Case Analysis

This case analyzed the lawsuit of a patient against her doctor for an unsuccessful in vitro fertilization (IVF) procedure. The National Consumer Disputes Redressal Commission found that the doctor was not negligent, as IVF has a low success rate for women over 35 years old, and the doctor followed standard medical protocols. While doctors owe a duty of care in treatment, a failed medical procedure alone does not prove negligence if duties of care were fulfilled. The Commission overturned the State Commission's ruling, finding no evidence the doctor was at fault for the IVF's failure.

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Case Analysis

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Soumiki Ghosh

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CASE ANALYSIS

Dr. M. Kochar vs. Ispita Seal

First Appeal no. 368 of 2011, decided on December 12, 2017.

Before

National Consumer Dispute Redressal Commission

Introduction:

In the discussed case, the National Consumer Disputes Redressal Commission (NCDRC)
held no cure/ no success is not negligence and fastening the liability on the treating doctor is
not justified. It has held treating doctor cannot be held the only responsible for failure of IVF
given the complexity of procedure and medically recorded evidence of low success rate of
IVF in women above 35 years of age. The NCDRC bench of presiding officer Ajit Bharihoke
and member Dr SM Kantikar set aside the order of the State Commission by which the doctor
was asked to pay Rs 15 lakh compensation to her patient after her IVF was a failure.

Background:

In this case the Complainant had suffered ectopic pregnancy twice and had been taking
infertility treatment for a long time. The Complainant consulted the OP i.e. M. Kochar at
Ganga Ram Hospital. The OP after going through the patient’s medical history advised her
for In Vitro Fertilisation (IVF) treatment which was the only option for her. The complainant
agreed to go under IVF. The patient and her husband also underwent several laboratory
investigations. The IVF was performed on the scheduled date accordingly but the IVF was
unsuccessful.

Aggrieved by this the complainant reached 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 mentioning wilful negligence of the doctor.

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 appealed before the National
Commission against the order.

Analysis:

The OP argued that there was no deficiency in service during treatment of IVF and the
procedure was performed as per standard medical protocol and further submitted routinely
similar procedure was followed for other patients.
The patient complained 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 and should have waited for next cycle.

The OP argued that there was no infection and there was no proof of any infection. OP also
submitted that she didn't guarantee the success of the IVF.

The complainant and her husband submitted that the OP intentionally advised IVF to grab
money in spite of knowing it would be unsuccessful. It was further submitted that OP never
checked the patient and was never accessible to them after the IVF procedure. He further
submitted that, his wife had already suffered ectopic pregnancy twice, and waiting for long
years for the pregnancy, but because of the unsuccessful attempt of OP, his wife sustained
irreparable damage. They couple lost their hope of conceiving and having a child in future,
only due to negligence of OP.

The Commission stated that In Vitro fertilization (IVF) is a complex procedure to treat
infertility and assist with the conception of a child and it involves several technical steps. The
hospital or any treating doctor does not give assurances of success of the treatment.
According to medical literature the probabilities of having a healthy baby using IVF depend
upon many factors, like patient’s age and the cause of infertility. In addition, IVF is time-
consuming, expensive and invasive. Also medical literature clearly states that presence of
vaginal infection does not alter pregnancy rate. The Expert Opinion stated that success rate of
IVF as per international standard is 13.4% in women less than 35 years of age but 3.6% in
women above 35 years. The commission decided Doctor was not 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’s1 case, wherein the Court
observed that an individual who holds himself able to give medical advice and treatment
impliedly holds forth that he's possessed of skill and knowledge for the occasion. Such an
individual when consulted by a patient owes certain duties, namely, a duty of care in
determining whether to undertake the case, a duty of care in choosing what treatment to
provide, and a duty of care in the administration of that treatment. With reference to the
instant case, the Commission held that the OP adopted the standard method of IVF. The
patient was properly investigated and given proper medicines for retrieval of eggs before the
IVF took place. In any cycle, the probability of IVF success varies, depending on age and
personal health circumstances. The Commission held that there was no deficiency in the duty
of care on the part of the OP in the case.

The National Commission also set aside the State Commission’s order and stated that the OP
couldn't be held liable without any cogent evidence or medical ground.

Conclusion:

An individual who holds himself able to give medical advice and treatment impliedly holds
forth that he has the skill and knowledge for the same. Such person when consulted by a
patient owes certain duties, namely, a duty of care in determining whether to undertake the
1
1969 SCR (1) 206
case, a duty of care in choosing what treatment to provide, and a duty of care in the
administration of that treatment. A breach of any of the mentioned duties gives a right of
action of negligence against him. But when there is no breach of any of these duties, mere
failure of a medical procedure does not put a burden of responsibility on the doctor. Thus this
case established the rule of “No cure/ no success are not negligence.