Delhi District Court
Sulekha Devi vs . Safdarjung Hospital on 23 February, 2015
Sulekha Devi Vs. Safdarjung Hospital
IN THE COURT OF MS SURYA MALIK GROVER
SENIOR CIVIL JUDGE-CUM-RENT CONTROLLER (SOUTH)
SAKET COURTS, NEW DELHI
CS No. 246/11
Unique ID No. 02406C0337822011
IN THE MATTER OF:
SMT. SULEKHA DEVI
W/o Pawan Kumar Mishra,
B-400, Gali No. 8,
Jaitpur Extension, Part-II,
Delhi. ....PLAINTIFF
VERSUS
1. Safdarjung Hospital
New Delhi-110029
Through its
Medical Superintendent
2. Union of India
(Ministry/ Department of Health and Family Welfare),
Nirman Bhawan,
New Delhi
Through its secretary (health). ....DEFENDANTS
DATE OF INSTITUTION : 06.09.2010
DATE OF RESERVING THE JUDGMENT : 23.02.2015
DATE OF DECISION : 23.02.2015
CS No. 246/11 Page 1 of 10
Sulekha Devi Vs. Safdarjung Hospital
JUDGMENT
1. This is a suit filed by plaintiff for compensation of Rs.
2,00,000/- alongwith pendente lite @ 18% per annum from defendants.
FACTUAL MATRIX OF THE CASE
2. Briefly stated, it is the case of the plaintiff that she is a house wife and resides at B-400, Gali no. 8, Jaitpur Extension, Part-II with her husband and her children. The family of the plaintiff is not well educated and constrained to live below poverty line. The husband of the plaintiff is the only earning member of the family who is engaged as daily wages labour in a private organization.
3. The family of the plaintiff consists of her husband and three children including a new born baby born on 23.07.10. Plaintiff got admitted for her second child vide O.T. Registration No. 677414 in the Gynecology Department of Safdarjung Hospital for her delivery on 26.06.04 and gave birth to a male child after cesarean operation on 04.07.04. Thereafter she was discharged.
4. The concerned doctor had advised the plaintiff to opt for sterilization as she already had two male children including the new- born child. The plaintiff was advised and assured by the doctor concerned that the proposed sterilization is very safe, and there is no possibility to conceive again. Hence, the plaintiff got sterilization CS No. 246/11 Page 2 of 10 Sulekha Devi Vs. Safdarjung Hospital done accordingly and was discharged on 07.07.04 after sterilization and was issued a certificate of sterilization bearing sl. no. 386727 dated 06.07.04.
5. It is alleged that the plaintiff conceived even after the said sterilization operation. Her pregnancy was confirmed by the doctors of ESI Dispensary Delhi and after the tests, she went to Safderjung Hspital where she was told that she was not pregnant and advised her to take medicines.
6. It is averred that as the plaintiff conceived despite sterilization by the doctor of the Safdarjung Hospital i.e. defendant no.1 and the said hospital being Government Hospital governed by defendant no.2, both the defendants are liable to compensate the plaintiff as it was only owing to the fault and negligence of the defendants, due to which the plaintiff gave birth to the third child after sterilization.
7. Written Statement has been filed on behalf of the defendants taking preliminary objections that the plaintiff has misled the court by suppressing the fact regarding the consent form duly signed by the plaintiff along with her husband before the operation for sterilization, wherein she had been informed in vernacular that there was a minor probability of 0.4% for failure of the sterilization operation.
8. Further, the plaintiff herself did not follow the precautionary CS No. 246/11 Page 3 of 10 Sulekha Devi Vs. Safdarjung Hospital measures and the instructions given by the doctors as she approached the defendants only after 20 weeks and 3 days of the pregnancy. Further, the said operation was conducted on 04.07.04 and the plaintiff filed the present suit only on 03.09.10, which is hopelessly time barred. Hence, the suit of the plaintiff is not maintainable and is liable to be dismissed.
9. Further, all averments made in the plaint have been denied as false and incorrect.
10. Replication was filed against the written statement of the defendants in which the objections raised were denied as false and incorrect and averments made in the plaint were reiterated and reaffirmed. It was further stated that the consent form though signed by her was never explained to her and it was signed in a routine manner, as a standard form, and the plaintiff was never made to understand the terms of the same.
11. The following issues were framed for adjudication on 21.01.2012 :-
1. Whether doctors of defendant no.1 informed the plaintiff about the chances of failure of sterilization operation as 0.4% at the time of sterilization?OPD.
2.Whether plaintiff failed to take precautions as CS No. 246/11 Page 4 of 10 Sulekha Devi Vs. Safdarjung Hospital per the advice of defendant no.1 after sterilization operation?OPD
3.Whether plaintiff is entitled to a decree for compensation of Rs.2 lacs?OPP
4.Whether plaintiff is entitled to interest, if so at what rate and for which period?OPP
5. Relief.
EVIDENCE ON RECORD
12. The plaintiff in support of her case has examined herself as PW-1, who tendered her affidavit in evidence. PW2 Dr. Mukesh Kumar, Sr. Resident Gynaecology Department, ESI Hospital, Okhla, New Delhi brought the original record of discharge summary of Sulekha Devi dated 26.07.10 Ex.PW1/F.
13. In rebuttal, defendant has got examined Dr. Renu Arora, working as consultant in Safdarjung Hospital & VMMC, New Delhi as DW-1 and tendered her evidence by way of affidavit and proved photocopy of the consent form which is Mark A. DW2 Satyaveeri Devi was produced as Medical Record Officer, who deposed to the effect that that medical records upto 2010 and MLC register upto 2003 have been destroyed as per approval Ex DW2/1.
14. It is pertinent that an application under Section 65 of Indian CS No. 246/11 Page 5 of 10 Sulekha Devi Vs. Safdarjung Hospital Evidence Act was moved seeking permission to lead secondary evidence as the original consent form was stated to be destroyed vide office order and therefore only its photocopy was presently available with the defendants. In view of evidence of DW2, who was not cross- examined by the plaintiff, I am satisfied that the original consent form was destroyed as per rules, and the photocopy placed on record can be read in evidence.
DECISION AND LEGAL REASONING
15. I have heard the arguments carefully and perused the judicial record.
16. My issue-wise findings are as under:
Issue no.1 and 2
1. Whether doctors of defendant no.1 informed the plaintiff about the chances of failure of sterilization operation as 0.4% at the time of sterilization?OPD.
2. Whether plaintiff failed to take precautions as per the advice of defendant no.1 after sterilization operation?
OPD
17. Issue no.1 and 2 are being disposed of together as similar evidence has been led upon them. Onus to prove issue no.1 and 2 was CS No. 246/11 Page 6 of 10 Sulekha Devi Vs. Safdarjung Hospital upon the defendants.
18. It has been argued by Ld. counsel for the defendants that the plaintiff had been duly informed about the chances of failure of sterilization operation at the time of the said operation and was also cautioned that in case she missed her monthly periods, she must immediately contact the hospital.
19. The defendants in support of their case have produced Dr. Renu Arora, Consultant who has deposed by way of evidentiary affidavit stating that the plaintiff had signed the consent form with her free will and was very much aware that there was a probability that the operation could fail. Further she has stated in her affidavit that the plaintiff had been instructed that in case of missing her monthly periods she should approach the hospital immediately. However, as the plaintiff approached only after 20 weeks and 3 days of her pregnancy, the plaintiff could not be operated for abortion and therefore she is not entitled to any compensation from the defendants.
20. During her cross-examination, the witness DW1 has stated that as a matter of practice all the patients who undergo the sterilization operation are explained about the contents of the 'Consent Form'. However, the witness has been unable to tell as to which doctor was present at the time of explanation of the contents/precautions of the same.
CS No. 246/11 Page 7 of 10Sulekha Devi Vs. Safdarjung Hospital
21. At the outset, the signatures of the plaintiff on the consent form have not been disputed by her. However, it is her case that the same was signed in a routine manner, without explaining contents thereof. To my mind, the plaintiff having admitted signing the consent form cannot take the defence that the contents thereof were not known to her.
22. Even if presuming for the sake of arguments that the Consent Form had not been explained to the plaintiff, law is settled in this regard that sterilization operations are subject to failure. In case titled as Mala Devi v. Govt. (NCT of Delhi) 2014 SCC Online Del 4839, Hon'ble High Court of Delhi held as under:
"I am unable to accept the contention that the negligence of attending doctors is established in the given facts and circumstances of this case. There is no material on record which would justify the finding that the attending doctors were negligent in performing the sterilization operation on the petitioner. The petitioner's discharge slip issued by the hospital on 05.10.2012 also does not lead to the conclusion that no procedure was carried out on the right side fallopian tube of the petitioner.
23. In State of Punjab v. Shiv Ram (2005) 7 SCC 1, Hon'ble Supreme Court held as under:-
"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 the surgeon in performing CS No. 246/11 Page 8 of 10 Sulekha Devi Vs. Safdarjung Hospital 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."
24. Further, as per the Consent Form signed by the plaintiff she had to go for a regular check up. It has been alleged by the defendants that the plaintiff did not follow the instructions nor had taken the medicines regularly. Plaintiff has admitted during her cross- examination that when she approached the ESI Hospital which is reflected in document Ex.PW1/H, she was five months pregnant. Even though she has stated that she had gone to Safdarjung Hospital soon after her monthly periods stopped, she has been unable to place on record any proof of the same.
25. In view of the aforesaid discussion, I am of the considered opinion that the defendants have been able to prove that the plaintiff had given her informed consent for the operation, sterilization operation was done properly and failure was not on account of negligence by the defendants' doctors and that the plaintiff failed to approach the defendants for an abortion in time, as cautioned on account of which the child could not be aborted.
26. Accordingly, both issues stands decided in favour of the defendants and against the plaintiff.
CS No. 246/11 Page 9 of 10Sulekha Devi Vs. Safdarjung Hospital Issue No. 3 and 4
3.Whether plaintiff is entitled to a decree for compensation of Rs.2 lacs?OPP
4.Whether plaintiff is entitled to interest, if so at what rate and for which period?OPP
27. As both issue no.1 and 2 is decided are favour of the defendants and against the plaintiff, as such I am satisfied that plaintiff has miserably failed to establish her case and therefore neither entitled to any compensation nor interest thereupon.
28. Hence both issues no. 3 and 4 stand decided in favour of the defendants and against the plaintiff.
Issue no.5/Relief.
29. In view of the decision of the issues, the suit of the plaintiff is dismissed as meritless.
30. Decree sheet be prepared accordingly.
31. No order as to costs.
32. File be consigned to record room.
Announced in the open Court (Surya Malik Grover) on 23.02.2015 SCJ-cum-RC (South), Saket Courts, New Delhi CS No. 246/11 Page 10 of 10