Medical negligence is not established solely based on treatment failure; proper informed consent and counselling are essential in fertility procedures.

JUDGMENT

AVM J. RAJENDRA, AVSM, VSM (Retd.)

1. This Revision Petition has been filed under Section 21(1)(b) of the Consumer Protection Act, 1986 (the “Act”) against the State Consumer Disputes Redressal Commission, Sikkim at Gangtok („State Commission‟) Order dated 12.06.2019, in FA No. 1/2018 modified the order of the District Consumer Disputes Redressal Forum, Gangtok, East Sikkim (District Forum‟) dated 26.05.2018 in CC No. 18/2016.

2. For the convenience, the parties are referred to as placed in the original Complaint filed before the District Forum.

3. Brief facts of the case, as per the Complainant, are that she approached the OP Fertility Centre in September 2015 for fertility treatment and deposited Rs.1,95,000, along with Rs.6,280 for injections and other incidental charges. She initially underwent an Intrauterine Insemination (IUI) procedure costing Rs.4,500, which was unsuccessful. Following this, the doctor advised her to opt for IVF treatment using a donor's egg, assuring her a 100% safe pregnancy. Accordingly, she paid Rs.1,07,000 in two instalments for In-vitro Fertilization - Egg Donor through Intra Cytoplasmic Sperm Injection IVF-ED-ICSI (egg sharing) procedure. However, the OP failed to inform her about the schedule of treatment and, only on her enquiry, she was told that a suitable donor was being located. On 05.06.2016, she was informed that no egg donor was available on a sharing basis, but a single donor was available. She then paid further Rs.88,000 on 06.06.2016. During her visit on 10.06.2016, she was prescribed a three-month course of medication, and her husband‟s semen sample was taken and frozen for IVF-ICSI. On 18.06.2016, she was informed that high quality donor eggs were procured, and further medication for 15 days was prescribed. She also paid Rs.7,000 towards the donor's medical expenses, despite such costs being included in the Rs.88,000 package. On 23.06.2016, a scan was conducted for Rs.200. She was later informed that out of 16 eggs, only three Grade III embryos were formed, which she could transfer at her own risk, though there was a possibility they might not develop successfully. She declined to proceed with the embryo transfer. When she enquired about a refund, she was told that only 11% of the amount would be returned, excluding Rs.7,000 used for the donor‟s treatment. No reasons for the failure were provided, and no technical reports were shared. Alleging that the OP Fertility Centre breached applicable standards of medical care, resulting in loss, harassment, and mental agony, the complainant sought a total compensation of Rs.6,10,549.

4. On being issued notice, the OP had filed its written statement wherein OP admitted to administering fertility treatments to the Complainant, during which she received four injections for egg development and underwent the Intrauterine Insemination (IUI) procedure twice on 30.12.2015 and 03.01.2016. The OP, however, contended that on 26.12.2015, the Complainant attempted one cycle of In-vitro Fertilization (IVF) using her own eggs, despite having been informed about her poor ovarian reserve and her husband‟s poor sperm quality. She was further informed of the costs of the Egg Donor (ED) and Egg Sharing Donor (ESD) packages as Rs.1,95,000 and Rs.1,07,000 respectively, by Ms. Anju Pradha, the Centre Head of OP. On 06.01.2016, she was informed that egg sharing was not available and was advised to opt for ED package, to which she consented and accordingly made a payment of Rs. 88,000 for the upgrade from the ESD to the ED package. Despite being repeatedly informed about the poor quality of her husband‟s sperm, the Complainant c