IMPORTANT POINT
Failure to properly examine patient constitutes deficiency in service.

Mrs. Vineeta Rai, Member— The present revision petition has been filed by Marie Stopes Clinic & Anr. (hereinafter referred to as the ‘Petitioners’) against the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh (hereinafter referred to as the ‘State Commission’) in favour of one Guddi Bai (hereinafter referred to as the ‘Respondent’) who was the original complainant before the District Forum.

The facts of the case according to the Respondent are that because of the poor economic condition of her husband who is a daily wage labourer, and because she already had two sons one of whom was handicapped, she contacted the Petitioners for conducting a sterilization operation. The Petitioner/Clinic took Rs.400/- from her and performed the operation on 19.03.2002 and also assured her on two or three occasions when she went for a check-up that the sterilization was successful and she would not conceive any more children. However, after a few months she felt some heaviness in her abdomen and her monthly menstruation also ceased and apprehending that she was pregnant, she again went to the Petitioner/Clinic who confirmed that the sterilization had failed and she was in fact pregnant. She was offered an abortion by the Petitioner/Clinic but it refused to give any guarantee of her life. She, therefore, did not take up their offer and on 13.10.2002, she gave birth to a child who was suffering from Hypospadias, a congenital anomaly of the penis which was the result of the wrong sterilization procedure. Alleging negligence on the part of the Petitioners, Respondent sought relief of Rs.14 lakhs to enable her to bring up this child to which she got no response and therefore, she filed a complaint before the District Forum on the grounds of deficiency in service.

2. The Petitioners have confirmed that the Respondent appreciated them to undergo a sterilization operation but at that time she was also two months pregnant and, therefore, the risks and possibility of failure was explained to both her and her mother-in-law and they put their thumb impression both on the Sterilization Consent Form as well as MTP Intake Sheet. The MTP and sterilization was performed on 19.03.2002 with utmost skill and care and the patient was asked to come for a follow up after one week so that any failure or complication could be detected. However, Respondent did not visit the clinic despite clear instructions. Had she followed the instructions, the pregnancy due to the failure of the sterilization procedure could have been terminated free of cost. There are inherent risks in such procedures which had been explained to the Respondent, and therefore, in case such a medical procedure fails Petitioner cannot be held guilty of medical negligence or deficiency in service. Further, the fact that the child was born with congenital deformity has nothing to do with the performance of the sterilization or MTP and there are various other reasons for such conditions.

3. The District Forum after hearing both parties and considering the evidence on record accepted the complaint. The operative portion of the order of the District Forum reads as follows:

“The complainant is an uneducated housewife. She already had two sons, one of whom is handicapped. That she was determined not to have any more children is obvious as after termination of her pregnancy, she also underwent a sterilization operation. Had she been properly informed of the chances of failure of the procedures and warned that she could still be pregnant, there is no reason why she would not have come back to the respondent for check ups. Being illiterate, she could not read the consent form. Her thumb impression on the consent sheet does not in any way show that the possibilities of failure were explained. She was given a false sense of security. She went back after a week for removal of stitches and was told to come again after 15 days. Had she been aware that she could still b