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Himachal Pradesh High Court · body

2013 DIGILAW 803 (HP)

Urmila Devi v. State Of H. P.

2013-09-09

SANJAY KAROL

body2013
JUDGMENT : Sanjay Karol, J. This is the plaintiff's Regular Second Appeal filed under Section 100 of the Code of Civil Procedure . Plaintiff's Civil Suit No. 141/1 of 1995, titled as Urmila Devi v. State of H.P. & others, was dismissed by the learned Sub Judge, Ist Class, Bilaspur, H.P., in terms of judgment and decree dated 31.3.1998. Aggrieved thereof, plaintiff filed an appeal which also stands dismissed in terms of judgment and decree dated 4.12.2003, passed by the learned District Judge, Bilaspur, H.P., in Civil Appeal No. 59 of 1998, titled as Urmila Devi v. State of H.P. & others. Thus, the present appeal arises out of concurrent findings of fact. 2. Smt. Urmila Devi (plaintiff) voluntarily got herself operated for tubectomy on 4.11.1989 at the Primary Health Centre Gwandal, Tehsil Shri Naina Deviji, District Bilaspur, H.P. The operation was conducted by Dr. Paras Ram Kutal (defendant No. 3). Operation was successful and she was issued certificate of the Department of Health and Family Planning, District Bilaspur, H.P. in that regard. However, she conceived through her husband and gave birth to a female child on 23.10.1992. Alleging negligence on the part of defendant No. 3, she filed a suit for recovery of a sum of Rs. 1,99,000/- (rupees one lac and ninety-nine thousand) as damages both against the Doctor (defendant No. 3) as also the State (defendants No. 1 and 2). 3. Based on the pleadings of the parties, trial Court framed the following issues: 1. Whether the plaintiff is entitled to the damages from the defendants as alleged? OPP 2. Whether the suit is not maintainable?OPD 3. Whether the plaintiff has no locus standi? OPD 4. Whether the plaintiff has no cause of action? OPD 5. Whether the plaintiff is estopped to file the present suit? OPD 6. Whether this Court has no jurisdiction? OPD 7. Relief. 4. Based on the testimony of the witnesses, trial Court dismissed the suit holding that there is no negligence on the part of the Doctor and as such plaintiff was not entitled to any damages. 5. In the plaintiff's appeal, the lower appellate Court has affirmed the findings of fact, judgment and decree passed by the trial Court. Hence the present appeal. 6. The appeal was admitted on the following substantial questions of law:- 1. 5. In the plaintiff's appeal, the lower appellate Court has affirmed the findings of fact, judgment and decree passed by the trial Court. Hence the present appeal. 6. The appeal was admitted on the following substantial questions of law:- 1. Whether person suffering physical trauma can be said to have no locus standi to file suit for damages? 2. Whether failure of operation by a Medical Officer does not give rise to cause of action to the sufferer for actionable claim? 3. Whether State can be exonerated for negligent act and conduct of its servants? 4. Whether birth of child after family operation conducted negligently does not fasten liability on the State for financial obligations to be incurred by the appellant/plaintiff? 7. Substantial question of law No. 1 does not arise for consideration. Claim is not rejected on the ground of locus. 8. The principal issue which arises for consideration in the present appeal is as to whether the plaintiff has been able to establish negligence on the part of the State/its functionaries and more particularly defendant No. 3 who performed the operation of tubectomy on the plaintiff. 9. Defendant No. 3 is a Doctor with sufficiently large experience. It has come on record that after the operation, plaintiff was advised bed rest, her stitches were opened on the 7th day of the operation when all wounds stood dried up. Defendant No. 3 remained posted at the Primary Health Centre, Gwandal for two years after the surgery was performed and during this period plaintiff never contacted him, complaining of any problem of failure of the operation. The operation was performed on 4.11.1989 by which date the Doctor had performed more than 1500 operations. He was sufficiently experienced in his field. He took due care and caution while performing the surgery. 10. Except for the bald assertion, that there is negligence on the part of the State/its functionaries, there is nothing on record to prove the said fact. Plaintiff did not get herself medically examined subsequent to her discharge from the hospital to establish that the operation carried out by the Doctor, could be faulted for not being in accordance with the settled and established procedures of medical jurisprudence. It is not the plaintiff's case that having learnt about her conception she immediately approached the doctor for termination and that he had dissuaded her. It is not the plaintiff's case that having learnt about her conception she immediately approached the doctor for termination and that he had dissuaded her. In fact the factum of conception was not brought to the notice of the Doctor concerned. 11. In a claim for damages as a tortious liability, negligence is necessarily required to be proved and established. 12. The Apex Court in State of Haryana and others v. Raj Rani, (2005) 7 SCC 22 : AIR 2005 SC 3279 has held as under : "Child birth in spite of a sterilisation operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalization. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognised by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise." 13. In Jacob Mathew v. State of Punjab and another, (2005) 6 SCC 1 : AIR 2005 SC 3180 the apex Court has held : "No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are : (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds, (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon, and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the "smoking gun". The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are : (i) a state of mind, in which it is, opposed to intention, (ii) careless conduct, and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would not do. 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 recognised 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 casually connected with such breach and recognised by the law, 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." (Emphasis supplied) 14. In State of Punjab v. Shiv Ram and others, (2005) 7 SCC 1 : AIR 2005 SC 3280 , while dealing with the case of failure of sterilisation operation allegedly caused due to the negligence of the doctor the Court held that merely because the woman having undergone sterilisation operation becomes pregnant and thereafter, delivers a child the operating surgeon or his employer cannot be held liable on account of unwanted pregnancy or unwanted child. Relying upon the authentic text of various studies and books on medical jurisprudence, the Court held as under: 11. Dealing with reliability of the sterilisation procedures performed and commonly employed by the gynaecologists, the text book states (at p. 621) : Reliability 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 salpingectomy. 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 recanalized inner segment of the tube. There is clinical impression that tubal resection operations are more likely to fail when they are carried out 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 'sterilization' by "tubal- ligation" or "tubal resection" in talking to the patient and in all records. This has real merit from the medicolegal standpoint." 13. In 'The Essentials of Contraceptive Technology', written by four doctors and published by Center for Communication Programs, The Johns Hopkins School of Public Health in July, 1997, certain questions and answers are stated. Questions 5 and 6 and their answers, which are relevant for our purpose, read as under : "5. Will female sterilisation stop working after a time. Does a woman who had a sterilisation procedure ever have to worry about getting pregnant again? Questions 5 and 6 and their answers, which are relevant for our purpose, read as under : "5. Will female sterilisation stop working after a time. Does a woman who had a sterilisation procedure ever have to worry about getting pregnant again? Generally, no Female sterilisation should be considered permanent. Failure rates are probably higher than previously thought however. A major new US study found that the risk of pregnancy within 10 years after sterilisation is about 1.8 per 100 women about 1 in every 55 women. The risk of sterilisation failure is greater for younger women because they are more fertile than older women. Also, some methods of blocking the tubes work better than others. Methods that cut away part of each tube work better than spring clips or bipolar electro coagulation (electric current). Effectiveness also depends on the skill of the provider. The same US study found that 1 of every 3 pregnancies after sterilisation was ectopic. If a woman who has had sterilisation ever thinks that she is pregnant or has an ectopic pregnancy, she should seek help right away. 6. Pregnancy after female sterilisation is rare but why does it happen at all. The most common reason is that the woman was already pregnant at the time of sterilization. Pregnancy also can occur if the provider confused tubes and blocked or cut the wrong place. In other case pregnancy results because clips on the tubes come open, because the ends of the tubes grow back together, or because abnormal openings develop in the tube, allowing sperm and egg to meet." 23. In Thake v. Morris, (1986) 1 All ER 497 (CA) the claim for damages was founded on contract and not in torts. The Court of Appeal firmly rejected the possibility of an enforceable warranty. Neill L. J. said : "The reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that speciality : he would not have expected the defendant to give a guarantee of 100% success." 24. Nourse L. J. said : "of all sciences medicine is one of the least exact. In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms." 25. Nourse L. J. said : "of all sciences medicine is one of the least exact. In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms." 25. We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilisation 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 claim in tort cart be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee." (Emphasis supplied) 15. The Bolam's test affirmed by the apex Court in Jacob Mathew (supra) was reaffirmed as under : "7. The relevant principles culled out from the case of Jacob Mathew (supra) read as under : (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal and Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. 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 are three : 'duty', 'breach' and 'resulting damage'. (2) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. 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 are three : 'duty', 'breach' and 'resulting damage'. (2) 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. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient, a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence." "Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence, something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Black's Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence." (Emphasis supplied) 16. Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence." (Emphasis supplied) 16. In Cholan Roadways Ltd. v. G. Thirugnanasambandam, 2005 (3) SCC 241 : AIR 2005 SC 570 , the Apex Court held that:- "The general purport of the words res ipsa loquitur is that the accident 'speaks for itself' or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent." 17. The Apex Court in Savita Garg (Smt) v. Director, National Heart Institute, (2004) 8 SCC 56 : AIR 2004 SC 5088 has held that once a claim petition is filed and the complainant has sufficiently discharged the initial burden that the doctor was negligent in treating the patient and as a result of such negligence the patient died, in that event burden could lie on the hospital and the doctor concerned who treated the patient to show that there was no negligence involved in the treatment. 18. In the instant case, in my considered view, plaintiff miserably failed in showing that the doctor had been even prima facie negligent. The doctor has proved through his statement that he had informed the plaintiff of the consequences and the precautions which she was required to take after the operation. Plaintiff voluntarily agreed for the operation. In my view, the doctor took reasonable care and caution while operating the plaintiff. It is not a case where, to fulfil the family planning target, the operation was carried out by the State doctor either under duress or misrepresentation. He acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. 19. It is not a case where, to fulfil the family planning target, the operation was carried out by the State doctor either under duress or misrepresentation. He acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. 19. The Apex Court in Vinitha Ashok (Smt) v. Lakshmi Hospital and others, (2001) 8 SCC 731 : AIR 2001 SC 3914 has held that the doctor would be liable for negligence in respect of the diagnosis and treatment in spite of a body of professional opinion approving his conduct where it has not been established to the Court's satisfaction that such opinion relied upon is reasonable or responsible. Further, if it can be demonstrated that the professional opinion is not capable of withstanding the logical analysis, the Court would be entitled to hold that the body of opinion is not reasonable or responsible. 20. That the case of failure of sterilisation can be ascertained from laparoscopic inspection as has been acknowledged by the apex Court in Shiv Ram (supra) as under : "26. The cause of failure of sterilisation operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of re -sterilization. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilisation operation. (See: Law of Medical Negligence and Compensation by R. K. Bag, Second Edition, p. 139)" 21. In the present case no such opinion was proved on record. 22. In State of Haryana and others v. Santra (Smt), (2000) 5 SCC 182 : AIR 2000 SC 1888 while dealing with a case of a lady who had conceived after her operation it was found that only her right fallopian tube was operated upon and the left one was left untouched. It was held that the doctor concerned had acted most negligently. The Court further held that negligence is a "tort". Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. It was held that the doctor concerned had acted most negligently. The Court further held that negligence is a "tort". Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as "implied undertaking" by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. The Court directed the State to pay compensation for the birth of an unwanted child born to a poor lady which resulted into creation of additional financial burden on the mother on account of the negligence of the doctor who performed sterilisation operation. The decision is based on the facts which are not similar in the present case. The judgment was passed on the basis of proven fact of medical negligence. 23. In Spring Meadows Hospital and another v. Harjol Ahluwalia through K.S. Ahluwalia and another, (1998) 4 SCC 39 : AIR 1998 SC 1801 the Apex Court while dealing with a case where the doctor in charge had delegated the responsibility to another person who had administered a wrong drug which resulted into the death of a minor child, held as under : "Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a Court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor. Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly." (Emphasis supplied) 24. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly." (Emphasis supplied) 24. In the present case, however, the facts are totally different and there is nothing on record to prima facie show that the principle of res ipsa loquitur could be invoked. 25. In Achutrao Haribhau Khodwa and others v. State of Maharashtra and others, (1996) 2 SCC 634 : AIR 1996 SC 2377 , the Court was dealing with the case where the doctor who had performed the operation, had left a mop inside the abdomen/body of the patient which resulted into her death. It was in these circumstances the Court invoked the doctrine of res ipsa loquitur and even in the absence of any other proof held the doctor liable for the negligence and the State vicariously liable for the acts of the doctor. The Court held as under : "A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the Court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would maintainable." 26. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would maintainable." 26. In the present case the facts are not the same hence, the ratio is not applicable. 27. This Court in RSA No. 24 of 1996 titled as Abida Begam v. State of H. P. and another decided on 19th October, 2007 has held that negligence is the breach of a duty caused by omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do and further a simple lack of care, an error of judgment or an accident, is not a proof of negligence of medical profession. The cause of action for claiming compensation in cases of failed sterilisation operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilisation operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed. 28. In fact, this Court in Smt. Bimla Devi v. State of H.P. & others, AIR 2009 HP 73 has held as under:- "47. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognised by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise". "52. In Shiv Ram (supra), the Apex Court has held that merely because the woman having undergone sterilisation operation becomes pregnant and thereafter delivers a child the operating surgeon or his employer cannot be held liable on account of unwanted pregnancy or unwanted child". 29. The decisions referred to and relied upon by Mr. Ashwani Pathak, learned counsel for the appellant in Achutrao Haribhau Khodwa (supra) and Santra (supra) are squarely in - applicable to the given facts as there is no proven negligence on the part of the State/its functionaries. The Court was dealing with cases where it stood established on record that the Doctor was negligent which was the cause of the failure of the operation. 30. Thus keeping in view the settled position of law it cannot be said that plaintiff has been able to establish that she is entitled to any damages. 31. Consequently, I do not find any reason or ground sufficient enough to interfere with the concurrent findings of fact recorded by the Courts below. In my considered view the judgments passed by the Courts below cannot be said to be perverse or that the evidence led by the parties was not correctly and completely appreciated. As such, the substantial questions of law are answered accordingly and the present appeal is dismissed. Pending applications, if any, also stands disposed of accordingly.