Tuni Moharana vs Lipika Pattasingh and Anr.

THIS First Appeal has been filed by Dr. Tuni Moharana (hereinafter referred to as the ''Appellant'') against the order of the State Consumer Disputes Redressal Commission, Orissa (hereinafter referred to as the ''State Commission'') which had dismissed her complaint of medical negligence against Ms. Lipika Pattasingh and Dr. Jyotsna Panda, Respondent Nos. 1 and 2 herein, both working in Parivar Seva Sanstha. In her complaint before the State Commission, Appellant had contended after seeing an advertisement issued by Respondent No. 1 in various newspapers regarding the injection Depot Madroxy Progesterone Acetate (DMPA) being a safe birth control device, Appellant contacted Respondents and after being examined by Respondent No. 2 who was the Gynaecologist, she started taking the quarterly birth control injections but had to discontinue it after some time because of some adverse reactions. Later, Appellant approached Respondent No. 1 for undergoing a family planning operation but after examining the Appellant, Respondents again advised her to start taking the DMPA injection along with calcium tablets and milk to avoid any adverse reaction. Accordingly, Appellant started taking the course of DMPA injection for the second time beginning from 29.12.2001. The second injection was given on 27.3.2002 and the third injection was given on 29.6.2002. However, the 4th injection which was due on 29.9.2002, on the advice of Respondent No. 2, was given on 10.9.2002. Appellant thereafter did not take the injection on 10.12.2002 because at that time she felt some movements in her stomach and following a urine examination, she was told that she was pregnant. It was contended that this unwanted pregnancy which could have had serious repercussions on the foetus occurred because the last DMPA injection was not given on the stipulated date and, therefore, the unwanted pregnancy occurred. By that time, it was too late to undergo an abortion since according to the ultrasound examination the foetus was already 5 months old. Appellant, therefore, filed a complaint before the State Commission on grounds of deficiency in service on the part of the Respondents who did not adhere to the three -monthly schedule for the DMPA injection and thus caused the unwanted pregnancy because of which Appellant had suffered mental, physical and financial agony. It was therefore requested that Respondents be directed to pay the Appellant a sum of Rs. 32 lakh which included Rs. 5 lakh for physical pain, Rs. 7 lakh for mental agony and pain, Rs. 10 lakh for mental shock of giving birth to an unwanted female child and Rs. 10 lakh for damages and financial expenses.

THE above contentions were denied by the Respondents. Respondent No. 1 stated that her responsibilities as an employee of the Parivar Seva Sanstha whose principal objective was to create awareness about family planning as also some administrative responsibilities like maintenance of registers, etc. She had no technical/medical responsibilities which were handled by doctors including Respondent No. 2 to diagnose and advice the patients regarding contraceptives suitable for them. Therefore, Respondent No. 1 cannot be held guilty for any of the allegations made against her by the Appellant. Respondent No. 2 stated that after due medical examination and ensuring that there was no contra -indication, the DMPA injections were administered to the Appellant. This is a quarterly contraceptive injection and even if it is administered within 7 days before or after the due date, its effectiveness would not be compromised. Admittedly, Appellant was administered the DMPA injection within 7 days either before or after during the first round and this had not caused either any reaction or any unwanted pregnancy. It. was further stated that Appellant may not have been feeling well due to some other reasons and for which she discontinued the first round of DMPA injections but it was not at the instance of Respondent No. 2. Respondent No. 2 however, stated that she had advised the Appellant to take calcium tablets and milk regularly but this was to increase the physical stamina and strength and not to counter any ill -effects of the DMPA injection. It was further contended that since Respondent No. 2 resigned from her post in Parivar Seva Clinic on 25.1.2002 and started her private practice which is still continuing, she did not administer the DMPA injections to the Appellant on 27.3.2002, 29.6.2002 or on 10.9.2002. Therefore, Respondent No. 2 cannot be held responsible for any non -adherence of schedule in respect of the 4th DMPA injection. DMPA injection is a very safe birth control contraceptive but despite this, as is well known and also given in writing to the Appellant, it is not 100% foolproof. Respondent No. 2 therefore, cannot be held guilty of any medical negligence or deficiency in service.

THE State Commission after hearing and considering the evidence filed on record including the affidavit filed by the Appellant/Complainant who did not appear personally or through her Advocate, came to the conclusion that no case of any deficiency in service was proved against the Respondents and, therefore, dismissed the complaint. The relevant part of the order of the State Commission is reproduced: The complainant has not proved that she has taken DMPA injections through opposite party No. 2 after 28.2.2002. Even, she had not come up by herself or through her Advocate to urge before us at the time of final hearing of the CD. case that opposite party No. 2 was continuing in the Seva Sadan from whom she was taking such injection till she conceived i.e. in the month of August/September, 2002. She even did not establish that due to defective administration of such injections by opposite party No. 2 she was subject to given birth an unwanted child. The Xerox copy of the text "Postgraduate Obstetrics and Gynecology" filled on behalf of opposite party No. 2 had made it clear that DMPA injection is not a sure major of complete sterilization. Other factors are responsible to give rise to pregnancy in spite of such injection is taken and DMPA has no major side effect as has been suspected by the complainant. In respect to return of fertility this text enlightens that. ''The average delay before conception occurs after discontinuation ranges from 5.5 months for DMPA.''

The complainant has not proved by any means as to how opposite party No. 2 is negligent resulting to unwanted pregnancy to her. In such circumstance, negligence in the conduct of opposite party No. 2 cannot be attributed. Therefore, complainant is not entitled to any compensation alleging deficiency of service from both the opposite parties in respect to her unwanted pregnancy.

Coming upon to aforesaid point (b), complainant has not proved that opposite party No. 1 was the authority and in overall charge of Parivar Seva Clinic and responsible for any act and omission of Parivar Seva Clinic and responsible for any act and omission of the Seva Clinic. On total reading of the written version of the opposite parties, we understand that opposite party No. 1 is not the authority to represent the Seva Clinic. In this end of the view, opposite party No. 1 is not a proper party to this CD. case. None of the opposite parties are proved to have caused deficiency in service to the complainant.

So far as the Respondent No. 1 is concerned, the State Commission concluded that since she was in no way responsible in respect of administering medicines and injections, therefore, the allegations against her are false and baseless.

Hence the present First Appeal.

COUNSEL for both parties made oral submissions. Counsel for Appellant stated that the State Commission had erred in not taking cognizance of the fact that during the second round of DMPA injections to the Appellant, the proper schedule of injection was not followed. In this connection, Annexure -P2, the Client Follow -up Card which was filed in evidence indicated that as per the schedule for DMPA injections, the 4th injection was given on 10.9.2002 instead of 29.9.2002 when it was due, because of which it was not effective and Appellant conceived. According to the Counsel for Appellant, it was at Respondent No. 2''s advice that she reported for the injection on 10.9.2002 instead of on 29.9.2002 and, therefore, it was Respondent No. 2 who was responsible for not adhering to the quarterly schedule for these injections by giving it 19 days before the stipulated date. Counsel for Respondents on the other hand while admitting that as per schedule for DMPA injections the fourth injection was due on 29.9.2002, stated that it was the Appellant who erred in reporting for the same on 10.9.2002 for which Respondent No. 2 cannot be held responsible since it was the responsibility of the Appellant who had been given the Card to come on the correct date. It was further contended that even though DMPA injection is a good contraceptive, it is not 100% effective and this fact was also stated in the Client Follow -up Card and in any case as also observed by the State Commission, Respondent No. 2 had already left the Parivar Seva Sanstha before that date and was, therefore, not involved in administering any injections after 25.1.2001. So far as Respondent No. 1 is concerned, as observed by the State Commission, she did not look after the medical needs of the patients and only had administrative responsibilities which included maintenance of registers, accounts and giving general information to spread awareness about family planning among suitable clients who sought the same and therefore, she cannot be held responsible for non -adherence to the schedule for the DMPA injections. We have considered the submissions made by both Counsel and have carefully gone through the evidence on record. We note from the documentary evidence on record that the Appellant had started the first schedule of injections from 28.3.2000 which she discontinued on 22.6.2001. However, there is nothing on record to indicate that this was discontinued on the medical advice of Respondent No. 2 because of adverse side effects. We further note that Appellant started taking the second round of quarterly DMPA injections from 29.12.2001 and as per written schedule given to her she was required to come for the 4th injection on 29.9.2002. However, she came on 10.9.2002. Appellant''s contention that the non -adherence to the schedule occurred because of the Respondents'' advice to come on 10.9.2002 instead of on 29.9.2002 has not been confirmed by any evidence. Further, Appellant on whom there was onus to prove the same has also not produced any evidence to support this allegation. On the other hand, there is evidence that during the second round of DMPA injections given to the Appellant, Respondent No. 2 had already left the Parivar Seva Sanstha and was doing her own private practice and therefore, had not administered any injections after 25.1.2001. Apart from this, it is well known and also documented that like other birth control methods, DMPA though highly effective is not a 100% safeguard against pregnancy. Keeping in view all the above facts, we are in agreement with the order of the State Commission that Appellant has not been able to prove any deficiency in service on the part of either Respondents. We, therefore, uphold the order of the State Commission. This First Appeal having no merit is dismissed. No costs.