N.SANDHYA RANI vs M.KALPANA

DR. N. Sandhya Rani representing Narayana Memorial Nursing Home, Kasibugga, Warangal being the first opposite party in CD. No. 583/1992 on the file of Warangal District Forum preferred this appeal questioning the order dated 30.11.1995 passed by the said District Forum directing her to pay to the complainant a compensation of Rs. 65,000/- and costs of Rs. 1,000/- on the ground that she was negligent in conducting Tubectomy operation on the complainant.

THE facts that gave rise to filing of this appeal are briefly stated as follows. THE respondent herein being the complainant before the District Forum filed a complaint numbered as CD. No. 583 /1992 alleging that she approached the appellant to have a family planning operation, that on 15.7.1989 the appellant conducted tubectomy operation, that she remained in the hospital of the appellant for about 7 days, that thereafter she was discharged on 21.7.1989 after some clinical tests were conducted at the instance of the appellant, that subsequently on 22.1.1992 she developed stomach pain and consulted the appellant for treatment, that in spite of some treatment given by the appellant there was no relief to her, that thereafter she consulted Dr. Malathi, M.D.D.G.O of the same place and the said Malathi informed her that she was pregnant, that on 14.3.1992 one Laxmi Nursing Home, J.P.N. Road, Warangal confirmed her pregnancy, that she gave birth to a male child on 26.7.1992, that because the Tubectomy operation conducted by the appellant on 15.7.1989 was failure she again underwent birth control operation on 27.9.1992 at Laxmi Nursing Home, that she suffered mental agony, inconvenience and hardship and that she is entitled to damages of Rs. 75,000/-. She prayed for a direction to the opposite parties to pay a sum of Rs. 75,000/- and costs. The appellant being the first opposite party filed a counter denying the allegations made in the complaint and contending that she conducted the Tubectomy operation on the complainant on 13.7.1989 and not on 15.7.1989 without taking any fees; that she has good experience in conducting tubectomy operations inasmuch as she conducted thousands of tubectomy operations, that on 22.1.1992 when the complainant approached her complaining stomach ache urine test did not reveal signs of pregnancy, that there is some percentage of failure of tubectomy operations, that she adopted ,'' the ''Pomeroy''s'' technique in conducting tubectomy operation to the complainant, that the said technique consists of small longitudinal incision below the unblicus and this method is an approved method, that there is 0.2 per cent failure in tubal sterilisation using this ''Pomeroy''s'' technique, that though the complainant was asked to come back about one week later, the complainant has not come to her, that the compensation amount claimed by the complainant is excessive, that she is not liable to pay any compensation, that she is not negligent in conducting the operation, that one Dr. Shankar Rao who is in charge of Narayana Memorial Nursing Home is a necessary party to this case and that the complaint is liable to be dismissed.

At the time of enquiry the complainant filed her affidavit and examined herself as PW1. The appellant filed her affidavit and examined herself as RW1 and got Exs. B-1 to B-4 documents marked in defence.

AFTER considering the material on record the District Forum found that the failure of the Tubectomy operation was on account of the negligence of the appellant, that the appellant is guilty of deficiency in service and that the appellant is liable to pay compensation. It quantified the compensation at Rs. 65,000/- and directed the appellant to pay that sum with costs of Rs. 1,000/-. The complaint was dismissed as against Dr. K. Shankar Rao of Narayana Memorial Nursing Home who was impleaded by the complainant as second opposite party during the pendency of the case. The point for consideration is whether there is deficiency in service on the part of the appellant (first opposite party).

THE learned Counsel for the appellant contends that there is no iota of evidence to show that the appellant conducted the operation in question in a negligent manner, that in reaching the conclusion that the appellant is guilty of deficiency in service the District Forum was simply carried away by circumstance that the complainant became pregnant despite this operation and that the mere fact that the complainant became pregnant in spite of this operation cannot by itself be a pointer to the negligence of the appellant. THE learned Counsel further submits that the complainant has not developed any complications or disorders after the operation, that the complainant led a normal life during the period between the date of the operation and the time of the next pregnancy which is about 2 years, that the complainant herself admits in her cross-examination as PW1 that the appellant is an experienced doctor having conducted many operations of this type and that in the circumstances it is difficult to accept the case of the complainant that on account of the negligence of the appellant in conducting the operation in question she became pregnant about 2 years later. We see sufficient force in this contention. It may be seen that it is not the case of the complainant that she developed some complications or disorders after the operation. As PW 1 she stated as follows in her cross- examination : "Some neighbours told me that the first opposite party is a good Medical Practitioner and advised me to go there. I was informed that the first opposite party has conducted many operations of this type earlier." THErefore, it follows that having come to know about the reputation and experience of the appellant the complainant went to her for getting the sterilisation done. Except stating that she became pregnant in spite of this operation, the complainant has not alleged anything about the negligence of the appellant. THE appellant as RW 1 clearly stated that she got the necessary tests conducted before undertaking the operation and that the entire procedure to be adopted as per ''Pomeroy''s'' technique was followed in this case as mentioned in Ex. B-l case-sheet prepared by her. Nothing was suggested to the appellant with regard to the alleged deficiency in serving on her part. THE complainant as PW 1 stated in her cross-examination that the operation theatre of the appellant was in good condition and that when the appellant conducted the operation she was assisted by a doctor and a nurse. In the circumstances it is hard to conclude that there was negligence on the part of the appellant in conducting the operation. Of course the learned Counsel for the complainant points out that the appellant is only a Pathologist, that the appellant having represented to the complainant that she would get the operation done by another Doctor by name Y. Manjula of the same nursing home, conducted this operation by herself and thereby indulged in unfair trade practice and therefore, the complainant is entitled to compensation. We are not inclined to agree with this contention. Except making an allegation in the complaint that the appellant represented to her that one Y. Manjula, M.D.D.G.O. would conduct this operation, the complainant has not stated anything about the alleged misrepresentation of the appellant in her affidavit. Moreover in her cross-examination PW 1 stated that her neighbours informed that the appellant is a good doctor and conducted many family planning operations of this type. We are, therefore, of the opinion that the allegation as to the appellant indulging in unfair trade practice cannot be accepted. As Ex. B-3 memo issued by District Medical and Health Officer, Warangal on 20.1.1987 mentions that Dr. Sandhya Rani (appellant) being the Medical Officer in charge of Sangam Primary Health Centre would receive Merit Certificate for best performance under the family planning programme and as Ex. B-4 Merit Certificate issued by District Medical and Health Officer, Warangal mentions that in the year 1985- 86 the Primary Health Centre of Sangam conducted 985 family planning operations and stood in the first place and in view of the admission of the complainant that she also heard about the reputation and skill of the appellant, the contention of the learned Counsel for the complainant that the appellant being a Pathologist is not competent to do the family planning operation in question and her skill and knowledge are not sufficient to undertake such operation cannot be accepted. It may be noted that the appellant is a Graduate in medicine having acquired M.B.B.S. degree and some time thereafter she obtained a Post-Graduate Degree in Pathology as additional qualification. It is common knowledge that the doctors with only M.B.B.S. degree are entrusted with and are doing family planning operations. Ex. B3 memo and Ex. B4 certificate show that the appellant has conducted many family planning operations. THErefore, the fact that the appellant acquired additional qualification i.e., Post-Graduate Degree in Pathology cannot be made a ground to say that she has no sufficient skill or experience in conducting family planning operations. The appellant relied upon a passage in page 512 of the book "Clinical Obstetrics" written by Mudaliar and Menon, extract of which is Ex. B-1 and wherein it is stated as follows : "We have been employing Pomeroy''s technique for a long time. It is easy, a fact which becomes important particularly when a large number of young physicians have to be trained for participation in the National Family Planning Programme. Complications following the operation are negligible but there is a failure rate of about 0.2 percent. Tubal sterilisations are not always 100 per cent successful whatever be the technique employed." In page 513 of the same book it is stated as follows : "The overall failure rate in tubal sterilisation using various techniques is 0.5 per cent. With Pomeroy''s technique it is about 0.2 per cent." In her affidavit the appellant stated that Pomeroy''s technique was employed in this case, that after opening the pertionial cavity, the tubes were identified and they were picked up to form a loop and the base of the loop was tied by an absorbable catgut, that the knuckle of the tube was then cut off and that the process was repeated on the other side also and the abdomen was closed. Ex. B-l case sheet also mentions all the details of this operation. The appellant examined herself as RW 1 in addition to the affidavit filed by her. Nothing was suggested to her in her cross-examination as to any defect in the procedure or technique adopted by her in conducting this operation. As the appellant has a good experience in conducting this type of operations and as the complainant has not developed any complications or disorders, we have to conclude that the appellant has exercised reasonable degree of care in conducting the operation and that the complainant has failed to establish that the appellant is guilty of negligence or deficiency in service. Admittedly the complainant became pregnant about 2 years after this operation. As it is quite likely that there might have been reunion of the tubes in natural course during the said period of 2 years the complainant might have become pregnant in spite of the said operation. In view of the fact that there is 0.2 per cent failure of this type of operations it is difficult to hold that the complainant became pregnant only due to the negligence of the appellant in conducting this operation. We, therefore, hold that in any view of the matter it is difficult to conclude that the appellant is guilty of deficiency in service. Regarding the hardship and inconvenience said to have been suffered by the complainant, the learned Counsel for the appellant points out that though the complainant''s pregnancy was confirmed about 7 months prior to the date of her delivery the complainant has not made any attempt to get the said pregnancy terminated and that in the circumstances the case of the complainant that she was anxious not to have further pregnancy cannot be accepted and that it has to be concluded that the complainant willingly bore the child and suffered the burden. It may be seen that the complainant stated in her complaint that on 5.2.1992 Dr. Malathi, MD, DGO confirmed her pregnancy and that she delivered a male child on 26.9.1992 i.e., about 7 months after the confirmation other pregnancy. It is not the case of the complainant that she made any attempt to get the pregnancy terminated and that she was advised not to go for it on health grounds. Therefore, it has to be concluded that the complainant willingly bore the child and suffered the burden and that she has no anxiety not to have further pregnancy. Therefore, the case of the complainant that she had unwanted pregnancy and that she suffered mental agony, hardship and inconvenience on account of that pregnancy cannot be accepted. For all the aforesaid reasons we hold that the complainant has failed to establish that the appellant has conducted the operation in a negligent manner and that the failure of the operation is on account of the negligence of the appellant and that the District Forum is not right in holding that the appellant is guilty of negligence. In the result the appeal is allowed and the order of the District Forum is set aside and the complaint is dismissed. No costs. Appeal allowed.