Failed sterilisation not medical negligence: Consumer Court relief to hospital, doctor
No Medical Negligence
Dehradun: The State Consumer Disputes Redressal Commission, Dehradun, recently exonerated a hospital and a doctor from charges of medical negligence for a failed sterilization surgery.
Although the complainant claimed that due to medical negligence during the sterilisation surgery, she conceived and gave birth to another child, the State Consumer Court noted that, as per medical literature, there are chances of failure of sterilisation and recanalisation could take place due to natural causes.
Accordingly, the State Commission set aside the order of the District Consumer Court, Haridwar, which had directed the treating hospital, doctor and the insurance company to pay Rs 13 lakh compensation to the complainant.
The complainant filed a consumer complaint and the treating hospital, claiming Rs 17,50,000 as compensation, alleging medical negligence in conducting her sterilisation operation.
As per the complaint, the sterilisation operation was conducted by the treating doctor on 05.11.2015, and two days later, she was discharged. However, after 1 year and 10 days, the complainant became pregnant and she delivered a child. Therefore, the complainant alleged medical negligence against the treating doctor,
On the other hand, the Chief Medical Officer, Haridwar, filed a written statement before the District Commission and submitted that the sterilization operation occasionally fails, and the doctor can not be blamed for the same. It was further submitted that the doctor always takes a consent letter from the patient before sterilization operation, in which it is mentioned that the sterilisation operation may be unsuccessful in some cases and the doctor will not be blamed for the same.
The Chief Medical Officer further submitted that the sterilisation operation is always done free of cost and no operation changes are taken from the patient.
Meanwhile, the treating doctor submitted before the District Consumer Court that the complainant was admitted to the hospital as a case of G2P1L1 + 36 weeks 3 days gestation + 1 previous LSCS. The patient was anaemic, so one unit of blood was transfused. In the morning of 05.11.2015, her abdomen pain increased. On examination, scar tenderness was diagnosed and an emergency caesarian section was done along with bilateral tubal ligation was taken after explaining all the risk factors. Consequently, the Sterilization operation was done by the Pomeroy technique and the failure rate was explained to the patient, as mentioned in the consent.
After hearing the arguments and taking into consideration the material available on record, the District Commission allowed the consumer complaint and in its order dated 30.01.2020, the District Commission directed the hospital, doctor and the insurance company to pay the complainant Rs 2 lakh as treatment expenses, Rs 10 lakh for nurturing and education of the child, and Rs 1 lakh towards mental agony.
Challenging this order, the hospital, the doctor, and the insurance company filed the appeal before the State Consumer Court. They submitted that the District Commission failed to consider the evidence on record, which clearly proved that there was no negligence on the part of the operating doctor and that she had not committed any negligence during the sterilisation operation of the complainant, which was also clear from the written statement filed by the Chief Medical Officer, Haridwar. Further, it was submitted that the complainant did not submit any proof regarding medical negligence on the part of the operating doctor, and therefore, it could not be held that the said doctor was negligent in conducting the sterilisation.
Further, it was submitted that the District Commission failed to appreciate that sterilisation operation may be unsuccessful in some cases up to the extent of 0.4% to 2.0%, so the doctor cannot be blamed for the same. It was also alleged that the complainant did not come up for a follow-up as per the operating doctor's advice.
The State Consumer Court noted that it had not been denied by the complainant and her husband that a voluntary consent was given for the Tubal Ligation, and in the said consent letter, it was specifically mentioned that the failure rates in such operations had been explained that in the event of any mishap, the doctor would not be liable.
"It is also admitted that the sterilization operation was conducted upon the complainant after explaining the failure rate in such type of operations, which was duly acknowledged on behalf of the complainant. The complainant has not filed any expert evidence / report to show that there was any sort of medical negligence on the part of the operating doctor in conducting her sterilization operation," noted the consumer court.
The Consumer Court further observed that it was well settled that the methods of sterilization / tubectomy are not 100% safe and secure. The Supreme Court in the case of State of Punjab Vs. Shiv Ram and others held that unless it is proved by cogent evidence on record that the operating doctor was negligent in the performance of the job assigned to him / her, no case of medical negligence can be sustained merely on the ground of failure of sterilization operation, noted the Consumer Court.
Further, the Apex Court had held that merely because woman having undergone sterilization operation became pregnant and delivered child, operating surgeon or his employer can not be held liable for compensation on account of unwanted pregnancy or child.
"It is worth to mention here that no medical expert evidence has been produced on record to show that the sterilization operation of the complainant was not carried out as per the prescribed method," noted the consumer Court.
"Hon'ble National Commission in the case of Lakshmi Vs. Director of Medical Services reported in I (2008) CPJ 460 (NC), has held that failure in tubectomy operation due to natural causes would not provide any ground for claiming any compensation. It was also held that the complainant should expect only that the concerned doctor would exercise proper skill in surgery expected of a professional in his particular specialty. The complainant could not expect that the respondent should give 100% guarantee of success of the operation. The doctor can not be expected to be "a paragon combining the Qualities of polymath and prophet"," it further observed.
The Commission also referred to the NCDRC order passed in the case of St. Stephens Hospital and another Vs. Smt. Shalini and NCDRC order in the case of Kamla Kesharwani Vs. Superintendent, Shyamshah Medical College and Gandhi Memorial Hospital and others.
Further, referring to the NCDRC order in the case of The Chief Executive Officer and others Vs. Sagunabai Navalsing Chavan, the State Consumer Court noted that the NCDRC had noted in this case that the tubectomy operation was performed free of cost and the complainant got an incentive from the government for undergoing the operation. It was also held that once the complainant had conceived, she could have approached the same hospital to undergo MTP, which she did not do. As per the Medical Literature, there are chances of failure of sterilisation, and recanalisation could take place due to natural causes.
Accordingly, the consumer court set aside the District Commission's order and held, "For the foregoing reasons, we are of the considered opinion that the impugned judgment and order passed by learned District Commission suffers from material illegality, warranting interference by this Commission, as the District Commission has failed to consider law on the subject. Consequently, the appeals deserve to be allowed."
"Appeals are allowed. Impugned judgment and order dated 30.01.2020 passed by the District Commission is set aside and consumer complaint No. 305 of 2017 is hereby dismissed. No order as to costs of the appeals. The amount deposited by the appellants with this Commission in their respective appeals, be released in their favour," it further held.
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/failed-sterilization-no-med-negligence-298110.pdf
