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MADHYA PRADESH STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BHOPAL
Hon’ble Mr. Justice S.K. Dubey, President; Mr. B.L. Khare &
Mrs. Pramila S. Kumar, Members
HARDEEP KAUR—Appellant
versus
DR. (SMT.) SATINDER SALUJA—Respondent
Appeal No. 927 of 2002—Decided on 24.6.2003
Counsels for the Parties :
For the Appellant :Mr. Manjeet Singh, Advocate.
For the Respondent:Mr. Deepak Sharma, Advocate.
Headnote:Consumer Protection Act, 1986 - Sections 12 and 17-Medical Negligence-Tubectomy operation performed by respondent on complainant-appellant on 17-5-2000-Complainant conceived, gave birth to child-Compensation claim alleging negligence-Only allegation levelled by complainant was that operation was conducted within 15-20 minutes-Medical literature to show that acceptable failure rate was about 1 to 5 per 1000 and reasons for failure could be recanalisation of tube or formation of a tuboperitoneal fistula-Termination of pregnancy was not possible without opinion of two Registered Medical Practitioners as it had exceeded 12 weeks-Respondent Doctor had acted with due diligence and care-Impugned order dismissing complaint suffered no illegality.
The only allegation which has been levelled by the appellant is that the TT operation was conducted within 15-20 minutes and the appellant was discharged within 3-4 hours, therefore, this was a hasty step and was negligent act. The respondent Doctor has submitted that the TT operation does not take much time and therefore, if she has performed operation within 15-20 minutes, it cannot be said that she has acted in any negligent manner. The respondent submitted that there are several reasons for failure of TT operation.
During the arguments, the respondent has drawn our attention to Te Lindes Operative Gynaecology, by Richard F. Mattingly, M.D. Fifth Edition published by CBS Publishers and Distributors, Delhi at Page 364 where studies of Sterilisation Failure has been mentioned. As per this book an acceptable failure rate is about 1 to 5 per 1000. The reasons for failure have been mentioned as (1) recanalisation of the tube or (2) formation of a tuboperitoneal fistula or an endometrial-peritoneal fistula at the uterine cornu. The relevant extract we quote: "Failures of tubal sterilisation occur in two ways: resumption of ovum and sperm migration may be made possible by (1) recanalisation of the tube, or (2) formation of a tuboperitoneal fistula or an endometrial peritoneal fistula at the uterine cornu. A review of all methods of tubal sterilisation suggests that an acceptable failure rate is about 1 to 5 per 1000. To be acceptable, modern laparoscopic methods must come close to or improve upon these figures (allowing also for the advantage of the simplicity of the method)".
It is further mentioned in this book that about laparoscopic sterilisation that failure is much higher, we quote:
"Laparoscopic sterilisation with the Week hemoclip has been investigated. Although this clip temporarily blocks the tube, within several months it either expands and loosens or cuts through the tube (predisposing to recanalisation). Patients sterilised by this method had a horrendous failure rate of 230 per 1000."
So far as the allegation that the MTP was not performed on 26-6-2001 is concerned, the respondent has submitted that on that date, the pregnancy was 12 weeks 2D + 5 of gestational age as per ultrasonography report dated 25-6-2001 of Ujjain Charitable Trust Hospital and Research Centre, Ujjain, therefore, MTP was not advised. The respondent has drawn our attention to the Medical Termination of Pregnancy Act, 1971 which provides safeguards to the mother by authorising only a Registered Medical Practitioner having experience of Gynaecology and Obstetrics to perform abortion where the length of pregnancy does not exceed 12 weeks. However, where the pregnancy exceeds 12 weeks and is not more than 20 weeks the opinion of two Registered Medical Practitioners is necessary to terminate the pregnancy. The respondent submits that in the present case, the pregnancy was more than 12 weeks and the appellant has not obtained opinion of two Registered Medical Practitioners, therefore, she had not attempted MTP.
From the above, we find that the respondent Doctor has acted with due diligence and care and later on also did not attempt to perform MTP because it could have endangered the life of the appellant. For the reasons stated above, we find that there was no negligence in performing TT operation. There are several reasons for failure of TT operation for which the Doctors cannot be blamed. We, therefore, find that the District Forum has rightly analysed the case. We do not find any merit in this appeal.
Mr. B.L. Khare, Member—The complainant has filed this appeal against the order dated 3.12.2001 passed in Case No. 281/2001 by the District Consumer Disputes Redressal Forum, Ujjain (for short the ‘District Forum’) by which the complaint for medical negligence has been dismissed.
2. Facts of the case are that the complainant Smt. Hardeep Kaur approached the respondent Dr. (Smt.) Satinder Saluja who is a Gynaecologist running her own nursing and maternity home in Ujjain for tubectomy operation. The operation was performed on 17.5.2000. After a year on 25.6.2001 she went to Ujjain Charitable Trust Hospital and Research Centre, Ujjain with a complaint of missing menstruation period for three months. On the same day ultrasonography was advised. The ultrasonography was performed at the hospital wherein it was found that the complainant was pregnant having a twelve week live embryo. On determination of pregnancy the complainant contacted the operating surgeon i.e., the respondent on 26.6.2001 who advised her to come on some other day. The complainant served a notice on 28.6.2001, the respondent gave a reply on 12.7.2001 and asked the complainant to come at her nursing home where she will conduct Medical Termination of Pregnancy (MTP) free of cost and also to repeat the tubectomy (TT) operation. The complainant consulted another Doctor for her medical check up and MTP but because the child had developed for five months, therefore, the complainant was not advised for MTP and ultimately she gave birth to a child.
3. It is alleged by the complainant/appellant that the respondent has not done her TT operation with due care and diligence resulting the TT operation failure and she conceived a child. Complainant submitted that she is required to maintain to look after the child, even it was beyond her economic condition. Therefore, she claimed a compensation of Rs. 2.20 lakhs for maintenance of this unwanted child. The District Forum after appreciation of evidence though found that the child was born after TT operation but did not held respondent Doctor responsible for committing any medical negligence and dismissed the complaint.
4. In the appeal, the complainant/appellant has submitted that the respondent Dr. (Smt.) Saluja performed the TT operation within 15-20 minutes and after 3-4 hours discharged her from the hospital. It is alleged by the complainant that the operation was performed by the respondent Doctor in a very hasty manner and proper precautions were not taken, therefore, the respondent Dr. was negligent in performing operation. Further, after a year i.e., on 25.6.2001 in ultrasonography test it was confirmed that she had conceived and was having a twelve weeks foetus, the complainant contacted the respondent on 26.6.2001 but no attention was paid by the respondent and only she was asked to come on some other day. When a notice was served then only the respondent reacted and called the complainant in her nursing home for termination of pregnancy and also for again performing TT operation free of cost but by this time it was late. The MTP and TT operation could have been performed by the respondent on 26.6.2001, but she delayed and asked to come on 12.7.2001. By this time the child developed and, therefore, it was risky so she did not prefer MTP. The District Forum has not considered this aspect that it was hasty step taken for TT operation and later on MTP operation was not performed within a reasonable period, therefore, for the failure of the TT operation, the respondent was responsible.
5. We have gone through the complaint, reply and the documents produced before the District Forum and the arguments put forth by the learned Counsel for the parties.
The only allegation which has been levelled by the appellant is that the TT operation was conducted within 15-20 minutes and the appellant was discharged within 3-4 hours, therefore, this was a hasty step and was negligent act. The respondent Doctor has submitted that the TT oper
