1. THE opposite parties in O.P. No. 298/94 on the file of the Consumer Disputes Redressal Forum, Kasaragod are the appellants.
2. THE complainant alleged before the District Forum that she was admitted in the second opposite party''s medical centre (Kamath Medical Centre) on 26.12.1993 for her second delivery. THE delivery was expected in the first week of January, 1994, but on 31.12.1993 the first opposite opposite party advised for caesarian operation and under general anaesthesia classical caesarian operation was conducted and a male child was delivered. On 1.1.1994 her abdomen began to get enlarged. When she consulted the opposite parties they consoled her saying, there was nothing to worry about. As there was no relief she was taken to Unity Health Complex, Mangalore on 20.1.1994 where she learnt that sterilisation operation also was conducted by the opposite parties which according to her was without her consent. At Mangalore Hospital she had to undergo treatment and the doctors there found her difficulty was due to the defects in the operation conducted by the opposite party No. 1. THErefore, she alleged negligence and deficiency of service and wanted compensation to be awarded to her.
First and second opposite parties filed separate version. The first opposite party in her version maintained that caesarian became necessary as the patient had leaking membrane and foestal distress. The operation was performed to save the baby and mother. There was adhesions with omentum, small intestines, urinary bladder and abdominal wall which necessitated classical surgery. On noticing further pregnancy in such condition would be harmful to her life, she was advised for seterilisation which she agreed and accordingly sterilisation operation also was conducted. She denied the allegation of negligence and deficiency of service. The second opposite party also took the same line of defence. He further maintained that on noticing that the aforesaid features the complainant as well as her relations were informed and they requested immediate sterilisation and accordingly sterilisation too was done.
The complaint was once allowed on the evidence of the complainant as P.W. 1 and the evidence of her father P.W. 2 and awarded a compensation of Rs. 2,75,000/-. Against the said decision, the opposite parties preferred appeal No. 103/95, by the order in the said appeal this Commission set aside the order of the District Forum and remitted the matter to the District Forum. After remand the first opposite party gave evidence as RW1 and the second opposite gave evidence as RW2.
3. THE District Fourm thereafter raised the necessary points and ultimately awarded compensation of Rs. 75,000/- and directed opposite parties jointly and severally to pay the said amount of Rs. 75,000/- with costs of Rs. 500/-. Opposite parties challenge the aforesaid direction.
Learned Counsel for the appellant streneuously maintained, that the respondent noticing foetal distress and also leaking membrane, found it necessary in the interest of the baby as well as the mother surgery is to be conducted. Her abdominal cavity was found full of adhesions with omentum, small intestines etc., which required classical caesarean. Though that was rarely done, in the sase of the respondent such a course became inevitable in the context of the said features and it was also found that she has the tendency to develop adhesions and scar. The lower segment was inaccessible due to adhesions making it difficult to reach the uterus. With the aforesaid features there being tendency to develop adhesions, second surgery could be fatal both to the mother as well as the baby the opposite parties decided in the interest of the welfare of the mother that prevention of further pregnancy is a must and therefore they conducted the sterilisation operation. In support of the said argument the learned Counsel referred us to page 1003 of Atlas of General Surgery (Second Edition). It is stated therein that the said classical caesarean section is seldom required but any obstetrician must be aware of the few indications for doing it and the hazards of carrying it out. "Traditionally the vertical, so called classical incision in the uterus is used when the mother is already dead and the baby thought to be alive, it is also used when the baby is in a transverse lie with or shoulder, impacted in the pelvis". Then the learned Counsel also referred us to Munro Kerr''s ''Operative Obstetrics'', (Ninth Edition, Page 511) where the author says, that there are occasions when the classical operation is not only permissible but is only reasonable and safe method to adopt and mentions such instances which includes a condition where there is adhesions to the bladder or abdominal wall.
4. THESE authorities are relied on by the learned Counsel for bringing home the point that the condition of the complainant was such that a responsible surgeon conscious of his duty could perform only classical operation. During the course of the surgery, on discovering features which would compel a decision that in the interest of the mother further pregnancy had to be prevented sterilisation operation was also conducted. The learned Counsel maintained that not only that she had a tendency to develop adhesions but had mital valve history. In Ext. A2 treatment summary and Ext. A34 discharge summary of Unity Health Complex, Mangalore, the said condition is mentioned. The point urged by the learned Counsel is, when the respondent/complainant was having the aforesaid characteristics the appellants were only discharging their duty as surgeon when they conducted the sterilisation operation because a further pregnancy necessarily could create problems which could even be fatal to both the mother as well as baby. To emphasise the said point the learned Counsel made reliance on the decision of the Kerala High Court in Dr. T.T. Thomas v. Smt. Elisa & Ors., AIR 1987 Kerala 52, wherein the Kerala High Court held, burden is on the doctor when his defence is, emergency operation could not be performed as the patient refused consent. This decision is relied on by the learned Counsel to bring home the point that, when the situation is emergent and calls for a particular step in the interest of the patient, a doctor is not entitled to hold up the said step merely because the consent of the patient could not be secured.
The learned Counsel also made reliance on the decision of M.K. Varghese & Anr. v. San Joc Hospital, Perumbavoor & Ors., 1992 (2) CPR 495, wherein the National Commission held, when the doctor performed sterilisation operation also while performing caesarean finding that any subsequent pregnancy could be dangerous for the life of the patient that will not be negligence on the part of the doctor.
But the learned Counsel for the respondent on the other hand sought to maintain, that the definite case of the opposite parties in their version being consent was obtained from the patient, it is quite inconsistent for the appellant now to urge, that on realising that in the interest of the patient sterilisation was necessary they did it without consent cannot hold good. According to the learned Counsel, it is a case wherein the opposite parties have no case that the need of sterilisation was discovered only during the course of surgery and therefore they had to perform it in the interest of the patient, on the other hand their case was consent in fact was obtained for sterilisation. It was urged by the learned Counsel, in such circumstances, the appellant cannot be heard to maintain, the present case as is now put forward by the learned Counsel.
5. IN the context of the aforesaid rival contentions it is necessary to keep in view the scope of this appeal. After remand, as indicated, only opposite parties 1 and 2 were examined. No further evidence was adduced on behalf of the complainant. The District Forum raised as many as six points. Point No. (2) thereof was whether caesarean section was conducted unnecessarily and point No. 3 was whether there was negligence in conducting caesarean section and post delivery treatment. These two points were answered against the complainant. Point No. 4 was as to whether sterilisation was conducted without consent and if so whether it amounted to deficiency of service. The succeeding two points 5 and 6 concerned the quantum of compensation and reliefs. Point No. 4 was found in favour of the complainant; the District Forum found that consent was not secured for sterilisation and it is upon that finding that compensation was awarded. Thus the scope of the appeal is limited to the question whether the sterilisation operation was conducted with consent.
6. IT now becomes necessary to advert to the version by the opposite parties 1 and 2. In the complaint the complainant''s specific case in para 4 is that she was eager to have a female child and she was healthy and that the sterilisation operation was conducted without the consent of the complainant or her parents who were present at the hospital at the time of operation. She proceeded to state, that she learnt about the sterilisation only when she was taken to Mangalore for treatment. Now coming to the version of the first opposite party, she said in para 3 of her version that as the lower segment was inaccessible due to dense adhesions classical caesarian section became necessary and as the patient was undergoing second operation and which was a difficult one, she was advised to have sterilisation operation also alongwith classical surgery and what is important is, it is further stated, that as the patient was under Spinal Anaesthesia, she could understand the seriousness of the case and hence she readily agreed for sterilisation operation. The second opposite party in his version also maintained, that since the complainant had dense and extensive adhesions and there was chances for development of adhesions in future also, the mother was informed and her relations who were present requested immediate sterilisation. He also stays that her abdomen was opened under Spinal Anaesthesia. The pleading is such that the same does not permit a case as is developed and sought to be projected by the learned Counsel for the appellant.
In the nature of the aforesaid case put forward, the question for consideration is, whether in fact such a consent was obtained. Here also the evidence of the appellants is not consistent with the plea. It may be noted, if the complainant was under General Anaesthesia there could be no occasion for getting consent during the course of surgery. Ext. A2 is the discharge summary from the second opposite party''s Kamath Medical Centre. There, it is specifically stated, classical surgery was done under "GA" that is under General Anaesthesia. This document of the appellant does not admit of a case of Spinal Anaesthesia so that the respondent could give consent. As against this, reliance was sought to be made on Ext. B4 wherein it is stated that C/S under Spinal Anaesthesia was done. What is spontaneous from Exts. A2 and B4 is, there is in-consistency between the two kept by the opposite parties on this material question. An attempt was made by the R.W. 2, the second opposite party to say that the letter "GA" mentioned in Ext. A2 was a mistake and he proceeded to swear that the operation was done under Spinal Anaesthesia and was later supplemented by General Anaesthesia. The endeavour by R.W. 2 evidently was to maintain, that she was under Spinal Anaesthesia for the relevant time and only later General Anaesthesia was administered, the implication being she was capable of giving consent. This too does not have any roots in the pleading, the evidence of these witnesses loses its persuasive value because of the inherent contradiction on the above vital aspect.
In the cross examination of R.W. 1, the first opposite party, she stated that she knew that consent of both husband and wife was required for sterilisation. She proceeded to state, that the consent obtained was for surgery only and not for sterilisation. Therefore, the evidence of R.W. 1 also does not support a case that the sterilisation was conducted with the consent of the patient. There may be cases where sterilisation has to be done without waiting for consent; that is where the same has to be performed without seeking consent as the same is not feasible because to wait for consent is not in the interest of the patient as it is so emergent. As had already noticed, such a case is not pleaded by the opposite parties 1 and 2. The plea in the version does not admit of a case of a situation where no consent could be secured because of the urgency of the need. This inconsistency between the plea and the case that is sought to be developed would adversely affect the bona fides of the case of the appellants.
7. WHEN one speaks of consent; that should be informed consent, the person who should give the consent must be aware of the risk involved and on that awareness the patient, should give consent. WHEN as indicated, the patient was in General Anaesthesia neither could the patient understand the risk involved nor could she give consent. In view of the aforesaid discussion it is not possible to agree with the learned Counsel for the appellant that the finding entered by the District Forum in this aspect is vitiated.
The only other question that remains is, as to the quantum of compensation; there was no effective challenge on that question. Further in considering point No. (5) the District Forum has assigned reason for fixing the quantum of compensation. Essentially the quantum has to be fixed, with due regard to the agony and frustration of a mother who was anxious to have a female child when learns that she cannot have female child ever because sterilisation was performed. We do not consider that the quantum fixed is on the higher side. The appeal is without merit and the same is liable to be dismissed which accordingly is dismissed. Appeal dismissed.
