State Consumer Disputes Redressal Commission
Jagdish vs Government Of Nct Of Delhi on 7 November, 2008
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 07.11.2008 First Appeal No.1017/2004 (Arising from the order dated 14.10.2004 passed by District Forum ( North West) Shalimar Bagh, Delhi in Complaint Case No.259/2003) 1. Sh. Jagdish Appellant, S/o Sh. Uday Ram 2. Smt. Omi, W/o Sh. Jagdish, Both R/o Plot No.80, Ishwar Colony Extension, Part-III, Bawana, Delhi. Versus 1. Government of NCT of Delhi .Respondents Through its Chief Secretary, Directorate of Family Welfare, 5, Sham Nath Marg, Delhi. 2. Pariwar Sewa Sanstha Through Medical Superintendent, Urban Family Welfare Centre, Rohini, Delhi. 3. Marie Stopes Clinic G-Block, Pocket -31, Sector-3, Rohini, Delhi. 4. Dr. MS. S. Batra C/o Marie Stopes Clinic G-Block, Pocket -31, Sector-3, Rohini, Delhi. CORAM: Justice J.D. Kapoor, .. President Ms. Rumnita Mittal. Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. Complaint of the appellant seeking compensation on account of failed sterilisation conducted by the respondents while terminating the pregnancy of the respondents wife, was dismissed by the District Forum vide impugned order dated 14.10.2004.
2. Feeling aggrieved the appellant has preferred this appeal.
3. The case of the appellant leading to the impugned order is that he is a conductor in DTC and has seven children i.e. four daughters and three sons aged between 3 months to 16 years. The appellant No.2 got herself operated at respondent No.3 on or about 24.11.1997 for tubectomy operation but the said operation failed and another operation was conducted by respondent No.4. Despite the second operation the appellant No.2 became pregnant and gave birth to a male child which has caused mental tension, agony and harassment to both the appellants due to their financial low standard and as such the appellants are being burdened to rare up the child born despite the tubectomy operation. The appellant prayed that the respondents be directed to pay Rs.9,27,000/- towards medical expenses and further expenses to be incurred in raring up the child alongwith cost of litigation of the instant complaint.
4. While denying negligence on its part, the respondent No.2 and 3 contended that appellant came to the Rohini Clinic of the respondents on 24.11.1997 and stated that she wanted to undergo sterilisation and it was explained to the appellant that the procedure carried certain attendant risks and the possibility of failure was also inherent in the procedure and as such 100% success could not be guaranteed. The laparoscopic tubaligation was done by applying silastic ring (falopes ring) on the loop of fallopian tubes on either side. Unfortunately after nine months of procedure the women came back with 10 weeks of pregnancy on 11.08.1998. The MTP of the said pregnancy following laparoscopic sterilisation failure was done on 11.08.1998 absolutely free of charge alongwith relegation of both tubes by laparoscopic technique. The laparo surgeon again applied two falopes rings on the proximal segment of separated fallopian tube on left side and distal part of the loop of fallopian tube on the right side, to be doubly sure that it does not fail again. Regarding failure of re-sterilised tubes for the second time for which the respondents had no knowledge as the appellant No.2 never came back to them. However the second time failure can be attributed to either loosening of the falopes ring/slipping off after sometime, or partial occlusion of the tube or rarely there could be a third fallopian tube due to congenital anomaly in the genital system.
5. It is also contended by the respondents that a doctor or a hospital cannot be said to be guilty of negligence merely because a medical procedure fails or a risk inherent in a medical procedure manifests itself. A doctor can be said to be guilty of negligence only if he commits such an error which no doctor of reasonable competence will commit. Medicine being an inexact science, the mere failure of a medical procedure cannot be presumption of negligence on the part of a doctor. More particularly that sterilisation failure is well known and well documented medical fact. The risk of failure is inherent in the procedure itself. As such 100% success of sterilisation can neither be guaranteed nor achieved. There are numerous medical studies which testifies to the fact that all methods of female sterilisation have a certain failure rate since the risk of failure is inherent in the procedure.
6. The counsel for the respondents have placed reliance on State of Punjab Vs. Shiv Ram & Ors. 2005(4) RCR (Civil) Recent Civil Reports 100 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 be sustained only if there is negligence on the part of the surgeon in performing the surgery. The surgeon will, however, be liable if he had assured 100% exclusion of pregnancy.
7. As is apparent the main thrust of the contention of the counsel for the respondent is that the chances of failure of laproscopic ligation reported in the literature is 0.19% to 3%. Even otherwise the universally accepted failure rate of this operation is 1.5% to 3%.
8. On the other hand, the counsel for the appellants argued that it is a clear case of negligence because precautions were never taken as it was not the fallopian tube but it was a round ligament which was cut and, therefore, no tubectomy was performed and if at all it was performed both the tubes were not cut, so much so, no confirmity test was conducted to show that the right fallopian tube was cut. Even in the discharge card no precautions were prescribed to be taken by the complainant and even if these precautions were taken still the failed sterilization could have resulted in conception.
9. It is well established medical knowledge that MTP is done when the pregnancy is not more than 6-8 weeks and doctor do not advise MTP after this period. Since in this case the MTP was done after the aforesaid period, the District Forum held that attitude of the appellant to the health and life of the lady is reflected in its willingness to perform MTP when the lady was more than 6 months pregnant.
10. The question of medical negligence has been cropping up time and again before the courts all over the world and one significant test known as Bolam Test by the English Judges reported in (1957) 2 AII ER 118, 121 D-F still holds the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner.
In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth & Percy, ibid., para 8.02)
11. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
12. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) 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, which 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 practices. A highly skilled 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.
(4) The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
13. While dealing with the concept of medical negligence the Supreme Court laid down the following requirements:-
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury, which resulted was most likely imminent.
14. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
15. In our view, in every failed sterilization, inference of negligence on the part of the doctor can be raised as the operation fails due to non-observance of the technique in its minutest details and precision.
16. Nature of defence of respondents shows that every failed operation will be brought in the category of negligible 0.3% to 1.3% and no doctor can be held guilty for failed operation. Still appellant has to be held guilty for misleading representation qua the complainant. In such cases, onus is heavily upon the operating doctor to show the perfection of the operation as a little shortcoming, imperfection or inadequacy results in immense hardship.
17. According to the medical literature on The Recent Trends in Contraceptive Technology written by M.K. Krishna Menon, P. Devi & K Bhasker Rao the pregnancy or failure rates are as under:-
Chi et al (1980) reported one-year pregnancy rates by the life table method per 1000 women as 1.9 for electro-cogulation, 3.3 for the Falopes ring, and 27.1 for the Hulka clips.
Mini-laparotomy with Pomeroy was 2.0 and Falopes Ringh 4.9.
In a follow-up of 9,000 sterilizations, the ICMR (1980) reported a failure rate of 0.56 per cent mostly occurring with laparascopy. In a recent survey of 16 papers covering about 14,000 non-laparoscopic sterilizations, McCausland (1980) reported a failure rate of 0.75 per cent with 12.3 percent ectopic pregnancies whereas in over 23,000 laparoscopic sterilization, the failure rate was 0.19 per cent only but with 51 per cent ectopic pregnancies.
18. In another literature Laparoscopic sterilization by Jaroslav F. Hulka M.D., University of North Carolina, USA the sterilization failures is low and sometimes the procedure does not work. Relevant extract of the literature is as under:-
A large number of patients (over 1000) must be followed for a 2 to 3 year period with a high rate (over 85%) of follow-up to study the pregnancy rate following sterilization techniques.
This enormously difficult task has been accomplished very few times: by Johns Hopkins University in the early days of electrocoagulation and by the University of North Carolina in the development of the spring clip. Currently, the CREST study of the Centres for Disease Control (CDC) is following several thousand patients sterilized by a variety of techniques.
This prospective 10 year national study has recently been concluded and is revealing a much higher pregnancy rate than was first appreciated for all methods of sterilization-approaching 1 pregnancy per 100 sterilization within 3 years, and 2-3 per 100 over 10 years.
The latest education pamphlet on sterilization by the American College of Obstetricians and Gynecologists (ACOG 1991) stages More than 99 out of every 100 women who have this procedure will not become pregnant, but you should be aware that the procedure does not guarantee sterility.
Although the risk of failure is low, sometimes the procedure does not work.
19. In our view, where there is such a low and extremely negligible percentage of failure of operations, say 0.3% the chances of the operating doctor to take advantage and refuge under that percentage of sterilization are minimal and if such plea is allowed then every sterilization that failed would fall within lowest percentage of 0.3% and in some case 0.01%. Thus where there is such low and negligible rate of failure the presumption of negligence can be safely drawn.
20. The solitary cause of failed sterilization is lack of caution and care by the operating doctor by leaving one of the fallopian tubes uncut or cut in defective manner or not in effective manner as a little slip on his part in not ensuring the operation and that also fool proof cutting of both the fallopian tubes causes miseries for a person whole of life. In the instant case no other inference can be drawn than the negligence on the part of appellant in not taking care of both the fallopian tubes as there were some or other kind of shortcoming, inadequacy or imperfection in operating the complainant.
21. In modern times to bring up unwanted child is such burden which one has to be carried out through out life for not only day to day expenses but on education, marriage and future expenses. It is under very compelling circumstances that a person goes for such an operation.
Ordinarily one prefers resorting to some preventive measures and if the person going for such an operation also suffers trauma of having unwanted conception the miseries are burdensome, insupportable and immense.
22. In the instant case, appellants have been burdened with the upbringing of a child whereas they had already two children. The illiteracy, ignorance and poverty are curse in themselves and if persons suffering from all these three vices are heaped with additional burden, the misery, agony and emotional suffering one undergoes are immense. In the case of middle class or lower middle class strata of the society, things may be no different so far as the responsibility of bringing up an additional or unwanted or unplanned child is concerned.
23. In terms of Section 14(1)(d) of the Act every service provider for deficiency in service on its part is liable to compensate the consumer as to the loss or injury suffered by him. The word injury and the word compensation appearing in Section 14(1)(d) of the Act, has been given such wide meaning and connotation that it encompasses in its fold each and every element of suffering suffered by a consumer like mental agony, harassment, emotional sufferings, physical discomfort, insult or humiliation or ay other kind of sufferings. In this regard the observations of the Honble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 are quote worthy and are as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
24. Foregoing reasons persuade us to allow the appeal with the direction the respondent to pay a sum of Rs.50,000/- towards compensation which shall include cost of litigation also. The impugned order shall be complied with within one month from the date of receipt of this order.
25. Bank Guarantee/FDR, if any, furnished by the appellant be returned forthwith.
26. 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.
Announced today on 07th day of November 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri