Delhi District Court
Smt. Meena Kumari vs Union Of India on 21 May, 2007
1
IN THE COURT OF MS. SHALINDER KAUR, ADJ, DELHI.
SUIT NO. 91/2005.
IN THE MATTER OF :-
SMT. MEENA KUMARI
W/O SH. SHYAM BIHARI
R/O WZ -370, KATCHA TIHAR VILLAGE
TILAK NAGAR, NEWDELHI- 18. .....PLAINTIFF.
VERSUS
1. UNION OF INDIA
THROUGH:
THE SECRETARY
MINISTRY OF HEALTH, GOVT. OF NCT
NIRMAN BHAWAN, NEW DELHI.
2. DEEN DAYAL UPADHYAY HOSPITAL
THROUGH:
MEDICAL SUPERINTENDENT
HARI NAGAR, NEW DELHI -64. ...DEFENDANTS.
SUIT FOR DAMAGES FOR RECOVERY OF
RS. 5,50,000/-.
2
J U D G M E N T:-
1. Plaintiff Smt. Meena Kumari has filed a suit for recovery of damages of Rs. 5,50,000/- against the defendants Union of India and Deen Dayal Upadhyay Hospital.
2. It is averred that the plaintiff is an illiterate and poor lady married to Sh. Shyam Bihari about 15 years back who has studied up to 5th standard. He is doing the job of cleaning bathroom taps with acid and is earning Rs. 3,500/- per month. Out of the wedlock three children were borne and the plaintiff and her husband were finding it difficult with their meager income. Thus, they sent their two sons to their maternal grand parents and kept their daughter with them. They decided to adopt a precautionary family planning programme.
3. It is further averred that the plaintiff and her husband went to Incharge of P.P. Unit, DDU Hospital where the doctors advised and represented the plaintiff and her husband that the sterilization operation is a foolproof method of preventing any unwanted future pregnancy and assured its success. Acting on their advise the plaintiff to be operated for sterilization. Before the operation the plaintiff was asked to sign on a consent form and was operated in DDU Hospital on 28.11.03. The operation 3 was reported to be successful by the doctors and the plaintiff was discharged on 28.11.2003 itself.
4. It is averred that she was issued a certificate of sterilization by the Incharge of P.P. Unit, DDU Hospital and was ensured that she need not adopt any other precautionary measures for family control. Thus, the plaintiff felt relieved and thought that she was safe and will never land up in trouble regarding unwanted pregnancy. But to her utter shock and surprise in August 2004 she again had some problem and therefore contacted P.P. Unit, DDU Hospital, New Delhi. She was stunned and shocked to know that she had again conceived and was in family way and expected date of birth of her fourth unwanted child was told as 27.04.2005. On raising hue and cry over the matter, the doctor advised the plaintiff to get herself operated again. The plaintiff did not agreed as she had already been operated upon and she feared danger to her life to be operated upon at such an advanced stage of pregnancy.
5. It is averred that the plaintiff in garb of poverty and in the midst of an unwanted pregnancy and burden of fourth child fell into the trap given by the family planning programme offered by the Govt. Hospitals and underwent sterilization operation which turned out to a mockery. The plaintiff and her 4 husband being poor persons can hardly make their both ends meet. After the birth of this fourth child they have been burdened emotionally as well as financially as they will have to bear the additional responsibilities of making provisions for the maintenance of the child. The plaintiff and her husband are made to suffer immensely on account of gross negligence on the part of the doctors/ staff of the DDU Hospital for which the defendants are also equally liable.
6. It is averred that a notice under Section 80 CPC was got served on the defendants on 06.04.2005 calling upon them to pay an amount of Rs. 5,50,000/- as damages on account of gross medical negligence on the part of the doctors and staff of the DDU Hospital in conducting the sterilization operation. It is averred that the defendants are also jointly and severally liable to compensate the plaintiff for the pain, agony, suffering and inconvenience caused to her as a result of the culpable negligence on account of the doctors/ staff of the DDU Hospital.
7. It is averred that defendant no. 2 has sent a vague and frivolous reply to the legal notice dated 06.04.2005 shrugging off the responsibility which they owed to the plaintiff. Thus, the plaintiff filed the suit.
58. Defendants no. 1 and 2 filed their written statement and controverted all the averments raised in the plaint. A preliminary objection was raised that the plaintiff has miserably failed to show any act whether of commission or omission by the defendants which could be held careless or negligent in discharging such duties.
9. It is averred that it is a case of sterilization failure. One of the most commonly used methods of sterilization is laproscopic sterilization which was adopted in the case of the plaintiff. That there are numerous medical studies which testify that all methods of female sterilization, including tubal ligation have a certain failure rate since the risk of failure is inherent in the procedure.
10. It is averred that in the consent form it has been mentioned that, "There are still some chances of failure of operation for which the hospital/ institution and operating doctor will not be held responsible by woman herself or relatives or any other person whatsoever." In the revised consent form supplied by the Govt. of India it is also mentioned that, "The patient will report to the health centre/ doctor if there is any missed menstural cycle within two weeks." Further that, "The patient agrees to come for follow up to the health centre/ doctor failing 6 which she shall be responsible for consequences if any."
11. It is averred that after the consent form is got signed the patient is fully counseled for various available methods of contraception and the and the inherent risks of tubectomy operation including some chances of failure of operation and associated with any surgical operation and anesthesia. The plaintiff signed the consent form after carefully reading out the contents of the consent form and which are explained to her in her own language.
12. It is averred that the sterilization operation is performed by the qualified and the trained specialized with post graduate degree in gynecology and the obstetrics having required experience in performing sterilization operation as per the laid down standards of female sterilization of Government of India. The defendants have denied the other averments raised on behalf of the defendants.
13. The plaintiff filed the replication and reiterated all the averments made in the plaint.
14. Vide orders dated 08.02.2006, the following issues have been framed:-
7(i) Whether the case of the plaintiff is a case of sterilization failure? OPD
(ii) Whether the plaintiff is entitled to a decree of damages as prayed for? OPD
(iii) Whether the plaintiff is entitled to interest, if so, at what rate? OPP
(iv) Relief.
15. To settle the controversies between the parties, the issues wise findings are as follows:-
16. ISSUE NUMBER 1:- Whether the case of the plaintiff is a case of sterilization failure? OPD &
17. ISSUE NUMBER 2:- Whether the plaintiff is entitled to a decree of damages as prayed for? OPD As issues no. 1 & 2 are interconnected thus, they are being decided together.
18. It was contended on behalf of the plaintiff that the plaintiff had decided to adopt precautionary family planning programme as she was advised and assured by the doctors in 8 DDU Hospital that the family planning programme offered by the hospital is totally fool proof programme. The plaintiff and her husband are very poor and having three children. That they were unable to provide food and maintenance to the children thus they were not willing to have any more child in their family. Accordingly, after being assured about the success of the sterilization operation the plaintiff had agreed for sterilization and was operated upon 28.11.2003.
19. It was contended that before her operation she was asked to put a thumb impression on the consent form which she did. After the operation she was told that her operation was successful an she was discharged on the very same day. She was issued a discharge slip PW1/1 and the certificate of sterilization issued by the P.P. Unit of DDU Hospital as Ex. PW1/2.
20. It was contended that the plaintiff was ensured that she need not adopt any other precautionary measures for family control after the sterilization operation. That due to the negligence of the doctors and as she was not sterilized properly she conceived again and gave birth to the fourth child. The plaintiff was unable to bear the burden of the fourth child and thus, she and her husband suffered mental agony they were burdened emotionally as well as financially for which the 9 defendants are liable to pay damages. In support of the said contentions the judgment State of Haryana and Others Vs. Smt. Santra - AIR 2000 Supreme Court 1888 was cited on behalf of the plaintiff.
21. Per contra on behalf of the defendants it was contended that he case o the plaintif is a case of sterilization failure. That millions of people are being sterilized every year in the country bu the percentage of failure of sterilization is very small. That the plaintiff was educated bout sterilization operation as well as its failure, before she had agreed for sterilization. Moreover, she was advised that she had to immediately report to the hospital within two weeks in case she missed menstrual period which she has not done. Thus, she cannot claim any damages from the respondents.
22. It was argued that the plaintiff has not been able to prove that the doctor who had operated upon her was negligent in performing the operation or that the procedure and failure about the sterilization operation was not explained to her before the operation. Thus, the suit filed by the plaintiff is frivolous suit. In support of the said contention the judgment Smt. Madhubala Vs. Govt. of NCT of Delhi and Ors. -- CM (1) 10 2/2004 in RFA no. - 12004 dated 08.04.2005 was cited on behalf of the defendants. The defendants have also relied upon the 'Techincal Comments Regarding Sterilization (Tubectomy) Failure Case' circulated by Directorate of Family Welfare, Government of NCT, Delhi.
23. Thus, the question to be determined is whether the concerned doctor or the hospital was negligent in performing sterilization operation and that the plaintiff was made aware about the failure of sterilization or not before she was operated upon.
24. PW1 Smt. Meena Kumar has deposed that before her sterilization operation she had gone to the Dispensary at Hari Nagar where she was told by a doctor regarding the operation. At DDU Hospital she was told about all the formalities before the operation. However, she has denied that she was explained everything in Hindi before her thumb impression was obtained on the consent form. She has further deposed that she did not face any problem after the operation and a perfect operation was performed.
25. PW2 Sh. Shyam Bihari, husband of the plaintiff also deposed the same fact that after operation his wife did not have 11 any problem. After 3-4 months he took his wife to the hospital to collect Rs. 200/- which was to be paid for the said operation, where he was told that the operation was successfully performed and a certificate was given. Thus, it is evident that the plaintiff has not proved that the concerned doctor or the hospital was negligent in performing the sterilization operation.
26. In the judgment State of Haryana and Others Vs. Smt. Santra (Supra) the Hon'ble Supreme Court has held that, "Birth of an unwanted child attributable to negligence of doctor." It has been further observed that, "The Medical Officers entrusted with the implementation of the Family Planning Programme cannot by their negligent acts in not performing the complete sterilization operation, sabotage the scheme of national importance."
27. In the said suit at the time of sterilization operation only the right fallopian tube of Smt. Santra was operated and the left fallopian tube was left untouched. It was held by the Hon'ble Supreme Court that, "If Smt. Santra, in these circumstances, had offered herself for complete Sterilization, both the fallopian tubes should have been operated upon. The Doctor who performed the operation acted in a most negligent manner as the possibility of conception by Smt. Santra was not completely 12 ruled out as her left fallopian tube was not touched. Smt. Santra did conceive and gave birth to an unwanted child." However, in the present case the plaintiff have failed to show that there was any negligence on the part of the doctor in performing sterilization operation which had resulted in an unwanted pregnancy and birth of an unwanted child. It is not disputed that the plaintiff was operated upon by a professional Gynecologist i.e. DW1, who is stated to be working in DDU Hospital since the last 6 years and had performed more than 2,000 sterilization operation. DW1 has also deposed that she had ensured about the quality of the material used by her in closing the fallopian tubes and she had ensured that the plaintiff was normal before her discharge.
28. PW1 and PW2 have categorically stated that the plaintiff was properly operated upon. From the testimony of PW1 it is evident that she had been educated about the sterilization operation. She had also put her thumb impression on the consent form. However, she had denied that she was explained everything in Hindi before her thumb impression was obtained on the consent form. Nevertheless, she has deposed that before sterilization operation once in the dispensary at Hari Nagar and again in DDU Hospital she was told about all the formalities of the operation.
1329. DW1 Dr. Ritan Ranjan has deposed that pre and post operation instructions are given to the patient in Hindi and English depending upon the education of the patient. That the surgery is performed after the willingness of the patient. She has further deposed that the case of failure keep coming in the hospital and there is no foolproof method of sterilization. The counseling about the consent form is done by health workers who are Auxilliary Nurse, Midwife. They are authorized by the government to do such counseling and they are competent to do so.
30. As the plaintiff has admitted that she was educated about the sterilization operation thus, subsequently she cannot raise the defence that before signing the consent form Ex. PW1/1 she was not aware about the contents of the consent form. Even if it is assumed for the sake of arguments that her thumb impression was obtained without explaining to her about the contents of the consent form still it has been admitted by the plaintiff that she had been twice told about the sterilization procedure before her operation. Moreover, PW1 has admitted that she was told by the doctor before sterilization that whenever her periods will missed she should immediately come to the hospital.
1431. DW1 has deposed that the certificate of sterilization is issued when a patient comes for follow up. The first follow up is after one week and second follow up is after one month. From the testimony of PW1 it is evident that PW1 did not go for follow up as prescribed by the doctor. Rather she had gone to the doctor after 3-4 months to collect Rs. 200/- which were to be paid by the hospital for the said operation. PW1 has also proved the discharge slip as Ex. PW!/1. In the said discharge slip it has been mentioned that, "To come after 1 week for follow up and after first period in room no. 6/1 at 9.00 am." and also,"To report of missed period for more than two weeks."
32. It is not the case of the plaintiff that she was not aware about the contents of the said discharge slip thus, it is evident that the plaintiff was required to visit the hospital for follow up which she did not do so. She was to report to the hospital in case of missed periods for more than two weeks which she again failed to do so. She is stated to have delivered her fourth child on 07.05.2005. She has collected her sterilization certificate after 3- 4 months of her operation. It is also not the case of the plaintiff that when she missed her periods she immediately informed the DDU Hospital about her pregnancy. PW2 has deposed that after 9-10 months of the operation he took his wife to the hospital as 15 she was again pregnant. The doctor told her to get the pregnancy aborted but she was very weak. Thus, it is evident that the plaintiff has not followed the post operation instructions given to her by the doctors.
33. In the judgment Smt. Madhubala Vs. Govt. of NCT of Delhi and Ors. (Supra) it has been held by the Hon'ble Delhi High Court that, "Mere conception and delivery post- sterilization operation is no indication of negligence, more so, in the teeth of the evidence, the risk of such conceptions and deliveries still remains." Thus, the defendants have been able to prove that the plaintiff is a case of sterilization failure. However, the plaintiff has failed to prove that the said failure was caused due to negligence of the concerned doctor or hospital. Moreover, the plaintiff had been negligent herself as she did not immediately go to the hospital on missing the menstrual cycle, which she ought to have done. Accordingly, issue no. 1 is decided in favour of the defendants and against the plaintiff.
34. The plaintiff has failed to prove that she is entitled to any damages as claimed by her from the defendants thus, issued no. 2 is decided against the plaintiff and in favour of the defendants.
1635. ISSUE NUMBER 3:- Whether the plaintiff is entitled to interest, if so, at what rate? OPP
36. As it has been held that the plaintiff is not entitled to any claim for damages thus, no interest can be awarded. Accordingly issue no. 3 is decided against the plaintiff.
37. ISSUE NUMBER 4:- Relief.
38. The suit of the plaintiff is dismissed. No orders as to cost are made. Decree sheet be prepared. File be consigned to record room.
ANNOUNCED IN THE OPEN COURT TODAY ON 21.05.2007.
(SHALINDER KAUR) ADDL. DISTT. & SESSIONS JUDGE, DELHI.
1721.05.2007 At 3.45 pm. Present :- Sh. Shyam Bihari, husband of the plaintiff.
Vide judgment announced of even date on separate sheets, the suit of the plaintiff is dismissed. No orders as to cost are made. Decree sheet be prepared accordingly. File be consigned to record room.
ADJ:DELHI.
21.05.2007