DR. M. KOCHAR Vs. ISPITA SEAL

JUDGEMENT

(1.) In vitro fertilization (IVF) is a complex series of procedures used to treat fertility or genetic problems and assist with the conception of a child. IVF involves several steps - ovulation induction, egg retrieval, sperm retrieval, fertilization and embryo transfer. One cycle of IVF can take about two weeks, and more than one cycle may be required. Infertility is a growing problem in India as well with 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 as the patient), way back in 1990 suffered ectopic pregnancy, that time her right fallopian tube was removed. The then doctor had assured that she had again chance of pregnancy as the left fallopian tube was patent and intact. Thereafter, in May 1992, she got pregnant but unfortunately it was again ectopic pregnancy. She took treatment and the doctor removed the pregnancy and the fallopian tube was saved. Furthermore, from January 1993 till 1999 for six years she took infertility treatment at AIIMS and Safdarjung Hospital, New Delhi under CGHS. On 3.3.1999, patient along with her husband consulted Dr. Kochar, the OP, a Senior Gynaecologist at Sir Ganga Ram Hospital, New Delhi ( in short, "Gangaram Hospital). The OP after going through the patient's past history advised for In Vitro Fertilisation (IVF) treatment which was the only option for her infertility. The OP did not suggest any alternate method of treatment except IVF. Therefore, because of long desperation of infertility the couple agreed for IVF treatment in the hands of OP. The OP gave total estimate for the treatment around Rs.65,000/- to Rs.70,000/-. The patient underwent several laboratory investigations and hormonal assessment. Her DAndC was performed on 26-06-1999. The patient was declared to be fit for IVF after all investigations. The husband's semen was also tested on 21-07-1999 and thereafter the OP called the patient for IVF on 23-07-1999 at Ganga Ram Hospital. Accordingly, on 23-07-1999 the patient went to IVF lab in early morning but the OP was not available. She was informed that now onwards the treatment will be done by the staff of the IVF lab only. Accordingly, she was instructed to come on 2nd day of her next menstrual cycle, at 8:30 A.M.. Accordingly, on 02-08-1999 the patient reached IVF lab., she was given three ampoules of Metrodin injection and few other medicines. A follicle monitoring chart was given which did not bear signature of the OP, Dr. Kochar. She was followed by ultrasound monitoring for the development of eggs. The report was not intimated to the patient in spite of repeated requests. The hospital staff did not allow her or her husband to meet Dr. Kochar since 02-08-1999, all the treatment and medicines were given 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 Sperm Survival Test (SST) to be done at Gautam Nagar where he resides but, the husband resisted the suggestion and insisted for the tests to be conducted in IVF lab itself at Gangaram Hospital. But, there was no option, the husband of patient have to visit the residence of Dr. Raj Gaur on 08-08-1999. The sample was collected within the toilet in empty glass bottle, he paid Rs.400/- for SST charges. Dr. Gaur gave SST report on plain paper on the same day, stating that semen report was okay. As per instructions, injections and medicines were administered to the patient till 17-08-1999 and she was given assurance that everything of progress and IVF/ Embryo transfer(ET) will be done at proper time. The patient reported to IVF Lab on 18-08-1999 at 12 noon. On the same day three more patients were also called for the same. For the patient IVF/ ET procedure was performed by OP-Dr.Kochar, it took more than 40 minutes. Dr. Kochar while performing ET told the patient that "you have developed infection". On hearing it, patient requested OP to stop ET procedure. The husband of complainant met Dr. Raj Gaur, asked about the cause of infection and why it could not be detected before performing ET but there was no avail. On the same day evening her husband met the OP-Dr. Kochar and tried to seek clarification about infection at ET. She avoided to answer, but said that she was still hopeful of 50-50 chances. She further said that don't worry if the process fails, she will again do ET for which eggs have been kept safely. As alleged by the complainant, the prescription (Annexure 10), has clearly mentioned that "ET done with difficulty". On 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 pregnancy; she had suffered severe mental shock and depression. She alleged that OP intentionally had done ET despite knowledge that it will become a failure. It would have been done in the next cycle after cure of the infection. After the ET, couple desperately tried to contact OP, but never got appointment to see OP1. It was a cheating and crime against womanity. Therefore, complainant filed a complaint before the Delhi State Consumer Disputes Redressal Commission (for short, "the 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.