Failed tubectomy not medical negligence: Supreme Court Sets aside NCDRC order awarding compensation
New Delhi: Observing error in the judgment of National Consumer Disputes Redressal Commission (NCDRC), the Supreme Court recently set aside the order of the top consumer court which had awarded compensation to a woman after she gave birth to child despite undergoing Tubectomy procedure.
However, the Apex Court clarified that if any amount has already been paid to the concerned woman, the State shall not demand a refund.
"The order passed by the NCDRC is set aside. However, if any amount has been paid to the respondent in terms of the Order of the NCDRC, the same shall not be recovered by the appellant State," noted the top court bench comprising of Justices Hemant Gupta and Sudhanshu Dhulia.
The concerned woman had undergone the Tubectomy operation twice on 23rd September, 1994 and 27th February, 1998. However, both the procedures remained unsuccessful and she gave birth to a male child in 2003. Following this, the woman had filed a complaint before the District Consumer Forum alleging medical negligence on account of failed tubectomy surgery.
However, the complaint got dismissed by the District Court on January 20, 2005 on the ground that the complainant was not a consumer. Similar opinion had been expressed by the State Consumer Court. In fact, the Civil Hospital had also claimed that except for nominal registration charges, no amount had been charged from the complainant, who is the respondent in the case before the Supreme Court.
Also Read: Failed Tubectomy: Consumer Court Directs Nursing Home, Doctor to Pay Compensation
While the District and State Consumer Court denied any compensation to the complainant woman, these orders had been set aside by the NCDRC bench which had directed to pay compensation to the woman as per the guidelines and the policy of the state.
Challenging the order of the top consumer court, the Civil Hospital approached the Supreme Court. The counsel for the hospital placed reliance upon the previous orders of the Supreme Court as reported in the case of Indian Medical Association Vs. V.P. Shantha & Ors., and State of Pujab Vs. Shiv Ram & Ors.
The Supreme Court in V.P. Shantah's case had held that, "Doctors and hospitals who render service without any charge whatsoever to every person availing of the service would not fall within the ambit of 'service' under Section 2(1)(o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals."
In the case of State of Punjab Vs. Shiv Ram the top court had earlier opined, "The cause of action for claiming compensation in cases of failed sterilization operation arises on account of negligence of the surgeon and not on account of child birth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone sterilization operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed."
Taking note of these earlier orders, the Supreme Court bench noted error in the NCDRC order and observed,
"In view of the findings of this Court, the National Commission has erred in law in granting unspecified compensation to the respondent."
"Accordingly, the present appeal is allowed. The order passed by the NCDRC is set aside. However, if any amount has been paid to the respondent in terms of the Order of the NCDRC, the same shall not be recovered by the appellant State," the top court bench further clarified.
To read the order, click on the link below:
https://medicaldialogues.in/pdf_upload/failed-tubectomy-supreme-court-186109.pdf
Also Read: Failed Tubectomy: Consumer Court Directs Nursing Home, Doctor to Pay Compensation
