The Punjab and Haryana High Court has held that the doctor performing tubectomy, at the time of child delivery, cannot be attributed medical negligence merely because she did not explain that the tubes would regress to their normal size after the delivery, and that during the regress, the tubes are likely to slip, thereby exposing chance of further pregnancy.
The Single bench was hearing the challenge against concurrent findings recorded by subordinate courts, whereby a suit for recovery of Rs.1,50,000 for negligence of the appellant/defendant was decreed by the trial Court in 1994 and the appeal against the same was partly allowed by the Additional District Judge, Jalandhar.
Before Justice Rekha Mittal, it was contended that the 4th child was born to the respondent in the clinic of the appellant in 1987 through cesarean section. On the persuasion of the appellant, the former gave consent for a tubectomy procedure to be performed at the time of delivery. The appellant had assured the respondent that after the surgery, she will never conceive in future. So she was operated upon for lower segment cesarean section and during the operation, tubal ligation was also carried out to prevent further pregnancy. Before the High Court, it was alleged that she, nevertheless, conceived her 5th child due to the professional negligence of the appellant. "The pregnancy has caused great mental agony and pain as she feels ashamed in the eyes of relatives and general public and has to undergo mental/bodily pain and sufferings to give birth to another child", it was argued.
"The precise issue involved in the present appeal is 'Whether the appellant can be attributed medical negligence merely because she did not explain to the respondent or/and her husband that at the time of delivery of child, uterus is of size of the child and because of enlargement of uterus, the tubes get enlarged which regress to their normal size after delivery and during regress, tubes are likely to slip thereby exposing chance of further pregnancy, as has been so held by the appellate Court'", noted the bench.
In setting aside the impugned judgment, the Single Judge appreciated that "Shaw's Textbook of Gynaecology" states that "Failure rate of sterilization varies from 0.4% in Pomeroy's technique, 0.3 – 0.6% by Laparoscopic method to 7% by Madlener method. Pregnancy occurs either because of faulty technique or due to spontaneous recanalization."
Justice Mittal observed that the respondent's counsel has not referred to any medical text or opinion much less expert opinion of a professional in gynecology/sterilization that it is not advised to perform tubectomy along with cesarean section.
"He has also not referred to any medical text that chances of failure of sterilization are more than even 7% if tubectomy is performed with cesarean section for delivery of child", she noted, adding that there is no evidence that sterilization, in the instant case, has failed merely because it was performed at the time of delivery.
Justice Mittal reflected that the Respondent/plaintiff has not adduced any evidence either by getting laparoscopy inspection of uterine tubes or x-ray examination or by pathological examination of the materials removed at a subsequent operation of re-sterilization to prove that negligence for failure of tubectomy can be attributed to the appellant. On the contrary, the respondent and her husband had admitted that the operation was conducted properly and there was no negligence on the part of surgeon in performing the operation.
"In this view of the matter, it can safely be held that findings of the Courts attributing negligence to the appellant and consequently fastening liability for payment of damages suffer from perversity, thus, cannot be allowed to sustain", declared the High Court, setting aside the 26 year old award of compensation. Attachments area
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