State Consumer Disputes Redressal Commission
Pinki Verma vs Dr. S.P.S. Virk, Managing Director, ... on 19 December, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 917 of 2012
Date of institution: 9.7.2012
Date of Decision:19.12.2013
Pinki Verma w/o Shri Parmdeep Saklania through her Special Power of
Attorney i.e. Parmdeep Sakalania s/o Shri Daya Ram r/o V.P.O. Sari, Teh.
Sarkaghat, Distt. Mandi (HP) Pin-175025.
.....Appellant/Complainant
Versus
Dr. S.P.S. Virk, Managing Director, Virk Hospital Jalandhar, Center for the
Human Reproduction 662, Guru Teg Bahadur Nagar, Near Guru Ravidass
Chowk, Jalandhar (Pb.) Pin 144003.
.....Respondent/Opposite Party
Argued By:-
For the appellant : Sh. Paramdeep Saklani, Representative
For the respondent: Sh. Vishal Aggarwal, Advocate
First Appeal against the order dated 20.4.2012
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member
Shri Jasbir Singh Gill, Member
FIRST APPEAL NO. 917 OF 2012 2
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The appellant/complainant (hereinafter called "the complainant") has filed the present appeal against the order dated 20.4.2012 passed by the District Consumer Disputes Redressal Forum, Jalandhar(hereinafter called "the District Forum") in consumer complaint No.632 dated 5.10.2010 vide which the complaint was partly allowed with the direction to the Ops to refund Rs. 20,000/- within one month from the date of receipt of copy of the order, failing which pay 9% per annum interest from the date of order till final realization.
2. The complaint was filed by complainant under Section 12 of the Consumer Protection Act, 1986 (in short 'the Act') against the respondent/opposite party (hereinafter referred as 'opposite party') on the allegations that Ops placed an advertisement in Daily Newspaper "Divya Himachal" dated 14.10.2007 for infertile couples for successful treatment of infertility where in (IVF) pertaining to In Vitro Fertilization i.e. to produce child through Test Tube Baby Technique and a Camp was duly organized from 1.10 to 31.10.2007 and the patients can avail 30% discount in the treatment cost. The complainant aged 36 years being infertile reached the opposite party on 26.10.2007 and consulted Dr. SPS Virk and apprised him in detail the treatment already taken by her. The OP advised her to start the treatment there and that she can produce child through Test Tube Baby Technique and that treatment will cost Rs. 1 lac and that she will be entitled to 30% discount. She deposited Rs. 200/- vide receipt No. 1844 and FIRST APPEAL NO. 917 OF 2012 3 OPD receipt No. 1851 was also prepared for Rs. 300/- for scanning/treatment. Then she was advised for laboratory test and PRLTSH test was done claiming Rs. 2500/- vide receipt No. 7822. Then semen test of her husband Paramdeep Singh Saklania was done and no deficiency of sign of sterility was found whereas there was some deficiency in the report of the complainant, which can be over come/compile by medicines, injections, surgery and IVC techniques and that she would be required to continue the treatment in future and that the complainant alongwith her husband again reported on 27.10.2007 and Rs. 2250/- were deposited vide receipt No. 7833 and Rs. 1855/- vide No. OPD 7833 and another amount of Rs. 300/- were paid and the complainant was got registered vide receipt No. TP 1204 for Rs. 1000/- and medicines worth Rs. 409.14p were also given to her and they were again called for 22.11.2007 and she was asked to get operated for Hysteroscopy. The direction, which were given in English language were got signed from the complainant and his wife. The condition of hospital is such that there is no provision of admission of the patient nor there is permanent employment of Doctors by the Hospital Management whereas in the advertisement, it was shown having status of International repute. The Hospital Management fixed Hysteroscopy operation in Baba Hospital, which is close to Mission Hospital, Jalandhar for which Dr. P. Naik was specially invited from Bombay as guest Doctor and fee for hysteroscopy operation was to be deposited, which was deposited by the complainant in Virk Hospital vide receipt No. TP 1362 of Rs. 14,000/- and another amount of Rs. 1004.71p for medicines and FIRST APPEAL NO. 917 OF 2012 4 other material concerning the operation and they reached the said hospital before 1.00 p.m. but Dr. P. Naik from Bombay did not reach as per schedule and the Baba Hospital Management asked the wife of the complainant to get ECG done and to pay room rent for which she paid Rs. 500/- and Rs. 1,000/- respectively whereas Dr. P. Naik from Bombay has arrived at 5.00 p.m. and operation was carried out at 6.00 p.m. and she was discharged on 23.11.2007. On 24.11.2007, the complainant approached Virk Hospital and asked for the receipt for the amount paid to Baba Hospital Management but Hospital Management evaded to answer. On 26.12.2007, she was again called for treatment and she was subject to Lab Tests FSH LH and Rs. 800/- were charged vide receipt No. 8686 and Rs. 300/- were charged for scanning vide receipt OPD 2398 and Rs. 5000/- were deposited vide receipt No. TO 1615 for IVF Test Tube Baby technique. They were again called for on 2.2.2008 and Rs. 300/- were charged for scanning vide receipt OPD 2803 and Rs. 2350/- were paid for FSH 1 Lab Test. They were again called for on 4.2.2008 and Dr. Virk advised medicines and injections to the complainant for test tube baby and formation of Egg and Rs. 10498.18p were paid for medicines and injections vide receipt No. A1 2885 dated 6.2.2008. The complainant was again called for and the doctor told that her Eggs were not matured for conception of child, therefore, she is required to take costly injections. Rs. 450/- were paid vide lab charges receipt No. 9457 and for scanning Rs. 2500/- were paid vide receipt No. OPD 2874. Rs. 8927/- were paid for medicines and injections vide receipt No. A1 2934 and Rs. 90/- vide FIRST APPEAL NO. 917 OF 2012 5 receipt dated 12.2.2008. She had also deposited a sum of Rs. 10,000/- on 9.2.2008 vide receipt No. TP 2019 in the hospital. On 17.2.2008 she was again called for in the hospital and she paid Rs. 450/- vide receipt No. 9620 for Lab Test E2 and Rs. 2820.12p vide receipt No. A1 3061 for medicines and injections. On 17.2.2008, the complainant and his wife were made to sign some directions/instructions on the performa written in English by the Hospital Management and they also paid the balance amount of Rs. 15,000/- vide receipt No. TP 2084. Then on 18.2.2008, another sum of Rs. 450/- were paid vide receipt No. 9634 for Lab Test PG. On 19.2.2008, operation was performed, Eggs were extracted and it was told that three Eggs were matured to conceive child, which shall be lateron on 21.2.2008 through IVF Test Tube Baby Technique in the womb of the complainant and a sum of Rs. 2828.65p was charged vide receipt No. A1 3062 for medicines. To find out the result of IVF Test Tube Baby, they were again called for 10.3.2008. They reached there on that day and Doctor asked her to undergo Pregnancy Test and it was found that conception has not taken place and she paid Rs. 600/- vide receipt No. 9972. Even no discount of 30% was given as per advertisement, therefore, the hospital like Ops fleece money by befooling the consumer through their false and alluring advertisements, which is unfair trade practice, therefore, the Ops be directed to refund Rs. 99415.96p spent on the treatment, Rs. 20,000/- spent for boarding and lodging and Rs. 10,000/- incurred to file the complaint.
FIRST APPEAL NO. 917 OF 2012 6
3. The complaint was contested by the opposite party, who filed written statement taking preliminary objections that the complaint is time barred; the complaint is mis-conceived, groundless, unsustainable in law, untenable in law besides being extraneous and irrelevant, the dispute raised is manifestly out of the purview of the Act; the complainants are not consumer under the Act; there is no deficiency in services on the part of the Ops; the complaint is baseless and flagrant abuse of process of law to harass and blackmail the OP; the complaint is vague, imaginary, hypothetical; the complainant has no cause of action to file this complaint; there is no expert opinion to see any negligence on the part of the Ops to give the treatment, therefore, the Ops have been dragged into uncalled and unwarranted litigation to defame the medical fraternity, therefore, the complainant is liable to be penalized under Section 26 of the Act; the complaint is highly mis-conceived; the complainant was advised to start the treatment that she can produce the child through test tube baby technique but no assurance was given by anyone as alleged in the complaint; Dr. SPS Virk is PH.D, had not given any prescription or consultation to the complainant or to anyone else, he is Lab Director Biologist and qualified Medical Geneticist and he is only doing the Lab procedure and he never posed himself as infertility specialist doctor and that OP No. 1 was insured with New India Insurance Company. On merits, it has been admitted that on 26.10.2007, the complainant had approached the Virk Hospital for infertility treatment and that she was examined by the Specialist Doctor of the IVF technique. Ultrasound of Uterus and Ovaries was conducted and FIRST APPEAL NO. 917 OF 2012 7 Uterus was found normal in size. The complainant had Laparoscopy and Hysteroscopy done in the year 2007 at Hamirpur and in both Fallopian Tubes were beaded in appearance and her endometrial biopsy was positive for Mycobacterium Tuberculosis. It was decided that the patient needs certain blood investigation and she was advised to repeat Laparoscopy and Hysteroscopy in order to see whether she had a chance of getting pregnant by natural process or by simple ART (Associated Reproductive Techniques) but the patient stated that she had full faith in the Doctor, who had performed Laparoscopy and Hysteroscopy and Doctor at Hamirpur had conveyed that there is no chance of her conceiving and only way to conceive is IVF, therefore, she agreed for Hysteroscopy and IVF. She again visited on 27.10.2007 for fasting Lab Test and Hysteroscopy was done by Dr. P. Naik. On 22.11.2007, the patient was again advised by the Doctor for proper check up and required Laparoscopy but the patient refused the same. As per the previous history of the patient, it was suggestive of Tuberculosis as per specialist Doctors of OP were repeatedly insisting that it is necessary and important for the patient to undergo repeat Laparoscopy and for repeat test fur tuberculosis but the patient was adamant. Before going to IVF treatment, the patient was told that success rate of IVF is from 25% to 45% which vary from batch to batch as per international standard and she signed the consent form. The success rate of IVF was also displayed on the Notice Board in the waiting hall and the patient was given 30% discount where Rs. 10,000/- were discounted in the bill. With regard to other facts in the treatment, it is a matter of record and FIRST APPEAL NO. 917 OF 2012 8 ultimately, it was submitted that there is no case of medical negligence or any deficiency in services on the part of the opposite party, therefore, the complaint is without merit and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence affidavit Ex. CA, special power of attorney Ex. CB, newspaper cutting dt. 14.10.07 Ex. C-1, receipts Ex. C-2 to C-10 and C-12 to C-31, ECG report Ex. C-11, prescription slips Ex. C-32 to C-36, affidavit of Paramdeep Siklania Ex. C-37, semen profile Ex. C- 38, haematology Section Report Ex. C-39, reports Ex. C-40 to C-57. On the other hand, opposite party No. 1 had tendered into evidence affidavit of DR. SPS Virk Ex. OPW-1/A, record Ex. OPW-1/B and OP No. 2 had produced affidavit of M.S. Randhawa, Senior Divisional Manager Ex. OP-2/A, insurance policy Ex. OP-2/1.
6. After going through the allegations in the complaint, written statement, evidence and documents brought on the record, the learned District Forum vide impugned order observed that there is no medical negligence on the part of the Ops. However, Ops had given advertisement to give 30% discount whereas they charged Rs. 99,000/- for her treatment and only Rs. 10,000/- was decreased, therefore, full rebate of 30% was not given and accordingly, direction was given to the Ops to pay Rs. 20,000/- within a period of one month, failing which pay interest @ 9% per annum from the date of order till realization.
FIRST APPEAL NO. 917 OF 2012 9
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the representative of the appellant Sh. Paramdeep Saklani, representative and learned counsel for the respondent Sh. Vishal Aggarwal, Advocate.
9. In the grounds of appeal, it has been contended that the District Forum passed the order by ignoring the evidence and documents on the record. It was stated in the advertisement for free check-up Camp for infertility couple for 1st October to 31st October, 2007 and accordingly, she approached the opposite party, who stated that the child can be produced through Test Tube Baby technique which will cost Rs. 1 lac and she is entitled to discount of 30% and she had taken the treatment as directed by the OP but there was no conceivement of any child due to failure on the treatment on the part of the Ops. It has been reported by PGIMER, Chandigarh that Test Tube Baby can be conceived by any woman whose uterus are normal and complainant through laparoscopy and hysteroscopy surgery can be conceived through IVC as suggested by Dr. Lakhbir Dhaliwal, M.D. and Head of the Department Obstetrict and Gynaecology, the failure not to conceive was due to lapse on the part of the treatment given by the OP. He has also placed on the record the information given by PGIMER under RTI stating that the woman with blocked tubes, after laparoscopy or hysteroscopy, normal pregnancy is possible if the underlying damage is repairable/corrected and it was also stated that woman with blocked tubes can conceive with the IVF technique. It is desirable that the FIRST APPEAL NO. 917 OF 2012 10 woman should undergo Laparoscopy/Hysteroscopy (Diagnostic or Operative) as some causes of infertility can be to correct to achieve a pregnancy.
10. The complainant in his written arguments has stated that they are unable to understand English and Punjabi language, therefore, their signatures were obtained without explaining. Then semen profile of the husband of the complainant was found normal and her Fallopian Tubes were blocked and as per the opinion given by the PGI Doctor Dr. Lakhbir Dhaliwal, M.D. and Head of the Department Obstetric and Gynaecology, conceivement was possible but she did not conceive mainly because of failure of proper treatment on the part of Ops, which is a case of medical negligence and deficiency in service.
11. Firstly, coming to the medical negligence, counsel for the respondent has referred to the judgment of the Hon'ble Supreme Court "Martin F. D'Souza Vs Mohd. Ishfaq", 2009 (0) AIJEL-SC 42868 : I (2009) CP-32, wherein it has been observed that 'medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another - he would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.'
12. In the present case, apart from concerned Doctors of the opposite party, one specialist Doctor, Dr. P Naik was also called for by the Ops and his operation for Test Tube Baby was done by that Doctor. Before that all the required tests were done by the hospital, FIRST APPEAL NO. 917 OF 2012 11 but it is not sure that conceivement will be in all cases. In the advertisement Ex. C-1, it has not been mentioned that the conceivement will be 100% sure. In the consent form, duly signed by the complainant and her husband on 17.1.2008, it was mentioned that success rate is 25 to 40%; both of them have signed in English, which shows that they know the English or that they were informed that success rate was approximately 25 to 40%. Legally in case the person understand the language signed the documents, it is presumed that he knows the contents of the documents unless contrary is proved but nothing contrary has been proved that success rate will be 100% or how the Ops were deficient. There is no expert opinion that the procedure for IVF adopted by the Ops was incorrect procedure and what else should have been done by them, which caused failure in conceivement of the child by the complainant. When in these type of cases, the success rate is just 25 to 40% then it is not possible that IVF system will be 100% correct. What was best available with the Ops that was done and in case of failure the Ops cannot be held responsible, therefore, we subscribe to the finding given by the learned District Forum and we affirm the finding that there was no medical negligence on the part of the Ops.
13. So far as deficiency in service is concerned that they had given the advertisement to give 30% discount, which was not given, which has already been awarded by the learned District Forum and no cross appeal has been filed by the opposite party, therefore, on that account her grievances has already been addressed by the learned District Forum.
FIRST APPEAL NO. 917 OF 2012 12
14. No other point has been argued.
15. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
16. The arguments in this appeal were heard on 13.12.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member December 19, 2013. (Jasbir Singh Gill) as Member