Suresh Kumari vs State and Others

T.S. Doabia, J.—Petitioner adopted the 'Family Welfare' means and with a view to restrict the family size resorted to tubectomy operation.

This was performed on 14.7.1998. Notwithstanding this the petitioner became pregnant. As per petitioner, ultimately a female child was born on

25.11.1999. However in the certificate, Annexure 'B\ the sex of the child born on 25.11.1999 is shown to be 'male'.

The short submission made by the petitioner is that on account of the negligence of respondent No. 4, who is an employee of State Government,

the tubectomy operation was not successful and, therefore, the State is vicariously responsible for the act of respondent No. 4.

The factual submissions made in the petition have not been denied by respondents in the counter-affidavit. It is submitted that all precautionary

measures were taken and the operation in question may not be 100 per cent successful in all cases. It is submitted that the possibility of the birth of

a child even after the operation is there. It is accordingly submitted that no case is made out for grant of compensation.

Learned counsel for the petitioner places reliance on a decision given by the Supreme Court of India in the case of State of Haryana and Others

Vs. Smt. Santra, . It is submitted that this decision does support the proposition that if there is negligence on the part of the doctor in the matter of

carrying out sterilisation operation then the State would be liable under law of Torts. The implied duty of a doctor is to act with a reasonable

degree of care and skill as was noticed in the case of Bolam v. Friern Hospital Management Committee (1957) 2 All ER 118. The fact is that this

decision stood approved by the House of Lords in Whitehouse v. Jordan 1982 ACJ 107 (HL, England). In two decisions delivered by the

Supreme Court, namely, Laxman Balkrishna Joshi v. Trimhak Rapu Godbole 1968 ACJ 183 (SC) and A.S. Mittal and Another Vs. State of U.P.

and Others, , it was laid down that a doctor owes a duty to exercise due care in deciding whether to undertake the case; a duty of care in deciding

what treatment is to be given and a duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of

action for negligence and the patient may on that basis recover damages from his doctor. In another case in Smt. Piar Kaur and Another Vs. The

Punjab State and Others, , where the question of medical negligence was considered in the context of treatment of a patient. Both these decisions

were considered in Santra's case (supra).

Another decision where compensation has been allowed on account of negligence of the doctor was noticed. In these decisions it has been

observed that a doctor is supposed to act with reasonable care.

In State of Haryana and Others Vs. Smt. Santra, , ultimately what has been observed is reproduced below:

(20) If Santra, in these circumstances, had offered herself for complete sterilisation, both the Fallopian tubes should have been operated upon.

The doctor who performed the operation acted in a most negligent manner as the possibility of conception by Santra was not completely ruled out

as her left Fallopian tube was not touched. Santra did conceive and gave birth to an unwanted child.

It is basically on the basis of Santra's decision, a claim for compensation has been made. It was ultimately observed that the State's appeal was

without any merit and respondent Santra was held entitled to the amount awarded by the courts below.

Learned counsel for the respondents however, submits that the decision which was given by the Supreme Court was given in a civil suit. Parties

had opportunity to lead evidence. It was after evidence was led, a finding was recorded that there was some remissness in the matter of providing

medical assistance. It is accordingly submitted that this disputed question of fact be not decided in this writ petition. The question arises as to

whether the operation of tubectomy results in 100 per cent success or whether there is failure also, and if there is failure then what is the effect of

this failure. In this regard it would be apt to refer to Jeffcoate's Principles of Gynaecology, revised by V.R. Tindall. At page 621, reliability of

sterilisation procedures in the females has been described. This para is reproduced below:

The only sterilisation 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 salpingotomy. 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 recanalised inner segment

of the tube. There is a 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, 'sterilisation' by tubal

ligation or 'tubal resection' in talking to the patient and in all records. This has real merit from the medicolegal standpoint and has always been my

practice. Many babies born after sterilisation operations have been conceived before the operation. Tubes can be tied when a 7-10 days old ovum

is already embedded in the endometrium. Because of this, a curettage should always be done at the time of every sterilisation procedure. It is

difficult to counter the presence of a 1-3 days old conceptus in the outer end of the tube. Unless advised to the contrary, woman may practise

unprotected coitus within the 48 hours prior to entering hospital to be sterilised, feeling it is quite safe to do so. If they do, and if conception occurs,

the operation results in imprisonment of the fertilised ovum in the outer end of the tube. So collapse of the patient due to ectopic pregnancy is

recorded during the few weeks following either tubal ligation or hysterectomy.

A perusal of the above para would indicate that 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. Reason for this has been given. This is because an ovum gains

access to spermatozoa through a recanalised inner segment of the tube.

This subject is also discussed in the book known as ""Manual of Clinical Problems in Obstetrics and Gynaecology' 4th Edn., by Michel E. Rivin

Rick W. Martin what is stated at page 330 is being reproduced below:

If luteal pregnancies and the misidentification of pelvic structures are ruled out, the failure rate of the laparoscopic techniques varies from 0.9 to

6.0 per 1000 sterilisations. The most serious complication of laparoscopic sterilisation failure is ectopic pregnancy. It has been suggested that the

electrocoagulation techniques lead to a higher rate of ectopic pregnancies, but overall, laparoscopic sterilisation is a safe procedure that is attended

by very low morbidity and mortality.

A perusal of the above medical opinion would indicate that notwithstanding the fact that operation is performed competently and by taking all

technical precautions, the chances of the woman getting pregnant are still there. The rate of failure has been indicated as 0.3 per cent as referred to

above. One of the reasons for this can be that an egg stands released 2/3 days prior to the operation. In such a situation notwithstanding the fact

that a successful operation has been performed, pregnancy may still occur. Therefore, it would not be apt to record a finding of negligence in this

litigation. The petitioner is left free to pursue the remedy in the forum other than writ jurisdiction.

Before parting with this order, it would be apt to notice one fact. Petitioner has stated that after the operation, the petitioner gave birth to a

child on 25.11.1999. In para 6 of the petition the word 'female' has been deleted. However, so far as para 7 is concerned what was sought to be

omitted in para 6 could not be omitted. In para 7, the assertion made is that birth of female child took place because of the carelessness on the part

of the doctor. Certificate which has been placed on record shows that a male child has been born. As to why this wrong statement has been made

in this petition is a matter which is being noted and left as it is. Was there an effort to create an impression that a female child is a burden on the

society. If such was the impression sought to be created, then all that can be said is that this notion requires to be dispelled. Such a pleading should

not have formed part of the pleadings.

Disposed of accordingly.