State of H.P. vs Nand Lal and Another

Surinder Singh, J.—The State is in appeal against the judgment and decree passed in Civil Suit No. 2 of 1998 by the learned trial Court on 18.12.2000, whereby the suit filed by respondent/plaintiff Nand Lal against the appellant and proforma respondent Dr. A.K. Sharma, was decreed, for the recovery of damages by way of compensation to the tune of Rs. 3,05,000/- with costs on account of failure of vasectomy operation.

(a) Briefly stated the facts of the case are that respondent Nand Lal, hereinafter referred as ''plaintiff'' averred that he was married in the year 1986 i.e. about 11 years ago from the date of filing of the suit. During this marriage, his wife gave birth to a son and a daughter. Thereafter, they decided not to go for any other issue and have a planned family.

(b) On 5.2.1993, the appellant-State organized a family-planning camp through its Health Department in village Kandraur, where, his vasectomy operation was performed by respondent/defendant Dr. A.K. Sharma. He was informed that his operation was successful.

(c) It is alleged that after about 1 ? years, his wife got impregnated and gave birth to a male child, named Sonu. He alleged negligence of doctor aforesaid in performance of the operation, thus claimed an amount of Rs. 3,05,000/- as damages/compensation for incurring the expenses of maintenance for the child to whom he never wanted.

The appellant and proforma respondent Dr. A.K. Sharma, now referred as "defendants'', both had resisted and contested the suit. The defendants took up the preliminary objections of maintainability, no cause of action, limitation and estoppel. On merits, they averred that the vasectomy operation was performed carefully and properly. It was also their case that the wife of the plaintiff knew fully well that she had conceived, but despite that she did not go for abortion if the child was not wanted by them. This was a case of volenti non-fit injuria. Further the defendants also averred that the plaintiff had underwent operation voluntarily without any pressure, knowing fully well its consequences. He being an educated person also gave in writing that he was aware of the other methods of contraception though available, but for all practical purposes, the vasectomy operation was permanent. He was also aware that there are some chances of its failure for which the operating doctor would not be held responsible and this operation carried an element of risk, which was fully explained to him. It was also averred in the written statement that the failure rate of vasectomy by authenticated medical literate is estimated to be one in one hundred, as mentioned in William Obstetrics 16th Edition page No. 1 037 and PARK''s Text Book of Preventive and Social Medicines Edition 13, Page 293, the failure rates are upto .15%, which can be due to accessory vas (there may be more than one accessory Vas on one side) and spontaneous re-canalisation which varies between 0 to 6% and further that the re-canalisation of junction to segments of Vas could also occur. Thus, in these circumstances, .15% to 1 % of such operations are likely to fail without any negligence of the doctor.

On the pleadings of the parties, learned trial Court framed the following issues:

Whether the family planning operation performed by defendant No. 2 has failed due to the negligence of the Doctor, if so, its effect? ....OPP

If issue No. 1 is proved in affirmative, to what amount of compensation, the petitioner is entitled? ....OPP

Whether the suit is not maintainable in the present form? ....OPD

Whether the suit is barred by limitation? ....OPD

Whether the plaintiff is estopped from filing the suit due to his act, conduct and acquiescence? ....OPD.

Relief.

Learned trial Court after a full trial, answered issues No. 3 to 5 in negative and issue No. 1 in affirmative, thus decreed the suit of the plaintiff for the recovery for Rs. 3,00,000/- from the defendants as damages in reply to issue No. 2, which has been challenged in this appeal.

Shri A.K. Bansal, learned Additional Advocate General vehemently argued that the learned trial Court did not appreciate the evidence on record in the right perspective and further that no negligence on the part of the doctor could be proved. According to him, the doctor aforesaid had been performing hundreds of such operations and he had taken due care and caution. It is also argued that the learned trial Court failed to take notice of the medical authorities cited before it that even after despite taking of all the precautions, the rate of failure could be anything between 0.15% to 1% due to re-canalization or natural causes.

Contra, Shri T.S. Chauhan, learned Counsel for respondent No. 1, while supporting the impugned judgment and decree passed by the learned trial Court submitted that the plaintiff was made to understand that his operation was successful. He was not told about the post operative precautions to be taken by the doctor. The plaintiff had undergone semen check up after he came to know that his wife had conceived and had tested positive. The negligence of the doctor is writ large. Therefore, there are no ground to interfere with the impugned judgment and decree passed by the learned trial Court.

I have given my thoughtful consideration to the rival contentions of the parties and have also gone through the record in its meticulous details.

It is well established that the negligence in the context of the medical profession necessarily calls for a treatment with a difference. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised with reasonable degree of care and caution. He does not assure his client of the result. A physician would not assure the patient of full recovery of every case. Similarly, a surgeon cannot or and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100%, for the person operated upon. The only assurance which such a professional can give or can be understood to have given by implication is that he is possessed of the requisite skill in that branch of profession which he is practising and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is all what the person approaching the professional can expect.

Judged by the above standard, a professional may be held liable for negligence on one of 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. A case of occupational negligence of the medical doctor, 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 would also available or simple case a more skilled doctor would not have chosen to follow or resort to that practice or procedure, which the accused followed. [see Jacob Mathew Vs. State of Punjab and Another, and Malay Kumar Ganguly Vs. Dr. Sukumar Mukherjee and Others,

In the instant case, the respondent as PW1 Nand Lal alleged negligence of the doctor performing his vasectomy operation as his sterilization operation failed, his wife had conceived and just 20 days before the delivery of the child, he got his semen analysed on 16.7.94. To that effect, PW3 Dr. N.K. Sankhayan issued certificate Ex. PC. He was told that operation was not successful. PW3 aforesaid could not identify the plaintiff as the same person whose semen analysis was done by him. Presuming him to the same person, even in that event, there is nothing on record to show that the failure of such an operation was attributable to any negligence of the doctor while performing the operation.

Contra, Dr. A.K. Sharma, defendant examined himself as DW1. He testified that he had been performing family planning sterilization operations under the Family Planning Scheme w.e.f. the year 1980 since when he took up the medical profession under the State Health Services. He stated that in the same district, since 1987, he had performed about 20,000 sterilization operations till the year 2000, out of which 2000 were only of vasectomy. He admitted that on 5.3.93, he had performed the vasectomy operation of the plaintiff after taking his written consent Ex. DA and fully explained the consequences thereof to him with complete information in all respect. He was also advised post operational care for a period of three months and also to get his semen tested after every quarter or after 20 ejaculations, which was not done by him. He also stated that even according to the medical literature Exts. DB to DE, percentage of the failure of such operation is between 0.15 to 1% owing to the reason of spontaneous reunion of the two cuts of the Vase, which takes place and there is re-canalisation of the Vase, thus possibility exists for a maximum period of three years as per medical literature, thus a follow up is required for about 3 years. He also stated that the medical literature also recognises the chances of 0 to 6% spontaneous re-canalization, whereas, in the instant case, the respondent-plaintiff got himself checked up after about one year five months of vasectomy operation when his wife was about to deliver a child.

The authenticated Medical Literature Exts. DA to DE fully corroborates the statement of the doctor which was not controverted by the plaintiff.

In fact, the negligence is the breach of a duty caused by the omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent or a reasonable man would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: ''duty'', ''breach'' and ''resulting damages''.

While performing the operation aforesaid, the respondent-doctor had taken care to which he owed towards the complainant. Ex. DA is the written consent form signed by plaintiff which inter-alia explains that there are some chances of failure of operation for which neither the government hospital nor the operating surgeon would be held responsible. But the plaintiff could not prove that the failure of the operation was connected either with his duty or failure to attend the standard of care by the doctor. He had performed his duty fairly well. Therefore, in my opinion the negligence stands not proved either against the defendant doctor or the State to hold it as vicarious liability.

The defendant-DW1 Dr. A.K. Sharma has been competent and reasonably skilled medical professional and entitled to get protection, so long as he performed his duties with reasonable skill and competence.

In depth scrutiny of the evidence on record and in the light of the medical and judicial pronouncements, in my considered opinion the vasectomy operation of the plaintiff had not failed due to negligence of the surgeon concerned. The case of the plaintiff also falls within the zone of exception as 0% to 1% failure can occur even if all due care and caution is taken by the doctor and also after taking all the precautions by the person operated. Once the couple has decided to give birth to the child, it ceases to be an unwanted pregnancy and maintenance of upbringing the child can not be claimed from the doctor [Kamla Devi v. State of Himachal Pradesh AIR 2010 (HP) 69].

Therefore, for the above stated reasons, in my opinion, learned trial Court had committed an error by decreeing the suit on the operation of the plaintiff performed by defendant No. 2, which failed due to his negligence. Thus, the impugned judgment and decree passed in Civil Suit No. 2 of 1998 dated 18.12.2000 by the learned trial Court are hereby set-aside and suit of the respondent-plaintiff stands dismissed.

The decretal amount alongwith interest accrued thereon which stands deposited in the Registry, be refunded to the appellant-State of Himachal Pradesh.

Parties are left to bear their own costs.