DHANYA DAS v. THANGOM HOSPITAL OF PMRC

JUDGMENT

HON'BLE JUSTICE SHRI. S.S. SATHEESACHANDRAN: PRESIDENT

Complainant and her husband, who did not have the fortune of having an offspring even after 5 years of their marriage, approached the 1^stopposite party, a fertility clinic and consulted the doctor (DW-2) attached to that hospital. They underwent various tests as directed by the doctor and also took medicines prescribed by him. That doctor, according to the complainant, suggested intra uterine insemination for her assuring that only her husband's semen would be used. The date for such insemination was fixed on 05.04.11, but, on that date, DW-2 was absent, and 2^ndopposite party, another doctor in the clinic, attended on the complainant. Assuring the complainant that her husband's semen is used, 2^ndopposite party, according to the complainant, subjected her to intra uterine insemination using someone else's semen collected from the semen bank. That was detected when 2^ndopposite party told her and her husband that the process was over, and, the complainant's husband then pointing out that his semen was yet to be collected. According to the complainant, 2^ndopposite party expressed regret and helplessness. Complainant inseminated with sperm of another suffered trauma and grave mental agony and she had to undergo psychological counselling for long period of time. When a lawyer's notice was issued to opposite parties claiming compensation for deficiency of service, it was responded with false reply stating that no insemination was carried out and the fee collected was refunded returning the consent form as well. Statements other than refund of the fee collected realising their mistake, according to the complainant, are false. Complainant, on the aforesaid allegations, filed the complaint claiming compensation of Rs.20,01,000/- with interest from the opposite parties.

2. Opposite parties 1 and 2 filed separate versions raising identical contentions disputing the case of the complainant. Asserting there was no negligence or deficiency of service on the part of opposite parties in the treatment meted out to the complainant in the 1^stopposite party hospital, they contended that complainant and her husband suffered grave injuries in a road traffic accident two years back and that the semen analysis of the complainant's husband showed a count of 2 million with only 10% actively motile sperms not satisfying the required parameters. Initial evaluation of the complainant was within normal limits, and, DW-2, the doctor, suggested three options : (i) medication to improve the sperm count and IUI at a later date (ii) IVF test tube baby, which was not available in 1^stopposite party hospital (iii) donor insemination from a semen bank. Since IVF was expensive and the complainant could not afford its cost, that option was given up by complainant, according to the opposite parties. They also gave up first option as there was no guarantee for improvement in parameters of sperm with medication. According to opposite parties, complainant and her husband, after considering the pros and cons of treatment offered, voluntarily decided for donor insemination. The ovulation induction for IUI was started and on 02.04.11, she underwent an USG examination. On 05.04.11, complainant and her husband reported at the hospital for IUI with donor semen from semen bank and since Dr.Jayakrishnan was on leave on that day, 2^ndopposite party attended the complainant. 2^ndopposite party had a detailed discussion with the complainant and her husband regarding the procedure and they expressed their willingness. Complainant and her husband was issued a slip for remitting the fees for IUI and thereupon they remitted the amount for such procedure. Consent was also obtained from both complainant and her husband. However, when after taken to the labour room for IUI just before commencement of the procedure, complainant expressed her concern and wanted to have a rethinking with her husband. She was sent out of the labour room. Complainant and her husband thereafter decided not to do the IUI and, thereupon, the consent forms were returned and the amount collected was refunded. According to the opposite parties, another patient had undergone donor insemination on that day and by mistake the procedure carried out on that patient was recorded in the slip of the complainant. Opposite parties also contended that DW-2 had never assured the complainant of using the semen of her husband for insemination, which, according to them, does not satisfy the required parameters for utilisation for IUI. Contending that reply notice was issued setting forth true and actual facts, opposite parties denied deficiency of service imputed against them. Asserting that the complainant has no cause of

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action, both opposite parties sought for dismissal of the complaint.

3. The following points arise for determination in the case :-

(i) Has the complainant been subjected to IUI of a donor against her will and consent by the 2^ndopposite party?

(ii) What, if any, is the compensation payable to the complainant by the opposite parties?

4. Evidence in the case consisted of testimony of complainant as PW1 and her husband as PW2 and exhibits A1 to A8. For the opposite parties, two witnesses were examined as DW1 & DW2. Case sheet of the complainant produced by the 1^stopposite party hospital was exhibited as B1. Point Nos:1 & 2:-

5. We heard counsel on both sides. The short question to be considered is whether the complainant was subjected to IUI of a donor collected from the semen bank at the 1^stopposite party hospital by the 2^nd opposite party against her will and consent. Concededly complainant and her husband were undergoing treatment for infertility in the first opposite party hospital under a doctor attached to the hospital, DW-2, who, at the time of present proceedings had left that hospital and was employed elsewhere. Complainant examined as PW-1 and her husband examined as PW-2, in their evidence would assert that on the date fixed for IUI i.e. 05.02.11, DW-2 was not present and she was attended by 2^ndopposite party, who was in charge of IUI. It is their case that DW-2 had assured them that only the semen of PW-2 would be used for the insemination and that promise was repeated even before the procedure by DW-1 doctor. However, once the process was over and she came out of the labour room, when (DW1) doctor told PW2 of the completion of process he immediately reacted that his sperm had not been collected. Then alone the complainant and his husband realised that the complainant was inseminated with the sperm of a donor from the semen bank of the hospital. Complainant and her husband had not given any consent for insemination with the sperm of a donor and the revelation caused sudden shock and severe anguish to the complainant. Both of them would state that she had to undergo prolonged treatment for psychological care and for retrieving her mental balance. On the other hand, DW1 and DW2 would state that complainant and her husband had agreed to IUI of complainant with the sperm of a donor as there was no chance of IUI with the sperm of her husband, whose sperm count was much below the parameters prescribed. Complainant and her husband have voluntarily given consent for such insemination, but before the process of insemination of PW-1 commenced, complainant wanted to have a rethinking with her husband over receiving sperm of a donor and then both of them decided not to have such insemination is the case of the opposite parties. Complainant was not subjected to IUI D since they were reluctant to carry out that process is the stand of opposite parties.

6. Evidence of complainant, PW-1, corroborated by her husband, PW2, convincingly establishes that she in fact underwent IUI D on 05.04.11 at the hands of DW-2 doctor in the 1^stopposite party hospital. There is no reason whatsoever for complainant and her husband to foist a false case against the opposite parties if complainant had not been subjected to IUI D by DW-2 doctor. Exhibit A-2, prescription of the complainant contains entries recorded by DW-2 that IUI was done. Opposite parties have tried to explain the entries recorded in her slip by DW-2 stating that on the date fixed for IUI of complainant, IUI was done on another patient and it was wrongly recorded in the slip of complainant. That case advanced by the opposite parties is not supported by any material. If at all on the date and time fixed, IUI was done on another patient by DW-2, the records maintained by the hospital must reveal that fact and non-production of such records clearly spells out that the case a wrong entry was made in the slip of complainant over the IUI done on her has no basis or truth. Over and above the aforesaid material and decisive circumstance disclosing that the

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complainant was subjected to IUI D by DW-2 on 05.04.11, as revealed by entries in Exhibit A-2, there are other circumstances also present in the case proving that complainant's case has a ring of truth and the version of opposite parties is unworthy of any merit. According to opposite parties, complainant and her husband voluntarily consented to have IUI D realising that the sperm count of PW-2, her husband, was much below the parameters to have successful insemination. That case advanced by the opposite parties was sought to be proved through DW2 doctor under whom complainant and her husband underwent treatment. It has come out from the evidence of DW-2 that he had prescribed medicines for improving the sperm count of PW-2, the husband of the complainant, even after fixing the date for IUI of the complainant. Complainant was also prescribed medicine after the date fixed for the process. If at all complainant and her husband had voluntarily consented to have IUI D, what was the need for prescribing medicines for improving the sperm count of PW-2, husband of the complainant, after a date was fixed for the process. Exhibit A-7 is the prescription dated 04.02.11 whereunder DW-2 has prescribed medicine to PW-2, husband of complainant, which, according to the doctor, was for improving his sperm count. If there was no chance of insemination of PW-2's sperm and a decision had already been arrived at for insemination of sperm of donor, then, naturally, there was no need to administer medicines for improving the sperm count of PW-2. Exhibit A8 prescription of PW-2 made by DW-2 would show that on 12.03.11 and 02.04.11, two different types of medicines were prescribed for his consumption to improve his sperm count. According to DW-2, on 05.02.11, he advised complainant and PW-2 to wait for one month and then have donor insemination. Complainant and her husband met him again on 12.03.11 and as the menstrual period of complainant was over, he directed them to have donor insemination next month. It is interesting to note that on 12.03.11 and 02.04.11, DW-2 has prescribed medicines to PW-2, husband of the complainant for improving his sperm count. Another curious factor is that in exhibit B-1, prescription of these medicines to PW-2, husband of complainant are not noted whereas medicines prescribed to complainant alone were recorded. Evidence of DW-2 supporting the version of opposite parties that he had advised complainant and her husband to have IUI D and it was consented to by them is evidently nothing but falsehood. After scanning through exhibit B-1, which was belatedly produced before the Commission only on 11.03.14, it appears a sheet had been interpolated to shape out a case that IUI D process was planned for the complainant and also on 05.04.11 IUI was not carried out since the complainant and her husband were not mentally prepared. We have already found that the complainant was subjected to IUI D against her consent and it was recorded in her prescription, exhibit A-2, after the process of IUI was over. Realising that the complainant and her husband had not given consent for IUI D, in order to wriggle out of the consequences, opposite parties have shaped out a false case that the complainant was not subjected to IUI D as complainant and her husband were not mentally prepared for insemination of donor. They have also advanced a case that the consent form obtained was returned to the complainant and her husband since the process was not done. Such a case, no doubt, was developed since no consent had been obtained from complainant and her husband for IUI D. Opposite parties have no regard for truth and to escape from the consequences arising from the sheer negligence on the part of the 2^ndopposite party in carrying out IUI D on the complainant, even after recording it in her prescription note, they have fabricated the case sheet and also advanced false and untrue case that there was unwillingness on the part of complainant and her husband for IUI D and it was not carried out.

7. Complainant has suffered trauma and severe mental anguish pursuant to the IUI D and she underwent treatment for quite some time is borne out by her evidence and the records produced. Naturally, when she had to face the ordeal of having an IUI of a donor sperm against her will and consent, it might have caused her severe mental pain and agony for quite some time.

8. Having regard to the proved facts and circumstances of the case, we find that there was culpable medical negligence on the part of the 2^ndopposite party in carrying out IUI D on the complainant without her consent and knowledge of her husband and both the opposite parties are liable to compensate the complainant. We are of the view that a compensation of Rs.5 lakhs is adequate and reasonable for the

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trauma and agony suffered by the complainant consequent to IUI D carried out on her without her consent. In the result, we hold that opposite parties are jointly and severally liable to pay compensation of Rs.5 lakhs (Rupees five lakhs only) to the complainant with cost of Rs.20,000/- (Rupees twenty thousand only). Sum ordered to be paid within one month from the date of order, failing which failing which compensation awarded shall carry interest @ 8% p.a. till realisation.

JUSTICE S.S. SATHEESACHANDRAN: PRESIDENT

V.V.JOSE : MEMBER

APPENDIX

COMPLAINANT'S WITNESS

PW1 : Smt. Dhanya Das PW2 : Sri. K.R. Pramod Das

COMPLAINANT'S EXHIBITS

Ext.A1 : Copy of Sub fertility evaluation chart maintained by the first opposite party. Ext.A2 : Copy of prescription issued by the second opposite party on 5.4.2011. Ext.A3 :Copy of registration bill dated:12.4.2011 issued from Sevana Hospital and Research Center, Pattambi.

Ext.A4 : Copy of the lawyer notice dated:17.8.2011.

Ext.A5 : Copy of the reply notice dated:14.9.2011.

Ext.A6 : Copy of the reply notice dated:29.9.2011.

Ext.A7 : Copy of prescription issued by Thangam Hospital.

Ext.A8 : Copy of prescription issued by Thangam Hospital.

OPPOSITE PARTIES WITNESS

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DW1 : Dr. Priyadarshini DW2 : Dr. Jayakrishnan

OPPOSITE PARTIES EXHIBITS

Ext.B1 : Case sheet of the complainant.

JUSTICE S.S. SATHEESACHANDRAN: PRESIDENT

V.V.JOSE : MEMBER

VL.

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