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, LADY MEMBER
SRI M.V.R. SHARMA, MEMBER
Tuesday, 19th January 2016
CONSUMER COMPLAINT No. 64 / 2014
Smt. Pasala Nagamani, W/o P. Ravi Kumar,
aged about 35 years, Hindu, House hold,
Resident of D.No. 113-C, Railway Quarters,
Kadapa district. ….. Complainant.
Vs.
Padma Test Tube Baby Centre, Rep. by
Dr. Y. Padmalatha, Sri Balaji Hospital Complex,
D.No. 4/2-2 Beside Medinova Hospital, Nehru Road,
Gandhi Road, Proddatur, Kadapa district. ….. Respondent.
This complaint coming on this day for final hearing on 07-01-2016 in the presence of Sri M. Suresh Kumar, Advocate for complainant and Sri A. Raja Reddy, Advocate for respondent and upon perusing the material papers on record, the Forum made the following:-
O R D E R
(Per Smt. K. Sireesha, Member),
1. Complaint filed under section 12 of the C.P. Act 1986.
2. The brief facts of the complaint are as follows:- The complainant is the resident of Kadapa city, who is working as an attender in Railways, Kadapa at present. The husband of the petitioner is running an electric shop at Yerramukkapalli circle, Kadapa city which is their normal livelihood. The respondent had been running a clinic under the name and style of Padma Test Tube Baby Center at Proddatur and as such she is a Gynecologist.
3. The petitioner was married to Mr. Ravi Kumar, about 8 years back and had been very eager to be blessed with children. Therefore, for all these 8 years they were making efforts of all types to begot children, but themselves could not succeed. Therefore, they were intending to approach a good Gynecologist and during the said feeling she and her husband saw advertisement in local T.V. and so also in Sunday special book of Sakshi Telugu daily during the Vinayaka Chaviti festival season of 2012. Therefore, the petitioner with fond hope of becoming mother approached the respondent for consultation along with her husband on 8-8-2012. In fact they have explained their troubles and problems. As such without testing the petitioner or husband, the respondent stated that it would be costing around ₹ 1,50,000/- towards her or their fee and ₹ 80,000/- towards medicines. However the petitioner and her husband was in calamitous inevitability of becoming parents accepted for the same.
4. It is submitted that the respondent asked the petitioner and her husband to visit the hospital on 20-8-2012 and as such she had been charging amounts for consultation periodically apart from the fixed amount of ₹ 1,50,000/- for the said purpose. Accordingly they approached the respondent many times and underwent certain tests in the very same hospital for which even she collected amounts and no reports are given to the petitioner and state that they will be keeping the same with them only. The outcome of the reports stated to by the respondent are that the husband of the petitioner is with 83% and two graba sanchi – and two tubes are to the satisfactory and eggs are also fine. She assured 99% of the success. There were other twelve persons almost who underwent the same treatment on the date of when the petitioner took treatment and as such all the cases are failure only. After few days of starting of treatment, the respondent stated that the unmarried people come from Tamilnadu and eggs will be transmitted from those unmarried people to the petitioner and the same would be costing ₹ 80,000/-.
5. After two month’s semen from the husband of the petitioner was collected and there were periodical tests and medicine was being prescribed till about February 2013. The amounts collected from the petitioner are ₹ 1,50,000/- towards her fee, medicines ₹ 80,000/-, ₹ 80,000/- to Chennai unmarried people. For HIV tests to be sent to Hyderabad at ₹ 30,000/- (₹ 50,000/- is demanded by her, but on bargain she accepted at ₹ 30,000/-) In addition to the fifty thousand taken for medicines, she used to prescribed medicines for the petitioner which she had to purchase from her own medical shop and the same costs about ₹ 60,000/-. The semen which was taken from the petitioner’s husband after starting the treatment which was applied in the month of December 2012. The respondent states that semen would be inserted on the 13th day of the monthly period. They have taken certain signatures in some of the papers stating that they are formal ones without the same being read over or they have never allowed to read over atleast.
6. She finally stated to rely on the god and not on the respondent. However, the respondent had been treating the petitioner very negligently since beginning and she failed to render proper treatment. The petitioner and he husband have been following all the instructions guidelines issued by the respondent as she assured for the treatment and be-gotting the children. The respondent in fact assured for the result. Had he respondent not assured for the same the petitioner should not have ventured to invest all or entire their savings and would not have been standing on the empty roads. There are so many complaints against the respondent and the respondent in fact has promised to all the people and they failed to render proper services. Almost all the cases of similar types ventured by the respondent are failures. There is not success of even one percent in the similar type of cases. Thus the respondent failed to render proper assured services to the petitioner. Hence, the petitioner left with no other alternative than to approach this Hon’ble forum for necessary redressal. Hence, the complaint.
7. Therefore, the complainant prays that the Hon’ble forum may be pleased to pass an order directing the respondent (a) to pay a sum of ₹ 1,50,000/- together with interest at 18% p.a. from the date of receiving the said amount till the date of payment including the other sums received by the respondent as stated above, (b) to award the sum of ₹ 1,80,000/- being the amounts paid under the heads of medicines, Tamilnadu young people (c) to award a compensation of ₹ 2,00,000/- for deficiency of services on the part of the respondent towards the mental agony which the petitioner and her husband suffered, (d) to pay a sum of ₹ 1,500/- being the costs of this complaint and (e) to pass such other reliefs as the Hon’ble court deems fit and proper in the circumstances of the case in the interests of justice.
8. Counter field by the respondent that the complaint is not maintainable either in law or on facts of the case. The complainant is put to strict proof of all the facts except those that are specifically admitted by this respondent.
9. It is respectfully submitted that it is an admitted fact that the respondent is running a clinic under the name and style of Padma Test Tube Baby Center at Proddatur town. The respondent is a gynecologist by profession. It is true that the complainant approached the respondent doctor on 8-8-2012. But it is utter false that the respondent doctor had given wide publicity in News Papers and TVs. Before starting treatment to the complainant the respondent doctor had thoroughly explained to her and her husband about the nature of treatment to be given and the course of procedure to be adopted during the period of treatment and having satisfied with the treatment the complainant herself accepted to take treatment.
10. It is submitted that it is utter false to contend that without testing the complainant and her husband that the respondent doctor has stated that the cost of expenditure would be around ₹ 1,50,000/- towards IVF and her other fee or ₹ 50,000/- towards medicines. It is utter false to contend that as the complainant was eagerly anxious of treatment under the respondent doctor accepted the said amount. The respondent doctor did not issue any provisional bill. Whatever amounts the complainant had paid towards the investigation charges the relevant and proper bills were issued to her and they are with her only. The respondent doctor did not keep them with her and it is only a blatant lie to contend by the complainant that all the bills are still with the respondent doctor only.
11. It is respectfully submitted that the respondent doctor never told the complainant that the unmarried people come from Tamilnadu and eggs will be transmitted from those unmarried people to the complainant and the cost would be around ₹ 80,000/-. Before admitting into the respondent hospital the complainant got investigated outside. The respondent doctor thoroughly investigated both the complainant and her husband. The complainant came to the respondent doctor with a referral letter from one doctor by name Padmavathi, practicing at Badvel. All the routine tests to the complainant and her husband were done. The hormone analysis test was done on 13-10-2012. The complainant underwent diagnostic laparoscopy on 23-2-2012 at Tirupati and on 13-2-2012 also she underwent hormonal analysis which showed premature ovarian failure. Scan was done at the respondent doctor center and in which was clearly shows that both ovaries are very small and uterus is normal. The respondent doctor never told that the ovaries are normal.
12. It is submitted that the respondent doctor were done all investigations were done. On 6-11-2012 a clinical bio-chemistry report got obtained from one B. Narayana Rao, M.D. Clinical Bio-chemist. On 6-11-2012 another clinical bio-chemistry was done by the same doctor. Another clinical bio-chemistry was done by the above referred doctor on 6-12-2012 at medinova Diagnostic Centre, Nehru Road, Proddatur, Kadapa District real time B mode Scan of Gravid Uterus were done by radiologist and further on 7-8-2012 thyroid test was also done. On 8-8-2012 coagulation test was done by Dr. Nitin Chawla, a pathologist apart from serology which was done by B. Narayana Rao, M.D. a clinical bio-chemist on 8-8-2012. Semen analysis was done at Medinova Hospital, Gandi Road, Proddatur which is normal all blood tests were done on 8—2012 at the respondents hospital.
13. After thorough investigation basing on the above referred reports the respondent doctor advised the complainant for donor egg. The respondent doctor never told the complainant that eggs will be collected from unmarried people. In fact eggs were collected from married people who completed family life. The respondent doctor personally explained to the complainant regarding success and complications and then only they signed in the consent forms such as consent for test tube baby on 10-11-2012 consent form signed by the couple on even date. After investigations the respondent started injection Gonoperptyl for down regulation. After that the respondent started tablet Progynom, tablet All-a, tablet Asprin, after 11 to 13 days progesprne started and elubryo transfer done. After Elubryo transfer same treatment continued. Injection Gonopeptyl stopped on the day of starting progesterone.
14. It is submitted that the respondent doctor never assured that there would be 100% success. IVF success rate is 40% and take home baby rate is 25%. The respondent doctor properly investigated the complainant. Her beta HCG report was s126.6 miu/ml which indicates pregnancy was positive. USG was done at Medinova Hospital on 8-1-2013 scan showed that single intra uterine gesation corresponding to 5 weeks 6 days + 2 days. Compared with previous scan no interval growth is detected. Advised to R/o missed abortion. If the respondent would have been negligent the pregnancy could not have been happened. The complainant became pregnant. At 6 weeks there are no cardiac pulsations. It was missed abortion. Abortions are same in IVF and natural cycle.
15. It is submitted that the complainant had stated that she paid ₹ 1,50,000/- + ₹ 80,000/- + ₹ 80,000/- + ₹ 30,000/- towards HIV test and ₹ 60,000/- for medicines. For the all tests done separate bills were issued including for medicines and the complainant shall prove that those amounts were paid to the respondent only. The respondent doctor had charged and collected ₹ 8,000/- only towards her fees. The respondent doctor never promised that she will collect eggs from unmarried people. The respondent doctor collected egg from married people who completed family life. The respondent doctor personally explained to the complainant regarding success and complications and then only the complainant and her husband signed on consent form and another letter containing particulars of consent for test Tube baby (IVF – ET / ICSI) and also another consent letter for insemination and for utilization of donor egg. The complainant and her husband had also singed on a letter containing particulars of consent for embryo transfer. The complainant did not make out a specific case of negligence on the part of the respondent doctor in attending on her by giving treatment. All the allegations made out in the complaint were totally bad and omnibus allegations without being backed by any proof of evidence. The amounts that were shown in the complaint said to have been incurred are cooked up figures with a false version of lying claim from the respondent.
16. It is submitted that the respondent doctor is a qualified doctor who has been successfully practicing on gyenic side and on the side of Test Tube Baby care. The respondent doctor is a professionally skilled doctor with a reasonable degree of knowledge and experience in the said filed. The complainant did not specifically averred as to what was omitted to be treated by the respondent at the time of giving treatment to her and what was needed and expected to be given during the course of treatment. Without furnishing such information mere making of allegations will never amount to medical negligence. The complainant did not specifically make out the case of negligence on the part of the doctor. What were the precautions or treatment that were omitted or negligently not taken care of, at the time of giving treatment to the complainant by the respondent doctor were not pleaded.
17. It is submitted that the medical negligence could not be attributed on the part of the doctor without any proper base. The complainant did not say that the respondent what should have been done was not done and what was done should not have been done in case of treatment given to the complainant by the respondent doctor. There is no negligence on the part of the respondent doctor in the treatment that she had given. It is not a case of 100% success. But only a treatment that was given without giving any 100% assurance of conceivement by giving necessary and proper treatment based on norms of medico treatment. The respondent doctor did not make any promise either orally or in written that there would be 100% guarantee and therefore, the question of contending by the complainant that the respondent doctor cheated does not arise.
18. It is therefore, prayed that the Hon’ble forum may be dismiss the complaint with exemplary costs in the interest of justice.
19. On the basis of the above pleadings the following points are settled for determination.
- Whether the complainant is eligible for compensation or not?
- Whether there is negligence or deficiency of service on the part of the Respondent or not?
- To what relief?
20. On behalf of complainant PW1 was examined and Exs. A1 to A5 were marked and on behalf of respondent RW1 was examined and Exs. B1 to B17 were marked.
21. Point Nos. 1 & 2. From the above averments of complaint and counter it is very clear that the complainant approached respondent for treatment on 8-8-2012under Ex. A1. Ex. A4 is only IVF fee details. Ex. A5 is the treatment details of the respondent doctor. The complainant did not filed any document to prove that she had given ₹ 1,50,000/-, ₹ 1,80,000/- to the respondent. The complainant did not filed any piece of document to prove that the respondent had given 99% success of pregnancy to the complainant. At the same the complainant and her husband had given consent letters to the respondent for Test Tube Baby under Ex. B1.Ex. B2 is consent letter for using donor sperm, from the complainant and her husband, Ex. B3 is the consent letter for embryo transfer, from the complainant and her husband, Ex. B4 is consent from for Test Tube Baby for donor eggs, sperm of husband donor embryo, donor sperm. Ex. B5 is consent for Test Tube Baby. Exs. B6 is consent form for embryo transfer, Ex. B7 is semen freezing form. The complaint about top to bottom reads about fee details for treatment by the respondents but not negligence and deficiency of service on the part of the respondent. The complainant did not clearly stated anywhere in her complaint about treatment of the respondent. The complainant nowhere stated in the complaint that what the respondent had done, was not done and was done, should not have been done in case of treatment. Simply the complainant had filed the complaint without any piece of evidence. The complainant had not filed any piece of evidence to prove that the respondent had given assurance of 99% success rate in IVF procedure. Nowhere in the complaint, the complainant had pleaded about the treatment and deficiency of service or negligence in treatment of the respondent doctor. The complainant herself was examined as PW1 and the complainant did not made any effort to adduce evidence of the medical expert to prove deficiency of service or negligence of the respondent in her treatment. So the complainant utterly failed to prove her case as per complaint, counter and exhibits on record. It is very clear that there is no negligence and deficiency of service on the part of the respondent. In the present case no medical expert is examined to establish the factum of the deficiency in service on the part of the doctor. In every medical negligence case expert evidence is a crucial one in the absence of which the element of medical negligence cannot be fixed on the doctor. In this present case the complainant did not dispute that the respondent doctor is not professionally skilled doctor. So the complainant is not eligible for compensation as prayed by her.
22. Point No. 3. In the result, the complaint is dismissed without costs.
Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, this the 19th January 2016.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses examined.
For Complainant :
PW1 Smt. P. Nagamani, dt. 28-4-2015.
For Respondent :
RW1 Dr. Y. Padmalatha, 6-10-2015.
Exhibits marked for Complainant: -
Ex: A1 Medical prescription issued by the Respondent doctor i.e.,
Dr. Y. Padmalatha, Dt. 8-8-2012.
Ex: A2 Haematology and Bio-chemistry report issued by Rayalaseema Diagnostic
Centre, Kadapa, Dt. 19-1-2013.
Ex: A3 Scanning report issued by Sree Poornima Scan Centre, Dt. 2-2-2013.
Ex: A4 IVF fees details for Rs.1,50,000/- issued by Padma Test Tube baby Centre,
Proddatur.
Ex: A5 P/c of Ovulation and Induction details issued by the Test Tube
Baby Centre, Proddatur.
Exhibits marked on behalf of the Respondent: -
Ex: B1 Orizanal consent for test tube baby executed by the complainant and
her Husband
Ex: B2 Orizanal consent form obtained from the complainant and her husband.
Ex: B3 Consent form for Ovulation Induction obtained from the complainant
and Her husband
Ex: B4 Consent Orizanal form for using donor egg executed by the
complainant and her Husband dated 22-11-2012.
Ex: B5 Consent for Insemination executed by the complainant dated 22-11-2012.
Ex: B6 Original Consent for Embryo Transfer dated 22-11-2012.
Ex: B7 Original Semen freezing form.
Ex: B8 Original real time B Mode Scan of Gravid Uterus dated 08-01-2013.
Ex: B9 Original thyroid test dated 12-08-2012.
Ex: B10 Original Anti cardiolipin Capsule test dated.12-08-2012.
Ex: B11 Original coagulation test dated.12-08-2012.
Ex: B12 Original Serology Test.
Ex: B13 Original Clinical Bio-Chemistry Report dated.08-11-2012.
Ex: B14 Original Clinical Bio-Chemistry Report dated.08-11-2012.
Ex: B15 Original Clinical Bio-Chemistry Report dated.08-11-2012.
Ex: B16 Original Complete Blood Picture test dated.08-08-2012.
Ex: B17 Original Bio-Chemistry Report dated.08-08-2012.
MEMBER MEMBER PRESIDENT
Copy to :-
- Sri M. Suresh Kumar, Advocate for complainant.
- Sri A. Raja Reddy, Advocate for respondent.
B.V.P
