K. Jeganathan vs DEVANATHAN

THE complainant''s case is that the complainant approached the 1st opposite party, who was running an infertility clinic, along with his wife since they had no child. THE first opposite party after examining the complainant said that the defect was in the complainant''s reproductive system. THE first opposite party in the course of medical treatment stated that there was cyst present in the complainant''s seminal vesicle and that it must be removed to improve his fertility. THE complainant believing that the first opposite party had the necessary skill, submitted himself to the treatment and the opposite party adopted the surgical procedure in December, 1991. THE opposite party while doing the procedure acted negligently as a result, he punctured the passage leading to bladder and a hole was opened in the bridge of the bladder neck as a result of which the complainant sustained loss of power of ejaculation. THE first opposite party assured that the ejaculatory power would be restored in course of time. THE first opposite party referred the complainant to the JIPMER Hospital, Pondicherry where the underwent treatment from 4.5.1995 to 24.11.1995. Still the complainant had not recovered to his original health. THE doctors at JIPMER Hospital referred the complainant to Dr. A. Rajasekaran of Dr. M.G.R. Medical University for expert medical advice and the doctor opined the disability of complainant was permanent and the damage was irreparable. THE complainant also consulted doctors at C.M.C. Hospital, Vellore. THEy also found that there was no ejaculatory duct obstruction and the seminal volume was adequate and that the bladder neck was resected to deroof a cyst which was negligent act of the first opposite party. On account of the same, the complainant''s life has become doomed. He has lost sexual potency and his happy married life has been weighed down. THErefore, the complainant has laid the complaint seeking a sum of Rs. 25,000/- towards medical expenses and transport charges and Rs. 4,50,000/- towards general damages for the disability.

THE first opposite party contended as follows: THEre was no deficiency in medical service. THEre was no negligence on the part of the opposite party. THE complainant has not suffered any damage. THE claim that the complainant''s wife became pregnant and that she suffered abortion is wrong and cannot be true on the medical history of the complainant. This opposite party did not medically examine the complainant''s wife. THE 1st opposite party is not sure whether the complainant''s wife came along with the complainant for consultation. THE claim that the complainant had normal sexual life with his wife and that the complainant and his wife were happy and satisfied with their sexual life cannot be true. This opposite party conducted the necessary and relevant physical examination which revealed a small volume of testis on both sides and distended epididemis and vas deference on both sides and also rectal examination which revealed palpable cyst in the prostate and seminal vesicle. On the basis of the clinical diagnosis of obstruction, azoosperimia was made and ultrasound scan was performed and confirmed the presence of prostatic cyst and distended seminal vesicle. A cystoscopy test confirmed cyst in the prostatic urethra. This opposite party explained the nature of the surgery to the complainant and after-effects thereof and discussed the relief aspect before the surgery and then the surgery was performed and the cyst was incised. THE first opposite party did cystourethroscopy and found that the cyst was an open cavity and clear indicating that a cyst existed earlier. THErefore, the first opposite party advised the complainant to undergo bladder neck study and referred him to the General Hospital, Madras. Later on, he was referred to CMC, Vellore and to JIMPER. To the notice issued by the complainant, the first opposite party has sent necessary reply. THE 1st opposite party is M.S. (Post Graduate) and M.Ch. (Super Graduate). He had vast and wide experience as Assistant Professor, Urology Department, Medical College, Manipal. After that he settled at Tiruchirapalli and set up the clinic where he was treating thousands of patients. THEre was no negligence in the performance of the operation. It is not true to allege that the first opposite party negligently punctured the passage leading to the bladder of the complainant. THE allegation that the complainant was shocked to know that he has lost the power of ejaculation is wrong and misleading. THE allegation that the expert in CMC Hospital, Vellore found that he did not have ejaculatory duct obstruction as his seminal was adequate and that the bladder neck was resected to deroof a cyst and that the non-ejaculation could not be rectified are all false. THEre was no damage to the organ as alleged. Operation was done with due diligence, skill and medical care. THE other allegations are denied. THE allegation that the complainant''s sexual life and happy married life have been doomed is absolutely false. THE compensation claimed is imaginary and exaggerated. THErefore, the opposite party prays that the complaint be dismissed with costs. The lower Forum dismissed the complaint and aggrieved by the same, the complainant has preferred this appeal.

The records produced in this case discredit the contention of the complainant. The complainant has stated in the complaint that his marriage took place on 2.9.1984 and that his wife later became pregnant but unfortunately she suffered an abortion and that thereafter she did not conceive. Therefore, in 1989, the complainant along with his wife consulted the first opposite party regarding their issueless condition. Ex. A1 is the history sheet which was apparently furnished to the complainant by the opposite party. It reads under the heading of sexual history as follows: Erection : good; Ejaculation : + ; Ejaculate : Thin watery and scanty. Under the head of past history, it is noted as follows: S.T.D. : Yes. S.T.D. means Sexually Transferred Disease.

THEREFORE, it is clear that the complainant was having thin watery and scanty ejaculation and that he had suffered from S.T.D. This noting has been done by the doctor on the information furnished by the complainant. According to him, he consulted the first opposite party in the year 1989. This record viz., Ex. A1 shows that when he was examined by the doctor at that time, he was married for 5 years. His ejaculation was then thin watery and scanty and that he suffered from S.T.D. THEREFORE, it is impossible to believe his statement that his wife had conceived and that she had no abortion. Further, if it is true, then, there should have been records for she ought to have been admitted in a hospital or in a private nursing home when she suffered abortion. Nothing is more easier for the complainant to establish this fact then by producing the necessary document from the hospital. That has not been done. THEREFORE, to begin with, the complainant has come up with a false case. The complainant has been thus suffering from azoosperimia. His case is that he consulted the first opposite party and that the opposite party diagnosed it that on account of duct in the seminal vesicle, there is no proper ejaculation and, therefore, he undertook to remove the cyst and accordingly he underwent surgery and while the opposite party doing the surgery had by negligence cut and punctured the neck of the bladder and on account of which he had lost the power of ejaculation. The complainant relies upon the letter from the Department of Urology, CMC Hospital, Vellore. The letter is said to have been addressed to the first opposite party. It is dated 12th June, 1996. Whereas according to the complainant it is in the year 1991, he underwent the said surgery. Further this letter which is addressed to the first opposite party, is produced by the complainant and what is produced is only a xerox copy. It is not known how he came into the possession of the same. In this letter, the said doctor has made certain queries. One of the queries is: how it was diagnosed as ejaculatory duct obstruction when his seminal volume was adequate? But the very document produced by the complainant where he has given a sexual history stating that he had thin watery and scanty ejaculation. If it is so, how it was that the said doctor who subscribed his signature to the document namely Ex. A5 could point out that his seminal volume was adequate. Further it says that currently at cystoscopy, he has a bridge of bladder neck tissue at 6 O''clock but there is a passage below which leads into the bladder and that collagen could be tried but it is doubtful whether it would succeed. He also says that it is expensive. Therefore, the document Ex. A5 cannot at all help to establish that there was anything wrong with the treatment given by the first opposite party. Even in the case sheet furnished by the JIPMER Hospital, it is only stated that the patient is found to have azoosperimia cyst just above prostate. Therefore, what is stated in the case sheet cannot be of any help to advance the case of the complainant. The complainant has not examined the doctor who treated him or examined him at JIPMER Hospital. When the complainant alleges medical negligence, it is duty of the complainant to establish the same by adducing acceptable evidence. Just because a doctor has a different opinion, that will not become an infallible opinion or overrule the opinion given by the other doctor. While treating the patient what one has to see is whether the doctor had exercised such degree of skill as is expected of him in treating the patient. Here the complainant''s case is that on account of the negligence of the first opposite party he has suffered complete loss of power of ejaculation. The doctor who has written Ex. A5 has suggested to the complainant to have intercourse on a full bladder and also suggested to send the complainant to somebody who has an electro ejaculation apparatus to see if this provokes a response. We do not know if the complainant followed that advice. The complainant has failed to prove that he had the power of full ejaculation before treatment and that he lost afterwards. He has also failed to prove that there has been any negligence on the part of the opposite party in treating him. There is nothing to show that there was any want of reasonable degree of skill or that the precautions and procedures that should have been adopted in such cases have been violated and breached by the opposite party. Therefore, in such circumstances, the lower Forum was justified in holding that there is no deficiency in service.

MOREOVER, the complaint is barred by limitation. The present complaint has been filed only on 12.6.1997. The surgery was done by the first opposite party in the year 1991. According to the complainant only when he went to Vellore C.M.C. Hospital, he came to know from the doctor there that he has lost permanently the power of ejaculation and, therefore, since he had come to know of it only in 1996, the complaint which is filed is within time. The complaint has been filed after the introduction of the limitation clause which provides a period of two years. The complainant admittedly underwent surgery in the year 1991. Therefore, the complaint ought to have been filed either within a period of three years from 1991 or within a period of two years from 1993. Therefore, a reading of the complaint would show that the complainant was aware even before 1996. In fact, he was referred to JIPMER Hospital and then to Dr. MGR University. All these would have come in only because of the fact that he had some problem with the power of ejaculation. Therefore, he ought to have been aware of the same even before 1996. But he has failed to come to the Court within a reasonable time or the period provided for and, therefore, it follows that the complaint is barred by limitation. It cannot be brought under the head of continuing wrong. As far as the complainant is concerned, the wrong was committed even in the year 1991 when the opposite party did the surgery, therefore, the act had become complete by then and the complainant was aware of the fact that he had some problem with his power of ejaculation. It is to be pointed out that it is only four years after that namely in 1995, he goes to JIPMER and in 1996, he goes to Dr. MGR University and to the Vellore CMC Hospital in 1996. It never struck him immediately to go to any of those hospitals. Perhaps he either thought that he had to live with that truth or because he knew well about his capacity. Therefore, it is not open to him now to come forward and say that he had knowledge of it in only 1996 or that it is a continuing wrong and, therefore, the complaint is now in time. Therefore, looking at it from any point of view it is clear that the complaint is barred by limitation. There is nothing on record to show that the complainant''s alleged loss of power of ejaculation is attributable to any direct act of negligence or deficiency in service on the part of the first opposite party. Mere allegations without proof cannot make the complaint a successful one. If at all the records produced show that the complainant had some problem with his seminal vesicle and that there was a cyst in the passage blocking the duct and, therefore, in such circumstances, it cannot be stated that there has been any negligence in the matter of rendering of service by the first opposite party. In the result, this appeal is dismissed with cost confirming the order passed by the lower Forum. Cost : Rs. 250/-. Time for compliance: Two months. Appeal dismissed with costs.