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2008 DIGILAW 830 (MP)

Radha Ujjainkar v. State of M. P.

2008-07-07

INDRANI DATTA, SUBHASH SAMVATSAR

body2008
JUDGMENT Datta, J. -- 1. This appeal is preferred by the plaintiff-appellant against the judgment and decree dated 17.10.2003 passed by X Additional District Judge, Gwalior in Civil Suit No. 6B/03; whereby, the suit of the plaintiff-appellant for recovery of damages to the tune of Rs. 9.16 lac with interest @ 15% .per annum from the date of filing of suit on the ground of negligence in operation of MTP and LTT (Tubectomy) conducted by respondent No.3 Dr. P. Jain was dismissed. 2. The undisputed facts of the case are that LTT and MTP operations of the plaintiff-appellant were conducted by respondent No.3 Dr. Smt. P. Jain on 19.4.2000 at Kamlaraja Hospital, Gwalior. 3. Brief facts of the case are that appellant-plaintiff had already three children and she did not wish to have any more issue as they were not in a position to bear the burden of any additional issue. Appellant, therefore, gave her consent for LTT operation. LTT operation was conducted by respondent No.3 on 19.4.2000 and a certificate to that effect was also issued in favour of the plaintiff-appellant and she was made to believe that ~er LTT operation is successful. At the time of LTT operation, appellant was pregnant and her MTP (medical termination of pregnancy) was also conducted by the respondent No.3. In the month of July, 2000, the plaintiff felt pains, therefore, she got herself examined by respondent No.3. Respondent No.3 advised her for sonography and in sonography it was revealed that the plaintiff was carrying a foetus of 6 months one week. When respondent No.3 did not give satisfactory reply regarding carriage, the appellant requested for termination of pregnancy but the respondent No.3 refused on the anvil of poor physical condition of the plaintiff. Thereafter, on 16.11.2000 the plaintiff gave birth to a female child. Thus, the appellant instituted a suit for recovery of damages against the respondents jointly and severally on account of her negligence while performing the LTT and MTP operations. 4. Parties led their evidence before the trial Court and the suit of the appellant was dismissed by the trial Court on the ground that there was no negligence on the part of the doctor while performing the LTT and MTP operations and, therefore, the appellant is not entitled for any damages, hence this appeal. 5. 4. Parties led their evidence before the trial Court and the suit of the appellant was dismissed by the trial Court on the ground that there was no negligence on the part of the doctor while performing the LTT and MTP operations and, therefore, the appellant is not entitled for any damages, hence this appeal. 5. Learned counsel for the appellant Shri Prakash Braru, has vehemently submitted that the trial Court has failed to appreciate the evidence on record and this is a clear-cut case of negligence on the part of respondent No.3 while performing the LTT and MTP operations and thus prayed for allowing the appeal and grant of compensation. 6. Per contra, the learned counsel for respondents while denying the claim of the appellant has submitted that the appellant herself was negligent in not following the necessary instructions given to her at the time of operation and she did not take precaution, which entailed into failure of operations. It is further submitted that there was no negligence on the part of the doctor. It is further submitted that in very rare cases these operations become unsuccessful and that does not mean that it" is due to negligence of the doctor. 7. We have heard the learned counsel for the parties at length and perused the record. 8. PW 1 Smt. Radha Ujjainkar, who is present appellant, had suppressed the fact that she was pregnant before the MTP operation was conducted. PW 2 Laxmi Narayan, who is husband of appellant, specifically admitted the fact that appellant was pregnant at the time of MTP and LTT operations. From the evidence of PW l and PW 2 it appears that firstly MTP operation and at the same time LTT operation of the appellant were conducted on the same day i.e. 19.4.2000 by Dr. P. Jain. Respondent No.3 deposes in her cross-examination in para 6 that appellant was pregnant before 19.4.2000 and MTP and LTT operations were conducted by her on that date. Ex. P-2 is discharge ticket, in which it is clearly mentioned that operation was conducted on 19.4.2000. This fact is further established by statement of DW 3 Dr. Jyoti Bindal who affirmed this fact on the basis of hospital record. She has also deposed that there are 5-10 cases in which LTT and MTP operations were unsuccessful and - foetus remained for which doctors cannot be held responsible. 9. This fact is further established by statement of DW 3 Dr. Jyoti Bindal who affirmed this fact on the basis of hospital record. She has also deposed that there are 5-10 cases in which LTT and MTP operations were unsuccessful and - foetus remained for which doctors cannot be held responsible. 9. In the case of Jacob Mathew v. Punjab and another [ 2005 (6) SCC 1 ] Apex Court has held that to hold in favour of existence of negligence, associated with action or inaction of a medical professional, requires an in-depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability. 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 was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. The classical statement of law is available in Bolam case [(1957) 2 All ER 118] that in tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. 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, as recognized are three, "duty", "breach" and "resulting damage" that is to say; (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both causally connected with such breach and recognized by the law. has been suffered by the complainant. has been suffered by the complainant. If the claimant satisfies the Court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence. 10. Again in the case of State of Punjab v. Shiv Ram and others [ (2005) 7 SCC 1 ] a three Judges Bench of Supreme Court considered the case of failure of sterilisation operation and the question that when such claim is actionable. The apex Court has held that claim in tort in such cases can be sustained only if there was negligence on the part of surgeon in performing the surgery and not on account of childbirth. The proof of negligence shall have to satisfy Bolam's test [(1957) 2 All ER 118]. Merely because a woman having undergone a sterilization operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The operation may fail due to natural causes, no method of sterilization is foolproof or providing 100% guarantee or success. The Supreme Court has also considered the provisions of section 3 (2) read with Explanation II of Medical Termination of Pregnancy Act, 1971, according to which medical termination of pregnancy in such cases is permissible. In this regard number of text books of Gynaecology were referred. In Jeffcoate's Principles of Gaynaecology, revised by V.R. Tindall, M.Sc. MD, FRCSE, FRCOG, Professor of Obstetrics and Gynaecology, University of Manchester (5th Edn.) published by Butterworth Heinemann, the question of reliability of sterilisation procedures was taken into consideration, according to which: "The only sterilisation procedures in the female which are both satisfactory and reliable are 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 salpingectomy. Even when tubal occlusion operations are competently performed and all technical precautions are taken, intrauterine pregnancy occurs subsequently in 0.3 percent of cases. This is because an ovum gains access to spermatozoa through a recanalised inner segment of the tube." 11. Even when tubal occlusion operations are competently performed and all technical precautions are taken, intrauterine pregnancy occurs subsequently in 0.3 percent of cases. This is because an ovum gains access to spermatozoa through a recanalised inner segment of the tube." 11. For claiming compensation in tort, the burden always rests with the claimant to prove that the doctor was negligent in performing the operation and the basis of liability of a professional in tort is negligence, unless that negligence is established, primary liability cannot be fastened on the medical practitioner. Unless the primary liability is established, vicarious liability on the State cannot be imposed. The vicarious liability of the State cannot be denied if it is proved that it is the employee doctor who is found to have performed surgery negligently and if the unwanted pregnancy thereafter is attributed to such negligent act or omission on the part of the employee doctor of the State. After considering the principle of doctor's negligence in tort, the Supreme Court dismissed the appeal, set aside the judgment and decree passed by appellate Court and dismissed the suit of the plaintiff. 12. In the light of above principle of law laid down by the apex Court and from the scrutiny of evidence, it is apparent that in this case there is no evidence of negligence on the part of doctor. Trial Court found that after the sterlisation operation the plaintiff herself was not vigilant and careful and she gave birth to a female child on 16.11.2000, therefore, there is no evidence that the operation was not performed by the doctor after taking reasonable degree of care and skill. It is not proved that respondent No.3 Dr. P. Jain has not exercised the ordinary skill of a medical practitioner or the operation failed because of her negligence in performing the operation. As per medical science though sterilisation operation is highly effective as a method of contraception and successful but there cannot be any guarantee of success in every case and failure may occur even without negligence of the doctor. To claim compensation it has to be proved that a reasonable standard of care was not taken in the operation. As per medical science though sterilisation operation is highly effective as a method of contraception and successful but there cannot be any guarantee of success in every case and failure may occur even without negligence of the doctor. To claim compensation it has to be proved that a reasonable standard of care was not taken in the operation. Since, the doctor was not found negligent, the liability cannot be fastened to pay damages and in that case there will not be any question of vicarious liability, thus, it appears that learned trial Court has not committed any illegality in dismissing the suit. Learned counsel for appellant could not point out any evidence on record that how the doctor was negligent in performing the operation. . 13. In the result the appeal being devoid of substance, is hereby dismissed. No costs.