1. THE present revision petition has been filed by Marie Stopes Clinic & Anr. (hereinafter referred to as the Petitioners) against the order of the State Consumer Disputes Redressal Commission, Madhya Pradesh (hereinafter referred to as the State Commission) in favour of one Guddi Bai (hereinafter referred to as the Respondent) who was the original complainant before the District Forum.
2. THE facts of the case according to the Respondent are that because of the poor economic condition of her husband who is a daily wage labourer, and because she already had two sons one of whom was handicapped, she contacted the Petitioners for conducting a sterilization operation. THE Petitioner/Clinic took Rs.400/- from her and performed the operation on 19.03.2002 and also assured her on two or three occasions when she went for a check-up that the sterilization was successful and she would not conceive any more children. However, after a few months she felt some heaviness in her abdomen and her monthly menstruation also ceased and apprehending that she was pregnant, she again went to the Petitioner/Clinic who confirmed that the sterilization had failed and she was in fact pregnant. She was offered an abortion by the Petitioner/Clinic but it refused to give any guarantee of her life. She, therefore, did not take up their offer and on 13.10.2002, she gave birth to a child who was suffering from Hypospadias, a congenital anomaly of the penis which was the result of the wrong sterilization procedure. Alleging negligence on the part of the Petitioners, Respondent sought relief of Rs.14 lakhs to enable her to bring up this child to which she got no response and therefore, she filed a complaint before the District Forum on the grounds of deficiency in service.
The Petitioners have confirmed that the Respondent appreciated them to undergo a sterilization operation but at that time she was also two months pregnant and, therefore, the risks and possibility of failure was explained to both her and her mother-in-law and they put their thumb impression both on the Sterilization Consent Form as well as MTP Intake Sheet. The MTP and sterilization was performed on 19.03.2002 with utmost skill and care and the patient was asked to come for a follow up after one week so that any failure or complication could be detected. However, Respondent did not visit the clinic despite clear instructions. Had she followed the instructions, the pregnancy due to the failure of the sterilization procedure could have been terminated free of cost. There are inherent risks in such procedures which had been explained to the Respondent, and therefore, in case such a medical procedure fails Petitioner cannot be held guilty of medical negligence or deficiency in service. Further, the fact that the child was born with congenital deformity has nothing to do with the performance of the sterilization or MTP and there are various other reasons for such conditions.
The District Forum after hearing both parties and considering the evidence on record accepted the complaint. The operative portion of the order of the District Forum reads as follows: The complainant is an uneducated housewife. She already had two sons, one of whom is handicapped. That she was determined not to have any more children is obvious as after termination of her pregnancy, she also underwent a sterilization operation. Had she been properly informed of the chances of failure of the procedures and warned that she could still be pregnant, there is no reason why she would not have come back to the respondent for check ups. Being illiterate, she could not read the consent form. Her thumb impression on the consent sheet does not in any way show that the possibilities of failure were explained. She was given a false sense of security. She went back after a week for removal of stitches and was told to come again after 15 days. Had she been aware that she could still be pregnant, she would have definitely gone back. Confident that she was not longer pregnant, she did not feel the necessity to go to the respondent again, and by the time she realized that she was pregnant it was too late for an abortion. In our view, the respondents, first displayed their negligence in not properly informing the patient of the chances of failure and secondly, they compounded their negligence by not going a check up when she came to them after a week.
3. THE District Forum concluded that since the complainant would spend minimum of Rs.1,000/- per month on the upkeep and the education of the child till he attains majority, she would require a sum of Rs.2,52,000/-. It, therefore, directed the Petitioners to pay her a sum of Rs.2,52,000/-, Rs.50,000/- for mental agony and tension and Rs.1,000/- towards cost of proceedings.
Aggrieved by this order Petitioners filed an appeal before the State Commission. The State Commission dismissed the appeal and upheld the order of the District Forum. The relevant part of the order of the State Commission reads as follows: On perusal of the document on record, though it is proved that female sterilization is not a full proof procedure however in the present case MTP and sterilization of the complainant was done together by the respondents. In the present case complainant was pregnant earlier and this case is not of sterilization failure but of incomplete MTP. MTP of complainant was not performed with care and part of conception remained in the uterus. It is not a case that conception took place after performance of sterilization operation but rather due to failure of MTP which continuously developed in the womb and the child was born on 13.10.2002. On perusal of the record, we find that complainant went for an MTP on 19.03.2002 and child was born on 13.10.2002 which proves that it was a full term pregnancy. The complainant gave birth to child after 6 months and 25 days after her MTP. From the document on record it is not clear that what was the length of the pregnancy of the complainant at the time of her MTP. However, the complainant had a full term pregnancy on 13.10.2002. Therefore, the complainant was 2 months pregnant at the time of MTP. Therefore the respondents cannot say that there is an inherent risk in sterilization failure. The complainant gave birth to a premature and deformed child on account of MTP failure. Hence the present revision petition. Learned counsel for both parties were present and made oral submissions.
4. LEARNED counsel for Petitioner stated that the Respondent had wrongly stated that she was not pregnant at the time when she had come for check-up and it was only a few months later that she realized that she was pregnant as a result of failure of sterilization procedure. In fact there is documentary evidence that Respondent was two months pregnant and therefore these two procedures were conducted on her on the same date. It was explained to her that there is an inherent risk of procedures failing and that is why even the Apex Court has ruled that in case of failure of sterilization no compensation needs to be given. Counsel for Petitioners further stated that it is not a medically established fact that failure of either sterilization or MTP results in congenital abnormalities. Under the circumstances, the revision petition deserves to be accepted.
Counsel for Respondent stated that the Respondent was never advised regarding the failure of the procedure verbally and being illiterate she signed on the documents without being informed about the details. Further, she did go for follow up visits to the clinic but the Petitioners always assured her that she was not pregnant. These facts were fully appreciated by the learned Fora below and the compensation for the negligence and deficiency of service on the part of the Petitioners which resulted in an unwarranted pregnancy and the birth of a child with congenital deformity, was given to her rightly. We have heard learned counsel for both parties at length and have gone through the records.
It is clear from the evidence on record that Respondent underwent both a sterilization procedure and also a medical termination of pregnancy since she was about two months pregnant at the time of her visit. This is confirmed both from the clinical examination of the Petitioner/Clinic and also by the fact that she delivered a full term child within 7 months of her having undergone the MTP surgery. Counsel for Petitioner has brought to our notice that there are judgments of the Supreme Court that in case of sterilization failure a person is not entitled to compensation. On the other hand, no judgments have been cited that there are any such rulings in respect of failure of a medical termination of pregnancy. In the instant case the child was born not because of failure of sterilization but because of an unsuccessful MTP. While we appreciate that all such medical procedures may not be hundred percent foolproof, it appears that the Respondent did visit the clinic on two or three times and she was not properly examined otherwise her pregnancy would have been noted and an option of undergoing another MTP procedure earlier with minimal risk could have been undertaken. We, therefore, agree with the learned Fora below that in this respect there is deficiency in service on the part of the Petitioners. Taking into account this fact as well as the poor economic condition of the Respondent, we feel that due compensation to her is warranted. This compensation should, however, be for mental agony and tension undergone by her and not linked to the likely expenses on the upkeep of her child. Under the circumstances, we feel that a sum of Rs.1 lakh for mental tension and agony is reasonable. We, therefore, modify the order of the learned Fora below and direct the Petitioners to pay the Respondent a sum of Rs.1 lakh as compensation within a period of four weeks from the date of this order failing which interest @ 9% would accrue on this amount. Petitioners are further directed to pay Rs.2,000/- as costs to the Respondent. The Revision Petition is accordingly disposed of.
