No Medical Negligence: Kerala HC Denies Granting Compensation to patient who Delivered 5th Child Despite Post-Partum Sterilization
Ernakulam: Refusing compensation to a 39-year-old woman, who got pregnant and gave birth to a fifth child even after undergoing a family planning operation, the Kerala High Court on Tuesday held that there was no negligence on the part of the doctor who performed the Post Partum Sterilization (PPS) surgery.
The HC bench comprising Justice CS Sudha referred to several precedents and medical opinions that pointed out that in exceptional cases, the possibility of the pregnancy remains even after undergoing PPS surgery.
Further taking note of the fact that the woman conceived and delivered her 5th child around 5 years after undergoing the PPS surgery, the Court observed that if the surgery had actually failed, the petitioner would have conceived much earlier.
"Had the surgery actually been a failure as alleged by the plaintiff (appellant mother), the chances or possibility of the plaintiff conceiving would have been much earlier...The time gap between the surgery and the plaintiff conceiving also probabilises the contention of the defendants that it was due to the natural cause referred to hereinabove that the plaintiff happened to conceive and deliver her 5th child and not due to any negligence or carelessness of the 2nd defendant in carrying out the surgery," opined the HC bench as it exonerated the doctor who performed the surgery.
Approaching the HC bench, the petitioner woman submitted that he belonged to a very poor family and already had four children. She and her husband consulted the treating doctor, who was working in a Government Hospital as they did not want to have any more children.
The doctor advised them to undergo PPS surgery, opining it to be the best and safest method of avoiding future pregnancies. Accordingly, the petitioner underwent the surgery. However, it was alleged by the petitioner that despite undergoing the surgery, she conceived and gave birth to a girl child. The petitioner and her husband claimed that the pregnancy occurred again only because the surgery was not successful and had been done in a careless and negligent manner.
They claimed that if necessary precautions had been taken and the surgery had been done in a proper manner, there would have been no occasion for the petitioner to conceive again. Alleging this, the petitioner demanded a compensation of 2 lakh from the doctor and the government authorities.
On the other hand, the district collector submitted that the concerned doctor was a qualified gynaecologist and among the 2,502 sterilization that he performed between 1986 to 1990, the petitioner was the first failure that was reported.
Denying the allegation that the surgery had been conducted in a careless and negligent manner, it was submitted that the doctor had in fact performed the surgery with utmost care, caution, and devotion. Further referring to the fact that there is 0.5 to 1% chance of failure of such a surgery even in the developed countries, the officials further submitted that sterilization is not a foolproof method to avoid further pregnancy. Even though failure in sterilization surgery is quite rare, the same is possible.
It was further highlighted that the petitioner had undergone 2nd PPS surgery on 27.03.1993 at the District Hospital, Thrissur and the senior medical officer at the P.P.Unit diagnosed that the petitioner had PPS failure due to Rt- Tube-Peritoneal Fistula. Therefore, it was contended that there was no negligence or carelessness on the part of the treating doctor.
While considering the matter, the trial court dismissed the suit finding no negligence or carelessness on the part of the treating doctor. Thereafter, the petitioner approached the HC bench.
In order to determine when the medical professionals may be held negligent, the HC bench referred to a plethora of precedents such as State of Punjab v. Shiv Ram (2005),
The HC bench observed that "In a country where the population is increasing by every second and the Government had taken up family planning as an important programme for implementation of which it had created mass awakening for the use of various devices including sterilization surgery, the doctor as also the State must be held responsible in damages if the sterilization surgery performed by him is a failure on account of his negligence, which is directly responsible for another birth in the family, creating additional economic burden on the person who had chosen to be operated upon for sterilization."
However, the bench clarified that compensation can only be granted for failed sterilization surgeries if it results from the surgeon's negligence and not from natural causes.
"The cause of action for claiming compensation in cases of failed sterilization surgery arises on account of negligence of the surgeon and not on account of childbirth. Failure due to natural causes would not provide any ground for claim," the court observed.
Referring to the case at hand, the HC bench noted that the initial burden of the petitioner to prima facie show negligence or carelessness on the part of the treating doctor has not been discharged. The court also observed that the petitioner did not claim that the treating doctor who conducted the surgery was not possessed of the requisite skill or was not competent to perform the surgery and yet had ventured into doing it.
"The only case pleaded and established by the plaintiff is that though she had undergone P.P.S. surgery, she conceived, which fact speaks for itself that the surgery was a failure, as proper care and caution had not been taken by the second defendant in performing the surgery. This according to the settled position of law, as can be discerned from the aforesaid judgments, is not sufficient for the plaintiff to succeed," opined the High Court.
"No sterilization operation, according to him, can guarantee 100% success. A woman conceiving even after the surgery, may be due to re - canalisation or due to re - conception. This possibility has been taken note of by the trial court in paragraph 35 of the impugned judgment. According to the defendants, re-canalisation or reconception is a natural process, and it does not occur in all cases. In exceptional cases there is such a possibility, and, in such cases, there is the chance of the woman conceiving even after the P.P.S. surgery," it further observed.
The bench noted that the petitioner conceived nearly 5 years after the surgery and referring to this, the bench opined that if the surgery had been a failure the chances or possibility of conceiving would have been much earlier. Therefore, the Court opined that the petitioner conceived and delivered her 5th child not due to any negligence or carelessness of the treating doctor in carrying out the surgery.
With this observation, the Court dismissed the plea and noted, "In the facts and circumstances of the case and in the light of the precedents referred to, it can only be held that, as no negligence or carelessness on the part of the 2nd defendant has been established, the claim for damages cannot succeed. That being the position there can be no vicarious liability of the 1st defendant, employer. I find no infirmity in the findings of the trial court calling for an interference by this Court."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/kerala-hc-failed-pps-226662.pdf
