Failure of sterilization surgery alone does not establish medical negligence; the burden is on the claimant to prove carelessness, with mere surgical failure insufficient for liability.

JUDGMENT

This appeal under Section 96 read with Order XLI Rule 1 C.P.C. has been filed by the plaintiff against the judgment and decree dated 08/04/1999 in O.S.No.1373/1994 on the file of the Subordinate Judges' Court, Thrissur. The respondents herein are the defendants in the suit. The parties and the documents in this appeal will be referred to as described in the suit.

2. According to the plaintiff in O.S.No.1373/1994, a suit for damages, she belongs to a very poor family. Her husband is a coolie. As they already had four children, they decided not to have any more children and hence the plaintiff and her husband consulted the 2^nd defendant who was then working as a doctor in the Government Hospital, Kunnamkulam. The 2^nd defendant advised the plaintiff to undergo Post Partum Sterilization (P.P.S.) surgery, which according to him was the best and safest method of avoiding future pregnancies. The plaintiff and her husband were told that if the said surgery was conducted, there would be no chance of any future pregnancy. Accordingly, the plaintiff underwent P.P.S. surgery. After the surgery, believing the assurance given by the 2^nd defendant at the time of the surgery that she would not conceive, the plaintiff and her husband continued their conjugal life. However, the plaintiff thereafter conceived and gave birth to a girl child. The pregnancy was never intended by the plaintiff and her husband. This happened only because the surgery conducted by the 2^nd defendant was not successful and had been done in a careless and negligent manner. The 2^nd defendant had not taken the precautions that ought to have been taken by a specialist in the matter. If necessary precautions had been taken and the surgery done in a proper manner, there would have been no occasion for the plaintiff to conceive again. The plaintiff claimed compensation to the tune of ₹50,000/- for mental agony, pain and suffering; ₹1,40,000/- towards expenses of delivery; fees paid to the doctors; money spent for purchasing medicines ; laboratory expenses ; expenses for feeding the child and other expenses including the marriage expenses to be met in future for the child. Thus, she claimed an amount of ₹2 lakhs as compensation from the defendants.

3. The 1^st defendant filed written statement admitting that the plaintiff on 06/10/1987 had undergone P.P.S. surgery at the Government Hospital, Kunnamkulam, which surgery was conducted by the 2^nd defendant herein. The 2^nd defendant is a qualified and experienced gynecologist who in the year 1987 achieved 100% target in tubectomy and I.U.D. within a period of five months. He performed around 2,502 sterilization surgeries during the period from 09/06/1986 to 29/05/1990. To date, the case of the plaintiff was the first failure that has been reported. The allegation that the surgery was conducted in a careless and negligent manner is incorrect and false. The 2^nd defendant had performed the surgery with utmost care, caution, and devotion. There is a small percentage, that is, 0.5 to 1% failure of such a surgery even in developed countries. The sterilization surgery is not a foolproof method to avoid further pregnancy. Failure in sterilization surgery is quite rare but like in the case of other surgeries, the same is possible. The plaintiff had undergone the 2^nd P.P.S. surgery on 27/03/1993 at the District hospital, Thrissur. After the surgery, the senior medical officer, P.P.Unit diagnosed that the plaintiff had P.P.S. failure due to Rt- Tube-Peritoneal Fistula. As there was no negligence or carelessness on the part of the 2^nd defendant, the plaintiff is not entitled to the reliefs prayed for.

4. The 2^nd defendant filed a separate written statement denying the allegation of carelessness or negligence. The plaintiff had approached the 2^nd defendant with a request for P.P.S. surgery. She had given a consent letter also before undergoing the surgery. The promoters of the family planning programme had disclosed all the pa