Kerala High Court
Dr.Santha George vs Dr.Santha George on 8 October, 2018
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
MONDAY,THE 08TH DAY OF OCTOBER 2018 / 16TH ASWINA, 1940
RSA.No. 398 of 2005
AGAINST THE JUDGMENT AND DECREE IN AS 43/2003 DATED 30.07.2004 OF
DISTRICT COURT,KOTTAYAM
AGAINST THE JUDGMENT AND DECREE IN OS 234/1997 DATED 17.02.2003 OF
MUNSIFF COURT, VAIKOM
APPELLANT/1ST RESPONDENT/1ST DEFENDANT :
DR.SANTHA GEORGE, WIFE OF GEORGE,
ASSISTANT SURGEON, COMMUNITY HEALTH CENTRE, VAIKOM.
BY ADVS.
SRI.V.G.ARUN
SRI.T.R.HARIKUMAR
RESPONDENTS/ APPELLANT AND 2ND RESPONDENT/PLAINTIFF AND 2ND
DEFENDANT :
1 MARYKUTTY, W/O. CHACKAO,
ELANJITHARA HOUSE, ULLALA, THALAYAZHAM, VAIKOM.
2 THE STATE OF KERALA TRIVANDRUM
REPRESENTED BY THE CHIEF SECRETARY.
FOR R1 BY ADVS.SRI.K.N.CHANDRABABU
SRI.P.M.NATESAN
FOR R2 BY GOVT. PLEADER SHRI. P.M. SATHEESH
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
08.10.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
The first defendant in a suit for damages is the appellant. The State is the second defendant in the suit. The first defendant was the Gynaecologist attached to the Community Health Centre of R.S.A No. 398 of 2005 2 the State Government at Vaikom during 1991. The plaintiff was under the treatment of the first defendant during the said period in connection with her second pregnancy. The plaintiff delivered her second child at the said hospital on 06.11.1991. After the second delivery, the plaintiff wanted to undergo sterilisation surgery and the first defendant had undertaken sterilisation surgery for her on 07.11.1991. After about 4 years, the plaintiff became pregnant again and she delivered her third child at the same hospital on 30.03.1996. The case of the plaintiff was that she conceived for the third time on account of the failure of the sterilisation surgery undertaken by the first defendant and that the failure of the sterilisation surgery was due to the negligence of the first defendant. It was stated by the plaintiff in the plaint that she had to undergo postpartum sterilisation surgery again on account of the said reason. In order to attribute negligence on the first defendant, it was specifically pleaded by the plaintiff in the plaint that sterilisation surgery is to be performed on both sides of the fallopian tube of the patient and that the first defendant did not do the surgery on the left side of the fallopian tube of the plaintiff. The suit was, therefore, for realisation of damages for the negligence alleged against the first defendant. The first defendant alone R.S.A No. 398 of 2005 3 contested the suit. The fact that the first defendant had undertaken the postpartum sterilisation surgery of the plaintiff on 07.11.1991 has not been disputed by the first defendant. The stand taken by the first defendant in her written statement, however, was that sterilisation surgeries are not foolproof methods for sterilisation and, therefore, negligence cannot be attributed to the Doctor merely for the reason that such a surgery is failed.
2. The plaintiff gave evidence as PW1. The Doctor, who has undertaken the second sterilisation surgery of the plaintiff, was examined on the side of the plaintiff as PW2. Ext.A3 in the suit is a certificate issued by PW2 to the plaintiff. The first defendant did not give evidence in the matter. An expert in the field of gynaecology and obstetrics was, however, examined on the side of the first defendant as DW2. From the materials on record, the trial court found that sterilisation surgeries are not foolproof methods for sterilisation; that the same may fail due to various reasons including recanalisation and that since the plaintiff, who was cohabiting with her husband, was sterile for more than four years after the surgery, the failure of the surgery cannot be attributed at all to the first defendant. The suit was consequently dismissed.
3. The plaintiff took up the matter in appeal. The R.S.A No. 398 of 2005 4 appellate court found that the evidence tendered by PW2 that the left fallopian tube of the plaintiff was found intact when he opened the abdomen of the plaintiff for the second sterilisation surgery and Ext.A3 certificate issued by him to that effect, would establish conclusively that the first defendant had not undertaken sterilisation surgery on the left fallopian tube of the plaintiff. According to the appellate court, in the circumstances, it was obligatory for the first defendant to give evidence in the suit to the effect that she had undertaken surgery on the left fallopian tube of the plaintiff as well and in the absence of any evidence to that effect from the first defendant, the only inference possible is to hold that the first defendant had not undertaken the surgery on the left fallopian tube of the plaintiff. The appellate court has also found that even otherwise, in the light of the principle res ipsa loquitur, it was obligatory for the first defendant to give evidence in the suit to the effect that she had undertaken surgery on the left fallopian tube of the plaintiff to establish that she was not negligent. Although the appellate court noticed that postpartum sterilisation surgeries are not foolproof methods of sterilisation and that the same may fail on account of various reasons including re-canalization and further that the fertility of a patient after one R.S.A No. 398 of 2005 5 year of the surgery cannot normally be attributed to the failure of the surgery, it was found that the said circumstances would not be of any benefit for the first defendant as she did not establish that she had undertaken the surgery on both sides of fallopian tube of the plaintiff. The appellate court, in the circumstances, reversed the decision of the trial court and decreed the suit permitting the plaintiff to realise a sum of `22,000/- with interest from the defendants by way of damages. The first defendant is aggrieved by the said decision of the appellate court.
4. Heard the learned counsel for the appellant as also the learned counsel for the first respondent.
5. The learned counsel for the appellant contended that the evidence tendered by PW2 that he found the left fallopian tube of the plaintiff intact and normal when he opened the abdomen of the plaintiff for the second sterilisation surgery, does not lead to the inference that the first defendant had not undertaken sterilisation surgery on the left fallopian tube of the plaintiff. According to the learned counsel, the contrary finding rendered by the appellate court is perverse. It was also contended by the learned counsel that the burden to establish negligence in a case of this nature is on the plaintiff and the contesting Doctor is not obliged at all to give R.S.A No. 398 of 2005 6 evidence in the matter. The contrary view expressed by the appellate court, according to the counsel, is unsustainable in law. It was further contended by the learned counsel that the principle res ipsa loquitur cannot be applied to a case of this nature and the said principle can be applied only in a case where the occurrence is of a kind which does not occur in the absence of someone's negligence. It is further contended by the learned counsel that insofar as the findings of the appellate court that the sterilisation surgery undertaken on the plaintiff is not a foolproof method of sterilisation and that her fertility after a period of four years of the surgery may not be on account of any reason attributable to the surgery, the appellate court ought not have interfered with the decision of the trial court. The essence of the contentions advanced by the learned counsel for the appellant is that the finding rendered by the appellate court that the first defendant was negligent in the matter of undertaking sterilisation surgery on the plaintiff, is perverse. Per contra, the learned counsel for the first respondent supported the view taken by the appellate court.
6. Having heard the learned counsel for the parties on either side, the following substantial question of law is framed for decision in the second appeal:
R.S.A No. 398 of 2005 7
"Is the finding of the appellate court that the negligence of the first defendant was the cause for the third pregnancy of the plaintiff, perverse?"
7. It is beyond dispute that the first defendant has undertaken sterilisation surgery of the plaintiff adopting pomeroy method. It has come out that sterilisation surgery was conducted adopting the said method by lifting the fallopian tube of the patient on both sides and cutting the same half an inch after forming loops and tying the tubes beneath the loops. In Ext.A3, PW2 has certified that the left fallopian tube of the plaintiff was found intact when he opened her abdomen for undertaking the second sterilisation surgery on 02.04.1996. He has also given evidence to that effect in the suit. It is based on the aforesaid materials that the appellate court made an inference that the first defendant had not done sterilisation surgery on the left fallopian tube of the plaintiff. The first and foremost question, therefore, is as to whether the appellate court is justified in making the said inference.
8. The fact that the sterilisation surgeries are not foolproof methods for sterilisation and the same may fail for various reasons not attributable to the Doctor, is a fact that is taken note of by courts including the Apex Court in similar matters. In State of Punjab v. Shiv Ram and 0thers [(2005) 7 SCC 1], having regard R.S.A No. 398 of 2005 8 to the various authorities on the law of medical negligence, the Apex Court observed thus:
"The methods of sterilisation so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilised woman can become pregnant due to natural causes."
The aforesaid fact is known to the plaintiff also as she has given consent for undertaking the surgery which states, among others, that the surgery may fail on account of natural causes. PW2 Doctor, who was examined on the side of the plaintiff, has also confirmed the said fact. There is enormous authority for the position that fertility after a period of one year of the surgery can never be on account of any reason attributable to the Doctor. It is apposite in this context to refer to the conclusion arrived at in a review on "Failed Sterilisation" published in BJOG, an International Journal of Obstetrics and Gynaecology. The said conclusion reads thus:
"We have proposed a clinicopathological mechanism of sterilisation failure. Current evidence suggests that if sterilisation failure occurs before one year, pregnancy is due to operator fault because of tubal non-occlusion, and R.S.A No. 398 of 2005 9 the pregnancy is more likely to be intrauterine. Conversely, sterilisation failure after one year is more likely due to natural tubal lumen regeneration through tubal recanalisation or fistula formation and the pregnancy is more likely to be an ectopic pregnancy. The RCOG working group recommendation for a national register of sterilisation failure should help to clarify long term failure rates and enhance good medical practice. Expansion of this data set is urgently required, which we have commenced in our institution. This includes histopathological and radiological expertise. This should include precise knowledge of the method of sterilisation, time interval to failure and mechanism of sterilisation failure (especially the contribution of operator fault). These factors may show obvious trends relating to early/late sterilisation failure and held to validate the proposed clinicopathological mechanism. Furthermore, this article provides practical advice on how to perform laparoscopic sterilisation safely, how to minimise failure and manage failed sterlisation medico-legally."
In paragraph 40 of the judgment, the appellate court has also agreed with the aforesaid conclusion. The fact that the plaintiff, who was cohabiting with her husband after the surgery, was sterile for almost four years is not in dispute. In so far as the plaintiff was otherwise fertile, there is absolutely no reason for her to be sterile for a continuous period of four years after the surgery. Both PW2, the Doctor examined on the side of the plaintiff, and DW2, the R.S.A No. 398 of 2005 10 Doctor examined on the side of the first defendant, have admitted in their evidence that fertility after a reasonable period after the surgery can be on account of recanalisation of the fallopian tube and similar causes. The summary of a study published by the American Fertility Society on the Mechanism of Recanalisation reads thus:
"The mechanism of recanalisation after resection of a segment of the fallopian tube by the pomeroy sterilisation method is discussed. At the level of resection the epithelial lining of the fallopian tube tends to regenerate, covering the split ends and planes of cleavage of the reseted surfaces and forming slitlike spaces and blind pouches lined by tall columnar cells. Scarring and subsequent retraction of both severed ends of the tubes tend to result in approximation; in some cases, the resected ends and the epithelial lining bridge the gap between the lumina re-establishing patency of the tube. Surgical procedures that prevent approximation of the resected ends of the fallopian tubes or methods that seal the lumina should produce failure rates lower than those obtained with the classic Pomeroy sterilisation method."
It is evident from the aforesaid summary that the patency of the fallopian tube would be re-established on account of recanalisation. DW2 has deposed before the court that failure of the sterilisation surgery on account of recanalisation can be ascertained by histopathological examination of the tissues. PW2 has admitted R.S.A No. 398 of 2005 11 that he has not adopted the said course for ascertaining the reason for the failure of the sterilisation surgery undertaken on the plaintiff. The evidence tendered by PW2 and Ext.A3 certificate issued by him would only indicate that the left fallopian tube of the plaintiff appeared to be normal when examined after four years. In the light of the process of re-canalisation as explained above and in the absence of any histopathological examination of the tissues, it is not possible at all to infer that there was no surgery done on the fallopian tube merely for the reason that it appeared to be normal after four years of surgery.
9. Now, I shall consider the question as to whether it was obligatory for the first defendant to give evidence in the suit. The normal rule is that it is for the plaintiff to prove the negligence. Of course, the normal rule does not apply where the circumstances leading to the cause are exclusively within the knowledge of the defendant. In such case, true, it is for the defendant to explain the cause. In the instant case, as noted, the stand taken by the first defendant is that the surgery undertaken by her is one that may fail for various reasons not attributable to the Doctor and that, therefore, negligence cannot be attributed to the Doctor merely for the reason that the surgery is failed. In a case of this nature, it was R.S.A No. 398 of 2005 12 unnecessary for the Doctor to give evidence in the matter as the circumstances led to the cause are not within the exclusive knowledge of the first defendant. The rule res ipsa locquitur applies only when the cause is of a kind which does not happen in the ordinary course without the negligence of person against whom negligence is alleged. In other words, it applies only to cases in which the facts proved by the plaintiff, by themselves, would call for an explanation from the defendant. I have found that the facts proved by the plaintiff does not lead to the inference that the first defendant has not undertaken sterilisation surgery on the left fallopian tube of the plaintiff. If so, the rule res ipsa locquitur has no application. On an evaluation of the materials on record, I am of the view that this case is one originated out of suspicion. The Apex Court has cautioned that too much suspicion about the negligence of attending Doctors and frequent interference by courts would be a very dangerous proposition as it would prevent Doctors from taking decisions which could result in complications and in this situation the patient would be the ultimate sufferer. [See C.P. Sreekumar (Dr.) v. S. Ramanujam ((2009) 7 SCC 130)]. It is apposite in this context to quote the observation made by the Apex Court in State of Punjab (supra), which was also a case of a failed tubectomy R.S.A No. 398 of 2005 13 leading to a plea of medical negligence. The following was the observation:
"... A doctor, in essence, needs to be inventive and has to take snap decisions especially in the course of performing surgery when some unexpected problems crop up or complication sets in. If the medical profession, as a whole, is hemmed in by threat of action, criminal and civil, the consequence will be loss to the patients. No doctor would take a risk, a justifiable risk in the circumstances of a given case, and try to save his patient from a complicated disease or in the face of an unexpected problem that confronts him during the treatment or the surgery....."
In the aforesaid circumstances, I have no hesitation to hold that the finding rendered by the appellate court that the cause for the third pregnancy of the plaintiff was the negligence of the first defendant, is incorrect, unsustainable and perverse. The question formulated for decision in the second appeal is thus answered in favour of the appellant.
In the result, the second appeal is allowed, the impugned decision of the appellate court is set aside and the decision of the trial court is restored.
Sd/-
P.B. SURESH KUMAR, JUDGE PKK