New Delhi: Reiterating the principle of “No cure/ no success is not a negligence” , a recent judgement by the National Consumer Disputes Redressal Commission (NCDRC), has clearly stated that doctors cannot be held liable for failure of the IVF procedure. With this the apex consumer court also reversed the decision of the Delhi State consumer forum that slapped a Rs 15 lakh compensation on Dr M Kochar, Senior Consultant Gynaecology at Sir Ganga Ram Hospital, New Delhi .
The case pertains to a 35 years old lady (herein referred as the patient), who 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.
In 1999, patient along with her husband consulted Dr Manjeet Kocchar, a Senior Gynaecologist at Sir Ganga Ram Hospital, New Delhi. The gynaecologist after going through the patient’s past history advised for In Vitro Fertilisation (IVF) treatment which was the only option for her infertility with a total estimate for the treatment around Rs.65,000/- to Rs.70,000/-
After all the necessary investigations of the patient as well as her husband were called for the IVF on July 1999. The patient made several allegations including intital procedures were not done by the gynaecologist, and that the embrbrologist performed testing on the patient’s husband outside the hospital. Moreover, the patient alleged that Dr Kochar performed IVF/ Embryo transfer(ET) on the patient despite the presence of an infection
On 01-09-1999, the pregnancy test revealed negative result. The complainant alleged that she suffered irreparable loss and permanently lost her chance of future pregnancy; she had suffered severe mental shock and depression. She alleged that the doctor had intentionally had done ET despite knowledge that it will become a failure. It would have been done in the next cycle after cure of the infection. After the ET, couple desperately tried to gyanecologist, but never got appointment. It was a cheating and crime against womanity. Therefore, the patient filed a complaint before the Delhi State Consumer Disputes Redressal Commission.
The State Commission allowed the complaint and directed the gynaecologist Rs.15,00,000/- along with interest at the rate of 9% per annum from the date of filing of the complaint. Challenging the decision, Dr Kochar approached NCDRC.
Dr Kochar submitted to the court that she is a Senior Consultant , had been working in Sir Ganga Ram Hospital since 1988, served as medical superintendent of hospital for 20 years and in 1989 established the first IVF centre of North India in the Gangaram Hospital. She had experience of work in UK and USA for five years. She informed that the patient approached her in July 1999, after clinical assessment she was advised for IVF. She was also informed about no guarantee of success of the procedure. The failure rate of IVF are more, the success rate of IVF varies between 25% to 30%.The process of IVF is highly technical and specialised which comprised of teams of doctors, embryologist and various technical staff.
Further, the counsel for Dr Kochar argued that there was no deficiency in service during treatment of IVF, the procedure was performed as per standard protocol. She further submitted that there was no infection during IVF implantation and only at the time of discharge the Tab. Augmentin for 5 days was advised to the patient as a precautionary measure . Counsel further stated that, OP had not given any guarantee that IVF must succeed. and According to medical literature, success rate of IVF was only about 1/3 .
The court after going through all the arguments as well as the available medical record and literature on the subject of IVF/ET observed that the complainants allegations were not sustainable .Quoting the expert opinion from a medical board doctors of RML hospital who analysed the case and observed
The success rate of IVF-ET as per international standard is 13.4% i n women less than 35 years of age and 3.6% in women above 35 years . ICMR guidelines were duly followed in the case. The failure of IVF-ET in the present case is in confirmation with the international standard.
(Dr. B. Manjhi) (Dr. Manju Kaushal)
Sr. Specialist Sr. Pathologist
Quoting the literature the court observed
the success rate of IVF internationally is 13.4% in women less than 35 years and 3.6% in women above 35 years. A woman’s age is the most important factor that influences the success rate of IVF procedures. The IVF success rate is highest for women between 24 and 34 as this is the period when they are at their peak fertility levels.
the court referred to the following table showing success rates according to age.
Age Group IVF Success Rate
24 – 34 32.2 %
35 – 37 27.7 %
38 -39 20.8 %
40 – 42 13.6 %
43 – 44 5.0 %
45+ 1.9 %
Quoting the Supreme court on the issue of duty of care. 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.
The court then observed that iIn 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.
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.