen whether appellants were negligent in performing operation or inspite of their best care taken to perform operation, the pregnancy had occurred for which they were not at fault.
11. The guidelines for service programs for safe and voluntary surgical contraception issued by world Federation of Health agencies for the advancement of voluntary surgical contraception have been placed on the file of State Commission. It is stated in it that there is reported failure rates for tubal occlusion ranging from one to 10 failures per 1000 procedures . Thus, according to it, there is failure of tubectomy operation upto 10 women out of 1000. Hence, the operation is not 100% successful even it is done by best hands because in some cases there is failure and inspite of tubectomy operation, the woman gives birth to a child.
12. It has been observed by the State Commission in Smt.Shanti and another Vs the Post Graduate Institute of medical education and research, Nehru Hospital and another 1998(1)CPC 216 that pregnancy after sterilization is not unknown. Chances of failure of operation cannot be ruled out and thus, OP is not liable for committing any negligence. Thus, operations are not cent percent successful. Besides it, there is no substantive evidence to show that there was any negligence on the part of appellants.
In the absence thereof, it cannot be held that appellants were deficient in performing operation.
13. Counsel for respondent on the other hand placed reliance upon an authority of Apex court titled State of Haryana and others Vs Smt.Santra : AIR 2000 Supreme court cases 1888 and on the basis of this authority, he contended that if there is unsuccessful sterilization operation, then birth of unwanted child is attributable to negligence of doctor.
In our opinion, the abovementioned authority is not applicable to the facts of the present case because in the said authority there was evidence that the doctor concerned had performed operation only of the right Fallopian Tube and the left Fallopian tube was not touched which indicated that the complete sterilization operation was not done. She requested for an abortion, but was advised not to go in for abortion as the same would be dangerous to her life and ultimately she gave birth to a female child inspite of the fact that she had already been having seven children. It was further observed that the medical officer who conducted the operation had thrown care and caution to the winds and focused attention to perform as many as operations as possible to build record and earn publicity. It is in such settling that a poor lady obsessed to plan her family, was negligently operated upon and treated and left in the lurch to suffer agony and burden which was avoidable. Therefore, it was observed that the doctor concerned did not perform his duty to the best of his ability and with due care and caution and due to carelessness of the doctor, she had to suffer mental pain and agony and burden of financial liability. However, in the present case, appellants had categorically stated that they had performed operation with due care and caution and they had performed several thousands operations and there was no complaint against them earlier and further they were qualified MBBS doctors since,1974.
14. It has also been mentioned in the order of District consumer Forum that she had given a writing that she was undergoing the operation voluntarily and further she knew some risk and chances that the operation could fail. Thus, she was made aware of the perils in performing operation that it was not 100% successful.
15. Therefore, in view of the discussion above, we hold that it is not proved on file that the appellants had acted negligently in performing operation and thus, inspite of tubectomy, pregnancy has been caused to the respondent which was not due to the negligence in performing operation by the appellants but it was due to failure of the operation as the operation according to medical terms was not 100% successful.
It is an admitted fact that Smt. Sukhwinder Kaur was operated upon for tubectomy operation on 17.11.97 by Dr.Surinder Sigh Bedi posted as S.M.O. Civil hospital, Sur Singh. It is alleged that inspite of operation, she conceived and gave birth to a male child on 16.9.2000. Now question to be seen is whether there was any negligence on the part of operating doctor, so, that he could be held responsible for damages. There is no expert evidence that there was any negligence in performing the tubectomy operation on the person of Smt. Sukhwinder Kaur.
10. It has been observed by Honble Supreme court in State of Haryana and others Vs Raj Rani (2005)7 supreme court cases 22 that childbirth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterilization operation due to natural causes to be varying between 0.3% to 7% depending upon techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science.
11. Similarly it has been held by the Apex court in State of Punjab Vs Shiv Ram and others (2005) 7 SCC 1 in para-D at page 3 that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort in such cases can be sustained only if there was negligence on the part of the surgeon in performing the surgery and not on account of childbirth.
12. Therefore, in view of the law laid down by the Apex court, appellants cannot be held guilty because there is no evidence that the operation was performed by Dr. Surinder Singh Bedi negligently. Even if operation had been performed successfully then also there could be pregnancy as due to certain natural causes there could be spontaneous canalization . In the present case no evidence has been led that there was any negligence on the part of operating doctor.
It is an admitted fact that Smt. Kamlesh, mother of four children had undergone tubetcomy operation in M.L.General Hospital, Yamunanagar on 15.6.92 and necessary certificate was issued to her showing the operation at serial No.137. There is also no dispute about it that despite tubectomy operation, she became pregnant and her conception resulted in birth of 5th child which was a female on 6.3.94. The first question was to be seen whether there was any negligence on the part of respondents in performing the operation. There is no evidence that there was any negligence in performing the operation and the operation was not performed according to the standard procedure which resulted in her conception.
10. It has been observed by the State Commission in Smt.Shanti and another Vs the Post Graduate Institute of medical education and research, Nehru Hospital and another 1998(1)CPC 216 that pregnancy after sterilization is not unknown. Chances of failure of operation cannot be ruled out and thus, OP was not liable for committing any negligence as the operation is not cent percent successful.
However, in the present case there is no evidence to show that there was any negligence on the part of respondents.
11. The Honble Apex court in the case titled State of Haryana and others Vs Smt.Santra : AIR 2000 Supreme court cases 1888 had allowed compensation as there was negligence on the part of doctor in performing the sterilization operation because the doctor had performed operation only of the right Fallopian Tube and left the left Fallopian tube untouched which indicated that the complete sterilization operation was not done.
She had requested for abortion but complete abortion was not performed and thus there was negligence on the part of doctor.
12. Since, according to the medical science, tubectomy operation is not 100% successful, so, in the absence of any evidence of negligence, presumption can not be drawn that the respondent had acted negligently in performing tubectomy operation upon the appellant. Respondent No.2 who was employed in M.L.Hospital, Yamunanagar was a qualified doctor and respondent No.3 was a trained nurse, so, it cannot be said that the operation was performed by unskilled hands.
13. We concur with the reasoning given by the District Consumer Forum and hold that there was no negligence on the part of respondents. Consequently, appeal is dismissed but the parties are left to bear their own costs