Kerala

Idukki

CC/61/2018

Shalini Santhosh - Complainant(s)

Versus

Dr.Sumithra - Opp.Party(s)

Adv.K P Anu

30 Jun 2020

ORDER

 

DATE OF FILING :26/03/2018

IN THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of June 2020

Present :

SMT.ASAMOL P. PRESIDENT- IN -CHARGE

SRI.AMPADY K.S. MEMBER

CC NO.61/2018

Between

Complainant : Salini, W/o Santhosh,

Thottuthara House,

Room No.8 C, KLD Board,

Mattuppatty P.O., Munnar.

And

Opposite Party : Bala Hospital,

Represented by Dr.Sumithra,

Managing Director,

Bala Hospital, Kattappana P.O.,

Kattappana, Idukki.

(By Adv: Johnson Joseph)

 

O R D E R

 

SMT. ASAMOL P. (PRESIDENT -IN -CHARGE)

 

The case of the complainant is that,

 

According to the complainant and her husband, they already have two children. So they decided for sterilization operation and approached the opposite party's hospital. The opposite party had assured that they would done sterilization operation and exclusion of pregnancy is 100% sure after this surgery. As per the assurance, the complainant consented for doing the permanent sterilization to the opposite party's hospital and also the complainant paid Rs.37,000/- for sterilization operation to the opposite party at the same time. On 16/04/14 the complainant admitted in opposite party's hospital and the sterilization operation was done on 17/04/2014. After that the complainant was discharged on 19/04/2014 from the opposite party's hospital. Total expenses for this sterilization operation was paid Rs.75,000/- by the complainant to the

(Cont....2)

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opposite party's hospital. The complainant had continued cohabitation with her husband after this sterilization operation. But after 3 ½ years from the date of this sterilization operation the complainant became pregnant. Thus on 17/07/2018, the complainant gave birth to a child.

 

Before the sterilization operation, the opposite party promised that 100% assurance to the complainant that she wouldn't have conceiving. But she became pregnant as against these assurance from the opposite party. It is happened due to the deficiency in service and negligence on the part of opposite party. Hence the complainant claims the following reliefs.

 

a) The opposite party may be directed to pay Rs.75,000/- as expenses incurred by

the complainant for this operation and also may be directed to pay Rs.5 Lakhs

as future protection of the child.

b) The opposite party may be directed to pay Rs.25,000/- as cost of this case.

 

The Forum served the notice to opposite party. Opposite party appeared before this Forum. They have filed detailed written version. The followings are the contentions from the opposite party.

 

1 . It is admitted that the opposite party had done sterilization operation for the complainant on17/04/2014 at Bala Hospital. The complainant reportedly had two children, voluntarily decided for sterilization operation and her husband was also agreeable to her decision and both of them requested for the operation. The opposite party had explained the pros and cons of sterilization procedure and the inherent chances of failure involved in the procedure due to natural causes irrespective of the method adopted for sterilization. The decision to adopt laproscopic bipolar coagulation for sterilization was taken after detailed deliberations.

 

2 . After fully conversant with the sterilization procedure and chances of failure due to natural causes, the complainant voluntarily agreed to undergo sterilization and signed the written informed consent for surgery under all aseptic care and precautions, the opposite party had uneventfully completed sterilization using bipolar coagulation of tubes about 2.5 cm bilaterally. Inter operative and post

(Cont....3)

-3-

operative periods were uneventful and the complainant was discharged on 19/04/2014. The complainant reported for review on 28/04/2014 and suture removal was done and wound was found healthy and healing well.

 

3 . It is pertinent to note that the complainant did not develop any problem after sterilization and she remained sterile for a period of 3 years despite having cohabitation since sterilization operation. The fact that the complainant remained sterile despite cohabitation unequivocally establishes the fact that sterilization was complete on both side tubes and subsequent intea uterine pregnancy after a period of 3 years is due natural causes either through re-canalization of tube or due to tubo peritoneal fistula formation caused by factors beyond the control of the surgeon. There was no technical failure or deficiency from the part of the opposite party and it is proved by the fact that the complainant remained sterile for a period of 3 years in spite of living in cohabitation with her husband. The failure of sterilization device is a medically accepted fact and hence the same is a legally accepted ground for medical termination of pregnancy as well. The complainant who had opted to continue the pregnancy cannot contents that it was an unwanted pregnancy and hence she is not entitled to get any amount on the ground of expenses for upbringing the child.

 

The sterilization was done by adopting the technique of bipolar coagulation which is a medically accepted standard method of female sterilization nevertheless it carries inherent risk of failure. It was done as per the request of the complainant and after informing her about the inherent risk of failure. The failure is because of an ovum gains access through a re-canalized inner segment of the tube or due to fistula formation. The opposite party had done sterilization operation of the complainant with reasonable skill and care in strict regard to standard and accepted medical practice and protocol. The opposite party had explained the fact that no method of sterilization is absolutely credible or reliable as 100% foolproof method to avoid future pregnancies rather it carries certain percentage risk of failure. The complainant consented for sterilization after fully aware of the inherent chances of its failure. The amount shown as expended for this operation is not correct and hence denied. There was no negligence, carelessness or deficiency in service on the part of the opposite party in

(Cont....4)

 

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conducting the sterilization operation of the complainant. Hence the complaint may be dismissed.

 

The complainant filed proof affidavit and evidence adduced. She was examined as PW1 and produced P1 and P2 documents. P1 is discharge summary from opposite party's hospital and P2 is copy of treatment records from Tata Global Beverages Limited High Range Hospital Munnar, which were marked as Ext.P1 and P2 respectively.

 

The opposite party has filed proof affidavit and was examined as DW1. R1 and R2 produced. R1 is copy of text Novak's Gynaecology and R2 is treatment records which were marked as Ext.R1 and Ext.R2 respectively.

 

The point for consideration is whether there is any deficiency in service on the part of opposite party and if so, for what relief the complainant is entitled to?

 

The Point:- We have heard the learned counsels for both parties. It is admitted that the complainant has consulted the opposite party for sterilization surgery. But the allegation of the complainant against the opposite party is that the sterilization was not done properly by opposite party and also she deposed in the examination is that she is believing the sterilization surgery has not done by opposite party because if they had done the surgery, she would not have conceived again.

 

According to opposite party, the sterilization operation of the complainant was done with proper care without negligence and they had given full awareness about the sterilization surgery to the complainant. Before the operation, the complainant had agreed and signed the consent form for doing sterilization operation to the opposite party's hospital. As per Ext.R2, it is seen that the complainant had signed the consent form with explanations about the sterilization surgery and also it is recorded in Ext.R2 that the treatment procedure on 16/04/14 to 19/04/14 and 28/04/2014.

 

(Cont....5)

-5-

 

 

Further, opposite party has submitted copy of Judgment of Honourable Supreme Court of India in State of Punjab V/s Shivram & Others, 2005 AIR (SC) 3280. In this Judgment, the Honourable SC Court held that a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employee can not be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. The methods of sterilization so far known 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 woman can become pregnant due to natural causes. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the medical termination of Pregnancy Act, 1971. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence on the part of surgeon and not on account of child. Compensation for maintenance and upbringing of such a child cannot claimed.

 

Here, the complainant couldn't prove the negligence on the part of the opposite party. The complainant also couldn't prove that the surgeon had assured 100% exclusion of pregnancy after surgery and was only on the basis of such assurance that the complainant was persuaded to undergo surgery.

 

Even though the complainant suffered unwanted pregnancy after surgery, she could have chosen the termination of pregnancy and it is legal and permissible under the medical termination of Pregnancy Act. But the complainant never tried to such termination of pregnancy. Also the complainant had not approached the opposite party after conceiving at any time.

 

(Cont....6)

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In the light of above discussions and evidence on record and also the Judgement of the Hon'ble Supreme Court referred above, we are of the considered view that the complainant's sterilization operation was done by opposite party with proper procedures. Because the complainant had remained sterile for 3 years after sterilization. The cause of failure of sterilization may be due to natural causes. The complainant has never alleged about the skill of the surgeon, performed in this sterilization operation. There is no evidence adduced by the complainant to prove that it is due to negligence and unskill of the surgeon performed in this sterilization surgery.

 

Under the above circumstances, the complaint is dismissed. No order as to costs.

 

Pronounced in the Open Forum on this the 30^th day of June, 2020.

Sd/-

SMT. ASAMOL P., PRESIDENT -IN -CHARGE

Sd/-

SRI.AMPADY K.S., MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Salini

On the side of the Opposite Party :

DW1 - Dr.Sumithra

Exhibits :

On the side of the Complainant :

Ext.P1 - Discharge summary from opposite party's hospital

Ext.P2 - Copy of treatment records from Tata Global Beverages Limited

High Range Hospital Munnar,

On the side of the Opposite Party :

Ext.R1 - Copy of text Novak's Gynaecology

Ext.R2 - Treatment records

Forwarded by Order,

 

 

SENIOR SUPERINTENDENT