National Commission says “No Cure/No Success is not Medical Negligence”

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December 19, 2017

Dr. M. Kochar vs Ispita Seal

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Date of Judgement: December 12, 2017

In this recent case, decided by the National Commission, the Commission was confronted with the issue of deficiency in services in IVF procedure performed by the Doctor. The Commission while delivering its judgement made reference to medical literature relating to IVF procedure to arrive at the conclusion that No cure/ no success in IVF is not a negligence.

Also read What Is Medical Negligence ?  When and How to File a Case pertaining to Medical Negligence ?

Brief facts of the case- In the case the Complainant had suffered ectopic pregnancy twice and had been taking infertility treatment. The Complainant consulted the OP i.e. M. Kochar at Ganga Ram Hospital. The OP after going through the patient’s past history advised her for In Vitro Fertilisation (IVF) treatment which was the only option for her infertility which was agreed to by the Complainant. The patient along with her husband also underwent several laboratory investigations. Accordingly IVF was performed on the scheduled date, however the IVF was unsuccessful.

Aggrieved by this the complainant approached the Delhi State Consumer Disputes Redressal Commission (State Commission) and prayed for refund of Rs.66,702/-, the charges paid for IVF and Rs.15,00,000/- towards compensation on account of wilful negligence.

State Commission’s order– The State Commission allowed the complaint and directed the OP to pay Rs.15,00,000/- along with interest at the rate of 9% per annum from the date of filing of the complaint.

Aggrieved by the State Commission’s order, the OP in the instant case approached the National Commission. OP submitted that there was no deficiency in service during treatment of IVF and the procedure was performed as per standard protocol and further submitted routinely similar procedure was followed for husbands of other patients.

One of the main complaints of the patient was that during the IVF implantation there was infection and procedure was done by OP when there was infection. The complainant alleged that OP should have avoided when infection had been developed.

The OP however argued that there was no infection and there was no proof of any infection. OP also submitted that she had not given any guarantee that IVF must succeed.

The complainant and her husband argued the matter. The rival contentions that, the OP to grab money intentionally advised IVF. He further submitted that OP never checked the patient and was never accessible to them. After IVF procedure at Gangaram Hospital,  Dr.Kochar was never turned back. He further submitted that, already his wife had suffered twice ectopic pregnancy, and waiting for long years for the pregnancy, but due to unsuccessful attempt of OP, his wife sustained irreparable loss. The couple lost their hope of conceiving and having a child in their future lifetime, because of total negligence of OP.

National Commission

The National Commission in appeal set aside State Commission’s order and made the following observations:

  • That In Vitro fertilization (IVF) is a complex series of procedures used to treat fertility and assist with the conception of a child and it involves several technical steps. The hospital or any treating doctor will not give assurances or guarantees of the treatment. According to medical literature the chances of having a healthy baby using IVF depend on many factors, such as patient’s age and the cause of infertility. In addition, IVF can be time-consuming, expensive and invasive.
  • That medical literature clearly states that presence of vaginal infection does not alter pregnancy rate.
  • That the Expert Opinion in the case stated that success rate of IVF as per international standard is 13.4% in women less than 35 years of age and 3.6% in women above 35 years. That a woman’s age is the most important factor that influences the success rate of IVF procedures. The IVF success rate is highest for women between 24 and 34 as this is the period when they are at their peak fertility levels.
  • Doctor was not Negligent in Duty of care- The complainant’s allegation that OP was negligent in duty of care- In this context, the National Commission made reference to the concept of duty of care as deliberated by the Supreme Court in the Laxman Balkrishna Joshi’s[1] case, wherein the 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.
  • With reference to the instant case, the Commission held that treating doctor adopted the standard method of IVF. The patient was properly investigated and given proper medicines for retrieval of eggs prior to IVF. In any given cycle, the chance of IVF success varies, depending on age and personal health circumstances. The Commission opined that there was no deficiency or lapses in the duty of care on the part of the treating Doctor or OP in the case.
  • That “No cure/ no success is not a negligence”, thus fastening the liability upon the treating doctor is unjustified. The National Commission also set aside the State Commission’s order and stated that the OP could not be held liable without any cogent evidence or medical ground.

 

 

[1] 1969 SCR  (1) 206