WWW.LIVELAW.IN NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 368 OF 2011 (Against the Order dated 28/07/2011 in Complaint No. 240/2001 of the State Commission Delhi) 1. DR. M. KOCHAR Senior Consultant Obs. Gynae, Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi-110060 ...........Appellant(s) Versus 1. ISPITA SEAL Leisure Valley Apartment Society, Flat No. 50-B, Sector 46, Faridabad - 121 010 Haryana 2. ISPITA SEAL Also At I-241, Sarojini Nagar, New Delhi - 110 023 ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Appellant :
Ms. Sonia Sharma, Advocate
For the Respondent :
In person
Dated : 12 Dec 2017 ORDER DR. S. M. KANTIKAR, MEMBER
In vitro fertilization (IVF) is a complex series of procedures used to treat fertility or genetic problems and assist w retrieval, sperm retrieval, fertilization and embryo transfer. One cycle of IVF can take about two weeks, and mor the number of IVF Cycles increasing.
1. The relevant brief facts to dispose of this appeal are that Mrs. Ispita Seal, 35 years old lady (herein referred fallopian tube was removed. The then doctor had assured that she had again chance of pregnancy as the left fallop unfortunately it was again ectopic pregnancy. She took treatment and the doctor removed the pregnancy and the f took infertility treatment at AIIMS and Safdarjung Hospital, New Delhi under CGHS. On 3.3.1999, patient along Ram Hospital, New Delhi ( in short, “Gangaram Hospital). The OP after going through the patient’s past history a infertility. The OP did not suggest any alternate method of treatment except IVF. Therefore, because of long desp total estimate for the treatment around Rs.65,000/- to Rs.70,000/-. The patient underwent several laboratory inves was declared to be fit for IVF after all investigations. The husband’s semen was also tested on 21-07-1999 and the
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Accordingly, on 23-07-1999 the patient went to IVF lab in early morning but the OP was not available. She was i Accordingly, she was instructed to come on 2 nd day of her next menstrual cycle, at 8:30 A.M.. Accordingly, on 0 injection and few other medicines. A follicle monitoring chart was given which did not bear signature of the OP, report was not intimated to the patient in spite of repeated requests. The hospital staff did not allow her or her hus by nurses and lab technicians only.
2. On 06-08-1999, Dr. Raj Gaur who was present in the IVF lab told her husband that his semen analysis and husband resisted the suggestion and insisted for the tests to be conducted in IVF lab itself at Gangaram Hospital. B Gaur on 08-08-1999. The sample was collected within the toilet in empty glass bottle, he paid Rs.400/- for SST ch report was okay. As per instructions, injections and medicines were administered to the patient till 17-08-1999 an will be done at proper time. The patient reported to IVF Lab on 18-08-1999 at 12 noon. On the same day three mo performed by OP-Dr.Kochar, it took more than 40 minutes. Dr. Kochar while performing ET told the patient that procedure. The husband of complainant met Dr. Raj Gaur, asked about the cause of infection and why it could no husband met the OP-Dr. Kochar and tried to seek clarification about infection at ET. She avoided to answer, but s process fails, she will again do ET for which eggs have been kept safely. As alleged by the complainant, the presc 01-09-1999, the pregnancy test revealed negative result. Similarly the other two patients also not conceived.
3. The complainant alleged that she suffered irreparable loss and permanently lost her chance of future pregna intentionally had done ET despite knowledge that it will become a failure. It would have been done in the next cy never got appointment to see OP1. It was a cheating and crime against womanity. Therefore, complainant filed a “the State Commission”) and prayed for refund of Rs.66,702/-, the charges paid for IVF and Rs.15,00,000/- towar
4. The opposite party resisted the complaint, filed a written version. The opposite party submitted that, she is as medical superintendent of hospital for 20 years and in 1989 established the first IVF centre of North India in th submitted that the patient was taking treatment for infertility since 1990 from various centres. The complainant ha 1990 to 1992. The patient approached OP in July 1999, after clinical assessment she was advised for IVF. She wa are more, the success rate of IVF varies between 25% to 30%. The complainant was properly investigated. She m technical and specialised which comprised of teams of doctors, embryologist and various technical staff. Dr. Raj G conducted by Dr. Raj Gaur was absolutely essential. The opposite party denied the total averments and allegation submitted that the patient was correctly managed as per IVF Protocol. After the IVF procedure, the couple never
5. Considering the pleadings, evidence and medical record, the State Commission allowed the complaint and d annum from the date of filing of the complaint. Being aggrieved by the order of the State Commission, the opposi
6. We have heard both the parties. The learned counsel for the appellant, Ms. Sonia Sharma, who was present service during treatment of IVF, the procedure was performed as per standard protocol. Counsel submitted that fo was necessary to find out quality of sperm and to exclude the morphology and abnormality of sperms. She further Gaur had a well-equipped laboratory for Seminology and SST. The said facility was not available with Gangaram mentioned in the discharge summary. The medicines were prescribed by OP to achieve good eggs production and
She further submitted that there was no infection during IVF implantation. The OP never told the patient about th a physiological rise in Estradiol which causes excessive clear discharge from vagina, it cannot be construed as inf
No injection was given to the patient while undergoing IVF/ET, but at the time of discharge the Tab.Augmentin routinely antibiotic was given to all patients after ET. Thus, It was for a precautionary measure and if in case the not given any guarantee that IVF must succeed.
According to medical literature, success rate of IVF was only about 1/3 rd . The counsel relied upon the RML Ho counsel had submitted several medical literatures on IVF/ET, viz.,
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A textbook of In Vitro Fertilization and Assisted Reproduction by Jaypee Brothers.
ii)
The subfertility handbook: a clinician’s guide, Cambridge University Press.
iii)
IVF Clinic Success Rates-2000, www.foresight-preconception.org.uk/news-views/IVFstats1.html.
The Cousel also relied upon the decisions of Hon’ble Supreme Court in Kusum Sharma & Ors. Vs. Batra Hosp Supreme Court relied the judgment in Bolam Vs. Friern Hospital Management Committee, (1957) 1 WLR 582
7. The complainant and her husband argued the matter. The rival contentions that, the OP to grab money inten should have avoided the IVF/ET procedure at the first cycle which knowingly was an unsuccessful attempt. The c husband submitted that, he had produced samples of semen at the residence of Dr. Gaur in the toilet, which itself between initial report and later report. It was 53 millions on 5/8/1999 whereas 75 million (18.8.199) as mentioned was never accessible to them. After IVF procedure at Gangaram Hospital, Dr.Kochar was never turned back. He waiting for long years for the pregnancy, but due to unsuccessful attempt of OP, his wife sustained irreparable los because of total negligence of OP.
8. We gave our thoughtful consideration to the arguments advanced before us. We have examined the entire e reference from Text Book of Assisted Reproduction Techniques (4 th Edition) by David K. Gardener, some resear
In the instant case, it is an admitted fact that, the patient had suffered ectopic pregnancy twice and she had l conception. Since about a decade, she was treatment for her infertility from various hospitals. In mid 1999, IVF. The patient was initially examined by OP and accordingly advised for IVF as a most appropriate mode of laboratory investigations and the ovulation study by ultrasonography. Accordingly the IVF was schedule complainant has not placed any cogent evidence to prove that the lab had no proper infrastructure. For good the IVF was performed at Gangaram Hospital by OP on 16.8.1999 and the ET was done on 18.8.1999. The for Tab Augmentin, which the treating doctor followed the routine procedure to avoid risk of future infectio sustainable.
The husband of patient also alleged about the variation of sperm counts; but it is a common physiological v The variation of count depends upon several factors and normal physiological variations.
It should be borne in mind that In vitro fertilization (IVF) is a complex series of procedures used to treat fer induction, egg retrieval, sperm retrieval, fertilization and embryo transfer.T he hospital or any treating doct the IVF also. Moreover, the patient was having sufficient time to choose or acceptIVF depends on several f baby using IVF depend on many factors, such as patient’s age and the cause of infertility. In addition, IVF c
9. The medical literature clearly states that, ET in presence of vaginal infection does not alter pregnancy rate that, both are strongly and independently associated with tubal infertility but do not affect IVF success rates. Eve We have perused the expert medical opinion from RML Hospital, New Dehi, which has commented on the succ
“ GOVERNMENT OF IND DR. RAM MANOHAR LOHIA HOSPITA
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Sub:
Expert opinion in complaint case No.C-01/240/252 of M/s. Ispita Seal Vs. Dr. M. Kochar.
On instruction from Registrar, State Consumer Disputes Redressal Commission, A-Block, 1 Superintendent, Dr. R.M. L. Hospital, New Delhi comprising of following members for expert medical opi 1. Dr. Bani Sasrkar, Sr. Specialist 2. Dr. B. Manjhi, Sr. Specialist 3. Dr. Manju Kaushal, Sr. Pathologist The committee held its meeting on 13-05-2010 in the office of Chairperson and is of the following opinion:
The success rate of IVF-ET as per international standard is 13.4% i n women less than 35 years of age ICMR guidelines were duly followed in the case. The failure of IVF-ET in the present case is in confirmation with the international standard.
(Dr. B. Manjhi) Sr. Specialist
(Dr. Manju Kaushal) Sr. Pathologist
10. According to literature, the success rate of IVF internationally is 13.4% in women less than 35 years and 3. the success rate of IVF procedures. The IVF success rate is highest for women between 24 and 34 as this is the pe age.
Age Group
IVF Success Rate
24 – 34
32.2 %
35 – 37
27.7 %
38 -39
20.8 %
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13.6 %
43 – 44
5.0 %
45+
1.9 %
Thus, the medical board observed that the OP has duly followed ICMR guidelines while treating the patient and highly technical and the success rate is low in the cases of females above 35 years. 11. The complainant’s allegation that OP was negligent in duty of care. Laxman Balkrishna Joshi’s case [ 1969 SCR (1) 206]. Court observed that,
The conce
A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he i consulted by a patient, owes certain duties, namely, a duty of care in deciding whether to underta administration of that treatment. A breach of any of these duties gives a right of action of negligence aga proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to hi 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 performed for her husband. In any given cycle, the chance of IVF success varies, depending on your age and you care on the part of OP.
12. It is known that “No cure/ no success is not a negligence” , thus fastening the liability upon the treating doc cogent evidence or medical ground. Therefore, on the basis of foregoing discussion, the order of State Commissi dismissed. However, there shall be no order as to cost.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER
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