Gujarat High Court
State Of Gujarat vs Kokilaben Vinodsinh Gol on 8 August, 2024
NEUTRAL CITATION
C/FA/2833/2001 ORDER DATED: 08/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 2833 of 2001
With
R/FIRST APPEAL NO. 1074 of 2001
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STATE OF GUJARAT & ORS.
Versus
KOKILABEN VINODSINH GOL
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Appearance:
MR ADITYA D DAVDA, AGP for the Appellant(s) No. 1,2,3,4
RULE SERVED for the Defendant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE DEVAN M. DESAI
Date : 08/08/2024
COMMON ORAL ORDER
1. These First Appeals are filed under Section 96 of the Code of Civil Procedure, 1908 assailing the judgment and decree dated 20.12.2000 passed in Special Civil Suit No.142 of 1995 (Old No.409 of 1990) by the learned Civil Judge (Senior Division), Gandhinagar.
2. Heard learned Assistant Government Pleader Mr. Aditya D. Davda for the appellants-State-original defendant Nos.1 and
4. Learned advocate Mr. Devang Bhatt for learned advocate Mr. H.S. Munshaw for the appellants-original defendant Nos.2 and 3 Page 1 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined as well as learned advocate Mr. A.M. Parekh for the respondent- original plaintiff.
3. The brief facts of the case as under:
3.1. The plaintiff filed a suit for Rs.7,00,000/- against defendants claiming compensation on the ground that the operation of Laparoscopic Tubectomy Operation failed on 31.03.1988. A Beneficiary Camp for the operation of Laparoscopic Tubectomy was organized at Village Adalaj and the plaintiff was operated for the said surgery with a view to stop pregnancy. After the said operation, plaintiff conceived and gave birth to a male child on 19.12.1989. The case of the plaintiff is that because of the negligence and for want of proper care at the time of performing operation, the plaintiff conceived and gave birth to a male child.
3.2. Defendants were served with the summons of the suit.
Defendant No.2-District Health Officer filed Written Statement Page 2 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined at Exhibit-11 and denied the allegations made in the plaint. Defendant No.2 contended in the written statement that defendant No.3, a Medical Officer was working in the Primary Health Centre at Adalaj since 1981. Before the beneficiary agrees and sings in the prescribed form, the beneficiary i.e. the plaintiff was explained and clarified all necessary details and after the consent of plaintiff, surgery of Laparoscopic Tubectomy was performed. The said surgery was performed by expert surgeons and due care was taken during and after the surgery. Had the plaintiff approached the defendants immediately after conceiving, the medical termination of pregnancy could have been carried out immediately which is permissible under the law. The case of defendants in the written statement is that the early pregnancy of two and a half months could have been removed without cost and risk as per the law and medical science.
3.3. The following issues were framed at Exhibit-12;
"1) Whether plaintiff proves that the family planning operation Page 3 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined was under the supervision of defendant No.3, which was arranged on 31.03.1988 by defendants No.1 to 3 at Mouje ; Vavol, District Gandhinagar?
2) Whether plaintiff proves that her name was registered and the operation has been done on 31.03.1988 by defendant No.3 in the presence of other responsible doctors?
3) Whether plaintiff proves that family planning operation failed due to negligence of defendants, she conceived and ultimately gave a birth to male child namely Pruthvisinh on 19.12.1989 as alleged?
4) Whether plaintiff proves the negligence of the defendants and for that they are liable to pay the compensation amount Rs.7,00,000/- jointly and severally?
5) Whether plaintiff is entitled to get interest?
6) Whether plaintiff proves mis-joinder of the parties in the suit?
7) Whether plaintiff proves that the suit is barred by the limitation under Section 80 of C.P.C.?
8) Whether plaintiff proves the limitation of law to the present suit?
9) Whether plaintiff proves that the deficit Court fee is not affixed or necessary to this suit?
10)Whether plaintiff proves para nos.2 to 5 of the reply of the plaint, and the defendants are not liable and/or the negligence on the part thereof and so the suit is dis allowed?
10-A) Whether defendant No.3 proves para 4 of his reply at Ex.19?
10-B) Whether defendant No.3 proves sub-para 8 of para 5 of reply of plaint?
10-C) Whether defendants prove the facts of para 6,7 of the plaint and disallowed on basis of the same?
11)What Order and decree?"
3.4. Plaintiff examined herself at Exhibit-35. Dr. Dipak Laxmichand Mehta on behalf of defendant No.3 was examined at Exhibit-19. Plaintiff also submitted documentary evidence in Page 4 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined support of her case. After considering the evidence on record, the learned Civil Judge decreed the suit by awarding the compensation of Rs.54,000/- to the plaintiff with interest at the rate of 11% per annum from the date of suit till realization.
3.5. Being aggrieved and dissatisfied with the impugned judgment and decree, the appellants-original defendants are before this Court by way of two First Appeals.
4. Learned Assistant Government Pleader Mr. Aditya D. Davda for the appellant-State has submitted that pursuant to a beneficiary camp which was organized for operation of Laparoscopic Tubectomy, plaintiff was operated with a view to stop pregnancy on 31.03.1988. It is further submitted that the said surgery was performed by an expert Medical Officer and the operation was conducted by using the approved scientific methods. It is further submitted that plaintiff has not proved the negligence by leading expert evidence. Defendant No.3 who is the Medical Officer has also mentioned in the written statement Page 5 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined that no guarantee was given to the plaintiff before the operation.
The surgery was performed free of charge. It is also submitted by learned AGP that after conceiving, had plaintiff approached the defendant No.3 within a period of two and a half month, the termination of pregnancy was permissible as per the law and also as per the medical science without cost and risk. However, the plaintiff did not opt medical termination of pregnancy and went on with pregnancy and delivered a male child. This conduct clearly establishes that plaintiff wanted the child and therefore, she did not approach the defendants for termination of pregnancy. It is further submitted that in such types of surgeries, chances of pregnancy are always there. The reasons for such failure in the operation are either recanalization of tube or formation tuboperitoneal fistula or reason of very clinically undetectable pregnancy or sleeping or breaking of ring or by natural process in the body. It is further submitted that it is not the case of the plaintiff that the surgery was not performed by any expert Medical Officer and Doctor who performed the Page 6 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined surgery, was incapable of performing such types of surgeries.
4.1. In support of the contentions raised by the learned AGP for the appellant-State, has relied upon the a decision of State of Punjab Vs. Shiv Ram and Others reported in (2005) 7 SCC 1. It is contended by learned AGP that a claim of compensation in the cases of medical negligence can be sustained only if there was a negligence on the part of the Surgeon who performs the surgery. Merely because a woman having undergone sterilization operation became pregnant and thereafter delivered a child, the Surgeon or the Employer cannot be held liable on account of pregnancy for the unwanted child. Failure of surgery on account of natural causes is no ground for attributing negligence on the part of the Surgeon. In the present case, the plaintiff has not proved that the surgeon gave guarantee in the success of surgery.
4.2. Learned AGP has also placed reliance upon a decision in the case of Sajjanben Bharatsinh Rathod versus State of Page 7 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined Gujarat & Other rendered in First Appeal No.164 of 2004 by the Co-ordinate Bench of this Court. In the said decision, it has been held that in absence of the negligence on the part of the surgeon, the claim of compensation is not entertinable. It is further submitted that the learned trial Court has misread the oral evidence of Dr. Dipak Mehta. The learned trial Court has observed that fallopian tubes remained untouched and thereby, came to a conclusion that the Medical Officer has remained negligent and thereafter, relying upon a decision of Stata of Haryana and Orther Vs Smt. Santra reported in 2000 (3) GLR 2308. In the said decision, the Hon'ble Apex Court awarded damages at the rate of Rs.54,000/- with interest to the claim. The learned trial Court applied the same ratio in awarding compensation of Rs.54,000/- to the plaintiff with interest at the rate of 11% per annum. Learned AGP has taken this Court through the oral evidence of Dipak Mehta at Exhibit-19, said doctor has deposed that one of the reasons for failure of operation is natural recanalisation of fallopian tube. Another Page 8 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined reason which has been attributed by the said witness is that if the ring which is tied on fallopian tube is slipped, chances of failure of operation is always there. Learned trial Court has given undue weightage on the reply given by the said witness that the Surgeon did not cut the Fallopian tube. It is further submitted that the oral deposition has to be read as a whole and by taking one sentence from the cross-examination, medical negligence cannot be attributed.
4.3. Learned AGP has further placed reliance upon the decision in the case of Sheth Vadilal Sarabhai Generalhospital & Chinai Maternity Versus Raaman Apukuttan passed by this Court in First Appeal No.4939 of 2006 dated 30.04.2024; in which, it has been observed in 11, which is reproduced hereinbelow:
"11. The law on medical negligence has been discussed in the case of Jyoti Devi vs. Suket Hospital and Others reported in 2024 SCC OnLine SC 581, where the Hon'ble Apex Court has held in para Nos.12.2.2 and 12.2.3, which are reproduced hereinbelow:-
"12.2.2 To hold a doctor liable, this Court in Dr. Mrs. Chanda Rani Akhouri v.Dr. M.A. Methusethupati observed:
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".... a medical practitioner is not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. In the practice of medicine, there could be varying approaches of treatment. There could be a genuine difference of opinion. However, while adopting a course of treatment, the duty cast upon the medical practitioner is that he must ensure that the medical protocol being followed by him is to the best of his skill and with competence at his command. At the given time, medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field."
(Emphasis supplied) 12.2.3 Observations in Harish Kumar Khurana v. Joginder Singh11 are also instructive. Bopanna J., writing for the Court held:
"...It is necessary that the hospital and the doctors are required to exercise sufficient care in treating the patient in all circumstances. However, in unfortunate cases, though death may occur and if it is alleged to be due to medical negligence and a claim in that regard is made, it is necessary that sufficient material or medical evidence should be available before the adjudicating authority to arrive at a conclusion."
(Emphasis supplied) These observations, although made in the context of a patient having passed away in the course of, or as a result of treatment, nonetheless are essential even in cases where the claimant has suffered an injury."
5. On the other hand, learned advocate Mr. Devang Bhatt for learned advocate Mr. H.S Munshaw for the appellants-original defendant Nos.2 and 3 has adopted the submissions made by the Page 10 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined learned Assistant Government Pleader for the appellant State. Reliance is placed reliance upon the decisions in the case of Madhuben w/o Raysangbhai Somabhai parmar Versus State of Gujarat rendered in First Appeal No.579 of 1996 dated 12.08.1997 and Gangaben Muljibhai Parmar Versus State of Gujarat Through Collector rendered in First Appeal No.1480 of 1996 dated 08.09.1997 by the Co-ordinate Bench of this Court.
6. Per contra, learned advocate Mr. A.M. Parekh for the respondent original plaintiff has submitted that it is a clear case of medical negligence on the part of the officers of defendants. It is further submitted that the admitted position is that after the surgery, the plaintiff has conceived and delivered a male child on 19.12.1989. The fact of conceiving is itself sufficient to establish negligence on the part of the surgeon who has performed surgery. No other submission are made by learned advocate for original plaintiff.
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7. I have considered the submissions canvassed by the learned advocates for the parties and considered the record and proceedings which is placed on record. The surgery of Laparoscopic Tubectomy performed on plaintiff on 31.03.1988 was unsuccessful and resultantly, the plaintiff conceived and gave birth to a male child on 19.12.1989. It is not the case of the plaintiff that the surgery was performed by an untrained doctor or was performed by a doctor who was incapable of performing such type of surgeries. There is no material available on record to justify the alleged negligence of the doctor. The surgery which was performed on 21.03.1981 had been carried out as per the established medical practice and method, the chances of failure of such surgery are many and merely because, plaintiff conceived and gave birth to a male child is not a ground for holding the doctor negligent in performing his duties. Defendant No.3 in his deposition has assigned reasons for the failure of such types of surgeries and for such evidence, plaintiff has not led any contrary evidence to nullify the opinion of the medical Page 12 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined officer who is expert in performing such types of surgeries.
8. Thus, in view of the above discussions, the law is settled in the cases of medical negligence. In my view, the learned trial Court has committed an error by decreeing the suit in absence of any medical evidence holding the defendants liable for the failure of the said surgery. The surgery was performed by a technique known and recognized by medical science. It is a pure and simple case of sterilization operation having failed though duly performed. There is nothing on record established by plaintiff that any method / techniques are cent percent 'failure free'.
In para Nos.17, 25, 32 and 33 of the case of State of Punjab(supra), it is observed as under:-
"17. 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 Page 13 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined attributable to any failure on the part of the surgeon. Authoritative Text Books on Gynaecology and empirical researches which have been carried out recognize the failure rate 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 considered necessary to be performed for purposes other than merely family planning.
25. 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.
32. We have decided the question of law and held that the decree awarding the damages was totally uncalled for and had no foundation in law, and therefore, has to be set aside. The present case is an occasion, which we would like to utilize for the purpose of making certain observations on three related topics noted hereunder.
(1) Jacob Mathew's case ; a postscript
33. In Jacob Mathew this Court dealt with the liability of a medical practitioner in criminal law. Of course, the decision also discussed in detail the law of medical Page 14 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024 NEUTRAL CITATION C/FA/2833/2001 ORDER DATED: 08/08/2024 undefined negligence in general and indicated the parameters of fixing liability. The distinction between the concept of negligence in civil law and negligence in criminal law was highlighted.
The present case deals with the law of negligence in tort. The basis of liability of a professional in tort is negligence. Unless that negligence is established, the primary liability cannot be fastened on the medical practitioner. Unless the primary liability is established, vicarious liability on the State cannot be imposed. Both in criminal jurisprudence and in civil jurisprudence, doctors are liable for consequences of negligence. In Jacob Mathew even while dealing with criminal negligence, this Court has indicated the caution needed in approaching a case of medical negligence having regard to the complexity of the human body which is subjected to treatment and the uncertainty involved in medical procedures. 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. It is in this background that this Court has cautioned that the setting in motion of the criminal law against the medical profession should be done cautiously and on the basis of reasonably sure grounds. In criminal prosecutions or claims in tort, the burden always rests with the prosecution or the claimant. No doubt, in a given case, a doctor may be obliged to explain his conduct depending on the evidence adduced by the prosecution or by the claimant. That position does not change merely because of the caution advocated in Jacob Mathew in fixing liability for negligence, on doctors.
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Thus, when in absence of any convincing evidence attributing negligence on the part of surgeon, learned trial Court has committed an error by simply taken into consideration that plaintiff conceived after surgery. Learned trial Court has not examined the law related to medical negligence in case of sterilisation operation. Thus, the judgment and decree dated 20.12.2000 passed in Special Civil Suit No.142 of 1995 (Old No.409 of 1990) by the learned Civil Judge (Senior Division), Gandhinagar is hereby quashed and set aside. Special Civil Suit No.142 of 1995 (Old No.409 of 1990) is dismissed. Accordingly, First Appeals are allowed. No order as to costs.
9. Record and proceedings be sent back to the concerned Court below.
(D. M. DESAI,J) RINKU MALI Page 16 of 16 Uploaded by RINKU MALI(HC01574) on Mon Sep 02 2024 Downloaded on : Fri Sep 06 20:42:09 IST 2024