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 2015
CONSUMER COMPLAINT No. 63 / 2014
Smt. Velpula Joshvina Kumari, W/o V. Suresh,
aged about 28 years, Christian, House hold,
Resident of 10-15A, Y.Kota road, Obulavaripalli,
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 Obulavaripalli village of Kadapa District and a house wife as such and her husband is working in APSPDCL, Obulavaripalli village. 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. Suresh about 5 years back and had been very eager to be blessed with children. Therefore, for all these 5 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 2-4-2013 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 IVF and her other fee or their fee and ₹ 50,000/- towards medicines. However the petitioner and her husband was in calamitous inevitability of becoming parents accepted for the same. Accordingly the amount (cash) of ₹ 80,000/- paid on 10-8-2013 and ₹ 70,000/- on 20-8-2013 totaling ₹ 1,50,000/-.
4. It is submitted that the respondent asked the petitioner and her husband to visit the hospital in the month of May 2013 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 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. On 21-12-2012 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/-. The respondent know that the petitioner is not fit for becoming pregnancy, but the respondent cheated the petitioner by telling some sweet words and made the petitioner to underwent tests.
5. On 20-7-2013 semen from the husband of the petitioner was collected and there were periodical tests and medicine was being prescribed till about August 2013. The amounts collected from the petitioner are ₹ 1,50,000/- towards her fee, medicines ₹ 50,000/-, ₹ 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 on 20-7-2013 which was applied on the same day for IVF. 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 ₹ 1,60,000/- 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 2-4-2013. But it is utter false that the respondent doctor had given wide publicity in News Papers and TVs. As the complainant was issueless and that’s why she approached the respondent doctor and explained her problem of issueless.
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 she has two uterus (garbasanchi). The respondent doctor personally explained to the complainant and to her husband and to her mother and father she underwent laparoscopy for endometrioses on 19-8-2011 at Rush Hospital, Tirupati. As per the record left ovarian cystectomy was done. Left ovarian cyst chocolate cyst and as well as ovarian drilling done. The respondent further told them categorically the normal success rate in IVF is approximately 40% but to the complainant it would be less than 40% and to that effect the complainant gave her consent separately. After obtaining such consent letter proceeded for RX as beta HCG report was negative. They came on 19-8-2013.
12. It is submitted that the respondent doctor never said as per the reports that the husband of the petitioner is with 83% and two uterus (garbhasanchi) and two tubes are satisfactory and eggs are also fine. The complainant taken back the report and again came to the hospital and the respondent suggested them to go to Hyderabad for treatment, because she came with abdomen pain. Then the respondent doctor explained the expected result would be 30% and for that also they gave their consent and signed on the consent letter on 2-7-2013. The complainant was got admitted in the respondent hospital on 2-4-2013. On 3-7-2013 both the complainant and her husband underwent all routine blood investigations and for the complainant hormone analysis hysteroscopy was done on 24-6-2013. Scanning was done at the hospital in which it was shown both ovaries are very small and uterus is normal. The respondent doctor never told that the ovaries are normal. Uterus mobility was restricted after a thorough investigation and after obtaining necessary reports for both the complainant and her husband the respondent doctor told to the complainant that she required a donor egg were collected only from married people who completed family life from Tamil Nadu. 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.
13. It is submitted that the respondent doctor as a matter of proof of course of treatment that she had given to the petitioner had specifically mentioned date wise in the sheet dt. 2-4-2013 maintained for the complainant. All the dates on which the nature of treatment with prescribed medicines were got mentioned. The respondent got obtained the consent letters from the complainant and her husband on 21-7-2013 and also another letter of consent for embro transfer on 21-7-2013 and also another letter of consent for embro transfer on 21-7-2013. Prior to that letter another letter was also obtained on the even date regarding consent of the petitioner and her husband.
14. It is submitted that it is utter false to contend that the respondent doctor had collected ₹ 1,50,000/- towards her fee and medicines. The complainant had falsely mentioned that the respondent had collected ₹ 30,000/- for HIV test and ₹ 80,000/- to Chennai unmarried people and in addition to that an amount of ₹ 50,000/-. If the said amounts were really paid nothing prevented the complainant to file all such ills before the Hon’ble forum. The respondents doctor only collected ₹ 8,000/- towards her fee. The complainant and her husband voluntarily signed on the consent letters without any force or pressure from the respondent doctor. The respondent doctor never assured the complainant that there would be 100% guarantee of treatment. What was clinically require for treatment was treated to the complainant by the respondent doctor. 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.
15. 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 make out the case of negligence on the part of the doctor. What were the precautions or treatment that were omitted or negligence not taken care of, at the time of giving treatment to the complainant were not pleaded.
16. 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.
17. It is therefore, prayed that the Hon’ble forum may be dismiss the complaint with exemplary costs in the interest of justice.
18. 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?
19. On behalf of complainant PW1 was examined and Exs. A1 to A7 were marked and on behalf of respondent RW1 was examined and Exs. B1 to B9 were marked.
20. Point Nos. 1 & 2. It is very clear from the averments that the complainant approached the respondent doctor for treatment of pregnancy, it is true from Ex. A1. Ex. A3 clearly proves that the complainant had underwent treatment in respondent’s hospital. Ex. A6 is only details of IVF fees. The complainant did not filed any piece of documentary evidence to show that there is deficiency of service on the part of the respondent in giving her proper treatment. The complaint is with regard to fee amount only. Nowhere in the complaint, the complainant stated that the respondent doctor had given wrong treatment to her and the complainant failed to prove wrong treatment of the respondent doctor by adducing expert evidence to support her case. Ex. B1 is the consent letter given by the complainant and her husband for embryo transfer, Ex. B2 is consent letter for test Tube Baby (IVF ET/ICSI) treatment given by the complainant and her husband. Ex. B3 is the consent letter given by the complainant and her husband for using donor eggs, Ex. B4 is the consent form for Test Tube Baby for donor eggs, sperm of husband donor embryo, donor sperm. Ex. B5 is the consent form for freezing of embryos. Ex. B6 clearly proves that the complainant joined in the respondent’s hospital on 2-4-2013. 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 did not filed any piece of evidence, that she had paid large amounts to the respondent towards her fee. Before starting treatment the complainant and her husband had given consent forms without any force. The complainant had not filed any piece of evidence to prove that the respondent had given assurance of 100% 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.
21. 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. V. Joshvina Kumari, dt. 28-4-2015.
For Respondent :
RW1 Dr. Y. Padmalatha, 12-8-2014 & 22-9-2014.
Exhibits marked for Complainant: -
Ex: A1 Medical prescription issued by the Respondent doctor i.e.,
Dr. Y. Padmalatha, Dt. 2-4-2013.
Ex: A2 Complete blood picture Report issued by Kiran Clinical & Bio Chemical
Laboratory, Proddatur, Dt. 3-7-2013.
Ex: A3 IVF Discharge summary sheet issued by Padma Test Tube Baby Centre,
Proddatur, Dated 22-7-2013.
Ex: A4 Laboratory test report of Vimta labs dated 11-8-2013.
Ex: A5 Discharge card issued by Vijay Marie Hospital, dated 10-9-2013.
Ex: A6 IVF fees details for Rs.1,50,000/- issued by Padma Test Tube baby Centre,
Proddatur.
Ex: A7 Advertisement given about Padma Test Tube Baby Centre, Proddatur,
on Dt. 18-9-2012 in Sakshi Special Edition Book.
Exhibits marked on behalf of the Respondent: -
Ex: B1 Orizanal consent form executed by the complainant and her husband for
embryo Transfer.
Ex: B2 Orizanal consent executed by the complainant and her husband.
Ex: B3 Orizanal consent letter for using donour egg executed by the complainant
and Her husband
Ex: B4 Orizanal consent letter for test tube baby executed by the complainant and
her Husband
Ex: B5 Orizanal consent for freezing of embryos executed by the complainant and
her Husband.
Ex: B6 Orizanal prescription dated 02-04-2013.
Ex: B7 P/c of bio-Chemistry Report dated 03-07-2013.
Ex: B8 P/c of Complete Blood picture Report dated.03-07-2013.
Ex: B9 P/c of IVS Discharge Summary dated 22-07-2013.
MEMBER MEMBER PRESIDENT
Copy to :-
- Sri M. Suresh Kumar, Advocate for complainant.
- Sri A. Raja Reddy, Advocate for respondent.
B.V.P.
