A. RAJASHEKAR vs KARIBASAMMA

-THIS is a case of failure of ''Family Planning Operation''. Even after undergoing operation a woman became pregnant and delivered a child.

PARTIES in this Order are referred to according to their position before the District Forum for the sake of clarity. Appeal No. 678/2004 is by opposite parties (for short, "O.Ps.") and Appeal No. 844/2004 is by the complainants challenging the Order of the District Forum to the extent they are aggrieved.

The facts in this case are as follows : Complainant No. 1 approached O.P. 1 for a ''Tubectomy Operation'' as she did not want to have any more children, O.P. 1 on the request of complainant No. 1 and her husband conducted Tubectomy Operation on 29.1.1996 in O.P. 2 Hospital. The grievance of the complainants is that the operation conducted by O.P. 1 was not successful and, therefore, she had conceived for the fourth time in the year 1998. Thereafter, complainant No. 1 after giving birth to complainant No. 2 went to Bapuji Hospital at Davanagere and got done the Tubectomy Operation for the second time on 27.10.1998. After the second surgery, the complainants filed the complaint before the District Forum, Chitradurga, in the year 2001, i.e., almost about four years from the date of first surgery, alleging negligence on the part of the O.Ps. in conducting the first Tubectomy Operation.

BOTH the parties have adduced evidence before the District Forum. The District Forum after considering the evidence adduced by both the parties has allowed the complaint directing O.P. 1 to pay Rs. 1,50,000 as compensation with cost. This Order is under challenge by both the parties in these appeals. The case of the complainants is that the compensation awarded by the District Forum is inadequate and the case of the O.Ps. is that the District Forum is in error in allowing the complaint and awarding the compensation in favour of the complainants. The case of O.P. 1 is that he has adopted "Pomeroy Procedure" for "Bilateral Abdominal Tubectomy Operation" and, according to him, it is a known procedure to be adopted. The further case of O.P. 1 is that there was no negligence in conducting the Tubectomy Operation and if at all if there is any conceivement it may be due to ''Biological changes'' in the body. It is further stated with reference to Medical Literature that in cases of Tubectomy Operation the failure rate is one in 300-400 operations.

IT is seen from the averments in the version filed by the O.Ps. that from out of five inches of ''Fallopian Tube'', one inch was cut and removed and both ends of the Fallopian Tube were legated and there was every possibility that the Fallopian Tube might get re-united and, consequently, there would be chances of conceivement. Considering the pleadings and the evidence adduced before the District Forum, the District Forum has allowed the complaint of the complainant. Before the District Forum, the complainant has not adduced any expert evidence to show that there was any negligence in the first Tubectomy Operation conducted by O.P. 1. In the absence of such expert evidence and also in the absence of any other independent evidence to show that there was any negligence, it is not proper for the District Forum to record a finding that there was negligence on the part of the O.P. The finding recorded by the District Forum on the plea of negligence is based on no evidence.

THE learned Counsel appearing for the O.Ps. relying upon a decision of the Supreme Court in State of Punjab v. Shiv Ram and Ors., IV (2005) CPJ 14 (SC)=VI (2005) SLT 498=AIR 2005 SC 4108, submitted that the District Forum erred in holding that O.P. 1 was negligent in conducting the Tubectomy Operation.

IT is relevant to quote the observations of the Supreme Court in paragraphs 17, 23 and 28 of the Judgment : "17. IT is thus clear that there are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognize the failure rate of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but it is not considered advisable. IT may be resorted to only when such procedure is considered necessary to be performed for purposes other than merely family planning. 23. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam''s test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon has assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee. 28. The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. IT is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed." From a reading of the above said decision of the Supreme Court it is clear that mere failure of the operation which resulted in conceivement cannot be attributed to the negligence of the Doctor. The Medical Literature produced before the District Forum and before us clearly show that there is scope for conceivement due to Biological changes in the body and further there is scope for the Tube to get re-united which ultimately results in conceivement. The Literature produced shows that there is possibility of failure of surgery. Therefore, mere failure of surgery is not attributable to the negligence of the Doctor. Therefore, we are of the view that the District Forum is not right in allowing the Complaint of the complainants and awarding compensation.

In the result, we pass the following order : (1) Appeal No. 678/2004 is allowed. The impugned order is set aside. (2) The complaint filed by the complainant is dismissed. Consequently, Appeal No. 844/2004 is also dismissed. (3) Parties to bear their own costs. Appeal No. 678 allowed. Appeal No. 844 dismissed.