Delhi District Court
Shri Satbir Singh Sisodia vs Tirath Ram Shah Charitable Hospital on 21 February, 2007
1
IN THE COURT OF SHRI VIMAL KUMAR YADAV
ADDITIONAL DISTRICT JUDGE:DELHI
Suit No. 190/03
In the matter of :
Anita Sisodia,
W/o Shri Satbir Singh Sisodia,
R/o C/o Laxmi Garments,
Village Raza Pur, Near Shiv Mandir,
Sector - 9, Rohini,
Delhi - 110085.
Through her General Attorney
Shri Satbir Singh Sisodia
S/o Shri Diwan Singh
R/o Village Raza Pur, Near Shiv Mandir,
Sector - 9, Rohini,
Delhi - 110085. ......Plaintiff
Versus
1 Tirath Ram Shah Charitable Hospital
2 RBL Isher Das Sawhney Marg,
Rajpur Road, Delhi - 110054.
2 Dr. Saroj Budhiraja
C/o Tirath Ram Shah Charitable Hospital
2 RBL Isher Das Sawhney Marg,
Rajpur Road, Delhi - 110054. ..........Defendants
Suit for damages
Date of Institution : 03.11.2003
Date of Decision : 21.02.2007
JUDGMENT :
1 Truth is indeed at times, stranger then fiction, and destiny, by whatever name we call it, is something which has to be believed. The birth of a child is invariably, a welcome event in the family and society. 2 However, at times the same child becomes an unwelcome and unwanted guest. The man has to surrender in front of destiny as the efforts to bring or not to bring a new life in this world may or may not succeed notwithstanding the so called progress of science. In the instant case, one such child breathed into life and started off in a healthy manner although he was not sought expected and may not be welcomed by his own parents.
2 Verily, the plaintiff who got married in the year 1996 was blessed with a female child in the very next year, who was followed by three male children in the subsequent years. The fourth child was born on 10/9/02 at "Kumar's Nursing Home", Shalimar Bagh, whereas the three other children were born at the defendant hospital. The doctors advised the couple not to go for another child as due to the frequent child bearing by the petitioner took toll of her health and ofcourse number of children was also a reason. Against the backdrop of these facts and circumstances, the plaintiff visited the defendant hospital when she came to know that she is again expecting, in order to abort the child and get a sterilization operation/tubectomy done. She was encouraged in this context by the representation of defendant no.2 Dr. S. Budhiraja, defendant no.2 that such an operation would be conducted free of cost as per the Govt. policy. Accordingly, plaintiff got admitted herself on 14/5/03 and was discharged on that very day after conducting both, the Medical termination of pregnancy/Abortion and Sterilization operations. The 3 discharge summary, certificate of sterilization etc were given alongwith the OPD card to the plaintiff for the post operative care. The defendants charged Rs. 500/-, 150/- and 10/- under different heads but it was practically with regard to the tubectomy and abortion conducted by the hospital.
3 The plaintiff, expectedly, felt assured that she has gone out of the cycle of pregnancy and child bearing, thus became carefree and tension free but after sometime she developed certain problems. She was told that its nothing serious but due to the operation undergone by her. The plaintiff, being a layman, trusted that nothing serious is there. However, the plaintiff was not satisfied as she felt some movement in the womb and approached a doctor where she came to know, after confirming through an ultrasound test too that she was 14 weeks pregnant and was expected to deliver the child in January' 04. Since it was not feasible medically to abort the child, therefore, the plaintiff was compelled to bring him into this world and a healthy male child was born to the plaintiff. Now the grudge of the plaintiff is that she, due to her financial constraints, is unable to bring up the child in a decent manner. Since, she keeping in view her limitations, did not want this child and had taken all the precautions, so much so that she had undergone abortion and sterilization therefore, it was nothing but the sheer negligence on the part of the defendants which has placed the plaintiff and her family in such a tight spot. Thus, the defendants are not only bound to 4 compensate the plaintiff rather the expenses of bringing up the child should be borne by the defendant's hospital. By working out the expenses involved, upto the age of 18 years the instant suit has been filed by the plaintiff for recovery of Rs. 6,88,880/- coupled with the interest @ 18% p.a. 4 The defendants while contesting the suit asserted that no negligence or carelessness was there in the services provided to the plaintiff rather it was on account of the failure of the process undergone by the plaintiff. The most prevalent procedure of sterilization, with due care and caution, was employed by the defendant. The suction evacuation and check curettage, which is a blind procedure was used for abortion and therefore negligence cannot be attributed to the defendants. However, element of failure cannot be ruled out especially when there are instances of failure in the methods employed. Then again, the plaintiff was called upon to report back to the family unit of the defendant hospital as was still possible to abort the child. The plaintiff had availed free services in the General OPD of Tirath Ram Hospital and her operation was conducted under the supervision of a Senior and experienced consultant Dr. Saroj Budhiraja by the resident doctors of the defendant's hospital. It is the plaintiff who did not come for the follow of checkups. She came to the hospital on 21/5/03 and at that time she was asked to come again but she did not till 09.08.2003. She, however, did not reported till 9/8/03 and on that day the size of the uterus was 5 found to be 18 weeks, thus, the plaintiff was referred to Dr. Reena Jain, Incharge of the Family Welfare Unit, however, the plaintiff instead of reporting to the Family Welfare Center went away. In these circumstances, the defendant hospital cannot be blamed for any carelessness or negligence since the required care and caution was there and the most prevalent method of conducting the abortion, sterilization and tubectomy was adopted by the doctors under the expert advice and supervision of defendant no. 2 Dr. Saroj Budhiraja, therefore, neither the defendant hospital nor defendant no. 2 responsible for any lapse thus not bound to pay any damages to the plaintiff.
5 The plaintiff however maintained her case in the replication filed wherein she, not only controverted the pleas taken in Written Statement but also maintained her case. On the basis of the pleadings of the parties following issues were framed:-
1 Whether any medical negligence can be attributed to the defendant on the tubectamy operation of the plaintiff?
(OPP) 2 Whether the plaintiff is entitled to the relief as prayed for?
(OPP) 3 Relief.
6 The plaintiff, in order to drive home her case, examined her husband and attorney Satbir Singh Sisodiya and thereafter the plaintiff closed her evidence. The defendants examined Dr. Anjali Gaur, Dr. Bharat Singh,Dr. Mamta Verma, Dr. S. Budhiraja and thereafter closed their evidence.
67 Arguments were raised by the Ld. Counsels for the parties and after considering the same and perusing the material on record, my issuewise findings are as follows:
ISSUE NO.1 & 2:
1 Whether any medical negligence can be attributed to the defendant on the tubectamy operation of the plaintiff?
2 Whether the plaintiff is entitled to the relief as prayed for?
8 Both the issues are intricately and inextricably interwoven with each other therefore taken together, as the finding of one ultimately decides the other as well.
9 Whether or not negligence can be attributed to the defendant is the question which holds the key qua the case in hand. Negligence especially medical negligence has been defined and interpreted by the Hon'ble Supreme Court in the judgment "State of Haryana and others V/s Smt. Santara AIR 2000 Supreme Court 1888" in the following manner :
"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 test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest 7 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. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is negligent.
In the case titled as "Philips India Vs. Kunju Punnu (Supra) the Hon'ble Bombay High Court has held as under : -
"In an action for negligence, as in every other action, the burden of proof falls upon the plaintiff alleging it. Hence, it is for the plaintiff to give evidence of the facts on which basis he claim to the redress which he seeks from the Court.
The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor or ordinary skill would be guilty of it acting with reasonable care.
The law on the subject is really not in dispute. The plaintiff has to establish first that there had been a want of competent care and skill on the part of the defendant to such an extent as to lead to a bad result. The plaintiff has also to establish the necessary connection between the negligence of defendant and the ultimate death of the plaintiff's son.
It is, therefore, clear that in an action for negligence against a doctor, as in any other action for negligence, the plaintiff has to prove' (1) that the defendant was under a duty to take a reasonable care towards the plaintiff to avoid the damage complained of or not to cause damage to the plaintiff by failure to use reasonable care ; (2) that there was a breach of duty on the part of the defendant and (3) that the breach of duty was the legal cause of the damage complained of and such damage was reasonably foreseeable."8
10 It has been argued on the strength of some medical text that in an operation of sterilization the failure rate various from 0.3% to 7% and the instant case, as per the defendants, falls into those cases where there was a failure of the methods and not the negligence of the doctors. In this context, counsel for the defendants relied upon "Smt. Jaiwati V/s Parivar Seva Sanstha & Anr III (1999) CPJ 167" and "State of Haryana and others V/s Raj Rani (2005) 7 SCC 22" 11 It is not a case of failure sterilization alone rather has to be seen from the other angle that the abortion too was done. It is not the case of the plaintiff that sterilization failed. What she alleged is that the abortion was not complete rather the feotus was not aborted at all. Thus the judgments relied by the defendant are of no avail since all those deal with cases of failed sterilization.
12 The case of the plaintiff is that she not only underwent an MTP operation but also got herself sterilized in order to avoid further addition into her family inasmuch as she had already been blessed with four children and given her financial situation she and her husband decided not to go for another child. However, despite both these operations, she delivered a male child which according to her is an unwanted child and an additional financial burden on her family. Against the backdrop of these facts and circumstances, it is asserted that 9 birth of the fifth child is on account of the carelessness and negligence of the defendant no. 1 and it's the doctors, who performed the operations upon the plaintiff.
13 On the other hand, the defendant has maintained that all the reasonable care was taken, as is being taken in other cases of termination of pregnancy and sterilization. The birth of male child is one of those cases where failure of technique is responsible and not the doctors nor any negligence or carelessness can be attributed to the doctors. In these facts and circumstances, when no negligence can be attributed, there is no question of paying any damages to the plaintiff. 14 The documents indicate that the plaintiff underwent both these operations in one go and the purpose of undergoing the operations was very clear that is to abort the foetus of six weeks which was in her womb and the other operation was performed to avoid future pregnancies. The defendants have shown that evacuation suction technique coupled with the check curettage was employed which is the most commonly used technique for terminations of six weeks pregnancy. According to the doctors, while conducting the operations all reasonable care was taken and it was ensured that all went as planned. The patient/plaintiff had not reported any complication and, therefore, she was discharged on that very day although she was to come for the follow up examination. The defendant had asked the plaintiff to come for the examination but she 10 did not report for the examination and came very late after she felt abdominal pain. She was again referred to In-charge of the Family Planning Section where she did not report. In these facts and circumstances, if the plaintiff herself is not complying with the directions and advices then it is she and only she who has to be blamed. 15 To some extent, counsel for the defendants appear to be convincing inasmuch as the operations were carried out on 14.05.2003 and she was advised to come again for follow up check up but she came only on 21.05.2003 for stitch removal and she was again asked to come for check ups. The discharge summary speaks about stitch removal but silent on further check-ups. The defendant could not show from record that the patient was called again after the stitch removal. It was the plaintiff who turned up on 09.08.2003 when she felt some uneasiness and movement in her abdomen and on examination it was found that she was 18 weeks pregnant. Therefore, she was referred to Dr. Neena Jain and again the plaintiff failed to report. Apparently, according to the defendant, the plaintiff herself is not careful but also not heeding to the advices of the Doctors monitoring her case. Then again the process through which the operations were carried out are blind procedures as per the medical terminology and as every procedure has its lacuna, it too has its failure rate. It appears to be one of those cases where the procedure has failed. In these facts and circumstances, negligence cannot be attributed upon the defendants. However, the documents filed by defendants are not above board for the consent and application for 11 sterilization operations form reflects tempering for name of Dr. Neena Jain has been inserted. This could have been taken a bonafide correction but for the fact that operations on the plaintiff were conducted by Dr. Mamta and Dr. Anjali under the supervision of Dr. Budhiraja and not by Dr. Neena Jain even as per the defendant. This puts a big question mark on the bonafides of the defendants.
16 The sterilization process was carried out as per established medical practices and all the standard care and precaution was taken in performing the said operation is the contention of the defendants. The money which was charged from the plaintiff was on account of administrative charges and for use of operation theater etc., thus substantially operations were free. The plaintiff should have, it is contended by the defendant, heeded to the advices of the defendants/doctors as it was still possible to carry out an operation in case of 18 weeks pregnancy but for the non reporting of the plaintiff which further dis-entitles her from getting anything from the defendant. However, there is no answer with the defendants as to why no confirmatory test was done inasmuch as it was obligatory to be sure after ascertaining from the material sucked out to see and confirm as to whether the suction evacuation has been successful or not. The material which came out in the suction process should have been examined as that would have established the things beyond doubt. It seems that it was not done which apparently is a lapse on the part of the defendant especially when an obligation is there to see that the process was 12 successful. A six weeks foetus is identifiable to the experts hopefully, and there are instances of extra uterine pregnancy also and, therefore, it becomes all the more obligatory on the part of the doctors to make sure that the process adopted by them has successfully worked. To ensure this the sucked out product should have been checked which seems to be the only confirmatory test available. Incidentally the discharge summary is indicative of the fact that the sucked out material. In the manual of Medical Terminology of Pregnancy edited by Manju V. Bratalia and N. J. Jassiwala at page no. 79 it has been observed that surgical processes like menstrual regulation and suction evacuation at this period of pregnancy are also liable to have failure as the conceptus may not be nidated in a place to be affected by moderate negative suction pressure, and thus, the uterus must be checked after three weeks for evidence of continuation of pregnancy. Again the discharge summary and for that matter any evidence by defendant does not reflect that the plaintiff was advised to come back after three weeks or so for check up qua the evidence of any continued pregnancy. The only advice in Discharge Summary is to come again for stitch removal. Thus, the defendants fail on two counts that the sucked material has not been checked and the plaintiff was not called after three weeks for a kind of confirmation. If the failure rate varies from 0.3% to 7% then it becomes all the more obligatory to ensure and assure the patient that all possible and requisite has been done which was humanly possible. The failure on those two counts put the defendants in a tight spot.
1317 The defendants have not brought any evidence to this effect as to what was the size of the canula inasmuch as the text available reflects that the size of the canula used must confirm to the number of weeks of the pregnancy for instance a 6mm canula is to be used to remove a 6 weeks old foetus and 8 weeks and 10mm canula for 10 weeks old foetus. However, this done is not required rather depending upon the tightness of cervix to insert the canula, dilation is usually carried out by metal dilators.
18 Failure of termination are most common in this group and may need repeat suction after three weeks. The discharge summary which is Ex. PW1/2 nowhere reflects that the plaintiff was called back again after three weeks, although it does provide that she was called back for stitch removal and she did went to the defendant for this purpose on 21.05.2003 i.e. as per the advise given in discharge summary. There is no document placed on record that thereafter she was again called back for further examination or any other purpose rather there is no entry which endorse about stitch removal carried out on 21.05.2003. Birth of fifth child after the operation and sterilizations, operations on the face of which prima facie shows that the defendants were negligent. It was for the defendants to upset this presumption, though rebutable, that presumption in favour of the plaintiff exists, reference can be made to "Nagmani V/s Corporation of Madras AIR 1956 Madras 59". 14 19 The defendants are unable to show that the plaintiff was called after three week for confirmatory test. The defendants have also failed to show that the doctors tried to find out from the sucked out material as to whether the process was successful or not. The defendants have failed to show that they have told and cautioned about the failure rate or for that matter the system is not fool proof and may fail also, which is obligatory on the part of the defendants. In this context, even the consent form may not be of any avail as mere signatures on the same does not absolve the defendant from explaining broadly the procedure and rate of success or failure qua that. The negligence and carelessness is evident from the statement of Dr. Anjali Gaur where she says that she was not aware about the fact that the plaintiff was pregnant or not when she did this sterilization test. The evidence of the plaintiff, on the other hand, reflect that both the operations were conducted in the supervision of Dr. S. Budhiraja in one go. The contention of the defendant that the plaintiff did not report to Dr. Neena Jain after the operation at the Family Welfare Unit till 09.08.2003 and, therefore, it is the plaintiff who is to be held responsible, does not hold water and why it does not; for the reason that the patient who had undergone a major operation, as per the defendants, who were sure of the success of the same and when she came to know that the operation was not successful and in that case the degree of faith and confidence is bound to recede. In these circumstances, the plaintiff did not report to Dr. Neena Jain feeling that this may cause further 15 complications since she was pregnant of about 18 weeks. In these circumstances, the plaintiff cannot be held responsible for not coming to Family Welfare Unit for check up so as to take it as a mitigating circumstance against the defendants.
20 The defendant had charged the money from the plaintiff whereas according to defendant it was free OPD as per Government Scheme. The defendants have failed to elaborate as to what kind of subsidy is being given by the Government and whether that entitled the defendant to charge the operation theater fee or not. The substantial amount of money paid by the plaintiff had been charged under the registration fees. Apparently, it is not digestible in the subsidized Government programmes. In these circumstances, it is apparent that the birth of the child is rather on account of carelessness and negligence on the part of the defendant in carrying out the MTP and Sterilization operations. As such, the defendants are bound to pay the damage to the plaintiff. The amount of Rs. 2,000 per month claimed by the plaintiff from the defendants for bringing up the child till the age of 18 years is not unreasonable therefore, the plaintiff is entitled to have the same inasmuch it will take care the future needs also and inflation is on the rise therefore, the amount cannot be said exorbitant from any angle. As such both the issues are decided in favour of the plaintiff and against the defendant 16 RELIEF :
21 In view of the foregoing discussion, the suit of the plaintiff stands decreed for sum of Rs. 6,88,880/- together with interest @ 12% per annum from the date of filing till realization together with the costs of the suit against the defendants. Decree be drawn accordingly. File be consigned to Record Room.
Announced in the open court on 21st of February, 2007 (VIMAL KUMAR YADAV) ADDITIONAL DISTRICT JUDGE:
DELHI nk