The burden of proof lies with the plaintiff to establish negligence in a medical malpractice case.

JUDGMENT :

This Appeal, under Section 96 of the Code of Civil Procedure [for short ‘the C.P.C.’], is filed by the Appellant/plaintiff challenging the Decree and Judgment, dated 01.08.2007, in O.S. No.55 of 2006 passed by the learned Principal Senior Civil Judge, Kurnool [for short ‘the trial Court’]. The Respondents herein are the defendants in the said Suit.

2. The appellant/plaintiff filed the Suit for claiming compensation of Rs.10,00,000/- with future interest and costs against the defendant Nos.1 to 4.

3. Both the parties in the Appeal will be referred to as they are arrayed before the trial Court.

4. The brief averments of the plaint in O.S. No.55 of 2006, are as under:

i) The plaintiff is a poor woman belonging to Boya community, living by agriculture. She was having four children and that she thought of going for tubectomy operation, therefore, she approached the Primary Health Center/ first defendant at Gudur in the year 2000 and she underwent operation on 12.05.2000 and she was issued a certificate to that effect. But in the year 2003, as she conceived, she approached the second defendant hospital for check up and came to know that sterilization done by the first defendant is not successful and the doctor advised that it was too late to get abortion and therefore she gave birth to fifth child. Plaintiff pleaded that due to the fault of first defendant, she was forced to give birth to the fifth child. Again she underwent operation for tubectomy on 14.10.2003 in the second defendant hospital. For the second time, button hole operation was done by the second defendant and a certificate was given to her to that effect.

ii) The plaintiff further pleaded that the second defendant seems to have not properly operated. This fact came to her knowledge when she approached the second defendant on 25.08.2005 for health problem, she was checked and found conceived again. This was cross-checked by her in Apollo Medical Center, Kurnool and found that she again conceived was correct. The plaintiff being a poor woman not able to maintain huge family, due to lapses on the part of defendants 1 and 2, she had to give birth to the children. Her health ruined and she is unable to bear the medical expenditure. Hence, the plaintiff is constrained to file the suit claiming compensation.

5. The defendants filed a written statement by denying all the averments mentioned in the plaint and further contended as under: -

The plaintiff was admitted in the Government General Hospital, Kurnool in the Family Planning Unit on 14.01.2003 under I.P.No.33637 for undergoing sterilization operation. As per the history of the case-sheet of the plaintiff, it was a case of failed tubectomy sterilization done at Gudur Mandal Primary Health Center. The plaintiff was operated by the method of Double Puncture Laparoscopy. At the time of operation, it was found that there was continuation of right-side tube and evidence of tubectomy on the left side tube, that D.P.L. was done on 14.10.2003. On 14.10.2003, the plaintiff did not produce any record of sterilization done at Gudur. The case-sheet of the plaintiff discloses that Dr.K.Thirupathaiah was the Medical Officer in primary Medical Center, Gudur. As per the statement of the said doctor, he opened the abdomen layers under local anesthesia could no appreciate the uterus, so Bilateral Tubectomy not done. The plaintiff was advised to undergo D.P.L. Laparoscopic sterilization. The D.P.L. was done by second defendant under local anesthesia+ I.V. sedation. The plaintiff was discharged on 15.10.2003 with an advice to attend for review after one month. As per the records available in the Family Planning Unit, the plaintiff did not turn up for any check up after one month. Second defendant successfully conducted operation on 14.10.2003 by a qualified and experienced medical officer. But no method of tubal sterilization can guarantee a 100% success rate unless it is a total salpingectomy or fimbriectomy. Further recanalization is p