State Consumer Disputes Redressal Commission
St. Stephenshospital, vs Shalini, on 21 January, 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 :21.1.2008 Appeal No. A-236/05 (Arising from order dated 10.3.2005 passed by the District Forum, North, Tis Hazari, Delhi in Compliant case No. C-155/2003) 1. St. Stephens Hospital, Through C.M.O. Near Tis Hazari Court, Delhi 110054 2. Dr. Mrs. V. Bhalla, Family Planning, Department St. Stephens Hospital, Near Tis Hazari Court, Delhi 110054 ..Appellants Through Sh. Rajiv Sharma & Sh. Nihar Mohapatra, Advocates Versus Smt. Shalini, W/o Shri Vinod Kumar, R/o H. No. 994, Alipur, Delhi ..Respondent Through Sh. Krishan Kumar, Advocate CORAM Justice J.D. Kapoor President Ms. Rumnita Mittal Member1
Whether reporters of local newspapers be allowed to see the Judgement.
2. To be referred to the Reporter or not.
Justice J.D. Kapoor (Oral)
1. On account of failed sterilization the appellant hospital has been, vide impugned order dated 10th March, 2005 passed by the District Forum, directed to pay compensation of Rs. 1.00 lakh and Rs. 2000/- as cost of litigation. Feeling aggrieved the appellant has preferred the appeal.
2. The allegations of the respondent leading to impugned order, in brief, are that the respondent got herself admitted in the St. Stephens Hospital on 25.1.1998 for purpose of delivery and she was allotted a bed in the General Ward. The appellant doctor who was on duty on that day attended the respondent and under her supervision and treatment she delivered a female child on 26.1.1998. The respondent because of her delivery had to stay on in the hospital and during her stay she started feeling the pinch of the liabilities so created and became tension ridden. The appellant-doctor repeatedly visited the respondent to attend upon her and noticing her tension, appellant doctor tried to convince her of the merits of under going abdominal tubectomy operation to avoid increasing of further liabilities. The respondent impressed by the advise but keeping in view the state of her health because of immediate delivery respondent expressed her apprehension and showed her reluctance to undergo the abdominal tubectomy operation forthwith. The appellant doctor willingly called Sh. Vinod Kumar husband of respondent and started advising him that the operation is easier and less painful and more fruitful if undergone just after delivery and that they should not postpone the same any further. The appellant doctor performed on her abdominal tubectomy operation on 28.1.1998 and after the performance of the same, respondent and her husband were given assurance that full and complete and successful sterilization has been performed upon her and she would not conceive any child in future, over which respondent and her husband felt quite relieved.
3. In the month of September/October, 2000 the respondent felt pregnancy and went to the doctor of Hindu Rao Hospital who confirmed the pregnancy despite the sterilization operation. Ultimately the respondent gave birth to a girl child in H.R. Hospital on 27.7.2001.
4. After the performance of said abdominal tubectomy operation on 28.1.1998 when respondent asked the appellant doctor about the success of the operation she gave her full guarantee and on her certification appellant hospital issued a sterilization certificate dated 29.1.1998 certifying registration No. 714/97 further declared full and complete and successful performance of the operation on respondent. Since the operation was performed under active supervision and control of appellant doctor, respondent claimed compensation of Rs. 4.25 lakhs with cost of Rs. 10,000/-
5. As against this, version of the appellant was that the respondent came to the appellant hospital on 26th January 1998 and attended antenatal services for her pregnancy and had a normal delivery at the hospital. After the delivery, the respondent was advised to undergo sterilization. It was explained to the respondent 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. After understanding that complete success could not be guaranted and there was an inherent risk of failure, the respondent gave consent for the procedure.
Therefore, the sterilization was performed with utmost skill, due care and caution by appellant doctor who was in possession the necessary qualifications and experience for performing the procedures. On opening the abdomen, the right fallopian tube could not be identified due to dense adhesions and right fallopian tube could not be legated. The fact was explained to the respondent and she was warned that there was a possibility of a pregnancy later in view of her unlegated right tube. It was explained to the respondent and her mother that the respondent should adopt other contraceptive methods or her husband should undergo vasectomy. The possibility of failure was recorded in the hospital records and the same were signed by the respondent and her mother affixed her thumb impression thereon. This fact clearly shows that there was no negligence on part of the appellants as the respondent and her mother were told that due to dense adhesions the right fallopian tube could not be identified and therefore there was a chance of pregnancy later.
6. The main premise on which the impugned order has been assailed by the learned counsel for the appellant is that sterilization is not 100% fault proof and as per international medical literature there can be failure in 0.1 to 0.3% cases and it was one of such cases where the right fallopian tube could not be legated. Medical text also records that even when the procedure is performed with due care and caution there is possibility of pregnancy in natural course of things. In this case the respondent had previously undergone a caesarian section because of which there was dust adhesion and right fallopian tube could not be legated. Respondent was informed about this and entry was also made in the hospital record regarding same which was signed by the respondent.
7. In support of his contention, learned counsel for the appellant has placed reliance on the judgment of the Honble Supreme Court in State of Punjab Vs. Shiv Ram & Others (2005) 7 SCC which is as under:
28. The methods of sterilization so far know to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized women can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy.
30.
The cause of action for claiming compensation cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of childbirth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone the sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed.
8. In large number of identical cases, we have discussed in detail various judgements of the Supreme Court also as to the failure of the sterilization operation as well as the cause of its failure in the given facts and circumstances of the case. At the outset, we may point out that the writing on plain page on which the counsel for the appellant is relying upon is, on the face of it, is a forged document in as much as there are two different handwriting, first two lines are written by different person in Hindi and rest is written with different hand and incorporated later that she has been told that one of fallopian tube is traceable and her husband has been advised to have vasectomy whereas all the 5-6 lines bear thumb impression and altogether by different person with different pen.
9. Even if we accept the version of the appellant that appellant was told that her husband has to get the vasectomy because her fallopian tube is not traceable still the fact remains that the doctor should not have undertaken such an operation knowing it well that the woman had been subjected to caesarian section and, therefore, there may be possibility of one of the fallopian tube not been legated and should have realized how difficult it is to bring up the child in modern times.
10. Moreover wherever there is negligible percentage of failure like one in thousand, inference has to be drawn as to the negligence because it is only by not taking care of one of the fallopian tubes that the operation failed. In such cases benefit of error of judgement cannot be given to the operating doctor. Onus is upon the Doctor to prove from record that he had cut both the fallopian tubes effectively and perfectly. Admission of the appellant that the right fallopian tube could not be legated due to caesarian section manifestly demonstrates negligence on the part of the operating doctor.
11. Aforesaid reasons persuade us to dismiss the appeal being devoid of merit.
12. Order of the District Forum shall be complied within one month after receipt of this order.
13. F.D.R./ Bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities.
14. A copy of this order as per statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to the record room.
Announced on the 21st January, 2008.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member rk