Smt. Shakuntla Devi vs The State of H.P. and Others

Kuldip Singh, J.—The appellant, who was plaintiff, has come in appeal against the judgement, decree dated 13.10.2003 passed by learned District Judge, Bilaspur in Civil Suit No. 1 of 2000, dismissing her suit for compensation of Rs. 4,50,000/- on account of failure her sterilization operation. The suit and the present appeal were filed by appellant as an indigent person.

The pleaded case of appellant is that she has given birth to two children after her marriage with proforma respondent No. 3. The officers and employees of respondent No. 1 had motivated the appellant to undergo tubectomy operation and accordingly she opted Whether the reporters of the local papers may be allowed to see the Judgment? for tubectomy operation and was actually operated on 17.1.1995 at C.H.C., Bharari by one Dr. Ashwani Kumar Sharma, who assured her that the operation had been successful. The appellant had been putting up with her husband and enjoying the married life. In 1996, she developed pregnancy and had given birth to a male child on 17.3.1997. The appellant has alleged that she developed pregnancy due to medical negligence in performing her tubectomy operation by the doctor. She was too poor to maintain the third child, which has caused mental and physical pain to her. On those facts, she had filed a the suit for recovery of Rs. 4,50,000/- as compensation.

The respondents No. 1 and 2 had contested the suit on the grounds of maintainability, limitation estoppel and non-joinder of necessary parties, which objections were taken by respondents No. 1 and 2 as preliminary objections. On merits, it was denied that appellant was motivated to undergo tubectomy operation. The appellant had voluntarily opted for sterilization operation. It was submitted that the operation was conducted by Dr. Ashok Kumar Soni and not by Dr. Ashwani Kumar Sharma. The doctor A.K. Soni was qualified competent surgeon, who performed sterilization operation of the appellant on 17.1.1995. He operated the appellant with due care and caution. It was pleaded that there were chances of failure of such type of operation due to re- canalization. The concerned medical officer was not negligent. The appellant at the early stage of pregnancy could have taken the steps for termination of the pregnancy. The appellant had consented not to claim compensation in case of failure of tubectomy operation. The claim of the appellant was denied.

On the pleadings of the parties, the following issues were framed:

Whether the operation of tubectomy of the plaintiff which was performed on 17.1.1995 had failed due to the negligence of Doctor Ashwani Kumar Soni, as alleged, if so, its effect? OPP.

If issue No. 1 supra is proved, to what amount of compensation-damage the plaintiff is entitled to and from which of the defendants? OPP.

Whether the plaintiff is estopped from filing the present suit by her act, conduct and deed? OPD.

Whether the plaintiff is not entitled to any damages from the defendants on account of doctrine of volenti-non-fitinjuria, as alleged? OPD

Whether the suit is bad on account of non-joinder of necessary parties, as alleged? OPD.

Whether the suit is barred by limitation, as alleged? OPD.

Relief.

Issues No. 1, 2, 5 and 6 were answered in negative, issues No. 3 and 4. in affirmative and suit was dismissed, hence the present appeal.

I have heard Mr. Rajiv Jiwan, learned Counsel for the appellant and Mr. A.K. Bansal, learned Additional Advocate General for the respondents and have also gone through the record. On behalf of the appellant, it has been submitted that Dr. A.K. Soni was negligent in performing tubectomy operation of the appellant on 17.1.1995. The concerned doctor did not take due care and caution and therefore, sterilization operation of the appellant had failed. Dr. A.K. Soni had performed tubectomy operation of appellant as an officer of respondent No. 1, therefore, respondents No. 1 and 2 are vicariously liable for the negligence of Dr. A.K. Soni. The appellant is a poor lady, she has suffered physically and mentally on account of birth of third child and, therefore, she is entitled to damages claimed in the suit. The learned Additional Advocate General has submitted that in medical science, it is well known that tubectomy operation is not always 100% successful, in some cases re-canalization takes place which causes pregnancy even after tubectomy operation, but this does not mean that doctor who had performed tubectomy operation was negligent in performing the operation. He has submitted that appellant has miserably failed to prove the negligence on the part of doctor, who had performed her tubectomy operation.

In the plaint, the appellant has not pleaded that the concerned doctor, who conducted her tubectomy operation was not qualified and having requisite experience in the field. There is vague allegation against the doctor that he was not properly skilled and trained, he was not knowing how to conduct operation. These pleadings are qualified with the pleadings that there was no question of failure of such operation just within a period of two years and doctor did not take due care and caution in performing the operation. On the contrary, respondents No. 1 and 2 have pleaded that Dr. Ashok Kumar Soni, M.D. Gynaecologist had experience in the field of gynaecology. PW 1 Shakuntla Devi in her statement has stated that her operation had failed due to the negligence of the doctor. She has nowhere stated that doctor, who conducted the operation was not qualified or he had not taken requisite precautions while performing her tubectomy operation. In cross-examination, she has admitted that she had voluntarily opted for operation. The doctor had advised her to follow some precautions. She has also stated that she came to know about the pregnancy when she conceived, but she did not approach the hospital for termination of pregnancy. She did not examine an expert in support of her case.

DW 1 Dr. A.K. Soni has stated that he had been working as medical officer in Health and Family Welfare Department of the State of Himachal Pradesh since January 1988. He had passed his M.D. in Gynaecology and Obstetrics in November 1987. He had performed 7,000 tubectomy operations. He has stated that on 17.1.1995 he was surgeon incharge of the camp. Shakuntla Devi had opted to undergo tubectomy operation vide Ex. DA. Shakuntla never complained about her pregnancy after she became pregnant. In cross-examination, he has admitted that he conducted operation of appellant and issued certificate Ex. PA. The tubes were checked at the time of performing tubectomy operation. He denied that operation was conducted negligently, and, therefore, there was re-connection of tubes.

It is clear from the statement of DW 1 Dr. A.K. Soni that he checked the tubes and performed the operation of appellant. He denied that he acted negligently in performing the operation of the appellant. In the cross-examination, suggestion was given to the doctor that there was reconnection of the tubes as the operation was conducted negligently. There is no presumption of negligence on the part of doctor in performing the operation. But the suggestion given to the doctor in cross-examination indicates that according to appellant there was reconnection of the tubes. In Jacob Mathew Vs. State of Punjab and Another, , which is a case of medical negligence, the Hon''ble Supreme Court in paragraph-48 has summed up the conclusions as follows:

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(2) Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. So also, the standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial. Similarly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.

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(5) XXX XXX XXXX

(6) XXX XXX XXXX

(7) XXX XXX XXXX

(8) XXX XXX XXXX.

In State of Punjab Vs. Shiv Ram and Others, , the Hon''ble Supreme Court has held that merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the 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 is negligence on the part of the surgeon in performing the surgery. It has been further held that the methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes. 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.

In State of Punjab v. Shiv Ram and Ors. (supra) on female sterilization, the Hon''ble Supreme Court in paragraph-11 of the report has noticed the reliability of sterilization procedure performed by the Gynaecologists from Jeffcoate''s Principles of Gynaecology, revised by V.R. Tindall, MSc., MD, FRCSE, FRCOG, Professor of Obstetrics and Gynaecology, University of Manchester (Fifth Edition) published by Butterworth Heinemann, as follows:

Dealing with reliability of the sterilization procedures performed and commonly employed by the gynaecologists, the text book states (at p.621): Reliability The only sterilization procedures in the female which are both satisfactory and reliable are: resection or destruction of a portion of both fallopian tubes; and hysterectomy. No method, however, is absolutely reliable and pregnancy is reported after subtotal and total hysterectomy , and even after hysterectomy with bilateral salpingectomy. The explanation of these extremely rare cases is a persisting communication between the ovary or tube and the vaginal vault.

Even when tubal occlusion operations are competently performed and all technical precautions are taken, intrauterine pregnancy occurs subsequently in 0.3 per cent of cases. This is because an ovum gains access to spermatozoa through a recanalized inner segment of the tube.

There is clinical impression that tubal resection operations are more likely to fail when they are carried out at the time of caesarean section than at any other time. The fact that they occasionally fail at any time has led many gynaecologists to replace the term ''sterilization'' by "tubal ligation" or "tubal resection" in talking to the patient and in all records. This has real merit from the medicolegal standpoint.

It is thus clear that success rate of tubectomy operation is not always 100%, even though the doctor who had performed the operation was not negligent. The pleadings of appellant regarding the skill and knowledge of doctor, who performed her operation are based upon the perception that since operation had failed within two years and therefore, concerned doctor did not have necessary skill and knowledge to perform tubectomy operation. In these circumstances, it cannot be construed that appellant has projected the case in the pleadings that the doctor, who had performed her tubectomy operation, was actually not qualified to conduct tubectomy operation or he was not having skill or he was not aware of the field.

In the present case, except bald statement of appellant there is no evidence on record that Dr. A.K. Soni did not perform tubectomy operation of the appellant with due care and caution. DW 1 Dr. A.K. Soni has stated that he had performed 7,000 tubectomy operations. He was post graduate in Gynaecology and Obstetrics and was having sufficient experience when he performed tubectomy operation of appellant. It appears due to some reasons operated tubes got reconnected, therefore, it cannot be said that Dr. A.K. Soni had performed tubectomy operation of the appellant carelessly, negligently without taking due care and caution.

The appellant has admitted that she came to know of her pregnancy when she conceived, but despite that she opted to continue with the pregnancy. She did not go for termination of the pregnancy and has filed the suit on account of mental and physical pain and suffering due to pregnancy and child birth. If the pregnancy of the appellant after tubectomy operation was not of her liking then she could have gone for termination of pregnancy at an early stage. The appellant''s option not to go for termination of pregnancy indicates that she was willing party to continue with the pregnancy. In these circumstances, on this ground also she is not entitled to damages. This is in addition to the fact that appellant has failed to prove negligence on the part of the doctor, who conducted her tubectomy operation on 17.1.1995. The learned District Judge has rightly appreciated the material on record in dismissing the suit of the appellant. The learned Counsel for the appellant has failed to make out any case for interference.

No other point was urged.

As a result of above discussion, the appeal fails and is accordingly dismissed with no order as to costs.