JAIWATI vs PARIVAR SEVA SANSTHA

SMT. Jaiwati, the complainant in the present case, has filed a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') averring that after paying the necessary charges, she, on 26.5.1992, had undergone MTP and Sterilisation at the Shahdara Clinic of opposite party (hereinafter referred to as the opposite party No. 1). The operation in question, as per the case of the complainant, was performed by OP-2 and after the operation, a certificate of sterilisation was issued to the complainant. It is further averred that on 15.10.1992, the complainant was found to be pregnant. The complainant, thereafter, went for medical check-up in Swami Dayanand Hospital, Shahdara on 3.1.1993 and after checking the complainant, the concerned doctor, in her report, stated that the complainant had conceived on 1st July, 1992 and the probable date of delivery was stated as 8th April, 1993. For the above alleged negligence on the part of the OPs, the complainant, in the present complaint, has claimed a sum of Rs. 3,00,000/- on account of compensation and medical expenses. The complainant has also prayed that the opposite parties be directed to provide treatment to the complainant free of charge at the time of delivery and thereafter till the complainant becomes normal.

OPPOSITE party-1 has contested the claim of the complainant. In the written version, filed on behalf of opposite party-1, certain preliminary objections have been taken with regard to the maintainability of the complaint. It is stated in the reply/written version of opposite party-1 that the complaint filed by the complainant is false, grossly misconceived as there has been no negligence on the part of the OPs. It is stated in the reply that the present case virtually is a case of sterilisation failure for which the OPs cannot be held responsible as the OPs had taken all due care and caution. No reply/written version has been filed on behalf of opposite party-2. The complainant and also opposite party- 1 have filed their respective affidavits by way of evidence.

After the completion of the pleadings and filing of affidavits by the parties by way of evidence, the case was fixed for final arguments. On 19th March, 1999 when the case was fixed for final arguments, none appeared on behalf of the complainant. However, Mr. Rajiv Sharma, Advocate was present on behalf of the OPs. He commenced his arguments on that very day but the same could not be concluded on that day and the case was adjourned to 23rd March, 1999 for remaining arguments. On 23.3.1999, none was present on behalf of the parties as a result of which this Commission could not have the benefit of the valuable views of the Counsel for the parties and was left with no other alternative but to close the case for orders.

WE have carefully gone through the documents/material on record and the submissions made by the learned Counsel for the OPs before us on 19th March, 1999. Before discussing the merits of the present case, we would like to examine the legal position with regard to the duties and obligations of a medical practitioner towards his patients. The Civil liability of medical men towards their patients is perhaps compendiously stated in R v. Bateman, (1925) 94 LJ KB 791, as follows : "If a person holds himself out as possessing special skill and knowledge and he is consulted, as possessing such skill and knowledge, by or on behalf of a patient, he owes a duty to the patient to use due caution in undertaking the treatment. If he accepts the responsibility and undertakes the treatment and the patient submits to his direction and treatment accordingly, he owes a duty to the patient to use diligence, care, knowledge, skill and caution in administering the treatment. No contractual relation is necessary, nor is it necessary that the service be rendered for reward..The law requires a fair and reasonable standard of care and competence. This standard must be reached in all the matters above mentioned. If the patient''s death has been caused by the defendant''s indolence or carelessness, it will not avail to show that he had sufficient knowledge; nor will it avail to prove that he was diligent in attendance. If the patient has been killed by his gross ignorance and unskilfulness... As regards cases where incompetence is alleged, it is only necessary to say that the unqualified practitioner cannot claim to be measured by any lower standard than that which is applied to a qualified man. As regards cases of alleged recklessness, juries are likely to distinguish between the qualified and the unqualified man. There may be recklessness in undertaking the treatment and recklessness in the conduct of it. It is, no doubt, conceivable that a qualified man may be held liable for recklessly undertaking a case which he knew, or should have known, to be beyond his powers, or for making his patient the subject of reckless experiment. Such cases are likely to be rare... (see Charlesworth on Negligence, Fifth Edn., pages 181 and 182, para 272)."

LORD Denning M.R. rightly pointed out in Hucks v. Cole, (1968) 118 New Law Journal 469, as follows : "A charge of professional negligence against a medical man was serious. It stood on a different footing to a charge of negligence against the driver of a motor car. The consequences were far more serious. It affected his professional status and reputation. The burden of proof was correspondingly greater. As the charge was so grave, so should the proof be clear. With the best skill in the world, things sometimes went amiss in surgical operations or medical treatment. A doctor was not to be held negligent simply because something went wrong. He was not liable for mischance or misadventure; or for an error of judgment. He was not liable for taking one choice out of two or for favouring one school rather than another. He was only liable when he fell below the standard of a reasonably competent practitioner in his field so much so that his conduct might be deserving of censure of inexcusable."

(Emphasis supplied) In Halsbury''s Law of England, Volume 26, at page 17, the law is stated as under : "Negligence : duties owed to patient. A person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him 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 his administration of that treatment. A breach of any of these duties will support an action for negligence by the patient."

"Degree of skill and care required. The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest, nor a very low degree of care and competence judged in the light of the particular circumstances of each case, is what the law requires : a person is not liable in negligence because someone else of better skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a reasonable body of medical men skilled in that particular art although a body of adverse opinion also existed among medical men."

The principles so stated by Halsbury were affirmed by the Supreme Court in Dr. Laxman Balkrishna Joshi v. Dr. Trimbak Bapu Godbole, 71 BLR 236 (240)= (AIR 1969 SC 128 (131).

TAYLOR''s Medical Jurisprudence, 12th Edition, at page 55 states : "Doctors must be profoundly indebted to Lord Justice Denning for this summing-up in the case of Hatcher v. Black. The details of the negligence alleged are of no importance to the principles involved, but the generalization made in the Judge''s summing-up speech was vital to a fair and just appraisal of doctor''s responsibilities. He said, ''In a hospital, when a person was ill and came in for treatment, no matter what care was used, there was always a risk; and it would be wrong and bad law to say that simply because a mishap occurred the hospital and doctors were liable....''. The jury must not, therefore, find him negligent simply because one of the risks inherent in an operation actually took place, or because in a matter of opinion he made an error of judgment. They should find him guilty when he had fallen short of the standard of reasonable medical care, when he was deserving of censure."

IT is also necessary to bear in mind the following warning given to Courts by Godard L.J. as he then was, in Mahon v. Osborne, (1939) 2 KB 14 at p.47 : "I would not for a moment attempt to define in vacuo the extent of a Surgeon''s duty in an operation beyond saying that he must use reasonable care, nor can I imagine anything more disastrous to the community than to leave it to a jury or to a Judge, if sitting alone, to lay down what it is proper to do in any particular case without the guidance of witnesses who are qualified to speak on the subject."

Moreover, it is a principle of civil liability, subject only to qualifications which have no present relevance, that a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule. In the law of negligence, the test whether the consequences were reasonably foreseeable is a criterion alike of culpability and of compensation, as held by the Privy Council in Overseas Tankship (U.K.) Limited v. Morts Dock and Engineering Company Limited, (1961) 1 All ER 404.

In Lord Nathan''s Medical Negligence, 1957 Edition, the following observation of Lord President Clyde in Hunter v. Hanley, (1955) SLT 213, is relied upon at page 21 : "The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of it acting with reasonable care." At page 22 of the book, it is stated : "The medical man must therefore exercise reasonable skill and care, measured by the standard of what is reasonably to be expected from the ordinarily competent practitioner of his class. If he does so he will have discharged his duty and cannot be held answerable even if the treatment has untoward results. For the medical man is not an insurer; he does not warrant that his treatment will succeed or that he will perform a cure. Naturally he will not be liable if, by reason of some peculiarity in the frame or constitution of a patient which was not reasonably to be anticipated, a treatment which, in ordinary circumstances would be sound, has unforeseen results. But he will not even be liable for every slip or accident. The standard of care which the law requires is not insurance against accidental slips. It is such a degree of care as a normally skilful member of the profession may reasonably be expected to exercise in the actual circumstances of the case in question. It is not every slip or mistake which imports negligence."

THUS, in order to decide whether negligence is established in any particular case, the act or omission or course of conduct complained of must be judged not by ideal standards nor in the abstract, but against the background of the circumstances in which the treatment in question was given and the true test for establishing negligence on the part of a doctor is as to whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with reasonable care. Merely because a medical procedure fails, it cannot be stated that the medical practitioner is guilty of negligence unless it is proved that the medical practitioner did not act with sufficient care and skill and the burden of proving the same rests upon the person who asserts it. The duty of a medical practitioner arises from the fact that he does something to a human being which is likely to cause physical damage unless it is done with proper care and skill. There is no question of warranty, undertaking or profession of skill. The standard of care and skill to satisfy the duty in tort is that of the ordinary competent medical practitioner exercising the ordinary degree of professional skill. A defendant charged with negligence can clear himself if he shows that he acted in accordance with general and approved practice. It is not required in discharge of his duty of care that he should use the highest degrees of skill, since they may never be acquired. Even deviation from normal professional practice is not necessarily evidence of negligence. It is in the light of the above settled principles, governing medical man, that we have to decide whether opposite party Nos. 1 and 2 in the facts and circumstances of the present case were, in any way, negligent so as to saddle them with the liability in the present case.

AS already stated, the present case, as put forth by the complainant, is a case of ''sterilisation failure'' and the point to be considered by us is that whether it can be stated that the opposite parties were guilty of such an error which no doctor of reasonable competence would commit. One of the most commonly used methods of sterilisation is laproscopic sterilisation which was adopted in the case of the complainant. The said method involves passing of a ring or band over the fallopian tubes. There are numerous medical studies which testify to the fact that all methods of female sterilisation, including tubal ligation have a certain failure rate since the risk of failure is inherent in the procedure. In ''Principles of Gynaecology'' by Sir Norman Jeffcoate, it has been observed as under : "No method, however, is absolutely reliable and pregnancy is reported after sub-total and total hysterectomy, and even after hysterectomy with bilateral saplingectomy. The explanation of these extremely rare cases is a persisting communication between the ovary or tube and vaginal vault. Even when tubal occlusion operations are competently performed and all technical precautions taken, intra-uterine pregnancy occurs subsequently in 0.3% cases. This is because an ovum gains access to spermatozoa through a recanalized inner segment of the tube." (Emphasis supplied) In ''Family Planning Handbook for Doctors'' published by the International Planned Parenthood Federation at page 163 a mention is made of the fact that female sterilisation has a failure rate. At page 182 under the heading ''Late complications'' it is stated : "All occlusion methods have a failure rate, however slight, and these pregnancies carry a high risk of being ectopic."

Thereafter the cause of failure are indicated. One of them being : "The uterine end of the tube may develop a fistula with the peritoneal cavity. This may permit sperm to pass, and the resulting pregnancy is often ectopic."

IN the ''Training Manual'' issued by the Department of Health and Family Welfare, Government of Himachal Pradesh, the procedure of laproscopic sterilisation is indicated at page 65. At page 66 under the heading ''Disadvantages'' a mention is made of failure rate. At page 67 under the heading of delayed complications mention is made of failure of method leading to pregnancy.

IN ''Contraceptive Technology'', 1986-87 at pages 288-289 a table is given which gives the advantages and disadvantages of all methods of male and female sterilisation. The said table also indicates that every method of sterilisation has a certain failure rate. In the Text Book of ''Obstetrics'' by Shri D.C. Datta at page 566 the procedure of laproscopic sterilisation has been explained. On the same page there is a table (No. 35.9) which also makes a mention of failure rate of sterilisation. The failure rate of laproscopic sterilisation is mentioned at page 568 in table No. 35.10 and again at page 569 mention is made of a failure rate of all methods of female sterilisation.

The abovesaid extracts from reputed medical texts clearly prove that the risk of failure is inherent in female sterilisation. That risk cannot be obviated despite due care and caution. Risk of failure, being a risk inherent in the procedure and therefore it cannot be said that the opposite parties were, in any way, guilty of negligence merely because the procedure has failed. As such assuming that sterilisation failure took place in the case of the complainant it cannot be said that the same is indicative of any negligence on the part of the opposite parties. In view of the position explained above, in our opinion, the present complaint, filed by the complainant, is devoid of substance and the same merits dismissal. Accordingly, the same is dismissed. In the facts and circumstances of this case, more particularly the fact that the complainant is a semi-literate lady, belonging to the lower strata of the society we are not burdening the complainant with costs and leaving the parties to bear their respective costs of litigation. Complaint dismissed.