The Kerala High Court observed that the cause of action for claiming compensation in case of failed sterilization surgery arises on account of surgeon’s negligence and not on account of childbirth.

The Court was deciding an appeal filed against the judgment of the Subordinate Judges’ Court, Thrissur that dismissed a suit for damages filed by a woman.

A Single Bench of Justice C.S. Sudha said, “The cause of action for claiming compensation in cases of failed sterilization surgery arises on account of negligence of the surgeon and not on account of childbirth. Failure due to natural causes would not provide any ground for claim. It is for the woman who has conceived a child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception despite having undergone sterilization surgery, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and bringing up the child cannot then be claimed.”

The Bench further observed that as no negligence or carelessness on the part of the doctor was established, the claim for damages cannot succeed and that there can be no vicarious liability.

Advocate V.R.K. Kaimal appeared for the appellant/plaintiff while SR. GP V. Manu and Advocate T.J. Lakshman Iyer appeared for the respondents/defendants.

Facts of the Case -

The plaintiff belonged to a very poor family and her husband was a coolie. As they already had four children, they decided not to have any more children and hence the plaintiff and her husband consulted the defendant who was then working as a doctor in the Government Hospital, Kunnamkulam. The doctor advised the plaintiff to undergo Post Partum Sterilization (P.P.S.) surgery, which according to him was the best and safest method of avoiding future pregnancies. The plaintiff and her husband were told that if the said surgery was conducted, there would be no chance of any future pregnancy and accordingly, the plaintiff underwent P.P.S. surgery. After the surgery, believing the assurance given by the doctor at the time of the surgery that she would not conceive, the plaintiff and her husband continued their conjugal life.

However, the plaintiff thereafter conceived and gave birth to a girl child. The pregnancy was never intended by the plaintiff and her husband and this happened only because the surgery conducted by the doctor was not successful and done in a careless and negligent manner. The doctor did not take the precautions that ought to have been taken by a specialist in the matter, otherwise, there would have been no occasion for the plaintiff to conceive again. The plaintiff claimed compensation of ₹2 lakhs and on completion of pleadings, the parties went to trial. The Trial Court dismissed the suit finding no negligence or carelessness on the part of the defendant. Therefore, the plaintiff being aggrieved, approached the High Court.

The High Court after hearing the arguments of the counsel said, “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 ordinary skill in that profession.”

The Court also noted that the decisions relied on by the plaintiff are not applicable to the facts of the case because in all those cases, there was evidence of negligence coupled with the failure of the officers of the State to prove that proper care and caution had in fact been taken.

“In the case on hand, the initial burden of the plaintiff to prima facie show negligence or carelessness on the part of the second defendant doctor, in performing the surgery has not been discharged. It is only then, the onus shift to the defendants to rebut the same and establish no rashness or negligence on their part. The plaintiff herein also has no case that the 2nd defendant who conducted the surgery was not possessed of the requisite skill or was not competent to perform the surgery and yet had ventured into doing it”, added the Court.

Furthermore, the Court said that the only case pleaded and established by the plaintiff is that though she had undergone P.P.S. surgery, she conceived, which fact speaks for itself that the surgery was a failure, as proper care and caution had not been taken by the doctor in performing the surgery and this according to the settled position of law, is not sufficient for the plaintiff to succeed.

“This court, in P.G. Kumari Amma (Supra), refers to a book on Legal Aspects of Pregnancy, Delivery and Abortion by Sri. J. V. N. Jaiswal, in which different techniques of female sterilization are adverted to. They are (i) Radiotherapy. (ii) Removal of the ovaries, (iii) Removal of the Uterus and (iv) Resection of Fallopian tubes. According to the author, one of the simplest operations on the Fallopian tubes, the best, is the Pomeroy procedure in which a loop of tube is excised, and the cut ends secured with a ligature. He also refers to the possible reasons as to how a female, who had undergone sterilization operation, could later conceive. No sterilization operation, according to him, can guarantee 100% success”, observed the Court.

The Court concluded that the time gap between the surgery and the plaintiff conceiving probabilises the contention of the defendants that it was due to the natural cause and not due to any negligence of the doctor.

Accordingly, the High Court dismissed the appeal.

Cause Title- Sinebha v. The District Collector & Ors. (Neutral Citation: 2023/KER/74909)

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