State Consumer Disputes Redressal Commission
Lal Chand vs R.B. Jassa Ram & Bros on 15 November, 2007
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: 15-11-2007 Complaint Case No. C-361/98 Shri Lal Chand, Complainant N1.1 S/o Shri Ramu, R/o T-928, Karol Bagh, Faiz Road, New Delhi. 2. Smt. Kamlesh Complainant No.2 W/o Shri Lal Chand, R/o T928, Karol Bagh, Faiz Road, New Delhi. Versus 1. M/s R.B. Jassa Ram & Bros., Opposite Party No.1 Charitable Hospital, W.E.A. Karol Bagh, New Delhi-110005. Through its Chief M.s. 2. Dr. Sangeeta Pruthi, Opposite Party No.2 C/o R.B. Jassa Ram & Bros. Charitable Hospital, W.E.A., Karol Bagh, New Delhi-110005. 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) Complainants are husband and wife. They are seeking compensation of Rs. 4 lacs for mental agony, Rs. 35,000/- for expenses incurred on delivery of the unwanted child, Rs. 5,000/- on account of medical bills and Rs. 2 lacs as anticipated expenses for the future care of the child which the complainant No.2 had to give birth due to failed tubectomy operation conducted by OP No.2-Dr. Sangeeta Pruthi at OP No.1-Hospital.
2. The complainants already had two children. They belong to lower income group and decided to go for family planning via tubectomy procedure on complainant No.2. Complainant No.2 was operated upon for tubectomy by OP No.2 at OP No.1-Hospital on 27-01-1993. However, despite tubectomy procedure complainant No.2 conceived in December, 1997 which she could discover only in March, 1998. By then it was too late to abort. She gave birth to a male child on 12-08-1998 at OP No.1-Hospital.
3. According to the complainants the tuibectomy procedure failed due to negligence committed by the OPs and now they have to suffer to burden of an additional child.
4. OP No.2 Dr. Sangeeta Pruthi has denied that she conducted the tubectomy operation or that she was involved in the same in any way. OP No.1 has confirmed this stand of OP No.2. It has been explained that in the certificate issued to the complainants regarding the tubectomy name of Dr. Sangeeta Pruthi had been mentioned inadvertently. In fact the operation was conducted by Dr. Poonam Khanna, Consultant in the Gynae and Obst. Department of the hospital. OP has denied any negligence on its part.
5. According to OP No.1 patients can conceive after laparoscopic sterilization in 2-4/1000 cases as reported in the medical literature. It has been further stated that this case is a case of sterilization failure due to recanalization of the tube. That no expert evidence was brought on record to show that the operation was not carried out as it should have been done and moreover even if there is no negligence on the part of the doctor, there could be case of stray pregnancy taking place as 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 on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science.
6. We have heard counsel of the parties at great length and accorded careful consideration to the rival contentions
7. To ascertain the medical negligence, certain criteria have been drawn by us from various decisions starting from Bolams case and followed by catena of decisions of Supreme Court. These can be summed up in the form of following queries? Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised, as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death. Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
References :-
(i) Bolams case reported in (1957) 2 AII ER 118, 121 D-F
(ii) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(iii) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(iv) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
(v) Indian Medical Association Vs. V.P. Shantha & Others (1995) 6 SCC 651.
(vi) Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369.
8. In support of her complaint, the complainant has annexed the certificate of sterilization and discharge slip issued by the OPs as Anenxure A. The Out Patient Card No. 8725 of OP No.1-Hospital showing birth to a male child on 12-08-1999 after sterilization is marked B whereas Annexure marked C show copies of bills and expenses incurred at OP No.1-Hospital.
9. In support of the plea that the failure of sterilization due to natural recanalisation of the tubes does not come within the mischief of medical negligence, the OP has referred to and relied upon judgment of the Supreme Court in State of Haryana & Ors Vs. V. Raj Rani and Others, AIR 2005 SUPREME COURT 3279. Relevant observations as to the failure of such operation as pointed out by the are as under:-
That child birth 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 recanalization. The doctor can be held liable only in cases where the failure of the 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 03.% to 7% depending on the techniques or method chosen for performing the surgery the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive thought he surgery was performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons dehors and negligence of the Surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation.
10. OP has also relied upon the medical literature on the Recent Trends in Contraceptive Technology written by M.K. Krishna Menon, P..Devi & K Bhasker Rao. According to this literature 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.
11. Another literature relied upon by the OP is Laparoscopic sterilization by Jaroslav F. Hulka M.D., University of North Carolina, USA. According to this literature 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 taks 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 throusand 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.
12. In this regard reference be also made to another decision of the Supreme Court in State of Haryana Vs. Smt. Santra JT 2000 (5) SC 34. Relevant observations as to the failure of such operation as pointed out by the Supreme Court are as under:-
For complete sterilization, both the Fallopian Tubes should have been operated upon. The Doctor who performed the operation acted in a most negligent manner as the possibility of conception was not completely ruled out as left Fallopian tube was not touched. The doctor as also the State must be held responsible in damages if the sterlization operation performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilization.
13. The instant case is neither a case where the operation was done during the hysterotomy or during caesarian section. It is also not a case that may fall within the negligible percentage of failed sterilization. According to the OP the failure of sterilization due to natural recanalaziation of the tube cannot be termed as failure due to negligence.
14. 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.
15. 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 OP 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.
16. In modern times to bring up unwanted child is such burden which one has to carry through out life for not only day to day expenses, on education, on 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.
17. Objection that the complainant is not a consumer because of OP being Government Hospital Supreme Court has in Indian Medical Association Vs. V.P. Shantha III (1995) CPJ 1 (SC) brought the Government Hospitals within the net of Consumer Protection Act, 1986. It is only charitable hospitals where all rich and poor are given treatment free of charge who are exempted and no other hospitals.
18. In identical cases which are mainly cases done by Government Hospitals, few instances are of R.M.L. Hospital, L.N.J.P. Hospital, Mool Chand Hospital and Safdarjung Hospital, we have awarded compensation of Rs. 50,000/- for such a compensation in terms of the opinion of Supreme Court is reasonable and adequate.
19. Complaint is allowed with the direction to OP No.1-Hospital alone to pay Rs. 50,000/- as compensation to the complainant.
20. Payment shall be made within one month from the date of this order.
21. Complaint is disposed of in aforesaid terms.
22. A copy of this is order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
23. Announced on the 15th November, 2007.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member jj