Judicial Analysis Court Copy Headnote Facts Arguments Court observation

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ajit Bharihoke, Presiding Member and Dr. S.M. Kantikar, Member
Dr. M. Kochar —Appellant
versus
Ispita Seal and Anr. —Respondents
First Appeal No.368 of 2011
(Against the Order dated 28/07/2011 in Complaint No. 240/2001 of the State Commission Delhi)
Decided on 12.12.2017

Advocates:
Counsel for the Parties:
For the Appellant:Ms. Sonia Sharma, Advocate
For the Respondents: In person

IMPORTANT POINT
It is known that “No cure/ no success is not a negligence” , thus fastening the liability upon the treating doctor is unjustified.

Headnote:Consumer Protection Act, 1986—Medical Negligence—Patient’s right fallopian tube had to be removed in 1990 owing to an ectopic pregnancy, but she was told that she could still conceive—Second pregnancy was also ectopic, and for the remaining few years she kept taking infertility treatment—OP then recommended IVF as the only alternative—On the day of tests she was handled only by staff members and even the documents did not bear OP’s sign—Husband’s semen test report was fine—Procedure was to be performed by the OP, who on the day of the IVF told her that she had developed an infection—Complainant alleges extreme stress caused by the whole experience, and further alleged that OP had insisted on performing ET despite the certainty of failure—Complainant thus seeks compensation for negligence of OP and a refund—IVF in itself has a low rate of success which only gets lower as a woman gets older—OP had used the right procedure for IVF—No case of negligence made out—Appeal allowed.
       Held: The complainant’s allegation that OP was negligent in duty of care. The concept of duty of care has been discussed by the Hon’ble Supreme Court in the Laxman Balkrishna Joshi’s case [1969 SCR (1) 206]. Court observed that,
       A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose.Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action of negligence against him. The medical practitioner has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care according to -the circumstances of each case.
       In the instant case the treating doctor adopted the standard method of IVF. The patient was properly investigated and given proper medicines for retrieval of eggs(ova) prior to IVF. Also SST was performed for her husband. In any given cycle, the chance of IVF success varies, depending on your age and your personal health circumstances. We do not find any deficiency or lapses in the duty of care on the part of OP.
       It is known that “No cure/ no success is not a negligence”, thus fastening the liability upon the treating doctor is unjustified. The State Commission has erred in holding the OP liable without any cogent evidence or medical ground. Therefore, on the basis of foregoing discussion, the order of State Commission is set aside and the instant appeal is allowed. Consequently, the complaint is dismissed.
       However, there shall be no order as to cost. (Paras 11, 12)
       Result: Appeal allowed.

ORDER

Dr. S.M. Kantikar, Member—In vitro fertilization (IVF) is a complex series of procedures used to treat fertility or genetic problems and assist with the conception of a child. IVF involves several steps — ovulation induction, egg retrieval, sperm retrieval, fertilization and embryo transfer. One cycle of IVF can take about two weeks, and more than one cycle may be required. Infertility is a growing problem in India as well with the number of IVF Cycles increasing.

2. The relevant brief facts to dispose of this appeal are that Mrs. Ispita Seal, 35 years old lady (herein referred as the patient), way back in 1990 suffered ectopic pregnancy, that time her right fallopian tube was removed. The then doctor had assured that she had again chance of pregnancy as the left fallopian tube was patent and intact. Thereafter, in May 1992, she got pregnant but unfortunately it was again ectopic pregnancy. She took treatment and the doctor removed the pregnancy and the fallopian tube was saved. Furthermore, from January 1993 till 1999 for six years she took infertility treatment at AIIMS and Safdarjung Hospital, New Delhi under CGHS. On 3.3.1999, patient along with her husband consulted Dr. Kochar, the OP, a Senior Gynaecologist at Sir Ganga Ram Hospital, New Delhi ( in short, “Gangaram Hospital). The OP after going through the patient’s past history advised for In Vitro Fertilisation (IVF) treatment which was the only option for her infertility. The OP did not suggest any alternate method of treatment except IVF. Therefore, because of long desperation of infertility the couple agreed for IVF treatment in the hands of OP. The OP gave total estimate for the treatment around Rs.65,000/- to Rs.70,000/-. The patient underwent several laboratory investigations and hormonal assessment. Her D&C was performed on 26-06-1999. The patient was declared to be fit for IVF after all investigations. The husband’s semen was also tested on 21-07-1999 and thereafter the OP called the patient for IVF on 23-07-1999 at Ganga Ram Hospital. Accordingly, on 23-07-1999 the patient went to IVF lab in early morning but the OP was not available. She was informed that now onwards the treatment will be done by the staff of the IVF lab only. Accordingly, she was instructed to come on 2nd day of her next menstrual cycle, at 8:30 A.M.. Accordingly, on 02-08-1999 the patient reached IVF lab., she was given three ampoules of Metrodin injection and few other medicines. A follicle monitoring chart was given which did not bear signature of the OP, Dr. Kochar. She was followed by ultrasound monitoring for the development of eggs. The report was not intimated to the patient in spite of repeated requests. The hospital staff did not allow her or her husband to meet Dr. Kochar since 02-08-1999, all the treatment and medicines were given by nurses and lab technicians only.

2a. On 06-08-1999, Dr. Raj Gaur who was present in the IVF lab told her husband that his semen analysis and Sperm Survival Test (SST) to be done at Gautam Nagar where he resides but, the husband resisted the suggestion and insisted for the tests to be conducted in IVF lab itself at Gangaram Hospital. But, there was no option, the husband of patient have to visit the residence of Dr. Raj Gaur on 08-08-1999. The sample was collected within the toilet in empty glass bottle, he paid Rs.400/- for SST charges. Dr. Gaur gave SST report on plain paper on the same day, stating that semen report was okay. As per instructions, injections and medicines were administered to the patient till 17-08-1999 and she was given assurance that everything of progress and IVF/ Embryo transfer(ET) will be done at proper time. The patient reported to IVF Lab on 18-08-1999 at 12 noon. On the same day three more patients were also called for the same. For the patient IVF/ ET procedure was performed by OP-Dr.Kochar, it took more than 40

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IMPORTANT POINTIt is known that “No cure/ no success is not a negligence” , thus fastening the liability upon the treating doctor is unjustified.

IMPORTANT POINT
It is known that “No cure/ no success is not a negligence” , thus fastening the liability upon the treating doctor is unjustified.