P&H HC Sets Aside The Order Holding Doctor Negligent For The Pregnancy Conceived Post Tubectomy Operation
The HC set aside the order, observing absence of “medical opinion” which advises against the performance of tubectomy operation along with cesarean section.
The Hon’ble Punjab & Haryana High Court (“High Court”) was hearing an appeal filed by the doctor (“Appellant”), against the concurrent findings of the Trial Court and the Appellate Court, holding the Appellant negligent, for not advising the patient about the possibility of conceiving in the future, if the tubectomy operation is conducted at the time of delivery of child.
1. Facts of the case:
· The respondent/plaintiff was admitted in the clinic of the appellant, for the delivery of her fourth child, whom she gave birth to, in the clinic of the appellant on March 23, 1987.
· At the time of the delivery of the fourth child, the appellant took the consent of the respondent/plaintiff, and performed a tubectomy operation upon her, at the time of her delivery, on March 23, 1987.
· The respondent/plaintiff was thereafter discharged from the clinic of the appellant, on March 31, 1987.
· However, after some time, despite the tubectomy operation performed by the appellant, the respondent/plaintiff still conceived pregnancy and subsequently gave birth to her fifth child.
· For this reason, the respondent/plaintiff filed a suit before the Trial Court, seeking damages to the tune of INR 1,50,000/-.
· The Trial Court decreed the suit of the respondent/plaintiff, and the Appellate Court also concurred with the findings of the Trial Court.
· Therefore, the Appellant filed an appeal before the Hon’ble High Court, challenging the concurrent findings recorded by the Courts below.
2. Submissions made by the Respondent/plaintiff
· The respondent/plaintiff alleged that she gave her consent for the tubectomy operation to be performed at the time of delivery of the child, only on the persuasion of the Appellant.
· The respondent/plaintiff alleged that the Appellant gave the assurances, that after the tubectomy operation, the respondent/plaintiff will never conceive in the future.
· The respondent/plaintiff submitted that had such assurances not been given by the Appellant, the respondent/plaintiff would have never consented to the tubectomy operation, at the time of her delivery.
· The respondent/plaintiff therefore submitted that, she conceived her fifth child, due to the medical negligence of the appellant.
· The respondent/plaintiff alleged that the pregnancy has caused her a great mental agony and pain, and has lowered her reputation in the eyes of society, and also submitted that she had go through the bodily pain and sufferings, while giving birth to the fifth child.
· The respondent/plaintiff thereby calculated the damages to the tune of INR 1,50,000/-
3. Submissions made by the Appellant
· The Appellant submitted that when the respondent/plaintiff came to the her clinic, then during the examination, it was observed that she had undone a major surgery in some other hospital.
· The Appellant submitted that there was a need for conducting an operation, as the normal delivery of the respondent/plaintiff was not coming forth. As it was a case of high risk, ranging from morbidity to mortality, therefore the consent for the operation was given by the husband of the respondent/plaintiff, being fully aware about the associated risks.
· Consequently, the respondent/plaintiff was operated upon, for lower cesarean section, and during the operation, tubectomy was also performed, in order to prevent further pregnancy, with the consent of the husband of the respondent/plaintiff. The said operation was carried in the presence of Chief Anesthetic.
· The Appellant submitted that, at the time of the operation, the husband of the respondent/plaintiff was well explained about the possibility of future pregnancy.
· The Appellant made further submission, that the operation was successfully completed without any negligence.
4. Findings of the Trial Court
After hearing the counsel for the parties, and examining the record submitted before it, the Trial Court decreed the suit of INR 1,50,000/- , along with cost.
Relevant extract from para 8 of the judgment of the Trial Court is reproduced reads as follows:
“8. It is not the case of the defendant that she had done the second operation free of cost in this case without charging any fee for the same. As an expert, it was obligatory upon her to advise the plaintiff to wait for some time more, to get the tubectomy operation done, since the chances of failure of the operation were more in doing the operation, as in this case, at the time of delivery than that had the operation been done 3-4 months after the delivery, thereby giving time for uterus and intestines to come to their normal size. Chance of knot on tube tied in the former case slipping is much more due to expansion of organs whereas same is far from remote in the latter case if operation is done after organs have come to their normal size. The defendant is definitely negligent in the instant case and as such, the plaintiff is entitled to the amount of damages as claimed.”
5. Findings of the Appellate Court
The Hon’ble Court of Additional District Judge, Jalandhar (Appellate Court), concurred with the findings of the Trial Court, and then holding that had these facts been brought to the notice of the plaintiff/respondent, they might or might not have agreed for the performance of the operation, and opined that the operation should’ve been conducted after a period of six weeks.
6. Order of the High Court
· The High Court found that the precise issue which is involved in the present appeal is whether the Appellant can be attributed with medical negligence for not explaining the chances of future pregnancy that could arise in case the the tubectomy is conducted at the time of delivery of child? Or not?
· The High Court observed that the respondent/plaintiff did not rely upon any medical text, nor did it examine any expert, to prove that it is not advisable to perform tubectomy along with cesarean section.
· The High Court further observed that the respondent/plaintiff also did not refer to any medical text, which states that the chances of failure of sterilization are more than 7% when tubectomy is performed with cesarean section, at the time of delivery.
· The High Court observed that there is no evidence to prove that the sterilization has failed, merely because the appellant performed it at the time of delivery.
· The High Court then relied upon the observations made by the Hon’ble Supreme Court, in Shiv Ram & Ors. (surpa) and held that it is difficult to sustain the findings of the Courts that tubectomy operation failed because of the negligence of the Appellant.
· Finally, the High Court held that the findings of the Trial Court and Appellate Court, attributing negligence to the Appellant, and consequently fastening the liability for the payment of damages, suffers from perversity, and cannot be sustained.
The relevant extract from the Order passed by the Hon’ble High Court is reproduced as hereunder:
“ …Counsel for the respondent/plaintiff has not referred to any medical text or opinion much less expert opinion of a professional in gynecology/sterilization that it is not advised to perform tubectomy along with cesarean section. He has also not referred to any medical text that chances of failure of sterilization are more than even 7% if tubectomy is performed with cesarean section for delivery of child. There is no evidence that sterilization, in the instant case, has failed merely because it was performed at the time of delivery.
Respondent/plaintiff has not adduced any evidence either by getting laparoscopy inspection of uterine tubes or x-ray examination or by pathological examination of the materials removed at a subsequent operation of re-sterilization to prove that negligence for failure of tubectomy can be attributed to the appellant.
On the contrary, the respondent and her husband had admitted that the operation was conducted properly and there was no negligence on the part of surgeon in performing the operation.
Taking a cumulative view of the aforesaid discussions, in the light of observations of the Hon'ble Supreme Court in Shiv Ram and Ors. case (supra), it is difficult to sustain the findings of the Courts that tubectomy operation failed because of negligence attributable to the doctor, entitling the respondent to receive compensation under the heads allowed by the Courts. In this view of the matter, it can safely be held that findings of the Courts attributing negligence to the appellant and consequently fastening liability for payment of damages suffer from perversity, thus, cannot be allowed to sustain and accordingly set aside. “
With the above mentioned observations, the Hon’ble High Court, vide its Order dated 08.07.2020, allowed the appeal of the Appellant, and set aside the judgments and decrees passed by the Trial Court and the Appellate Court, and dismissed the suit of the respondent/plaintiff.
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