Can't Assume Medical Negligence If Surgery Doesn't Give Result: Punjab & Haryana HC Denies Relief To Woman Who Got Pregnant Post Sterilization

The Punjab and Haryana High Court has set aside an order of the first appellate court granting Rs 30,000 compensation (along with interest) to a woman who became pregnant after a sterilisation operation.In doing so the high court noted that prior to surgery the woman was apprised of the fact that sometimes operation may fail for which no medical authority will be held responsible and that she had signed a form stating the same. The high court thus restored the trial court order which had dismissed the woman's plea after noting that she had failed to prove medical negligence on behalf of the doctor. Justice Anil Kshetarpal in its order said, "The medical negligence cannot be assumed only because a surgical procedure has failed to achieve the desired result. The Supreme Court has held that in absence of allegation that the Surgeon was not competent to perform the surgery or the Surgeon was negligent, the suit for damages cannot be decreed."The Court noted that no medical evidence has been produced to prove Surgeon's negligence and the woman admitted that she signed the form in which it was stipulated that the sterilization operation may not give desired result.These observations were made while hearing the State's appeal challenging the order whereby the First Appellate Court granted Rs.30,000 as compensation alongwith interest @ 6% per annum to the woman on the ground that she became pregnant after her sterilization operation.The Trial Court found that the plaintiff-respondent gave birth to a female child after the sterilization operation, however, she failed to prove negligence of the Doctor. The woman while appearing in evidence admitted that she went to the hospital for check up on her "free will" and before performance of the operation, she filled a form which bears her signatures. In the form, it was stated that she will not hold any Doctor responsible for failure of the operation.The operation was performed by well qualified and experienced Surgeon; thereafter the Trial Court dismissed the plea.However, the First Appellate Court reversed the judgment on drawing an assumption that after the sterilization operation, the respondent woman will not conceive another child. The Appellate Court further held that the State did not assert that the respondent was ever called for follow up to see whether the operation was successful or not. The First Appellate Court thus awarded Rs. 30,000 alongwith interest @6% per annum to the woman. Before the high court the appellant State contended that operating Surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child on failure of sterilization operation in absence of evidence to prove that there was negligence on the part of Surgeon in performing the surgery.On the high court's query the counsel appearing for the woman admitted that no medical evidence has been produced to prove Surgeon's negligence. The respondent admitted that she signed the form in which it was stipulated that the sterilization operation may not give desired result.After examining the submissions, the High Court opined that in order to award damages in the cases pertaining to medical negligence, the woman is required to lead positive evidence including the opinion of expert in appropriate cases.Justice Kshetarpal observed that the First Appellate Court has assumed negligence only on the basis of a presumption. "From reading of the judgment passed by the trial Court, it is evident that the operating Doctor, Sh. Hardeep Sharma appeared as DW1 and stated that no assurance was given to the respondent regarding the success of the operation and she was apprised of the fact that sometimes there is failure of the operation, for which, no medical authority will be held responsible," the Court added.Consequently, the High Court allowed the appeal and set aside the first appellate court's order granting compensation. The high court also restored the trial court order. Case Title: Punjab State and others v. XXXXCounsel appearing for State : Sr. DAG Punjab, Salil Sabhlok, Counsel appearing for Respondent: Advocate Simran for Advocate Pardeep GoyalClick here to read/download the order

Can't Assume Medical Negligence If Surgery Doesn't Give Result: Punjab & Haryana HC Denies Relief To Woman Who Got Pregnant Post Sterilization

Aiman J. Chishti

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