1. M. KOCHAR VS ISPITA SEAL

In The National Consumer Disputes Redressal Commission

New Delhi.

Case No: First Appeal No. 368 of 2011

Decided on: 12^th December, 2017

Coram:

1. Hon’ble Mr. Justice Ajit Bharihoke, -President
2. Hon’ble Mr. Dr. S.M. Kantikar, - Member

Appellant: Dr. M. Kochar.

Respondents: Ispita Seal.

Counsel of Appellant: Ms. Sonia Sharma

Counsel of Respondents: In Person

 Introduction:

The Hon'ble National Commission has held that No cure/No Success is no medical negligence.

Facts of the Case:

• The Mrs. Ispita Seal had suffered ectopic pregnancy twice and she had lost her one fallopian tube, but presently having single fallopian tube with the hope of conception. Since about a decade, she was treatment for her infertility from various hospitals.
• In mid-1999, Mrs. Ispita Seal approached the OP-Dr.Kochar, knowing her as a senior consultant in the field of IVF. The patient was initially examined by OP and accordingly advised for IVF as a most appropriate mode of treatment. The treating doctor gave fitness for IVF afterpre- IVF assessment by way of laboratory investigations and the ovulation study by ultrasonography. Accordingly the IVF was scheduled on 16-18.8.1999. Regarding the sample collection at Gaur's lab for SST tests.
• For good result of IVF, better quality of sperms and SST is essential. As the SST was satisfactory, the IVF was performed at Gangaram Hospital by OP on 16.8.1999 and the ET was done on 18.8.1999. The advice for Tab Augmentin, which the treating doctor followed the routine procedure to avoid risk of future infection. It was for prophylactic purpose.

 Respondent party files an appeal under Section 15 of the Consumer Protection Act, 1986 against the said order.

Issue:

Whether the No cure or no success is a negligence?

Arguments Advanced:

Arguments in favour of Appellant:

1. The Appellant submitted that, she is a Senior Consultant , had been working in Sir Ganga Ram Hospital since 1988, served as medical superintendent of hospital for 20 years and in 1989 established the first IVF center of North India in the Gangaram Hospital. She had experience of work in UK and USA for five years. Appellant submitted that the Respondent was taking treatment for infertility since 1990 from various centers. The complainant has not filed any medical record of previous treatment taken at Maternity Hospital during 1990 to 1992. The patient approached OP in July 1999, after clinical assessment she was advised for IVF. She was also informed about no guarantee of success of the procedure. The failure rate of IVF are more, the success rate of IVF varies between 25% to 30%.
2. Appellant further submitted that there was no infection during IVF implantation. The Appellant never told the Respondent about the infection, and there was no proof of any infection. Due to hormonal effect there will be a physiological rise in Estradiol which causes excessive clear discharge from vagina, it cannot be construed as infection. Even otherwise presence of vaginal infection does not alter the pregnancy.
3. The Cousel relied upon the decisions of Hon'ble Supreme Court in Kusum Sharma & Ors. Vs. Batra Hospital & Medical Research Centre & Ors.[1] Wherein the Hon'ble Supreme Court relied the judgment in Bolam Vs. Friern Hospital Management Committee[2].

Arguments in favour of the Respondent’s:

1. Respondent repeated the facts of the case and argued in support of the impugned order.

Judgment:

 Dr. S.M. Kantikar Observed

            The complainant's allegation that OP was negligent in duty of care.  The concept of duty of care has been discussed by the Hon'ble Supreme Court in the Laxman Balkrishna Joshi's case [1969 SCR (1) 206]. Court observed that, a person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the Purpose. Such a person when consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment.  A breach of any of these duties gives a right of action of negligence against him.  The medical practitioner has a discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care according to the circumstances of each case.

In the instant case the treating doctor adopted the standard method of IVF. The patient was properly investigated and given proper medicines for retrieval of eggs (ova) prior to IVF. Also SST was performed for her husband.   In any given cycle, the chance of IVF success varies, depending on your age and your personal health circumstances. We do not find any deficiency or lapses in the duty of care on the part of OP.

 It is known that "No cure/ no success is not a negligence", thus fastening the liability upon the treating doctor is unjustified. The State Commission has erred in holding the OP liable without any cogent evidence or medical ground. Therefore, on the basis of foregoing discussion, the order of State Commission is set aside and the instant appeal is allowed. Consequently, the complaint is dismissed.

Conclusion:   

Hence, it is concluded that Dr. S.M. Kantikar Member of National Commission very rightly acknowledge that the failure cannot be attributed to the treating doctor giving complexity of procedure.

                                                                                                Author: Sumit Sanjay Ekbote

[1] 1(1010) CPJ 29 (SC)

[2] (1957) 1 WLR 582.