Patient gives birth after botched tubectomy: Madras HC directs state to pay Rs 3 lakh compensation, Rs 10,000 per month to child

Madurai: In a recent order, the Madurai bench of Madras High Court has asked the State Government to pay Rs 3 lakh compensation to a woman, who gave birth to her third child even after undergoing a tubectomy procedure at Thoothukudi Government Medical College Hospital.

Apart from this, the HC bench of Justice B Pugalendhi has further directed the State to provide free education to the third child of the petitioner woman either in a Government or in a Private School.

The State has also been asked to pay a sum of Rs.1,20,000 per year (Rs.10,000 per month) to "meet the child's need for food and proper up-bringing till he completes his graduation or attaining 21 years, whichever is earlier."

Approaching the HC bench, the petitioner, who is a homemaker and whose husband is an Agricultural cooli, alleged that even after undergoing Purperal Sterilization by Tubuctomy on 23.07.2013 to avoid further pregnancy, she conceived again in March 2014. Accordingly, the petitioner gave birth to her third child on 06.01.2015.

It was grievance of the petitioner that she underwent another surgery and has to rear up another child due to the medical negligence of Dr. Shobana and Tuticorin Government Medical College Hospital.

Also Read: Cancel licenses of Doctors who performed Tubectomy of 24 women Without Anaesthesia: NCW demands escalate

While she approached the government authorities and sought compensation, there was no proper response from the concerned authorities. After this, she approached the HC bench and prayed for a mandamus directing the government to grant compensation for the negligence in performing Family Planning Operation.

The counsel for the petitioner submitted that she already had two children. During her second delivery, she was allegedly assured that puerperal Sterilization by Tubectomy was a fool-proof methodology to avoid fresh pregnancy. However, shockingly, the petitioner conceived again.

Further, it was submitted that after the birth of third child, the petitioner underwent another surgery by the same methodology. Following this, she did not conceive anymore. Referring to this, it was argued by the petitioner's counsel that the first surgery was unsuccessful.

On the other hand, the counsel for the Government submitted that the petitioner and her husband were explained about the pros and cons, success rate and post-operative complications of the Family Planning Operation.

It was further submitted that the petitioner had been asked to inform the Hospital authorities immediately after conceiving and she had agreed to abort the fetus. However, the petitioner allegedly did not inform the hospitals. The government pleader also submitted that in any event, as per the scheme, the petitioner can claim only Rs 30,000.

While considering the matter, the HC bench referred to an earlier order in the case of Dhanam v. Secretary to Government, Health & Family Welfare Department, Chennai and Others, where the court had considered a similar matter and noted, "...the 3rd child is considered as “unwanted child” which had virtually taken birth only due to negligence on the part of the 3rd respondent in performing sterilization operation on the petitioner. Therefore, once the child was declared as unwanted child to the family of the petitioner, now the State has to bear the expenses in bringing up the "unwanted child" and it becomes the obligation of the State.”

Referring to the order, the HC bench observed, "Therefore, this Court is not inclined to accede the submission made by the learned Additional Government Pleader."

"Family Planning is a National Programme being implemented through various Government Hospitals and Health Centres. The implementation of the programme is directly in the hands of the Government, including the Medical Officers. 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. The people of the country who co-operate by offering themselves voluntarily for sterilization reasonably expect that after undergoing the operation, they would be able to avoid further pregnancy and consequent birth of additional child," noted the bench.

At this outset, the court also referred to the Supreme Court order in the case of State of Haryana and Others v. Santra. Finally, the bench concluded that the petitioner was entitled to compensation and therefore issued the following order:

"The petitioner is entitled for a compensation of Rs.3,00,000/-. The respondents shall provide free education to the third child of the petitioner, either in a Government School or in a Private School. The fees already paid, if any, shall be refunded and all the expenses on books, stationary, uniforms and other miscellaneous educational expenses shall also be met by the respondents. Further, the respondents shall pay a sum of Rs.1,20,000/- per year [Rs.10,000/- per month] to meet the child's need for food and proper up-bringing till he completes his graduation or attaining 21 years, whichever is earlier," the bench ordered.

To read the order, click on the link below:

https://medicaldialogues.in/pdf_upload/madras-hc-botched-tubectomy-208548.pdf

Also Read:Patient gives birth after failed tubectomy: NCDRC reverses state commission's order, says no medical negligence