Medical negligence cannot be presumed just because surgery failed! HC sets aside compensation order
Consumer Forum Exonerates Plastic Surgeon from Charges of Medical Negligence
Chandigarh: Setting aside the order of the Appellate court that had granted Rs 30,000 compensation to a patient who gave birth to child despite undergoing sterilization, the Punjab and Haryana High Court recently held that medical negligence cannot be presumed merely due to the unsuccessful outcome of a surgery.
Further, the HC bench comprising Justice Anil Kshetarpal also reiterated that if there were no allegations that questioned the surgeon's competence or there was no evidence to support claims of negligence, a plea seeking compensation for alleged medical negligence could not succeed.
"The medical negligence cannot be assumed only because a surgical procedure has failed to achieve the desired result. The Supreme Court has held that in absence of allegation that the Surgeon was not competent to perform the surgery or the Surgeon was negligent, the suit for damages cannot be decreed," observed the HC bench.
The Court made these observations while considering an appeal by the State Government challenging the order of the Appellate Court that had granted Rs 30,000 compensation to the original petitioner.
It was submitted that the original petitioner underwent a sterilization operation, despite this, she became pregnant. While considering the plea, even though the trial court found that the petitioner gave birth to a child even after the sterilization operation, it noted that the petitioner failed to prove the negligence of the treating doctor.
On the other hand, the Government authorities submitted that the petitioner went to the hospital for a check-up with her free will and before the surgery, she filled a form bearing her signatures. In the said form, it mentioned that she would not hold any Doctor responsible for failure of the operation.
It was further submitted that petitioner was not given any assurance and she was aware of the fact that sometimes there was a chance of failure of the surgery.
Finally, after noting that well-qualified and experienced surgeon performed the operation, the trial court dismissed the case. However, the First Appellate Court reversed the order after drawing an assumption that after the sterilization operation, the petitioner would not conceive another child.
Further, the Court held that the State authorities did not assert that the petitioner was ever called for a follow-up to see whether the operation was successful or not. Accordingly, the First Appellate Court awarded Rs 30,000 to the petitioner along with an interest @6% per annum.
When the matter was challenged before the High Court, the State Counsel relied on the Supreme Court order in the case of 'State of Punjab vs. Shiv Ram and others', and argued that the operating surgeon or his employer could not be held liable for compensation on account of unwanted pregnancy or unwanted child on failure of sterilization operation in the absence of evidence to prove that there was negligence on the part of the Surgeon in performing the surgery.
In response to a question by the Court, the counsel for the original petitioner admitted that no medical evidence was produced to prove the negligence of the Surgeon and further the counsel admitted that the petitioner signed the form in which it was stipulated that the sterilization operation may not give the desired result.
The HC bench opined, "In order to award damages in the cases pertaining to medical negligence, the plaintiff is required to lead positive evidence including the opinion of expert in appropriate cases."
Observing that medical negligence cannot be assumed only because a surgical procedure has failed to achieve the desired result, the HC bench observed that
"The First Appellate Court has assumed negligence only on the basis of a presumption. From reading of the judgment passed by the trial Court, it is evident that the operating Doctor, Sh. *** Sharma appeared as DW1 and stated that no assurance was given to the respondent regarding the success of the operation and she was apprised of the fact that sometimes there is failure of the operation, for which, no medical authority will be held responsible."
Accordingly, the HC bench held that the judgment of the Appellate court was not sustainable. Therefore, setting aside the order, the High Court bench restored the order of the trial court.
To view the order, click on the link below:
