IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 13TH DECEMBER 2010 / 22ND AGRAHAYANA 1932 RFA.No. 242 of 2006() ------------------------------- OS.114/2002 of SUB COURT, PALA .................... APPELLANTS/ DEFENDANTS ------------------------------------------ 1. STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM. 2. DIRECTOR OF HEALTH SERVICES (FAMILY WELFARE DEPARTMENT), THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER RESPONDENT(S): PLAINTIFF ----------------------------------------- 1. P.G.KUMARI AMMA, W/O.RADHAKRISHNA PANICKER, KARTHIK BHAVAN, KIDANGOOR KARA, MEENACHIL VILLAGE. 2. K.RADHA KRISHNA PANICKER, S/O.KOCHUKUNJU PANICKER, KARTHIK BHAVAN, KIDANGOOR KARA, MEENACHIL VILLAGE. BY ADVS. SRI.RAJEEV V.KURUP SRI.ALEX.M.SCARIA THIS REGULAR FIRST APPEAL HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON 13/12/2010 DELIVERED THE FOLLOWING: tss “C.R.” THOTTATHIL B. RADHAKRISHNAN & P. BHAVADASAN, JJ. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - R.F.A. No. 242 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 13th day of December, 2010. JUDGMENT Bhavadasan, J, This is yet another case of failed sterilization resulting in an undesired and uninvited pregnancy. State is the appellant. The State has been mulcted with liability to pay compensation. 2. The plaintiffs, a couple, had three children. They wished to have no more. While so, a family planning programme organized by the State conducted a camp, in which the first plaintiff took part and underwent sterilization operation on 18.3.1988. A few months thereafter, to her dismay, she became pregnant and delivered a male child on 9.12.1990. The couple sued the State for compensation accusing the doctor who conducted the surgery of negligence in performing the sterilization operation and also for expenses for bringing up of the new born child. RFA. 242/2006. 2 3. The State resisted the claim on several grounds. They took the plea of limitation and also that the first plaintiff had been cautioned that it is not necessary that the sterilization operation should always be successful and there can be cases of failure. Claiming that there was no negligence on the part of the doctor who had performed the operation, they pointed out that the plaintiffs are not entitled to any relief. 4. On the above pleadings, necessary issues were raised. The parties went to trial. The plaintiffs examined P.Ws. 1 to 3 and had Exts.A1 to A6(b) marked. The defendants had Ext.B1 marked. The trial court on an appreciation of the evidence in the case came to the conclusion that there was manifest negligence on the part of the doctor who conducted the sterilization operation and the State was liable. Accordingly, the trial court quantified the compensation at an amount of Rs.75,000/- and directed the State to pay the said amount with 6% future interest. The said judgment and decree are assailed in this appeal. RFA. 242/2006. 3 5. Learned Government Pleader, who appeared for the State, assailed the findings of the court below on several grounds. It is pointed out that in the light of the decision reported in State of Punjab v. Shiv Ram ((2005) 7 SCC 1), the plaintiffs are not entitled to any relief. It is emphasized that in Ext.B1 document, which was voluntarily signed by the first plaintiff, it was made clear that it is not necessary that the sterilization operation should always be successful and there could be cases of failure. Thus, according to the Government Pleader, the plaintiffs had been put on guard. There is also no evidence, according to the learned Government Pleader, to show that the doctor, who conducted the sterilization operation was in any manner negligent and a claim for compensation on the basis of unwanted child theory is no longer sustainable in law. At any rate, according to learned counsel, the amount awarded as compensation is excessive. 6. In reply, learned counsel appearing for the respondents points out that there is no basis for the above contentions at all. The evidence of P.Ws. 1 and 2 are sufficient to RFA. 242/2006. 4 show that there has been gross negligence in the performance of sterilization operation in the camp organized by the State and that had resulted in the undesired pregnancy of the first plaintiff. It is not an answer to say that the first plaintiff could have aborted the pregnancy at an early stage and thus could have got rid of the undesired child. According to learned counsel, even assuming that the damages for undesired child as such may not be maintainable, though he disputes the same, at any rate the plaintiffs have been successful in proving that there was negligence in performing the sterilization operation and are entitled to compensation. The court below has analysed the evidence in the proper perspective and has came to the right conclusion. According to the learned counsel, no grounds are made out to interfere with the findings of the court below and the appeal is only to be dismissed. 7. The story of unwanted pregnancy, failed sterilization, consequent compensation etc. is a long one. While of recent development in India, it has been a potential topic of actionable tort in other countries. RFA. 242/2006. 5 8. Negligence usually is omission to do something what a reasonable man would do or doing something which a prudent and reasonable man would not do. Negligence is a tort. Law initially was very reluctant to attribute negligence to professional man. It was concerned with the reputation, status and the alarming consequences that would result by attributing negligence to professional men. Law did not remain static. It marched forward. It then evolved principles whereby professional men too were attributed with negligence. 9. A doctor's liability to patient arises both under tort and in contract. The question arises as to what is the degree of care and caution that is expected of a doctor. Lord Denning in The Discipline of Law at page 243 stats as follows: “You should only find him guilty of negligence when he falls short of the standard of a reasonably skilful medical man, in short, when he is deserving of censure -- for negligence in a medical man is deserving of censure.” 10. It is further stated: RFA. 242/2006. 6 “But so far as the law is concerned, it does not condemn the doctor when he only does that which may a wise and good doctor so placed would do. It only condemns him when he falls short of the accepted standards of a great profession; in short, when he is deserving of censure.” 10. Salmond and Heuston on the Law of Torts Eighteenth Edition at page 215 observes thus: “It is expected of such a professional man that he should show a fair, reasonable and competent degree of skill; it is not required that he should use the highest degree of skill, for there may be persons who have higher education and greater advantages than he has, nor will he be held to have guaranteed a cure. So a barrister is not expected to be right: it is enough that he exercises reasonable care. So a medical practitioner should not be found negligent simply because one of the risks inherent in an operation of the kind occurs, or because in a matter of opinion he made an error of judgment, or because he has failed to warn the patient of every risk involved in a proposed course of treatment. There is no rule that a doctor must tell a patient what is the matter with him.” RFA. 242/2006. 7 11. It is true that merely because a woman has become pregnant after undergoing sterilization operation, that ipso facto does not lead to the conclusion that the surgeon who conducted the operation was negligent. But it is not proper to say that if the woman concerned did not desire to have a child, she could have undergone abortion, which would be justified under the Medical Termination of Pregnancy Act, 1971. There might have been reasons for not doing it. Such a defence has never been considered as an answer to a claim for damages in Law. 12. By now, the principles on which the liability of the medical practitioner is to be determined is well settled. The criteria to be adopted were laid down in Bolam v. Friern Hospital Management Committee ((1957) 2 All ER 118) (known as Bolam's principle). 13. Every person who enter into a profession undertakes to bring to the exercise of it, a reasonable degree of care and skill. May be a doctor cannot assure a cure. He may not undertake to RFA. 242/2006. 8 use the highest possible degree of skill, as there may be persons of higher education and greater advantages than himself, but a professional is expected to exhibit a fair, reasonable and competent degree of skill. In Bolam's case (supra) it was held as follows: “The test is the standard of the ordinary skilled man exercising and professing to have that special skill. a man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. In the case of a medical man, negligence means failure to act in accordance with the standards of reasonably competent medical men at the time. There may be one or more perfectly proper standards, and if he conforms with one of these proper standards, then he is not negligent.” 14. In Udale v. Bloomsbury Area Health Authority (1983(2) All.E.R. 522) a similar issue was considered. Mrs. Udale got married in 1963 and by the year 1977 they had four children, all of whom were daughters. They desired to have no more children. Mr. Udale underwent a laparoscopic sterilization. The operation RFA. 242/2006. 9 failed to achieve the purpose. In June, 1978 Mrs. Udale was told that she was pregnant. She sued for compensation. In the said decision it was held as follows: “It was contrary to public policy to award damages to a mother whose child had been conceived after the mother had undergone a negligently performed sterilization operation to cover the cost of carrying out necessary extensions to the home and of bringing up the child because (a) it was highly undesirable that the child should learn that a court had declared that his life or birth was a mistake and that he was unwanted or rejected, (b) before making such an award the court would have to deduct an amount for the value of the child's life as perceived by the mother so that an uncaring mother would receive a greater net sum than a loving mother and virtue would go unrewarded, © medical practitioners who would otherwise incur liability would be placed under pressure to authorise or carryout abortions and (d) the birth of a healthy, normal baby was a beneficial , not a detrimental, event. However, those principles of public policy did not preclude an award of damages for lost income and also for pain, suffering, inconvenience, anxiety and the disruption to the family's finances caused by the unexpected pregnancy.” RFA. 242/2006. 10 15. The issue came up for consideration in the decision reported in Thake v. Maurice (1984(2) All. E.R. 513), wherein a different view was taken from the decision reported in Udale's case (supra). In this decision, the couple had five children. In order to prevent further addition to the family, they consulted a Surgeon to see the possibility of the first plaintiff undergoing Vasectomy. It appears that they were given the impression that Vasectomy was final and that the first plaintiff would become permanently sterile. He was asked to sign some papers consenting to the operation. The operation was done in October, 1975. The second plaintiff conceived and a healthy child was born in April, 1979. An action was brought by the plaintiffs. The test applied in Bolam's case was referred to. The question that was posed for consideration was whether there was a risk of the nature might, after a considerable lapse of time, reverse the effect of an operation that was initially perfectly satisfactory. Referring to the public policy enunciated in Udale's case (supra) it was observed as follows: RFA. 242/2006. 11 “The question whether damages may be awarded in respect of the birth of a healthy child has been the subject of a number of decisions in the United States. These are conveniently collected in a judgment of the Supreme Court of Minnesota sitting in banc in Sherlock v. Stillwater Clinic: 'Pretermitting moral and theological considerations, we are not persuaded that public policy considerations can properly be used to deny recovery to parents of an unplanned, healthy child of all damages proximately caused by a negligently performed sterilization operation. Analytically, such an action is indistinguishable from an ordinary medical negligence action where a plaintiff alleges that a physician has breached a duty of care owed to him with resulting injurious consequences. Where the purpose of the physician's actions is to prevent conception or birth, elementary justice requires that he be held legally responsible for the consequences which have in fact occurred. While other courts have referred to a negligent sterilization case as a “wrongful birth” action, we believe that this type of case is more properly denominated an action for “wrongful conception,” for it is at the point of conception that the injury claimed by the parents originates. It should be further emphasized that this cause of action is exclusively that of the parents, since it is they and not the unplanned child who have RFA. 242/2006. 12 sustained both physical and financial injury by the physician's negligence. Viewed in this manner, the parents of an unplanned child should at least be entitled to recover all damages immediately incident to pregnancy and birth. the allowance of these damages, we believe, is wholly consistent with the elementary principle of compensatory damages which seeks to place injured plaintiffs in the position that they would have been in had no wrong occurred. See, sorenson v. Cargill, Inc.. Incidental damages include such items as prenatal and postnatal medical expenses, pain and suffering incurred by the child's mother, and loss of consortium to the extent that it can be proved under the guidelines set forth in Thill v. Modern Erecting Co. Most troublesome is the matter of allowing recovery for the costs of rearing a normal, healthy child. Ethical and religious considerations aside, it must be recognized that such costs are a direct financial injury to the parents, no different in immediate effect than the medical expenses resulting from the wrongful conception and birth of the child. Although public sentiment may recognize that to the vast majority of parents the long-term and enduring benefits of parenthood outweigh the economic costs of rearing a healthy child, it would seem myopic to declare today that those benefits exceed the costs as a matter of law. The use of various birth control methods by millions of RFA. 242/2006. 13 Americans demonstrates an acceptance of the family-planning concept as an integral aspect of the modern marital relationship, so that today it must be acknowledged that the time-honoured command to “be fruitful and multiply” has not only lost contemporary significance to a growing number of potential parents but is contrary to policies embodied in the statutes encouraging family planning.” It was further observed as follows: “I do not think that if I award damages here it will lead little Samantha to feel rejection. she is surrounded by a happy, albeit somewhat poverty-stricken, family life. It is this that must make her feel wanted and not rejected. She may learn in years to come that her conception was unwanted. But there is nothing exceptional about this. What matters to a child is how it is received when it enters life. It so often happens that parents reconcile themselves to an unwelcome conception and accept the child with joy. If Samantha is as bright as her father thinks, by the time she comes to consider this judgment (if she ever does) she will, I think, welcome it as a means of having made life somewhat easier for her family.” It was also observed as follows: “The method of set-off presents difficulties but, one again, I think it can be solved by looking at the hard cash involved and ignoring the intangibles. Both plaintiffs RFA. 242/2006. 14 suffered great distress on learning of Mrs.Thake's pregnancy. Mrs. Thake underwent pain and discomfort in the course of her labour, although it was not particularly difficult. As a result of these sufferings they had a healthy child. But the fact that she has been such a joy to them is largely of their own making. If they had been reluctant to accept her and grudging in the sacrifices they had to make for her support,then they might have had little joy. As I see it, the birth of a healthy child should be set off against their disappointment and the labour pains so that they cancel each other out. The joy they have for Samantha is largely of their own making in the way they have met their difficulties. The claim for Samantha's support and for the costs of the birth remain. If the principle of public policy applies, it should apply throughout and there should be no award in respect of the birth. The injustice of this course was apparent to Jupp J who said 'It seems to me that it is legitimate, without detracting from the above principles of public policy, to have some regard to the disturbance to the family finances which the unexpected pregnancy causes. One may look at the cost of the layette and the sudden necessity of having to find more ample accommodation in assessing the damages for the unwanted pregnancy, without regarding the child as unwanted. One has to bear RFA. 242/2006. 15 in mind here that the child has, up until the age of 4 years 2 months, in fact lived in that house without the extension. It has not of course been built. Accordingly, in my view, it is proper to increase the award of damages with this in mind when awarding general damages for the pain, suffering, inconvenience, anxiety and the like, mentioned at the beginning of this judgment.'” After finding that the plaintiffs are entitled to compensation, the amount was quantified for the distress, pain and suffering undergone by the plaintiffs, for the birth and upkeep of the child. 16. In the decision reported in Emeh v. Knsingtom and Chelsea and Westminister Area Health Authority (1984(3) All.E.R. 1044) conflict between a public policy and common law was considered and it was held as follows: “(1) Since the avoidance of a further pregnancy and birth was the object of the sterilization operation undergone by the plaintiff, the compensatable loss suffered by the plaintiff as a result of the negligence in performing that operation extended to any reasonably foreseeable financial loss directly caused by her unexpected RFA. 242/2006. 16 pregnancy. The plaintiff's decision not to have an abortion was not a novus actus interveniens or a failure to mitigate damage, because the health authority, by the negligence for which it was itself responsible, had confronted the plaintiff with the very dilemma of whether to have the child or an abortion which she had sought to avoid by having herself sterilised. The health authority had no right to expect that, if its doctors did not perform the operation properly, the plaintiff would undergo an abortion with its attendant risks, pain and discomfort. Instead, it was reasonably foreseeable that if, as a consequence of the negligent performance of the sterilisation operation, the plaintiff found herself pregnant she might decide to keep the child, and the fact that she exercised that particular option did not mean that it was an option she wished to have. (2) Furthermore, there was no rule of public policy which prevented the plaintiff from recovering in full the financial damage sustained by her as the result of the negligent failure to perform the sterilisation operation properly, regardless of whether the child was healthy or abnormal. (3) Accordingly the plaintiff was entitled to damages for loss of future earnings, maintenance of the child up to trial, maintenance of the child in the future, the plaintiff's RFA. 242/2006. 17 'pain and suffering up to the time of the trial and future loss of amenity and pain and suffering, including the extra care that the child would require.” 17. In the decision reported in Gold v. Haringey Health Authority (1988 Queen's Bench 481) it was observed as follows: “..... that for the purposes of ascertaining the test as to the duty of care owed by a doctor to a patient there was no distinction to be made between advice given in a therapeutic context and advice given in a non-therapeutic context; that, accordingly, the judge erred in holding that advice gtiven in a contraceptive context was not to be judged by the contemporary standards of a responsible body of medical opinion; and that, on the evidence, there was a substantial body of responsible doctors who would not in 1979 have warned the plaintiff of the failure rate of female sterilization operations.” The claim in the said case was dismissed. RFA. 242/2006. 18 18. In the decision reported in Thake v. Maurice (1986 (1) All.E.R. 497) the question whether the liability arises under contract or tort was considered. In the said decision, it was held as follows: “(1) Having regard to the fact that medicine was not an exact science and that the results of operations were to some extent unpredictable, a doctor or surgeon could not objectively be regarded as guaranteeing the success of any operation or treatment unless he expressly said as much in clear and unequivocal terms. The defendant's contract with the plaintiffs was to perform a vasectomy operation on the first plaintiff with reasonable skill and care rather than to sterilize him and although the plaintiffs were entitled to expect the operation to be performed with skill and care they were not entitled to expect the defendant to guarantee the 100% success of the operation. The defendant was not therefore in breach of a contract to render the first plaintiff absolutely sterile. (2) However, the failure by the defendant to give his usual warning that there was a slight risk that the first plaintiff might become fertile again amounted to a breach of the duty of care which he owed to the plaintiffs, because the warning was necessary to alert the second plaintiff to the risk that she might again become pregnant and so enable her to seek an abortion at an early stage. RFA. 242/2006. 19 Moreover, the risk of the second plaintiff failing to appreciate promptly that she had become pregnant ought to have been in the reasonable contemplation of the defendant. The defendant's appeal would therefore be dismissed. (3) The plaintiffs were entitled to damages for distress, pain and suffering, since the parental distress of both plaintiffs and the paid and suffering of the birth was a separate head of claim which was not cancelled out by the relief and joy felt after the birth of a healthy baby and there was no reason in principle why damages could not be recovered for the discomfort and pain of a normal pregnancy and delivery. The plaintiffs' cross-appeal on damages would therefore be allowed.” 19. The issue came up for consideration in the decision reported in Allen v. Bloomsbury Health Authority (1993 (1) All. E.R. 651), wherein after referring to the previous decisions as regards the question of law, it was