R.S.A No. 3579 of 2008 ::1:: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A No. 3579 of 2008 Date of decision : August 13, 2009 Rattan Kaur, ...... Appellant (s) v. C.M.D Lala Lajpat Railway Hospital & others, ...... Respondent(s) *** CORAM : HON'BLE MR.JUSTICE AJAY TEWARI *** Present : Mr. Padam Jain, Advocate for the appellant. *** 1. Whether Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? *** AJAY TEWARI, J (Oral) This appeal has been filed against concurrent judgments of the Courts below dismissing the suit of the plaintiff/appellant for damages on the ground that because of tubectomy operation having been conducted on her in a negligent manner, she became pregnant and gave birth to a child. Both Courts have found that the appellant signed a consent form Ex.D1 wherein it was specifically mentioned that tubectomy operation was not always 100% successful. In view of this document, the argument of counsel for the appellant that in her statement the appellant had stated that the operation failed due to negligence cannot be given much credence. The following questions have been proposed :- R.S.A No. 3579 of 2008 ::2:: “ a) Whether when tubectomy operation fails inspite of that it is conducted in the government hospital then the res-ipsa-loquitor is applicable and negligence of the doctor is presumed ? b) Whether failure of 3 tubectomy operations on three different ladies conducted in the same duration/period would fall in the ambit and scope of rare case and would be exempt from medical negligence, without any proof by doctor/defendant that it was a case of marginal failure and he had taken all care and cautions ? c) Whether the doctor and subsequently State- defendant are liable under law of Tort on the principle vicarious liability ? d) Whether finding of the Courts below are perverse ? In support of question No. (a), counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in Nizam Institute of Medical Sciences vs Prasanth S.Dhananka and Others, 2009(3) RCR (Civil) 174. He has particularly drawn my attention to para 32 of the said judgment which is quoted herein below :- “ 32. We are also cognizant of the fact that in a case involving medical negligence, once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts on to the hospital or to the attending doctors and it is for the hospital to satisfy the Court that there was no lack of care or diligence. In R.S.A No. 3579 of 2008 ::3:: Savita Garg (Smt) v. Director, National Heart Institute, 2004(4) RCR (Civil) 512, it has been observed as under :- ` Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor or hospital. Therefore, in any case, the hospital is in a better position to disclose what care was taken or what medicine was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their duties through their doctors, being employed on job basis or employed on contract basis, it is the hospital which has to justify and not impleading a particular doctor will not absolve the hospital of its responsibilities.” In my opinion, the key words in the para extracted above are `evidence is produced to satisfy that the patient had died because of lack of proper care or diligence.' In view of the consent form Ex.D1, in my opinion, the bald statement of the appellant that in fact the operation failed due to negligence cannot be termed to meet the standard mentioned in the R.S.A No. 3579 of 2008 ::4:: extracted passage. In these circumstances, the answer to question (a) has to be against the appellant. Ordered accordingly. As regards questions No.(b), (c) and (d) are concerned, once answer to question No.(a) is against the appellant, the said questions do not arise. Consequently, this appeal is dismissed with no order as to costs. As the main appeal has since been disposed of, all the pending civil miscellaneous applications, if any, also stand disposed of. ( AJAY TEWARI ) August 13, 2009. JUDGE `kk'