Date of filing: 9-5-2016 Date of order : 29-8-2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM ::
KADAPA Y.S.R DISTRICT
PRESENT SRI V.C. GUNNAIAH, B.Com., M.L., PRESIDENT
SMT. K. SIREESHA, B.L., LADY MEMBER
Tuesday, 29th day of August 2017
CONSUMER COMPLAINT No. 37 / 2016
Pothanaboina Ganga Devi, W/o P. Siva Gangaiah,
aged 25 years, Hindu, Coolie, R/at Nawabpeta Village,
Mylavaram Mandal, Kadapa (YSR) District. ………… Complainant.
Vs.
1. Dr. Venkata Sai Bharadwaja Hospital, Rep. by its
Proprietors cum Doctors, M.V. Ramana Reddy, and
M. Syamalamma, M.D.O., Office road, Jammalamadugu,
Kadapa (YSR) District.
2. Dr. M. Syamalamma, M.B.B.S., D.G.O.,
Infertility Specialist, W/o Dr. M.V. Ramana Reddy,
C/o Venkata Sai Bharadwaja Hospital, M.D.O. Office Road,
Jammalamadugu, Kadapa (YSR ) District. ….. Opposite parties.
This complaint coming for final hearing on 17-8-2017 in the presence of Sri G. Trivikram Singh, Advocate for Complainant and Sri M. Sarat Chandra Reddy, Advocate for Opposite parties and upon perusing the material on record, the Forum made the following:-
O R D E R
(Per V.C. Gunnaiah, President),
1. The complainant filed this complaint under section 12 of Consumer Protection Act 1986 (for short herein after called as C.P. Act) praying this forum to direct the Opposite parties to pay Rs. 19,00,000/- towards mental and physical strain of the Complainant and also for the welfare of the child Pothanaboina Nirmala Ganga, and to pay Rs. 5,000/- towards costs of the Complaint to the Complainant
2. The averments of the complaint in brevity are as follows:- The Complainant is the house wife. She became pregnant in the year 2011 and approached O.P.1 hospital and consulted O.P.2, who is doctor and underwent checkup. After completion of 9 months in December 2011, O.P.2 has performed caesarean operation and made delivery of the Complainant and in that delivery the Complainant got female baby. Having confidence on the Opposite parties the Complainant approached them for 2nd delivery also and in the month of December 2013 the 2nd O.P. performed caesarian operation and made delivery and at that time the Complainant got male baby. The Complainant and her husband are poor and agriculture coolies, decided not to have another child and requested O.P.2 to perform tubectomy operation to avoid future pregnancy. O.P.2 performed tubectomy operation on 23-12-2013 and endorsed the same in the case sheet and collected Rs. 18,000/- towards operation charges. Further O.P.2 assured 100% guarantee of sterilization operation to the Complainant. Believing the same the Complainant went home happily.
3. But the Complainant missed menstrual cycle and she got doubt about pregnancy and approached O.P.2 on 2-2-2016 and after diagnosis O.P.2 confirmed that the Complainant is pregnant. The Complainant was shocked and asked O.P.2 about performing tubectomy operation on 23-12-2013 and requested her to terminate her pregnancy, but O.P.2 stated that the same is not possible at this stage. However, she demanded Rs. 20,000/- for termination of pregnancy. The Complainant pleaded her inability to pay the same as she is poor and is unable to maintain two children but O.P.2 did not heed for termination of pregnancy.
4. It is further averred the same was brought to the notice of O.P.1 that because of negligence of O.P.2 only the Complainant got unwanted pregnancy. There is professional misconduct on the part of O.P.2 and the Complainant is physically and mentally suffering with the 3rd unwanted pregnancy and afraid of how to bring up the third baby with small income. Opposite parties 1 & 2 are responsible for this unwanted pregnancy and future problem of the Complainant. Since, already the Complainant undergone two caesarean operations, if anything happened to the Complainant’s life in unwanted third delivery, the O.P.2 will be held liable for the costs and consequences. The Complainant got issued legal notice on 13-2-2016 to the Opposite parties calling upon them to pay compensation. The Opposite parties got issued reply notice on 27-2-2016 with false and untenable allegations. At present the Complainant is carrying 7th month pregnancy. On 18-6-2016 the Complainant gave birth to a female child at Thatireddy Ramalinga Reddy Nursing Home and incurred Rs. 25,000/- towards hospitalization charges and medicines and in future she would incur Rs. 4,00,000/- for her education and also Rs. 5,00,000/- towards celebrating her marriage. The Opposite parties are liable to bear future expenses to be incurred by the Complainant (added as per orders in I.A.No. 146/2016, dt. 8-11-2016). Hence, the complaint for the above reliefs.
5. Opposite party No. 2 filed written version and the same was adopted by O.P.1 by filing memo.
6. O.P.2 denied the allegations in the complaint regarding negligence in conducting tubectomy operation and Opposite parties 1 & 2 are liable to pay compensation as claimed by the Complainant and called upon the Complainant to prove all the allegations.
7. It is further averred that it is true, the Complainant along with her husband approached with this O.P and first caesarian operation was done on 25-12-2011 in their hospital and the same was recorded in the hospital book. The Complainant approached O.P.2 for second delivery also and the Complainant and her husband requested this O.P after delivery tubectomy operation may be performed. The Complainant signed in the book maintained by the Opposite parties. The second caesarian operation and tubectomy was performed on 23-12-2013. It is further averred the O.P.2 is being qualified doctor performed all the operations on the Complainant. O.P.2 never collected Rs. 18,000/- towards caesarian and tubectomy operations. It is totally false that the O.P.2 gave 100% guarantee to the Complainant, stating that she never get pregnancy in future. Any Gynecologist never speaks or guarantee on human nature causes. In spite of operation having been successfully performed the sterilized woman can become pregnant due to natural causes and they are not 100% safe and secure.
8. The Complainant had approached this O.P on 2-2-2016 stating that she missed menstrual cycle recently. This O.P. recorded the same in case sheet LMP 2 months back as spoken by the Complainant. The Complainant was advised for to go to scanning after examination. In scanning it revealed that the foetus reaches nearly 22 weeks. Then O.P.2 informed the Complainant about late approaching and already two caesarian operations done on Complainant, risks and consequences etc., and advised the Complainant to continue the pregnancy. She never demanded the Complainant to pay Rs. 20,000/- for termination of pregnancy.
9. This O.P. submits that from beginning she took due care and performed her duties without any mistake, no negligence and professional misconduct on her part. In the absence of any evidence indicating negligence on the part of the doctor in performing tubectomy operation, the fact that the Complainant conceived and gave birth to child by itself would not sufficient to attract the principle of resipsa loquitur in rendering medical services. The Complainant is not entitled for compensation claimed towards mental agony, physical suffering and complaint is unsustainable and the same is liable to be dismissed with costs.
10. Originally the Complainant filed this complaint for compensation of Rs. 10,00,000/- but after gave birth to female child on 18-6-2016 the Complainant amended the complaint and claimed total compensation of Rs. 19,00,000/-. Then the Opposite parties filed additional written version as follows. The Complainant delivered female baby on 18-6-2016 in Thatireddy Ramalinga Reddy Nursing Home, Jammalamadugu and 3rd caesarian was done by Dr. G. Suchitra. The said doctor issued a certificate dt. 4-11-2016 stating that the Complainant underwent 3rd caesarian and the doctor observed that earlier there was tubectomy operation done and the said matter was explained to the Complainant and her attendant. Therefore, the complaint is liable to be dismissed.
11. On the basis of the above pleadings the following points are settled for determination.
- Whether there is deficiency in service on the part of opposite parties 1 & 2 as pleaded by the Complainant?
- Whether the complainant is entitled for compensation, if so what extent from Opposite parties?
- To what relief?
12. On behalf of Complainant, she herself was examined as PW1 by filing affidavit and got marked Exs. A1 to A7 and she was cross examined by the Opposite parties. No oral evidence has been adduced by the Opposite parties but Ex. B1 document was marked on their behalf. Complainant not filed written arguments, but written arguments were filed by the Opposite parties.
13. Heard arguments on both sides, perused the record and the material relied by the parties placed on record.
14. Point No. I Learned counsel for Complainant contended that in spite of sterilization operation i.e. tubectomy conducted by O.P.2 on Complainant, Complainant became unwanted pregnancy after two children and gave birth to female child and inspite of approached O.P.2 for termination of pregnancy, O.P.2 demanded huge money and the Complainant was unable to pay the amount and she could not get termination and gave delivery to unwanted female child. Thus there is deficiency in service on the part of the Opposite parties. Learned counsel further contended that the Complainant being a poor illiterate woman the doctor, O.P.2 had not instructed the Complainant, the methods to be followed to avoid pregnancy and if pregnancy comes how to get the same removed within reasonable time and there were no displaying charts /boards in the hospital of Opposite parties. Therefore, in that way also there is deficiency in service on the part of Opposite parties. Hence, the Complainant is entitled for compensation as claimed to rear up the child to her education and marriage etc., expenses.
15. Learned counsel for Complainant relied on Guru Teg Bhadur Hospital Vs. Mrs. Babita decided on 11 July 2013 by the Hon’ble State Consumer Disputes Redressal Commission, Delhi in support of his contention.
16. Per contra learned counsel for Opposite parties contended that there was no negligence at all in conducting the tubectomy operation to the Complainant by O.P.2 in O.P.1’s hospital and all instructions were given to Complainant about success rate of sterilization operation and there was no 100% success rate and inspite of Complainant underwent operation and she got pregnancy subsequently and approached doctor, O.P.2 after 22 weeks, so termination was not possible. Accordingly she was advised by O.P.2 and failure of sterilization operation may be due to natural functioning of human body and not failure on the part of the O.P.2, doctor. Therefore, there is no negligence and deficiency in service on the part of the Opposite parties and Complainant is not entitled for any compensation as claimed.
17. In support of his contention learned counsel for Opposite parties relied on Lakshmi Vs. Director of Medical Services, decided on 15th January 2008 by the Hon’ble National Consumer Disputes Redressal Commission and State of Punjab Vs. Shiv Ram and others decided on 25-8-2015 in Civil appeal No. 5128/2002 by the Hon’ble Supreme Court of India equillent to AIR 2005 SC 3280.
18. In this case there is no dispute between the parties that the Complainant approached Opposite parties in second pregnancy and O.P.2 got delivery to Complainant after completion of 9months by doing caesarian operation and Complainant gave birth to a male child and prior to that she had already a caesarian and one female child. It is further not in dispute between the parties at the time of second delivery the Complainant and her husband asked the Opposite parties particularly O.P.2 to do sterilization operation to Complainant to avoid future pregnancy. Accordingly, O.P.2 conducted sterilization operation to Complainant on 23-12-2013. It is further admitted the fact between the parties that subsequently the Complainant became pregnant and she approached O.P.2 on 2-2-2016 and after undergoing tests, the Complainant was confirmed as pregnant. The Complainant was carrying by that time 22 weeks pregnancy, so informed the Complainant that she approached late and not possible to terminate the pregnancy. Thereafter the Complainant gave birth to a female child on 18-6-2016 in the nursing home of Thatireddy Ramalinga Reddy Nursing Home i.e. after filing of this complaint and incurred expenditure. Therefore, she claimed Rs. 19,00,000/- by amending complaint which was filed originally for Rs. 10,00,000/-. As already noted the Complainant as PW1 has reiterated averments of compliant in her affidavit regarding tubectomy operation undergone by her through O.P.2 and how she got pregnancy, subsequently failed operation and negligence of doctor in not advising her. In cross examination she denied suggestions by Opposite parties that doctor is not negligent and success rate is not 100% and Opposite parties are not liable to pay compensation. The Complainant also filed documents which are Exs. A1 to A8 to show that she approached the Opposite parties and she issued legal notice and Opposite parties issued reply notice to prove etc., facts. The Opposite parties are not adduced any oral evidence but filed Ex. B1 medical certificate issued by one Dr. G. Sucharitha to the Complainant, to show that the Complainant had undergone tubectomy prior to 18-6-2016.
19. In the light of the above citations referred by the parties now it has to be seen whether there is any negligence on the part of the O.P.2 the surgeon in conducting sterilization operation to Complainant. In Guru Teg Bhadur Hospital Vs. Mrs. Babita decided on 11 July 2013 by the Hon’ble Delhi State Consumer Disputes Redressal Commission, Delhi it was observed in para – 10 as follows.
Taking into consideration the above submission of both the parties and discussions we are of the view that the Complainant / Respondent is bound by the consent letter and under taking mentioned in the consent letter and the Complainant / Respondent is strictly bound by the same. Accordingly on that account the Complainant doesn’t become entitled for any type of compensation towards failure of tubectomy operation and cannot claim any amount for the upbringing of the child which have born after the failure of the tubectomy operation, inspite of their poor economic conditions and socio economic status, but the hospital had definitely been deficient in providing their services to their patients / acceptors of tubecotmy operation particularly for not displaying prominently the very important fact that there is some percentage of failure of sterilization operation as well as the hospital had not put any type of boards / hording in the hospital or in the consultation room of the doctor or outside of operation theater informing this fact and follow up instructions regarding missed menstrual cycle even after tubecomy operation as well as regarding Govt. of NCT of Delhi scheme for Ex-Gratia payment in case of failure of tubectomy operation. This is a grave deficiency on the part of the hospital for which the poor people suffers and on this count the doctor / hospital i.e. the appellant / O.P. are definitely required to compensate the Respondent / Complainant.
20. In Lakshmi Vs. Director of Medical Services decided on 15th January 2008 by the Hon’ble National Consumer Disputes Redressal Commission it was held by Hon’ble National Commission in para – 6 of the order “in the absence of any evidence indicating deficiency on the part of the doctor in performing the tubectomy operation the fact that the Complainant / petitioner conceived and gave birth to a child, by itself would not be sufficient to attract the principle of resipsa loquitur to give finding of deficiency in rendering medical service.
21. In State of Punjab Vs. Shiv Ram and others in Civil Appeal No. 5128/2002 decided on 25-8-2005 by the Hon’ble Supreme Court of India held that there are several alternative methods of female sterilization operation recognized by medical service of today – none is foolproof and no prevalent method of sterilization guarantees 100% success – causes for failure can well be attributable to natural functioning of human body and not necessarily attributable to any failure on part of surgeon. Thus the judgement and decrees passed by High Courts and courts below cannot be sustained for damages. Accordingly appeal allowed.
22. In the present case on hand there is no evidence indicating deficiency on the part of the O.P.2 doctor in performing tubectomy operation to the Complainant and Complainant conceiving and gave birth to a female child by itself would not be considered as deficiency in service in conducting the sterilization operation.
23. In the judgement above relied on by the Complainant and the judgements relied on by the Opposite parties clearly held that there are cases of failures of sterilization operation and there is no guarantee of 100% success in female sterilization operation and causes of failure can also be attributable to natural functioning of human body and not compulsory as failure on the part of surgeon, who conducted the sterilization. Considering the above judgements relied on by both parties applying the same to the facts and circumstances of the case we hold there is no negligence or deficiency in service on the part of the O.P.2 doctor in conducting female sterilization operation to the Complainant.
24. However, a duty is caste upon on the hospital of O.P.1 and also on the O.P.2 doctor, who conducted a female sterilization operation to Complainant to guide her properly how to avoid future pregnancy after sterilization operation and if pregnancy comes when she has to approach the doctor to avoid unwanted child and the Opposite parties are also bound to display protective measures by way of sign boards, charts etc., to educate the poor illiterate people who undergone female sterilization operation to avoid future pregnancy. In this case Opposite parties 1 & 2 have not taken such measures and not gave such instructions or advises to the Complainant after female sterilization operation. In Guru Teg Bhadur Hospital Vs. Mrs. Babita decided on 11 July 2013 by the Hon’ble State Consumer Disputes Redressal Commission, Delhi though held that failure of tubecomy operation does not come under deficiency in service, but further held the hospital had definitely being deficient in providing their services to their patients of tubectomy operation particularly for not displaying prominently the very important fact that there is some percentage of failure of sterilization operation as well as the hospital had not put any type of boards / hording in the hospital or in the consultation room of the doctor or outside of operation theater informing this fact and follow up instructions regarding missed menstrual cycle even after tubecomy operation. Therefore, the Opposite parties definitely required to compensate to the Complainant for which the poor people suffered.
25. In the present case also the Complainant is poor and illiterate. As already observed the Opposite parties have not placed any evidence to prove that there are sign boards, charts, hording in the hospital or in the consultation room of the doctor or outside of operation theater informing this fact and follow up instructions regarding missed menstrual cycle even after tubecomy operation. Therefore, these circumstances would definitely attract deficiency in service on the par tof the Opposite parties as such we hold for that deficiency in service the Opposite parties are liable for compensation to some extent to the Complainant. Accordingly, point No. 1 is answered.
26. Point No. II In Point No. 1 it is held by us that though the failure of tubectomy operation on Complainant is not deficiency in service on the part of the Opposite parties, but there is deficiency in service on the part of the Opposite parties for not putting any type of sign boards, charts, hording in the hospital or in the consultation room of the doctor or outside of operation theater for follow up the instructions regarding missed menstrual cycle even after tubecomy operation undergone by the Complainant and other persons of such type, hence, the Opposite parties are liable o pay compensation to the Complainant. Considering the facts and circumstances in this case we hold that the Complainant is entitled for an amount of Rs. 3,00,000/- as compensation and the Opposite parties are jointly and severally liable to pay the above amount to the Complainant apart from costs of this complaint at Rs. 5,000/-. Accordingly, point No. II is answered.
27. Point No. III. In the result, the Complaint is allowed in part, directing the Opposite parties 1 & 2 jointly and severally to pay Rs. 3,00,000/- (Rupees three lakhs only) to the Complainant and shall also pay Rs. 5,000/- (Rupees five thousand only) towards costs of the complaint to the Complainant, within 45 days from the date of receipt of this order, failing which the above amount shall carry interest @ 9% p.a. till realization. Rest of the Complainant claim is disallowed.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open forum, this the 29th day of August 2017
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant:
PW1 Pothanaboina Ganga Devi, dt. 3-1-2017
For Opposite party : NIL
Exhibits marked for Complainant : -
Ex.A1 Medical prescription dated 07-6-2013 issued by the respondents in fevour of complainant along with scanning film,
Ex.A2 Consulting book issued by the respondent showing the consultation dates
12-06-2013, 25-09-2013, 07-11-2013, 07-12-2013,14-12-2013,
23-12-2013 and 02-2-2016.
Ex.A3 Legal notice dated 13-02-2016 issued by the complainant to the respondents along with two postal receipts and acknowledgement cards.
Ex.A4 Replay notice dated 27-02-2016 issued by the respondents.
Ex.A5 Medical prescription dated 02-02-2016 issued by the respondents in favour of complainant along with scanning film,
Ex.A6 Birth certificate of pothanaboina Nirmala Ganga who born on 18-06-2016.
Ex.A7 P/c of Medical prescription dt.18-06-2016 issued by Dr G.Sucharita,
Ex.A8 P/c of Medical prescription dt.18-06-2016 issued by Dr T.Ravindranath
Reddy,
Exhibits marked on behalf of the Opposite parties: -
Ex.B1 Medical certificate issued by Dr.G. Sucharitha, to the complainant.
MEMBER PRESIDENT
Copy to :-
- Sri G. Trivikram Singh, Advocate for Complainant
- Sri M. Sarat Chandra Reddy, Advocate for Opposite parties.
B.V.P
