IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 334 of 2003 Date of Decision : March 9, 2009 Kala Devi ……….Appellant Versus: State of H. P. & others …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for reporting? No For the appellant: Mr. G. R. Palsra, Advocate For respondents 1 & 2: Mr. R. K. Bawa, A.G. with Mr. Vivek Thakur, Addl. A.G. & Mr. Anil Jaswal, Dy. A. G. For respondent No.3: Mr. B. N. Gupta, Advocate. Sanjay Karol, J. (Oral) The present appeal arises out of the impugned judgment and decree dated 13.5.2003 passed by the District Judge, Mandi, H. P. in Civil Suit No. 9 of 2001 titled as Kala Devi vs. State of H.P. & Ors., dismissing the plaintiff’s suit seeking damages of Rs.5 lacs for failure of the tubectomy operation carried out by Dr. Om Parkash Mahendru (respondent No.3 herein). The plaintiff filed a suit under Order 33 Rule 1CPC claiming compensation of Rs.5 lacs alleging that on 21.1.1994 2 she and her husband visited Primary Health Centre, Baggi, where she voluntarily underwent her tebectomy operation which was performed by Dr. Om Parkash Mahendru (defendant No.3). Apparently, the operation failed as she became pregnant and decided to terminate her pregnancy on 26.9.1996. She was further advised to undergo tebectomy operation which she did on 26.9.1996 at Community Health Centre, Ratti but, however, in November, 1997, she again became pregnant and gave birth to a male child on 31.5.1998. Doctor (defendant No.3) who carried out the operation on both the occasion had been negligent. Hence, the State should pay compensation of Rs.5 lacs to her for the loss of health and financial loss caused due to the birth of an unwanted child. The State filed its written statement disputing the negligence, explaining the procedure adopted by the Doctor before carrying out the operation, precautions which were advised to be taken by the patient and the reasons of failure of the same. Based on the pleadings of the parties, the Court below framed the following issues:- 1. Whether defendant No.3, was negligent for performing the operation as alleged? …….OPP 2. In case issue No.1 is proved, to what amount the plaintiff is entitled to the damaged? …….OPP 3. Whether the plaintiff is estopped from filing the suit? ……..OPD 3 4. Whether the suit is not within time? ….OPD Opportunity to lead evidence was afforded to the parties and the plaintiff examined three witnesses. The defendants-State examined Dr. O.P. Mahendru alone. Appreciating the material on record (oral and documentary), the Court below came to the conclusion that since there was no direct evidence of negligence of the Doctor (defendant No.3) who performed the tubectomy operation, therefore, mere failure of Family Planning operation by itself would not amount to negligence on the part of the Doctor. The plaintiff’s suit, therefore, was consequently dismissed. Mr. G. R. Palsra, learned counsel for the appellant has invited my attention to the decision rendered by the Apex Court in State of Haryana vs. Smt. Santra {2000(2) SLJ 1079} to contend that the Court below has misread and mis- appreciated the evidence and, therefore, erroneously arrived at its conclusion while wrongly dismissing the suit. He has also invited my attention to the statement of DW-1 to contend that the operation failed due to the negligence of the Doctor. Per contra, Mr. B. N. Gupta, Advocate and Mr. Vivek Thakur, learned Addl. Advocate General, appearing for the respondents have supported the judgment for the reasons set out therein. In order to prove its case, the plaintiff has examined herself as PW-1, her husband Shri Girdhari Lal (PW-2) and Smt. Radha Devi (PW-3). 4 In rebuttal, the defendants have examined Dr. O.P. Mahendru (DW-1). Both PW-1 and PW-2 have no doubt stated that twice the plaintiff had been operated for the tubectomy operation by Dr. Mahendru (defendant No.3) but, however, except for a bald assertion that the operation failed due to his negligence, there is nothing on record to prove the said fact. In fact plaintiff’s husband (PW-2) has categorically deposed that “I cannot say how the operation failed, it may be due to the negligence of the doctor (defendant No.3).” On the other hand RW-1 who is an MBBS Doctor, has categorically deposed that he has conducted 4000 operations of similar nature since 1977. He has deposed that before the operation is carried out there is due counselling amongst the patients with regard to the technique which is to be adopted, the consequences and the rate of failure of the same being .1 to .3%. Only after the said procedure is adopted that the consent form is filled up by the patients. In the present case, the same being Ext.DA, bears the signature of the plaintiff. The operation was carried out by using the necessary technique after exercising due care and diligence. No doubt, in cross-examination he has deposed that he does not have a post graduation Degree in surgery but that by itself would not mean that he was not duly qualified to have carried out the operation. Tubectomy operation is neither complex nor of serious nature requiring a specialist Surgeon. 5 The plaintiff’s case was of normal nature. The operation was carried out by a duly qualified doctor by adopting all requisite procedural formalities. He had the knowledge at the skill to perform the operation. That the plaintiff had conceived and got her pregnancy medically terminated is true but that again, by itself, would not have amounted to negligence. Apart from the bald statement of the plaintiff with regard to the negligence, there is nothing on record to prove that the operation carried out by the doctor could be faulted for not being in accordance with the settled and established procedure of medical jurisprudence. In the absence of proof of any negligence, the plaintiff’s claim, in my considered view, does not require consideration. In Jacob Mathew V. State of Punjab and another (2005 (6), the apex Court has held; “No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of res ipsa loquitur is not of universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the 6 doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. At least three weighty considerations can be pointed out which any forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are: (i) that legal and disciplinary procedures should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation, the person holding the “smoking gun”. The jurisprudential concept of negligence defies any precise definition. In current forensic speech, negligence has three meanings. They are; (i) a state of mind, in which it is opposed to intention; (ii) careless conduct; and (iii) the breach of a duty to take care that is imposed by either common or statute law. All three meanings are applicable in different circumstances but any one of them does not necessarily exclude the other meanings. Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would not do. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence, as recognized are 7 three; “duty”, “breach” and “resulting damage”, that is to say; (1) the existence of a duty to take care, which is owed by the defendant to the complainant; (2) the failure to attain that standard of care, prescribed by the law, thereby committing a breach of such duty; and (3) damage, which is both casually connected with such breach and recognized by the law, has been suffered by the complainant. If the claimant satisfies the court on the evidence that these three ingredients are made out, the defendant should be held liable in negligence.” (Emphasis Supplied) In State of Punjab Vs. Shiv Ram and others (2005) 7 SCC 1, while dealing with the case of failure of sterlization operation allegedly caused due to the negligence of the doctor the court held that merely because the woman having undergone sterlization operation becomes pregnant and thereafter delivers a child the operating surgeon or his employer cannot be held liable on account of unwanted pregnancy or unwanted child. Relying upon the authentic text of various studies and books on medical jurisprudence, the court held as under: 11. Dealing with reliability of the sterilization procedures performed and commonly employed by the gynecologists, the text book states (at p.621):- Reliability 8 The only sterilization procedures in the female which are both satisfactory and reliable are: resection or destruction of a portion of both fallopian tubes; and hysterectomy. No method, however, is absolutely reliable and pregnancy is reported after subtotal and total hysterectomy, and even after hysterectomy with bilateral salpingectomy. The explanation of these extremely rare cases is a persisting communication between the ovary or tube and the vaginal vault. Even when tubal occlusion operations are competently performed and all technical precautions are taken, intrauterine pregnancy occurs subsequently in 0.3 per cent of cases. This is because an ovum gains access to spermatozoa through a recanalized inner segment of the tube. There is clinical impression that tubal resection operations are more likely to fail when they are carried out at the time of caesarean section than at any other time. The fact that they occasionally fail at any time has led many gynaecologists to replace the term 'sterilization' by "tubal ligation" or "tubal resection" in talking to the patient and in all records. This has real merit from the medicolegal standpoint." 13. In 'The Essentials of Contraceptive Technology', written by four doctors and published by Center for Communication Programs, The Johns Hopkins School of Public Health in July, 1997, certain questions and answers are stated. Questions 5 and 6 and their answers, which are relevant for our purpose, read as under: "5. Will female sterilization stop working after a time? Does a woman who had a sterilization 9 procedure ever have to worry about getting pregnant again? Generally, no. Female sterilization should be considered permanent. Failure rates are probably higher than previously thought however. A major new US study found that the risk of pregnancy within 10 years after sterilization is about 1.8 per 100 women -about 1 in every 55 women. The risk of sterilization failure is greater for younger women because they are more fertile than older women. Also, some methods of blocking the tubes work better than others. Methods that cut away part of each tube work better than spring clips or bipolar electro coagulation (electric current). Effectiveness also depends on the skill of the provider. The same US study found that 1 of every 3 pregnancies after sterilization was ectopic. If a woman who has had sterilization ever thinks that she is pregnant or has an ectopic pregnancy, she should seek help right away. 6. Pregnancy after female sterilization is rare but why does it happen at all? The most common reason is that the woman was already pregnant at the time of sterilization. Pregnancy also can occur if the provider confused another structure in the body with the fallopian tubes and blocked or cut the wrong place. In other case pregnancy results because clips on the tubes come open, because the ends of the tubes grow back together, or because abnormal openings develop in the tube, allowing sperm and egg to meet." 23. In Thake v Morris , [1986] 1 All ER497 (CA) the claim for damages was founded on contract and not 10 in torts. The Court of Appeal firmly rejected the possibility of an enforceable warranty. Neill L J said: "The reasonable man would have expected the defendant to exercise all the proper skill and care of a surgeon in that speciality: he would not have expected the defendant to give a guarantee of 100% success." 24. Nourse L J said: "of all sciences medicine is one of the least exact. In my view, a doctor cannot be objectively regarded as guaranteeing the success of any operation or treatment unless he says as much in clear and unequivocal terms." 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.” (Emphasis Supplied) 11 The Bolam’s test affirmed by the apex court in Jacob Mathew (Supra) was reaffirmed as under: “7. The relevant principles culled out from the case of Jacob Mathew (supra) read as under: (1) Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The definition of negligence as given in Law of Torts, Ratanlal & Dhirajlal (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued. The essential components of negligence are three: 'duty', 'breach' and 'resulting damage'. (2) A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed. When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening 12 cannot be the standard for judging the alleged negligence. (3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence. This Court has further held in Jacob Mathew's case (supra):- "Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (See, Black's Law Dictionary, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence." (Emphasis supplied). 13 In Cholan Roadways Ltd. v. G. Thirugnanasambandam (2005(3) SCC 241), the Apex Court has held as under:- “The general purport of the words res ipsa loquitur is that the accident “speaks for itself” or tells its own story. There are cases in which the accident speaks for itself so that it is sufficient for the plaintiff to prove the accident and nothing more. It will then be for the defendant to establish that the accident happened due to some other cause than his own negligence. Once the said doctrine is found to be applicable the burden of proof would shift on the delinquent.” In the instant case, in my considered view, the plaintiff miserably failed in showing that the doctor had been even prima facie negligent. The doctor has proved through his statement that he had informed the plaintiff of the consequences and the precautions which she was required to be taken after the operation. The plaintiff voluntarily agreed for the operation. In my view, the doctor took reasonable care and caution while operating the plaintiff. It is not a case where to fulfill the family planning target, the operation was carried out by the State doctor either under duress or misrepresentation. He acted in accordance with the practice accepted as proper by a responsible body of medical men skilled in that particular art. In his statement the doctor has explained the fact that the failure of such family planning operation cannot be ruled out and as per the studies the same is to the extent of 0.4% to 1%. 14 That the case of failure of sterlization can be ascertained from laparoscopic inspection as has been acknowledged by the apex Court in Shiv Ram (supra) as under: 26. The cause of failure of sterilization operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of resterilization. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilization operation. (See: Law of Medical Negligence and Compensation by R.K. Bag, Second Edition, p.139) In the present case no such opinion was proved on record. In State of Haryana and others Vs. Santra (SMT) (2000) 5 SCC 182 while dealing with a case of a lady who had conceived after her operation it was found that only her right fallopian tube was operated upon and the left one was left untouched. It was held that the doctor concerned had acted most negligently. The court further held that negligence is a “tort”. Every doctor who enters into the medical profession has a duty to act with a reasonable degree of care and skill. This is what is known as “implied undertaking” by a member of the medical profession that he would use a fair, reasonable and competent degree of skill. The court directed the State to pay 15 compensation for the birth of an unwanted child born to a poor lady which resulted into creation of additional financial burden on the mother on account of the negligence of the doctor who performed sterlization operation. The aforesaid decision was based on the facts which are not similar in the present case. The judgment was passed on the basis of proven fact of medical negligence. In the present case, there is nothing on record to show that the operation was carried out contrary to the established practice with reasonable degree of care and skill. In Spring Meadows Hospital and another Vs. Harjol Ahluwalia through K.S. Ahluwalia and another (1998) 4 SCC 39, the Apex Court while dealing with a case where the doctor in charge had delegated the responsibility to another person who had administered a wrong drug which resulted into the death of a minor child, held as under: “Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor. 16 Gross medical mistake will always result in a finding of negligence. Use of wrong drug or wrong gas during the course of anaesthetic will frequently lead to the imposition of liability and in some situations even the principle of res ipsa loquitur can be applied. Even delegation of responsibility to another may amount to negligence in certain circumstances. A consultant could be negligent where he delegates the responsibility to his junior with the knowledge that the junior was incapable of performing of his duties properly.” (Emphasis supplied) In the present case, however, the facts are totally different and there is nothing on record to even prima facie show that the principle of res ipsa loquitur could be invoked. In my considered view, the Court below has considered the entire material and correctly appreciated the same. The findings arrived at are borne out from the record. There is nothing perverse about the same. For the aforesaid reasons, the present appeal being devoid of any merit is dismissed. ( Sanjay Karol ), Judge. March 9, 2009 (rana)