MCC 02BEFORE THE

HONBLE

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

At

NEW DELHI

IN THE MATTER OF

APPELLANT KEJRIWAL

(Appellant)

Vs.

1. RESPONDENT NO.12. RESPONDENT NO.23. THE SWISS PARK HOSPITAL at KOCHI through MANAGEMENT

(Respondent)

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MEMORIAL ON BEHALF OF THE RESPONDENT(S)

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2011TABLE OF CONTENTS

Table of Content.02 List of Abbreviation03Index of Authorities04

Statement of Facts...05-06Issues Raised07Summary of Pleadings08Pleadings..09-11Prayer for Relief..12LIST OF ABBREVIATIONS

PIL Public Interest Litigation

CTF Central Task Force

Art. Article

AIR All India ReportersSC Supreme Court

Hon HonourableMTP Medical Termination of PregnancyINDEX OF AUTHORITIES

JUDICIAL DECISIONS Vinitha Ashok vs. Lakshami Hospital, AIR 2001 SC 3914BOOKSUniversal Publication, Consumer Protection Act 1986

Jaiswal J.V.N., Legal Aspects of Pregnancy, Delivery and Abortion

Rao.Y.N, Law Relating to Medical Negligence, 2nd Edition

MISL

Westlaw International

All India Reporters

IndianKanoon

STATEMENT OF FACTSRajiv and appellant were residents of Kochi. They got married on 3.10.2000. Just after one year of their marriage, on 3.10.2001 Appellant conceived and a very beautiful daughter was born to both Rajiv and Appellant and the rest of the Kejriwal family on 03.08.2002. The child born was a caesarean child. On 03.12.2002, Appellant suspected that maybe she is pregnant and to get the news assured, she and her husband Rajiv went to the most reputed hospital in town known as Swiss Park Hospital. In the hospital several reputed doctors were practicing and some of them were F.R.C.S pass outs from the United Kingdom. In the Hospital the couple went to a very reputed doctor namely, Respondent no.1, who took the responsibility of examining Appellant. After the examination was complete the doctor informed Rajiv and Appellant that Appellant was pregnant but as Appellant was so weak and had just recovered from the strain of pregnancy, it would not be wise for the couple to conceive another child so fast. Undertaking all the possible circumstances the couple decided to terminate the pregnancy as fast as possible so that the whole family does not come to know about this thing. The date fixed for the termination of pregnancy was 10.12.2002.

One day previous to the date fixed for the termination of the pregnancy that is on 09. 12.2002, both Appellant and Rajiv went to the doctor as was asked by the doctor. The doctor had said in order to terminate the pregnancy and to make the procedure smooth and easy for Appellant the doctor would be taking the process step by step, so that Appellant does not face any strain or any sort of physical and mental exhaustion together at the same moment.

On 9.12.2002, that is the first day for the termination of the pregnancy, an instrument called laminaria tent was inserted in Appellant. The laminaria stickortentis a thin rod of driedlaminaria, akelpspecies. Laminaria sticks are used inobstetricsto slowlydilate the cervixto induce laboranddeliveryor for surgical procedures includingabortions. The rods are inserted into the cervix, and over the course of several hours, they slowly absorb water and expand, dilating thecervixand prompting labour. Hence it was a procedure in order to help Appellant from getting too much pain on 10.12.2002 while terminating her pregnancy.

On 10.12.2002, Rajiv and Appellant reached the hospital at the time they were asked to come that is on 8.30 am in the morning. Respondent no.1 was assisted by another doctor Respondent no.2, who was a reputed lady gynaecologist of the city of Kochi. Both these doctors took Appellant to the labour room at about 9.00 am. At around 10.00am, respondent no.2 came out of the labour ward and informed Rajiv that while the doctors were trying to terminate Appellants pregnancy, due to some other complications Appellant had been bleeding profusely. She also told Rajiv that in order to save Appellants life the two doctors will have to conduct an operation and for that they needed Rajivs permission. To save his lovely wifes life Rajiv gave his assent.

Respondent no.1 informed Rajiv that it was a case of Cervical Pregnancy and Appellants uterus had been removed.

ISSUES RAISEDI

Whether medical service comes under the Consumer Protection Act, 1986?II

Whether the procedure of MTP was adequate, in the circumstances?

III

Whether the removal of organ, such as the uterus, was adequate in the circumstances?SUMMARY OF PLEADINGNo, medical services are not covered under the Consumer Protection Act, 1986 as per section 2(u) of the act, talked herein.Dilation was one of the most adequate procedures of abortion as it has been accepted by the Honble Supreme Court in opinion of Dr. Shanta Warrier, and in addition the appellant is a resident at Kochi which is located in Kerala where insertion of laminaria tent in cervix for dilation is a common practice.

In the case of Vinitha Ashok vs. Lakshami Hospital the Honble Supreme Court of India referred to a various medical texts and observed that in the case of cervical pregnancy hysterectomy was the only solution on account of profuse bleeding.

Therefore all the above arguments stand that the removal of uterus was done in good faith, and was a necessary step in opinion of the respondents. Also high levels of medical standards were followed by the respondents and no inadequacy or negligence existed on the part of the respondents.

PLEADINGMedical Services do not come under as services as per the Consumer protection Act, 1986.The consumer protection act 1986, defines service under section 2(u) as below Section 2 - Definitions - In this Act, unless the context otherwise requires

(u)service means service of any description which is made available to potential users and includes the provision of services in connection with business of any industrial or commercial matters such as banking, communication, education, financing, insurance, chit funds, real estate, transport, storage, material treatment, processing, supply of electrical or other energy, boarding, lodging, entertainment, amusement, construction, repair, conveying of news, or information and advertising;The definition does not show that medical services come as per the definition of service under the Consumer Protection Act. Therefore, medical practitioners, such as the respondent(s) are cannot be challenged under the Consumer Protection Act, 1986.The procedure undertaken for MTP was adequate in the circumstances.

The appellant gave birth to a caesarean child in August 2002. Just after 16 weeks that is in December, the appellant conceived again. For confirmation of the same the appellant along with her husband Rajiv approached respondent no.1 working at the Swiss Park Hospital at Kochi. Respondent no.1 informed that the appellant was pregnant. But as the appellant was weak and had just recovered from the strain of pregnancy, it would not be wise for the couple to deliver another child as soon as it will deteriorate the appellants health as well as the child to be born. Undertaking all the possible circumstances the couple decided to terminate the pregnancy as soon as possible that it does not exceed the time limit for MTP. Therefore, to take the procedure strain less and smooth respondent no.1 inserted an instrument called laminaria tent, which is used to dilate the cervix to induce labour and delivery or for surgical procedure such abortion. In Vinitha Ashok vs. Lakshami Hospital the National Commission and Honble Supreme Court of India accepted the expert opinion of Dr. Shanta Warrier (the respondent), that the use of laminaria tent in dilation of cervix was one of the accepted standard procedures, which is a common practice in Kerala. In same case the court referred to an article by Dr. G.L. Dhall, where it was indicated that the most commonly used method of first trimester abortion is Dilation. The court also, therefore, observed that even if there is difference of opinion among the experts on the procedure adopted by a doctor, but a procedure which is commonly in practice in an area if adopted by a doctor, it could not be said that there was negligence or in adequacy in his part. The court further observed that a doctor would not be held guilty of negligence if he had acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art and if he had acted in accordance with such practice merely because there is a body of opinion that takes a contrary view would not make him liable for negligence. Therefore, dilation was one of the most adequate procedures of abortion as it has been accepted by the Honble Supreme Court in opinion of Dr. Shanta Warrier, and in addition the appellant is a resident at Kochi which is located in Kerala where insertion of laminaria tent in cervix for dilation is a common practice.Removal of organ, such as the uterus, was adequate in the opinion of the respondent(s).

The appellant gave birth to a caesarean child in August 2002. Just after 16 weeks that is in December, the appellant conceived again. But as the appellant was weak and had just recovered from the strain of pregnancy, therefore it was advised by respondent no.1 it would not be wise for the couple to deliver another child as soon as it will deteriorate the appellants health as well as the child to be born. Undertaking all the possible circumstances the couple decided to terminate the pregnancy as soon as possible that it does not exceed the time limit for MTP.During the operation, the appellant started to bleed profusely and it was found that she had cervical pregnancy (It is a type of ectopic pregnancy which occurs in cervical canal), which was a danger to the life of appellant. Therefore with the permission of Rajiv, the respondent(s) operated the appellant and removed the uterus.

In the case of Vinitha Ashok vs. Lakshami Hospital the Honble Supreme Court of India referred to a various medical texts and observed that in the case of cervical pregnancy hysterectomy was the only solution on account of profuse bleeding.

Thus, the removal of uterus was adequate and up to medical standards.

Therefore all the above arguments stand that the removal of uterus was done in good faith, and was a necessary step in opinion of the respondents. Also high levels of medical standards were followed by the respondents and no inadequacy or negligence existed on the part of the respondents.

PRAYERIn lights of the facts stated, arguments advanced, the Petitioner, humbly Prays before the Honourable Court to

Please dismiss the complaint filed by the appellant.

The Court may also be pleased to pass any other order, which the Court may deem fit in light of Justice Equity and good conscience.

ALL OF WHICH IS MOST HUMBLY PRAYED.

Counsel(s) Respondent(s) AIR 2001 SC 3914

a medical operation to remove uterus, Cambridge Advanced learners Dictionary 3rd edition

to (cause a part of the body to) become wider or further open, Cambridge Advanced learners Dictionary 3rd edition

AIR 2001 SC 3914

Pregnancy occurring outside uterus, may be in fallopian tubes or the cervix Jaiswal J.V.N., Legal Aspects of pregnancy, delivery and abortion, p.3

Jaiswal J.V.N., Legal Aspects of pregnancy, delivery and abortion, p.3

AIR 2001 SC 3914

a medical operation to remove uterus, Cambridge Advanced learners Dictionary 3rd edition

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