R DHANAM vs ESAKKIMUTHU

-THE opposite party in C. O. P. No. 75/2001 on the file of the District Forum, Srivilliputhur is the appellant herein.

THE complainant came forward with the case of medical negligence on the part of the opposite party, in that she did not diagnose properly: that the complainant had conceived with the result the complainant had to continue with the pregnancy and give birth to a female child. Her specific allegation against the opposite party was that she did not carry out the necessary tests to find out whether the complainant was pregnant. The District Forum accepted the case of the complainant that there was negligence on the part of the opposite party, in that she did not ask for a urine test to find out whether the complainant was pregnant in December, 2000. In that view of the matter, the District Forum directed the opposite party to pay a sum of Rs. 1 lakh as compensation and Rs. 1,000 as cost. The necessary facts for the disposal of the appeal are as under: the complainant was admitted on 8. 3. 1992 in the hospital in which the opposite party worked, for delivery. She paid Rs. 1,000 as advance. She was delivered a female child on 8. 3. 1992. As the complainant had two children already, a male and a female, she requested the opposite party to perform sterilization operation which was done on 11. 3. 1992 by the opposite party for which the complainant paid Rs. 2,000; that she also paid an excess amount of Rs. 2,150 for which there was no receipt; that she was discharged on 15. 3. 1992. She was assured by the opposite party that she would not conceive again. However, after about 8 years, in December, 2000 the complainant missed her periods for three continuous months. She was doubtful if she was pregnant and therefore consulted the opposite party for examination. The opposite party examined her and asked her to undergo urine examination. Based on the urine test results, the opposite party informed the complainant that she was not pregnant. She also gave her medicines, tablets and tonics for getting regular menstruation. She had also received Rs. 50 as fees. After taking the medicines the complainant felt giddy and she started vomiting. In April, 2001, she went to Bharathi Lakshmi Hospital for examination. A scan was taken. The scan report dated 28. 4. 2001 showed that she was 20 weeks pregnant and that it was not advisable to terminate the pregnancy at that stage. The doctors at Bharathi Lakshmi Hospital informed the complainant that the medicines prescribed by the opposite party were only to abort the foetus. Because of the negligence on the part of the opposite parties the complainant could not have the pregnancy terminated in time. She, therefore, caused a notice to be issued on the opposite party for which there was no reply. She delivered a female child on 15. 9. 2001. The claim was for Rs. 3 lakh towards compensation for non-performing sterilization operation properly and towards mental agony, future medical expenses, maintenance of the child and Rs. 1,000 towards cost.

The case of the opposite party was as follows: while advising the complainant to have a sterilization operation in 1992, the latter had been duly informed about the possibility of chances of failures in sterilization; that the complainant understood and signed the consent letter to undergo sterilization. Sterilization was performed by adopting Pomeroy technique and she was discharged on 15. 3. 1992 after an uneventful post-operative period. The complainant came to the opposite party in December, 2000 with complaints of vague lower abdominal pain with nausea and amenorrhoea. The urine examination for pregnancy was negative. Clinical examination also did not reveal pregnancy. Her last menstrual cycle was only in the last week of November. At the time the opposite party examined the complainant only four weeks had passed by. The opposite party asked the complainant to come back after 10 days to repeat the test for the pregnancy. She also explained to the complainant that her problems could be due to either pregnancy or some disturbances in menstrual cycle. Two options were given to her either to terminate the pregnancy or to continue with the pregnancy. The opposite party prescribed the complainant M2 Tone Uterine tonic, a Siddha medicine to strengthen the uterus and regulate the periods. The complainant as advised did not meet the opposite party after 10 days. There was no response for over 4 months until the opposite party received a lawyer notice dated 22. 5. 2001. Immediately thereafter the opposite party contacted the Deputy Director of Medical and Rural Health Services and Family Welfare, Virudhunagar District and sent a copy of the notice. The Deputy Director gave a reply dated 28. 5. 2001 stating that the complainant would be given Rs. 5,000 in the event of a child being born subsequent to the sterilization operation. A copy of the same was also sent to the complainant. The complaint was liable to be dismissed.

AS already noted, the District Forum accepted the case of the complainant to the effect that proper tests had not been done by the opposite party and with the result the complainant had to bear an unwanted child. Dr. Suresh, learned Counsel for the opposite party/appellant submitted as follows: the complainant had met the opposite party in December, 2000 as could be seen from the complaint when she had missed her periods for three months. The birth certificate filed by the complainant showed the date of delivery of the child on 15. 9. 2001, which would mean that the complainant had a pregnancy period of over 13 months which was against all known medical norms. The complainant met the opposite party in December 2000, when she had reported only a vague lower abdominal pain with nausea and amenorrhoea and she also reported that she had lost her period 4 weeks previously. This would support the case of the opposite party since the child was born in September, 2001 and from December, 2000, it would be a normal conception period. This would clearly show that the complaint was a false one. Further the pregnancy tests were conclusive only after six weeks of pregnancy. As directed by the opposite party the complainant did not report to her after two weeks for a retest for pregnancy. Further the medicine prescribed was only uterine tonic and not for inducing abortion. There were two prescriptions produced by the complainant as having been given by the opposite party. They did not bear any date. Ex. P/3 which had been given in December, 2000, there is a single medicine. The clinic address was shown as No. 142, Periakadai Bazaar, Rajapalayam and the medical shop''s address as Surya Medicals; in the second prescription containing 4 medicines, the address of the opposite party''s clinic was shown as No. 219, Periakadai Bazaar from where she was working four years prior to December, 2000. The second of the prescriptions in Ex. P/3 series showed the medicines as paediatric syrups and medicines to be taken after delivery. This would show that this had been issued in 1992 when the complainant had her second baby and the other prescription which showed Siddha medicine meant for strengthening the uterus and regulate the periods. According to the Counsel, this would clearly show that the stand of the complainant that the medicine given by the opposite party was to abort the foetus could not be correct. The District Forum was in error in holding against the opposite party and directing payment. The District Forum failed to note that there was possibility of pregnancy occurring even after sterilization operation. So far as the opposite party was concerned, she had confirmed to accepted standards and in any event the complainant had not discharged the burden of proof on her part.

PER contra, the learned Counsel for the complainant submitted that the learned Counsel for the opposite party had misread the complaint that the complaint did not say that the complainant met the opposite party in December, 2000. What she had said in the complaint that from December, 2000 for over three months she had missed her periods and not that she had gone to the opposite party in December; that she had gone to the opposite party for finding out whether she was pregnant. This would take us to February to March, 2001 when only the complainant had met the opposite party and she had prescribed medicines for aborting the foetus and given tonic to the complainant after taking Rs. 50 as fees. Believing the word of the opposite party, the complainant purchased medicines as per the undated prescriptions and on taking those medicines she suffered vomiting, giddiness, etc. and thereafter she met Dr. Bharathi Lakshmi who examined her and after taking a scan it was confirmed that the complainant was pregnant. Counsel also submitted that the basic tests required of a competent doctor had not been done that the opposite party had failed to discharge the duties expected of a competent doctor and in such circumstances, the District Forum was right in finding that there was deficiency in service on the part of the opposite party. We have carefully gone through the materials on record. We are satisfied that the complainant has not established her case of any negligence on the part of the opposite party. First and foremost the prescriptions produced by her would give the lie direct to her case. No doubt those prescriptions are undated. But the list of medicines prescribed in them would clearly show that the opposite party had prescribed a medicine in 2000/2001 only for strengthening the uterus. There is nothing to show that the said medicine prescribed by the opposite party was meant to abort the foetus. So far as the medicines prescribed in the other prescriptions are concerned, they are paediatric medicines meant for being used immediately after the birth of the child by both the child and the mother. There is substance in the contention on behalf of the learned Counsel for the opposite party that the prescription derailing the paediatrics medicines could relate to what happened in 1992 and so far as the other prescription is concerned, it could relate to something that had happened in 2000/2001 after the complainant met the opposite party complaining of vague lower abdominal pain with nausea and amenorrhoea. In our view, it is immaterial whether the complainant met the opposite party in December or three months after December inasmuch as the medicine prescribed is not the one for aborting the foetus. There is no expert or any other evidence to show that the medicine prescribed was for the purpose of aborting the foetus. It looks highly probable that at the time the complainant met the opposite party she must have been pregnant only by a few weeks and it is very likely that anything positive regarding the conception would not have been possible to say at that point of time. It is also significant to note in the complaint it is not specified as to when exactly the complainant met the opposite party. The complainant had also not examined Dr. Bharathi Lakshmi to substantiate her contention that what was given to her was only to abort the foetus and that the same failed. It is also common knowledge that sterilization operation could fail. Perhaps this is one such case where the sterilization performed on the complainant failed after 8 years and the complainant had conceived. As soon as the opposite party received a lawyer''s notice she contacted the authorities, who had sent a letter to her stating that the complainant would be given Rs. 5,000 as it was a case of failure of sterilization operation. Inasmuch as the complainant has not substantiated her case that the opposite party had made a wrong diagnosis or that she had given a wrong advice, it is not possible to sustain the order of the District Forum. Consequently the appeal succeeds; the order of the District Forum is set aside and the complaint itself shall stand dismissed. There will be no order as to costs. Appeal allowed.