Delhi District Court
Smt. Usha vs Union Of India on 18 March, 2008
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IN THE COURT OF SH. RAKESH TEWARI, ADJ,
TIS HAZARI, DELHI
SUIT NO.83/03
SMT. USHA
W/O SH. SHIV SHANKER,
R/O 1/15, INDRA JHEEL,
NEAR SULTANPURI, G-BLOCK,
NEW DELHI. ....PLAINTIFF
VERSUS
1. UNION OF INDIA
THROUGH ITS SECRETARY,
MINISTRY OF HEALTH AND FAMILY
WELFARE, NIRMAN BHAWAN,
NEW DELHI.
2. MEDICAL SUPERINTENDENT,
LADY HARDINGE MEDICAL COLLEGE,
AND SMT.SUCHETA KRIPLANI HOSPITAL,
NEW DELHI.
3. DR. USHA GUPTA
LADY Harding MEDICAL HOSPITAL,
NEW DELHI.
ALSO AT:
4/49, W.E.A. KAROL BAGH,
NEW DELHI-110005. ....DEFENDANTS
Date of Institution : 02.07.2003
Date when the case reserved for Judgment: 01.03.08
Date of Judgment: 18.03.2008
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JUDGMENT
1. The case of the plaintiff is that she had three children and her family income was meagre and when she became seven weeks pregnant third time and was having medical problem, she approached Smt. Sucheta Kriplani Medical Hospital in the month of July, 1999 and requested the doctor for sterilization operation as she was having already two children and was unable to afford the third child and also requested the doctor for treatment. It has been further averred that the attending doctors, under the control and supervision of defendant no.2, carried out diagnostic laparoscopy and M.T.P. and was advised to come after three months for sterilization and accordingly, she approached the defendant no.3 on 12.10.1999 for sterilization and was admitted in the hospital and the sterilization operation was done by defendant no.3, the doctor in-charge, under the control and supervision of defendant no.2, on 14.10.1999 and the plaintiff was discharged on 22.10.99 and that the defendant no.3 informed the plaintiff that the operation was successful and the plaintiff would not conceive again and that after few months of this said operation on 14.6.2000 she went to the hospital for medical checkup because she was having irregular menstrual period and became weak and was feeling uneasy and uncomfortable and was informed by the attending 3/28 doctors that she was pregnant and gave a report as "ligation failed"
and she was shocked to know that how she became pregnant in spite of the complete ligation/sterilization operation. It has been further averred in the plaint that she requested the attending doctors to terminate the pregnancy but attending doctors advised her not to undergo for re-ligation/sterilization operation as she was not having sound health and she also approached the private doctors who advised the same and, in these circumstances, she continued with her pregnancy and on 27.12.2000 vide registration no.49544/2000 has given birth to a female baby in the same hospital under the supervision and control of the defendant no.2 and thus, the unfortunate and unsolicited female child has come in this world due to which unbearable burden fell upon her family and because of their precarious economic condition she cannot afford to maintain the said newly born baby, her upbringing and development in due course of life and her marriage and that she has also suffered physical, mental and financial problems due to the negligence and carelessness of defendant no.2 and 3 in carrying out the said sterilization operation and a legal notice was served upon the defendants before the filing of the suit and it has been prayed that a decree in the sum of Rs.4,00,000/- may be passed against the defendants as compensation and damages and the pendentelite and future interest may also be 4/28 awarded.
2. In their written statement the defendants have denied their negligence and maintained that at the time of sterilization operation the consent form was filled by the patient wherein it was clearly informed that pregnancy can occur approximately in one percent of patient after tubal ligation even when performed by the most competent surgeon due to the inherent tendency of the tubes for formation of tubal fistula or tubal re-canalization. It was further averred that the birth of the child was due to the carelessness of the plaintiff only as the doctors on duty in routine counseled the plaintiff regarding termination of pregnancy and for re-ligation but she expressed her desire to continue her pregnancy which was subsequently confirmed by the antenatal card and thus, they are not liable to pay damages. It was further disclosed in the WS that medical termination of pregnancy was performed of the plaintiff on 23.7.1999 and after the said MTP, when diagnostic laparoscopy was done to perform ligation, the plaintiff was found to have a large left sided ovarian cyst of 6x6 cms, which was found to be extending in the pouch of Douglas and right sided ovary was normal and it was felt that the patient would require investigation and the proper work up for ovarian cyst removal and laparotomy and as such the sterilization was 5/28 deferred for the time being and the plaintiff was advised to report to the gyane OPD with the necessary investigation along with the advise to get pre-anesthetic checkup and was admitted to hospital on 12.10.1999 and laparotomy was done on 14.10.99 and that on opening the abdomen, left sided ovarian tumour 7x8x8 cm was found and the right sided tube and ovary were normal and that the left sided ovary with the cyst was removed along with complete removal of left tube (Salpingectomy) and that right sided tubal ligation was done and that both the tubes and ovary were sent for histopathological examination and that the plaintiff again came to gynae OPD on 14.6.2000 and on checkup she was found pregnant and was confirmed by urine pregnancy test and she was advised regarding termination of pregnancy and for ligation but it seemed that she expressed her desire to continue her pregnancy as subsequently confirmed by the antenatal card and that she was never advised of having risk in carrying out the abortion and sterilization according to the hospital record on grounds of precarious health as claimed in the suit and that the fallopian tubes which were sent for histopathological examination after the said surgery, shown beyond doubt that both the tubes were interrupted and as such there was no technical negligence on the part of the defendants or operating surgeon.6/28
3. In the replication of the plaintiff specially the facts of removal of the cyst from left ovarian along with left fallopian tube was not specifically denied by the plaintiff and rest of the averments of the plaint were reiterated.
4. On the pleadings of the parties my learned predecessor vide his order dated 13.5.2004, framed the following issues:-
i. Whether the defendant no.3 was careless and negligent in performing ligation/sterilization operation upon the plaintiff? (OPP) ii. If answer to issue no.1 is affirmative whether the plaintiff has suffered physical pain/mental agony and harassment as claimed in the plaint? (OPP) iii. Whether plaintiff is entitled to compensation and damages, if so, to what extent? (OPP) iv. Whether the plaintiff is entitled to any interest, if so, at what rate and on what amount? (OPP) v. Relief.
5. The plaintiff in order to prove her case herself has appeared in witness box and filed her examination-in-chief by way of affidavit Ex.P1 and proved the copy of cytology report form, histopathology report, the discharge slip collectively as Ex.PW1/1A to Ex.PW1/1C, 7/28 the copy of OPD card and report of failed ligation as Ex.PW1/2A and Ex.PW1/2B (which is also Ex.PW1/D3), the copy of antenatal report dated 4.12.2000, the OPD tickets dated 27.12.2000 and discharge slip dated 29.12.2000 collectively as Ex.PW1/3A to Ex.PW1/3D, the ration card, the copy of the birth certificate of her children as Ex.PW1/4A to Ex.PW1/4D, the copy of legal notice as Ex.PW1/5, postal receipt as Ex.PW1/6 and reply of the legal notice as Ex.PW1/7 and thereafter she was partly cross-examined on 26.4.2005, 8.9.2005, 21.10.2005 and thereafter she was further cross-examined by the Local Commissioner on 21.10.2005. PW2 the husband of the plaintiff filed his examination-in-chief by way of affidavit Ex.P2 and proved the said documents and thereafter he was cross-examined. PW3 a neighbour of the plaintiff filed her examination-in-chief by way of affidavit as Ex.P3 and she was cross-examined.
6. On the other hand, the defendants have produced DW1 the official of defendants no.2 and 3 who filed his examination-in-chief by way of affidavit Ex.DW1/1 and proved the consent form Ex.PW1/D1 and Ex.PW1/D2, the said histopathological report, the antenatal card as Ex.PW1/D3 which is already Ex.PW1/2B and thereafter he was cross-
examined. The defendant no.3 has appeared as DW2 and filed her examination-in-chief by way of affidavit Ex.DW2/A and also relied 8/28 on the consent forms Ex.PW1/D1 and Ex.PW1/D2, the antenatal card Ex.PW1/D3 and the medical literature regarding failure of sterilization as Ex.DW2/1 and Ex.DW2/2 and thereafter she was cross-examined. The DW3 is the Professor of the department of pathology of the defendant no.2 who proved the histopathology report Ex.DW3/1 which is already Ex.PW1/1B and thereafter she was cross-examined.
7. I have heard the counsels for the parties and perused the record carefully. My findings issue-wise are as under:
i. ISSUE NO.1
a. With regard to issue no.1, the plaintiff as PW1 has narrated the
above said facts of the plaint as her deposition in her affidavit Ex.P1 and relied upon the said documents as mentioned above. However, in her cross-examination she replied that at the time of deposition she was 29 years old and her eldest daughter was 8 years old, second child was aged 7 years and the youngest child being daughter was 5 years old and they were studying in schools and her kitchen expenses were Rs.2,000/- per month and she spent about Rs.250/- per month on the education and other related expenses of her three children and she was not aware of other household expenses as the same were being incurred every month by her husband. She did not know English and 9/28 when she visited the hospital in July, 1999 the doctors diagnosed a rasouli (cyst or tumour) in her stomach during her medical checkup and at that time she was pregnant by seven week and the doctors performed an operation by laparoscopy which was unsuccessful operation and in July, 1999 only MTP was conducted but no sterilization operation was done at that time and that in July, 1999 the doctor had informed him that as there was a rasouli in her stomach, it was not possible to conduct sterilization operation and that she submitted her consent form which is Ex.PW1/D1 signed by her. She admitted that after her medical checkup on 23.7.1999 she was informed by the doctor that laparoscopy diagnosis would be carried out besides MTP and if possible laparoscopy ligation (sterilization) would be done. She denied the suggestion that the doctors had explained her to report to the nearest health centre in case she missed her period anytime after sterilization. She further answered that she was satisfied with the treatment and investigation conducted by the doctors on 23.7.99 and that on 12.10.99 when she visited the hospital for sterilization operation, at that point of time also, she and her husband signed the consent form. She admitted her signatures as well as that of her husband on Ex.PW1/D2. She has admitted that she was admitted in hospital on 12.10.99 and at that time she requested the doctor that she wanted to undergo the sterilization operation and that 10/28 on 14.10.1999 her sterilization was done but she could not tell as to whether she received any paper from the hospital after sterilization. She denied the suggestion that doctors had informed her about likelihood of conception despite the sterilization operation. She has admitted that at the time of sterilization operation her left ovary consisting the cyst was removed but she could not tell as to whether her left fallopian tube was removed and her right fallopian tube was cut and sterilized. She could not tell as to whether the histopathological report was filed on the court file by her or not. She further replied that on 14.6.2000 she again went to the hospital but she denied the suggestion that she was advised to go for ultrasound test. However, she admitted that doctors attending her were of the opinion that she was pregnant. She denied the suggestion to have informed the doctors that she wanted to continue with the baby in her womb. She could not tell that on 14.6.2000 the doctors attending her referred her to ANC OPD or that whether she attended the same. She further replied not to have informed the doctor that despite sterilization operation she had conceived the child. She could not tell that at point A in Ex.PW1/2 she was referred to ANC or on 14.6.2000 she reported at Antenatal Clinic (ANC) where she was advised to report at Maternity-V Family Planning. The doctors did not suggest her to get admitted in the said centre for MTP and tubal ligation. She replied 11/28 that the doctors informed him that as she had already been subjected to MTP and sterilization, there would be danger to her life and later on she answered that doctors were talking among themselves to that effect. She could not tell about the documents placed on record on her behalf and replied that her husband might be knowing about the same. She denied the suggestion that she wanted to continue with the pregnancy and to give birth to the child. She admitted that instead of going to Lady Harding Medical College she went to Sanjay Gandhi Hospital and from there she was referred to Deen Dayal Hospital. She admitted that on 14.6.2000 when she visited Lady Harding Medical College she was pregnant by nine weeks. She showed her ignorance that the termination of her pregnancy of nine weeks was safe and she admitted that after the sterilization she did not terminate her pregnancy because she was afraid. She denied the suggestion that her female baby was not the result of negligence of the hospital in conducting the operation.
b. PW2 Sh.Shiv Shanker, the husband of the plaintiff deposed on the lines of facts narrated in the suit in his examination-in-chief filed by affidavit Ex.P2. In his cross examination he replied that he did not understand English. He admitted that MTP of his wife was done as she was having cyst in her ovary on 23.7.99 and she again approached 12/28 the hospital for sterilization on 12.10.99. He admitted his signatures at point A and B on Ex.PW1/D2. He further replied that he had again gone to the hospital along with his wife on 14.6.2000 as her wife was pregnant but he could not tell as to what the doctors informed his wife as he did not see the doctors. He denied the suggestion that it was due to his and his wife's negligence that the child had taken birth. c. PW3. Smt.Ansari Khatoon has deposed about the plaintiff informing her regarding sterilization operation and her conceiving again but in her cross examination she could not tell as to when the plaintiff informed her about having pain in her stomach. d. On the other hand, the defendants have produced DW1 Sh.R.N.Mishra, Deputy Director (Administration) of Lady Harding Medical College and Smt. Sucheta Kriplani Hospital, New Delhi who filed his examination-in-chief by way of affidavit Ex.DW1/1 but in his cross examination he replied that he was with the said institute since 9.12.2003 and he was the in-charge of the Administration and he has no personal knowledge of the case and he filed the affidavit of his deposition on the basis of record and not on the basis of his personal knowledge.
13/28e. DW2 is Dr.Usha Gupta who deposed in her examination-in- chief by way of affidavit Ex.DW2/A on the lines of the stand taken in the written statement as mentioned above and she relied on the consent forms Ex.PW1/D1, Ex.PW1/D2, the antenatal card Ex.PW1/D3, the medical literature regarding percentage of the failure of sterilization Ex.DW2/1 and Ex.DW2/2. However, in her cross examination she replied that she was working in the said hospital since 1985 and became in-charge of the gynae department since 2000 and she had supervised about one lac sterilization operation since 2000 and she had denied the suggestion that the doctors never interact with the patient after operation and used to say that the operation was successful. She had admitted to have told the plaintiff that her operation was successful and that the operation included sterilization. She further answered that a panel of doctors consisting of one consultant, one senior resident, two post graduate, three or four junior residents and two or three nurses are there to conduct sterilization operation in the family planning theater and that at one time there are two tables out of which of one table sterilization operation is taken and on the other table procedures like suction and evacuation (procedure for MTP) is carried out by the same panel of doctors and that generally five to seven patient come for sterilization, MTP with sterilization or sterilization alone. She has further replied that the time 14/28 taken for carrying out plaintiff's operation was approximately one and a half hour which was carried out by her or under her supervision and there were partition in the two rooms where only one table is kept in each room for the purpose of operation. The consent form is filled by the senior resident and the admission is not done by the unit in-charge and that the consent forms Ex.PW1/D1 and Ex.PW1/D2 were not filled up by her and that the patient is told about the process of operation and that open sterilization and sterilization by laparoscopy is done and that the methods of sterilization are Irwing, Pomeroy, Parkland, Uchida, Medlenar and Finbrectomy and that the open method of sterilization is also called ligation by laparatomy. She has further clarified that colpotomy is a route for the operation and not a method. She had no opinion to tell as to which method is the best one. She has further answered that the failure chances of sterilization operation by the method conducting on the plaintiff was only one percent and that it is rare phenomena of sterilization operation that there is a risk of life and health to the patient. She has further denied that doctors are awarded for such work or a target is set to get the award for sterilization and she further replied that the targets if any have been done away with by the government. It is answered by her that both the tubes of the plaintiff could have been removed and had it been done in the case of the plaintiff it would have been not in the 15/28 interest of the plaintiff because blood supply to ovary would have suffered and the patient could have premature ovarian failure and that it was essential for the patient to remove one fallopian tube as it was involved with the tumour in the patient. She has further replied that discharge summary Ex.PW1/1A was prepared by her subordinate but signed by her and that the doctors who operated the plaintiff collected the samples of the patient and not by her. She denied the suggestion that in case of incentive for sterilization, the award comes to the unit in-charge. She further explained that the tube is picked up in a loop and its base is tied with absorbable thread and then the loop is cut and it was so done in the case of the plaintiff and that the thread is tied first so that there may not be bleeding when the cut is made. She has further answered that there is no danger for MTP for the period up till 10 weeks. She has further explained that the plaintiff was advised to get herself admitted in the family planning ward for MTP with ligation.
f. DW3 was Dr.Kiran Aggarwal posted in pathology department of the hospital who proved her histopathology report as Ex.DW3/1 which mentioned the left ovarian cyst with fallopian tube wherein a mature cystic teratoma with attached fallopian tube and the right fallopian tube with the remarks "single unremarkable fallopian tube 16/28 bits". In her cross examination she has replied that there was no cystic teratoma in the right fallopian tube and that fallopian tubes were unremarkable which meant that they did not show any pathology, i.e., disease or any lesion and in sterilization cases she received both side fallopian tubes and she was further put with some other questions to which she replied that the same did not pertain to her field.
g. The first question is as to what standard should be applied for judging the carelessness and negligence of a professional including the doctor. The answer to this question was given by the full bench of the Hon'ble Supreme Court after discussing the whole history of case law, the recognized medical opinions and referring the jurist on the said subject and approved the test known as Bolam's Test, in the landmark judgment titled Jacob Mathew Versus State of Punjab and Another reported as (2005) 6 Supreme Court Cases 1 and in para 19 and 20 the Hon'ble Apex Court held as follows:
"19. An oft quoted passage defining negligence by professionals, generally and not necessarily confined to doctors, is to be found in the opinion of McNair, J. in Bolam v. Friern Hospital Management Committee , reported as 9 (1957) 1 WLR 582 :
(1957) 2 All ER 118 (QBD) in the following words:
(All ER p.121 D-F) "[W]here you get a situation which involves the use of some special skill or competence, then the 17/28 test as to whether there has been negligence or not is not the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill ... It is well-established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art." (Charlesworth & Percy, ibid., para 8.02)
20. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and a well-condensed one. ..."
h. Judging in the light of the said test as upheld by the Hon'ble Supreme Court, the factual position in the present case, as established from the said evidence discussed above, is that the plaintiff never approached the defendant hospital in response to or under an allurement for her sterilization under some scheme of the government as such. She had specifically admitted that she was seven weeks pregnant and had some medical problem and due to her precarious economic condition she approached the hospital in July, 1999. It is not disputed between the parties that on 14.10.1999 her operation was performed at the defendant hospital. It was never disclosed by the plaintiff in the plaint that a tumour or cyst or what she called "rasouli" was detected in her left side 18/28 ovary but she has categorically admitted the same in her cross examination. Needless to repeat that factum of cyst in the left ovary extending in the pouch of dougles and removal of the same along with complete left fallopian tube mentioned in the written statement was not denied in the replication on behalf of the plaintiff. It has also come in the evidence that right sided tubal ligation was done and both the tubes and ovary were sent for histopathological examination and the report Ex.DW3/1 (produced by the plaintiff and exhibited as Ex.P1/1B also) clearly established that the left fallopian tube was completely removed as the cyst developed in the left ovary and the ligation of the right side fallopian tube was done after a thread was tied at the base of the loop and thereafter the loop was cut and thus both the fallopian tubes were interrupted.
i. The learned Counsel for the plaintiff has relied upon a portion of the cross-examination of DW2 to the effect that both the tubes of the plaintiff could have been removed and the counsel has vehemently argued that both the fallopian tubes were not removed and this was the negligence.
j. In my considered opinion, the said contention was based upon half truth by way of pick & choose. The deposition must be read as a whole 19/28 to draw the complete picture. It is admitted case of the DW2 that after ligation of right tube only bits were cut which is supported by histopathological report is Ex.DW3/1 also. In order to supply blood to ovary the whole right tube was not removed but it remained a fact that both the tubes were interrupted. Hence, I do not find any merit in the said contention of the counsel for the plaintiff.
k. From the established facts by way of evidence as to what transpired on 14.10.99 in the operation theater, it can safely be concluded, in my considered opinion that the present case was not covered under the doctrine of "res ipsa loquitur" .
l. The Ld. counsel for the plaintiff has relied upon some of the judgments wherein the damages were awarded due to the negligence in performing the operation of sterilization. The first judgment was of the Hon'ble Supreme Court titled State of Haryana and Ors. Versus Smt.Santra reported as AIR 2000 Supreme Court 1888 wherein the Hon'ble Supreme Court was dealing with a case wherein Smt.Santra approached the hospital for sterilization taking advantage of the scheme launched by the Haryana Government and after sterilization she was issued with a certificate regarding the operation being full, complete and successful and not to conceive again. But, she became pregnant after 20/28 two months and when she approached the doctor who was examined in the court as DW2 admitted that only right fallopian tube was operated and the left fallopian tube was not touched which indicated that complete sterilization operation was not done and when she requested for an abortion she was advised against the same being dangerous to her life. It was in this background that the Hon'ble Supreme Court upheld the award of damages to her.
m. The said judgment of the Hon'ble Supreme Court is not applicable to the present case as both the fallopian tubes of the present plaintiff were removed in the same operation, of course, for different reasons because the full left fallopian tube was removed due to the cyst found present and right fallopian tube was interrupted and cut in part for ligation purposes but the result remained the same i.e., there remained no channel for meeting of egg and sperm. The said judgment of the Hon'ble Supreme Court was also distinguished in the latest judgment of the Hon'ble Supreme Court which has been discussed below. n. The plaintiff next relied on a judgment of the Hon'ble Delhi High Court titled as Smt.Shobha and Anr. Versus Govt. NCT of Delhi reported as AIR 2003 DELHI 399 wherein the Hon'ble High Court disposed of two writ petitions by the same judgment. In Writ 21/28 Petition no.7715 of 2001 the damages were allowed on the ground because the hospital in its counter affidavit did not state at all that a conception could be possible despite a successful vasectomy operation and the contributory negligence of the petitioner in not reporting to the hospital immediately after stopping of her mensural period was not upheld.
o. In Writ petition no. 7515 of 2000, the ligation on the petitioner was done and her both fallopian tubes were occluded with fellow prings then the second doctor confirmed that the tubes were occluded rightly but the Hon'ble High Court held that even if it is presumed that the respondents were negligent in performing tubectomy operation, it is cleared that the birth of the child has to be attributed to the conduct of the petitioner as even when there was full opportunity for them to get the pregnancy terminated they failed to avail the same.
p. The facts of the said cases before the Hon'ble High Court of Delhi were not the same as in the present case before me and certainly the first writ petition was decided by the Hon'ble High Court on the basis of res ipsa loquitur and the second case was decided on the basis of the 22/28 contributory negligence of the petitioner. However, as far as, aspect of contributory negligence is concerned, the same is applicable to the present case also which has been discussed by me below. q. Reverting back to the evidence in the case, all the treatment document including with regard to the ligation were produced by the plaintiff. I have deliberately avoided the consent forms Ex.PW1/D1 and Ex.PW1/D2 because the plaintiff agitated the same on the ground that she did not know English nor the doctors at the relevant time explained anything to her. In this background, I have not taken the said consent forms into consideration and the defendants have not been allowed to take the shield behind the said consent forms. The remaining documents have been produced by the plaintiff herself and it is not the case of the plaintiff that the said documents were forged, fabricated or manipulated by the defendants in order to escape the liability. As such, the documents Ex.PW1/1A to Ex.PW1/1D, Ex.PW1/2A to Ex.PW2/2D and Ex.PW1/3A to Ex.PW1/3D remained undisputed on the record. r. Now, the question arises as to even after ignoring the consent forms, can the defendants still be held as non negligent. The very detection of the cyst in the left side ovarian and removal of the same along with the complete left fallopian tube itself speaks of vigilant 23/28 efforts on the part of the doctors and the right side tubal ligation was also done on the same day and that nothing else by way of mistake was removed except the fallopian tubes is amply demonstrated by the histopathological report Ex. PW1/1B (Ex.DW3/1 also). The antenatal card Ex.PW1/2B (Ex.PW1/D3 also) clearly mentioned at point-B that on 14.6.2000 the plaintiff was advised to get herself admitted in Maternity- V for MTP and right side tubal ligation, remained unchallenged on the record which go to establish that the doctors, even after failure of ligation, were ready to stop the birth of the alleged unwanted child of the plaintiff. Admittedly, the plaintiff was pregnant by nine weeks on 14.6.2000 when she again visited the defendants hospital and it is the categorical deposition of the Unit In-charge Doctor, DW2 that there was no danger in the medical termination of pregnancy of the period up till ten weeks. But, the plaintiff did not follow the said advise. There is a difference of opinion between the parties with regard to the reason as to why the said advise for MTP and re-ligation on 14.6.2000 was not followed by the plaintiff. The DW2 has deposed as the plaintiff wanted to give birth to the child, she did not follow the said advise and it is nowhere born out of the said documents placed on record by the plaintiff that there was any danger to her life and limb for going to MTP and right side tubal ligation again. Whereas the plaintiff in her cross-examination by the Local Commissioner, in vernacular, in reply to question no.14 has 24/28 categorically answered that she was afraid of getting the MTP done. s. From the said evidence on record, it is clear that it was the plaintiff who, may be for any reason, was reluctant for going to MTP and right side tubal ligation again. From the said evidence and judging from the said Bolam's Test (Supra) and also judging from the factor of contributory negligence as laid down in Civil Writ Petition No.7515 of 2000 of the Hon'ble High Court of Delhi (Supra) no negligence in the present case can be imputed to the doctors or the hospital who conducted the tubal ligation for the first time on 14.10.1999. t. Next question arises as to what are the causes of the failure of ligation/sterilization. The said question has been fully answered by the Hon'ble Supreme Court in the case titled State of Punjab Versus Shiv Ram & Ors. reported as AIR 2005 Supreme Court 3280 wherein the full bench of the Hon'ble Supreme Court in para 11 referred to the book named Jeffcoate's Principles of Gynaecology at page 621 and quoted as below:
"... 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. ..."25/28
u. In para 13 of the said judgment the Hon'ble Supreme Court further noted the medical literature on the subject as follows:
"... Pregnancy after female sterilization 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 another structure in the body with the fallopian 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. ..."
v. The Hon'ble Supreme Court in para 17 of the said judgment summarized the position as follows:
"It is thus clear that there are several alternative methods of female sterilization operation which are recognized by medical science of today. Some of them are more popular because of being less complicated, requiring minimal body invasion and least confinement in the hospital. However, none is foolproof and no prevalent method of sterilization guarantees 100% success. The causes for failure can well be attributable to the natural functioning of the human body and not necessarily attributable to any failure on the part of the surgeon.
Authoritative Text Books on Gynaecolgy and empirical researches which have been carried out recognize the failure are of 0.3% to 7% depending on the technique chosen out of the several recognized and accepted ones. The technique which may be foolproof is removal of uterus itself but that is not considered advisable. It may be resorted to only when such procedure is 26/28 considered necessary to be performed for purposes other than merely family planning."
w. The Apex Court held in para 23 as follows:
"We are, therefore, clearly of the opinion that 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 claim in tort can 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."
x. Further explaining as to when it can be said that the claimant is entitled to the damages the Hon'ble Supreme Court in para 28 of the judgment held as follows:
"The cause of action for claiming compensation in cases of failed sterilization 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 27/28 undergone sterilization 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.
y. The Hon'ble Supreme Court also distinguished its own previous judgment namely The State of Haryana & Ors. Versus Smt. Santra (Supra) in para 25 of the judgment as follows:
"... The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilization and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts."
z. Thus, in view of the said discussion, in my considered opinion the defendants were not careless and negligent in performing ligation/sterilization operation upon the plaintiff on 14.10.1999 and as such the issue no.1 is decided against the plaintiff and in favour of the defendants.
28/28ii. ISSUE NO.2, 3 & 4
In view of my findings on issue no.1 above, the said three issues are also decided against the plaintiff and in favour of the defendants. iii. ISSUE NO.5 : RELIEF In view of my findings on the said issues above, the plaintiff is not entitled to any relief. The suit of the plaintiff is accordingly dismissed. The parties to bear their own costs. File be consigned to Record Room. ANNOUNCED IN THE OPEN COURT TODAY I.E. ON 18.03.2008.
(RAKESH TEWARI) ADDL. DISTRICT JUDGE:
DELHI.