"An unsuccessful sterilisation procedure does not necessarily imply that the attending doctors were negligent,", pronounced the Delhi High Court. The judgment, authored by Justice Vibhu Bakhru thus effectively says that doctors are not liable for the success of the sterilisation procedure.
The case arose when a woman moved to court after she had a third child, which she alleged was only due to medical negligence as she had gone through the sterilisation operation. The woman claimed that she had undergone the sterilisation operation at Lok Nayak Hospital in New Delhi for a sterilisation procedure after birth of her second child. The operation took place in June 2010 and a certificate was also given to her.
However, seemingly, the sterilisation operation was not successful and the woman delivered her third child in October 2012. It is however true that she was informed about the pregnancy in March 2012 and she chose to continue with the same.
After the birth of her third child, the woman approached the Court with a claim of Rs.60.5 lakh as compensation for the doctors' negligence and as the claim for bringing up the child.
The judgment notes the arguments put forward by the Petitioner, it states “The learned counsel for the petitioner has contended that the procedure adopted for sterilization was of ligation fallopian tubes by modified pomroye’s method. He states that the possibility of failure of this method is the negligible as it entails ligation of fallopian tubes. The learned counsel for the petitioner further submitted that the doctors were clearly negligent in performing this operation as subsequently, it was found that the right side fallopian tube was intact.”
Meanwhile, the hospital claimed that there was no medical negligence in the case and there always exists a chance of the operation failing, about which the woman was informed beforehand. The woman had also signed before being operated that she was aware about such happening.
Pronouncing the judgment, the Court said "I am unable to accept the contention that the negligence of attending doctors is established in the given facts and circumstances of this case. There is no material on record which would justify the finding that the attending doctors were negligent in performing the sterilization operation on the petitioner. The petitioner’s discharge slip issued by the hospital on 05.10.2012 also does not lead to the conclusion that no procedure was carried out on the right side fallopian tube of the petitioner. The noting in the discharge slip – “R side tube seen in entire length intact method legated by modified pomerey and technique” does not clearly establish that no procedure had been carried out on the right side fallopian tube of the petitioner. “
The Court went on to say, “The “Application for Vasectomy/tubectomy operation and Letter of Consent” clearly indicates that the petitioner was aware not only of the chances of failure of the procedure undertaken by her but the same also records that the petitioner was agreeable to receive `20,000/- in the event the operation failed.”
The Court then relied on the judgment by the Supreme Court in Jacob Mathew v. State of Punjab [(2005) 6 SCC 1], wherein the Apex court had approved the tests relating to medical negligence which were laid down in Bolam v. Friern Hospital Management Committee: (1957) 2 AII ER 118 (QBD).
The judgment noted, “The petitioner had unequivocally agreed that she would not be entitled to file any suit for any compensation other than under the Family Planning Insurance Scheme. It was also clearly stated in the consent form that she would not seek compensation for maintenance of the child. In view of her accepting the terms for the operation conducted by respondent no.2, the claim for petitioner for upbringing a child or for compensation on account of failure of the sterilization procedure cannot be entertained in these proceedings.“
However, Justice Bakhru did order that the woman be given Rs. 20,000/- under the family planning insurance scheme of the government for care of the child.
Live Law also covered the issue of medical negligence in Anuradha Saha medical negligence case.