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2003 Supreme(P&H) 1158
PUNJAB & HARYANA HIGH COURT
M.M.Kumar, J.
Fulla Devi Alias Fullo Devi
Versus
State Of Haryana
Regular Second Appeal No. 368 of 2002,
Decided On : AUGUST 18, 2003
The central legal point established in the judgment is the duty imposed on every doctor to act with a reasonable degree of care and skill, and the application of the principle of negligence per se in cases of medical negligence.
Headnote:
Medical Negligence - Tubectomy Operation - Code of Civil Procedure, 1908 - [Section 100] - [Poonam Verma v. Ashwin Patel and Ors. 1996(4) S.C.C. 332, Spring Meadows Hospital and Anr. v. Harijol Ahluwalia, J.T. 1998(2) S.C. 620, State of Haryana v. Smt. Santra, J.T. 2000(5) S.C. 34] - The court discussed the negligence on the part of the doctor in performing the tubectomy operation and referred to various legal provisions and judgments to establish the duty imposed on every doctor to act with a reasonable degree of care and skill. The court highlighted the principle of negligence per se and concluded that the arrival of a female child despite sterilization operation is a per se proof of negligence unless the contrary was proved that the doctor has performed his duty with reasonable degree of care and skill.
Fact of the Case:
The plaintiff-appellant underwent a tubectomy operation which failed, resulting in the birth of an unwanted female child. The trial Court awarded compensation, but the District Judge dismissed the suit, stating that there is always a chance of failure in such sterilization operations.
Finding of the Court:
The view taken by the District Judge was not accepted, and it was found that the failure in performing the tubectomy operation indicated negligence on the part of the doctor.
Issues: The main issue was whether negligence on the part of the doctor in performing the tubectomy operation was inferable or had to be ignored.
Ratio Decidendi: The court applied the principle of negligence per se and concluded that the arrival of a female child despite sterilization operation is a per se proof of negligence unless the contrary was proved that the doctor has performed his duty with reasonable degree of care and skill.
Final Decision: The appeal was allowed, and the suit of the plaintiff-appellant was decreed. She was held entitled to compensation of Rs. 90,000/- with interest at the rate of 9 per cent per annum.
M.M.Kumar, J.
1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) which is directed against the judgment and decree dated 9.11.2001 passed by the District Judge, Kurukshetra, reversing the judgment and decree dated 14.5.2001 passed by the Additional Civil Judge (Senior Division), Kurukshetra. The Civil Judge has decreed the suit filed by the plaintiff-appellant holding that the tubectomy operation had failed because of the negligence on the part of the defendant-respondents. The negligence on the part of the defendant-respondents resulted into birth of a third unwanted female child to the plaintiff-appellant which has apparently burdened the plaintiff-appellant financially. The plaintiff-appellant is proved to be a poor lady who had already four children and has also been under considerable financial burden. The trial Court assessed the expenses for rearing of the child to Rs. 4,000 per year and applied the multiplier of 18 years. Accordingly, she was given Rs. 72,000/- as compensation for up-bringing of the unwanted child and Rs. 18,000/- on account of expenses incurred by her on treatment, damages and pain including litigation expenses. The trial Court had also awarded interest at the rate of 12 per cent per annum. However, the learned District Judge has dismissed the suit by holding that in such like sterilization operations there is always a chance of failure which was explained to the plaintiff-appellant. According to the learned District Judge, the doctor of the Government cannot be held responsible for such failure. The observations of the learned District Judge read as under:-
"8. Thus the only controversy to be resolved in this case is whether the said sterilization operation failed in routine per chance, or because of the negligence on the part of the operating surgeon. However, about this it would be noted that when examined as DW1 Dr. S.S. Saini, the concerned medical officer of Lok Nayak Jai Parkash Hospital, Kurukshetra has stated categorically that on 19.12.1995 he had performed the impugned sterilization operation upon the plaintiff and at that time had told her categorically that despite of such sterilization operation, still there was risk of failure and she had thumb-marked the application/consent letter, Ex.D1, in this regard and a close scrutiny of the same also shows that therein too it is mentioned specifically that such operation may fail and for that neither the doctor nor the Government Hospital shall be responsible for such failure. Moreover, it is well settled that there is some chance of failure in operation for such sterilization and in the Text Book of Gynaecology, including contraception, third Edition by D.C. Datta, M.B.B.S. D.G.O. M.O.(Calcutta) Professor and Head, Department of Obstetrics and Gynecology Nilratan Sircar Medical College and Hospital, Calcutta 3rd Edition, it is mentioned at page 459 that failure rate of mini lap sterilization is 0.1-0.2-0.6% Likewise in Te Lindes operative Gynecology, sixth Edition, by Richard F. Mattingly, M.D., Professor and Chairman, Department of Gynaecology, sixth Edition, by Richard F. Mattingly, M.D. Professor and Chairman, Department of Gynecology and Obstetrics the Medical College of Wisconsin, Milwaukee, Wisconsin, and John D.Thompson, M.D. Professor and Chairman, Department of Gynecology and Obstetrics, Emory University, School of Medicines, Atlanta, Georgia, U.S.A., it is mentioned that in case of tubal sterilization, even if both tubes are properly ligated, still 1 to 20 per 1000 women many conceive in the future. Thus for the simple reason that the plaintiff-respondent conceived despite of such sterilization, it cannot be claimed that the same itself shows that the operating surgeon, namely Dr. S.S.Saini, holding post-graduate degree in surgery, was negligent in performing such sterilization operation."
2. The judgment in the case of State of Haryana v. Smt. Santra, J.T. 2000(5)
