IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RFA.No. 218/2004. Reserved on : 26th November,2008. Date of Decision: 24th February, 2009. Smt. Bimla Devi. …Appellant. Versus: State of H.P. and others. …Respondents Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting?1 Yes For the appellant: Mr.Ashwani Pathak, Advocate For Respondent-1to 4: Mr. Anil Jaswal, Deputy Advocate General. Sanjay Karol, J . Plaintiff’s suit for recovery of Rs.5,00,000/- as compensation on account of failure of sterlization operation allegedly due to medical negligence on the part of the doctors of the State stands dismissed. The said judgment and decree dated 16th July, 2002 passed by the District Judge, Bilaspur, H.P. in Civil Suit No.8 of 1999 titled as Smt. Bimla Devi Vs. State of H.P. and others has been assailed by the plaintiff. The plaintiff filed a suit under Order 33 Rule 1 C.P.C. claiming compensation of Rs. 5,00,000/- alleging that: 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 (i) She is resident of village Rajpura and married to Sh. Babu Ram. After giving birth to two children she and her husband decided to undergo sterlization operation; (ii) At the instance of the Chief Medical Officer she got herself operated for tubectomy on 7th January, 1985 in Primary Health Centre, Markand. The operation was carried out by Dr. Inder Singh, Block Medical Officer, Markand. Certificate of operation bearing No. 5666 was issued. (iii) After about 2 ½ years she conceived a child and gave birth to a female child. This proved that either the operation was not done or “some other vein was cut” by the doctor while performing the operation. (iv) To ensure no further pregnancy, the Medical Officer suggested her husband to undergo vasectomy operation which was conduced by the doctor on 29th January, 1989 in terms of certificate No. 1828. (v) In spite of the same she again conceived a child which she delivered in December, 1993. The aforesaid facts were evident to prove that the operation was conducted negligently and that the doctors had neither any knowledge nor special skills to conduct the operation. The failure of the operation caused mental shock, agony, pain, torture, harassment and physically weakened the plaintiff which was a direct result of the rash and negligent actions of the doctors. 3 Her husband, Sh. Babu Ram filed a Civil Writ Petition No. 1275 of 1993 which was dismissed by this Court vide order dated 24th December, 1996 with liberty to file a Civil Suit. She served a notice dated 18th August, 1997 under Section 80 C.P.C. and in the absence of any response she filed the instant suit. She pleaded that the period for pursuing the civil writ petition be accounted for, for the purposes of computing the period of limitation. The plaintiff was permitted by the court to sue as an indigent person. The defendant-State filed a written statement, inter alia, taking preliminary objection that the suit was barred by limitation. On merits, negligence or rashness on the part of the doctor who carried out the operation was denied. It was specifically denied that during the operation any vein was cut. It was explained that 100% success rate of family planning operation cannot be granted and the fallopian tube might have joined spontaneously which perhaps resulted in the conception after a period of 2 ½ years of the operation. The fact that no conception took place within the said period itself proved that the operation was successful. As per the medical jurisprudence the reason for the pregnancy after tubecotomy operation could be attributed to; “a) The woman is already pregnant at the time of operation. b) The surgical errors made, usually by confusing an other structure with the fallopian tubes. 4 c). The ends of fallopian tube reconnect spontaneously (anastomos) d) The fistulas (abnormal opening) develop in the tube allowing the sperms to meet” As per internationally established and acknowledged principles, even if both the tubes are properly legated 1 to 20 per thousand women may conceive in future. The failure rate is 0.4% which is mainly due to spontaneous reanastomosis. The competence and the experience of Dr. Inder Singh who carried out the operation was re-affirmed and explained that the failure of the operation may not necessarily be due to the negligence of the doctor. Had the plaintiff brought the factum of the pregnancy to the notice of the health department, the same could have been terminated under the Medical Termination Act which is an alternative to avoid the birth of unwanted child due to the failure of sterlization operation or otherwise. With regard to the vasectomy operation conducted upon the plaintiff’s husband it was so stated that Dr. M.L.Gupta, B.M.O, Markand carried out the operation. The patient was advised to have a seminal examination after three months of operation to know the success of the operation. The patient was also informed that at least 20 to 30 ejaculations were necessary before the seminal examination is found to be negative and the patient was 5 advised to use condom etc. until two consecutive sperm counts were found to be negative. The husband failed to carry out the instructions and had he followed the instructions the success or the failure of the operation could have been detected at an early stage and the birth of the second child in December, 1993 could have been avoided. As per medical jurisprudence, the failure rate of the vasectomy operation is up to 0.15% to 1%. Based on the pleadings of the parties, the Court framed the following issues: 1. Whether the tubectomy operation of the plaintiff had failed due to the negligence of Dr. Inder Singh, defendant No.3-A, as alleged,.? …..OPP. 2.If issue No.1 supra is proved, to what amount of compensation the plaintiff is entitled to and from which of the defendants.? … OPP. 3.Whether the suit is not maintainable in the present form.?. …OPD. 4. Whether the plaint does not disclose any cause of action.? …OPD. 5. Whether the suit is barred by limitation? …OPD. 6. Whether the plaintiff is estopped by her act, conduct and acquiescence?. …OPD. 7. Whether the plaintiff is not entitled to compensation from the defendants on the basis of doctrine of violenti-non fit-injuria? …OPD. The plaintiff only examined herself as PW-1 and proved on record the certificate of operation (Ext.PA) dated 7th January, 1985. The proof of the birth of the child is 6 evident from the Pariwar register (Ext.PC) and the legal notice (Ext.PE and Ext.PF) sent by registered receipts A.D. covers are proved on record. In rebuttal Dr. Inder Singh examined himself as DW-1. Appreciating the material on record, the court below decided issue No.1 by applying the principles of res ipsa loquitur. The court held that the plaintiff’s conception, subsequent to the operation by itself proved that the doctors had been negligent in performing the operation. The court relied upon the ratio of law laid down in Achutrao Haribhau Khodwa and others Vs. State of Maharashtra and others (1996) 2 SCC 634, Jay Laxmi Salt Works (P) Ltd. Vs. State of Gujarat (1994) 4 SCC 1 and State of Haryana and others Vs. Santra (SMT) (2000) 5 SCC 182 to hold that the State was vicariously liable for tortuous liability of its servant. With regard to issue Nos. 3 and 6 there was no evidence hence both the issues were decided against the defendants. In view of the finding on issue No.1, issue No.7 was decided against the defendants and in favour of the plaintiff. Issue No.2 was found to be redundant in view of the decision on issue No.5. Issue No.4 was decided in favour of the defendants in view of the findings returned on issue No.5. 7 While deciding issue No.5, the court found that the suit was filed on 11th December, 1997 after the plaintiff gave birth to two children. The cause of action arose with the birth of the first child in the year 1987. The pendancy of the writ petition could not extend the period of limitation as the same was filed by the plaintiff’s husband and not by her. Mr. Pathak, learned counsel for the plaintiff has argued that the court below has seriously erred in dismissing the suit on the ground of limitation as the cause of action for claiming compensation due to medical negligence is continuous and subsists till the child attains the age of majority. According to him the findings on issue No.1 cannot be interfered with as the State has not filed any appeal. Per contra, Mr. Anil Jaswal, learned Deputy Advocate General for the State has argued that the finding on issue No.1 be set aside as they are perverse, without any reason and material on record. The reliance on the decision of the apex Court, referred to in the impugned judgment, is misplaced. I have heard learned counsel for the parties and also perused the record. The burden to prove the negligence is on the plaintiff. The plaintiff stepped into the witness box as PW-1. 8 According to her on 7th January, 1985 she was operated upon by Dr. Inder Singh for tubecotomy in the hospital at Markand and was issued a certificate (Ext.PA), but, however, after the period of 2 ½ years she conceived and gave birth to a female child. Thereafter she visited the hospital when the doctor advised her to get her husband operated as this would ensure no further conception. Her husband was operated for vasectomy on 29th January, 1989. But, even thereafter another child (male) was conceived and born on 10th January, 1993. After the birth of two children it was so learnt that the operation failed due to the negligence of the doctors. The writ petition was filed in the High Court claiming damages which was dismissed on 24th December, 1996 and accordingly after serving a notice under Section 80 C.P.C. she filed the instant suit. She is poor and facing hardship in bringing up her children. However, during cross-examination she could not remember the name of the doctor who performed the operation of her husband and admitted that the said doctor was not arrayed as a party in the suit. She admitted having appended her thumb impression to the consent form (Ext.DA). She admitted that she get herself operated of her own will as she had not desired any further children. Prior to her operation the doctor had explained the precautions which were required to be taken by her. Though she denied that the doctor was not negligent but, however, has shown ignorance 9 of the fact that the child may have been conceived due to the joining of the fallopian tube. According to her she learnt about the failure of the operation when she conceived the child. She admitted that even after the operation of her husband she had come to know of her conception. Dr. Inder Singh (DW-1) has proved on record that he operated the plaintiff and had fully apprised her of the consequences of the operation and the precautions which were required to be taken by her. The operation was carried out by him after she voluntarily filled up the consent form. Having learnt about the conception the plaintiff did not visit the hospital. He has deposed about his experience and explained the percentage, basis and the reasons for the failure of the family planning operation. Apart from the bald statement of the plaintiff there is nothing on record to prove the doctor’s negligence. The plaintiff did not get herself medically examined to show that the operation carried out by the doctor could be faulted for not being in accordance with the settled and established procedures of medical jurisprudence. It is not the plaintiff’s case that having learnt about her conception she had approached the doctor for termination and that the doctor dissuaded her. The plaintiff, in my view, had been extremely negligent herself in bringing the factum of her conception to the notice of the doctor. That apart after her operation the plaintiff conceived twice. At no point of time this fact was 10 brought to the notice of the authorities. The writ petition was filed by her husband and not by her. Having learnt about the failure of the operation she did not take any further steps of getting herself operated again which only proves the fact that either she had been negligent or was desirous of further having children. Importantly, her husband even though arrayed as defendant No.4 did not step into the witness box. The reason for the failure of the operation carried upon him has not been proved on record. In a claim for damages as a torturous liability, the negligence is necessarily required to be proved and established. The Apex Court in State of Haryana and others Vs. Raj Rani (2005) 7 SCC 22 has held as under: “Child birth in spite of a sterilization operation can occur due to negligence of the doctor in performance of the operation, or de to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognized the percentage of failure of the sterlization operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was 11 performed by a proficient doctor successfully by adopting a technique recognized by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to pay compensation. Then the question of the State being held vicariously liable also would not arise”. (Emphasis Supplied) 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 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; 12 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 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. 13 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 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. 14 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 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 15 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 ER 497 (CA) the claim for damages was founded on contract and not 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: 16 "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) 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 17 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 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