Oral Order: (R. Lakshminarasimha Rao, Member)
1. The unsuccessful complainant is the appellant. She filed complaint before the District Forum on the premise of medical negligence on the part of the respondents and claiming a sum of Rs.50,000/- towards medical expenses and an amount of Rs.10,00,000/- towards compensation.
2. The facts of the case as seen from the averments of the complaint are that the appellant blessed with two male children was admitted to the respondent no.1-hospital on 02.11.2004 for delivery and she gave birth to male child. The second respondent administered treatment to the appellant. The second respondent performed ‘Tubectomy’ upon the appellant on 03.11.2004.The appellant consulted a local doctor on 16.10.2010 who confirmed that she was pregnant and she brought the fact to the notice of the second respondent who advised her to opt for abortion and thereafter for ‘sterilization’ for second time.
3. The appellant due to love and affection for the child in womb, did not opt for abortion. The appellant gave birth to a female child on 13.04.2011 at Surya Hospital where the doctors informed the appellant that she became pregnant due to failed tubectomy. The appellant’s husband is a painter and he could not maintain the family with the meager income. The appellant got issued notice dated 16.03.2012 through her advocate to the respondents and copies of the notice to the Director, Department of Health and Family Welfare, Government of Andhra Pradesh and the health minister and the secretary concerned, claiming from the respondents compensation to the tune of Rs.10,00,000/-and thereafter she filed the complaint.
4. The respondents resisted the claim contending that they administered treatment to the appellant with utmost care and followed the established norms. The second respondent is not the surgeon who conducted operation upon the appellant and she is neither a necessary party nor a proper party to the proceedings. The appellant was admitted to the first respondent-hospital on 2.11.2004 and delivered a male baby and she had undergone family planning operation on the same day. The appellant had not complained of any problem till she got issued the notice.
5. The appellant conceived six years after she had undergone tubectomy on account of natural cause of re-canalization of fallopian tubes and not due to any negligence on the part of the respondents performing tubectomy upon her. Sterilization operation is not 100% safe and secure and in spite of the successful surgery, the sterilized woman can become pregnant due to natural cause and once the woman misses menstrual cycle, the couple has to seek medical advice. The cumulative pregnancy rate is 0.75 pregnancies per 100 women and the failure rate is higher among women belonging to the younger age group.
6. Dr.Prameela Devi performed surgery upon the appellant. There is no cause of action for the appellant to file complaint on account of failed sterilization operation and on account of child birth. The treating doctor is highly reputed with vast experience and professing ethical medical practice. The respondent no.1 informed the appellant and her husband about the risk and complications and possibility of re-canalization and they consented for the sterilization operation. There is no deficiency in service on the part of the respondents or treating doctor.
7. The appellant filed her affidavit and the documents, ExA1 to A10. On behalf of the respondents, respondent no.2 filed her affidavit and the document, ExB1.
8. The District Forum dismissed the complaint on the premise that the appellant failed to prove medical negligence on the part of the respondents and the failure of sterilization operation was due to natural cause and not on account of negligence of the respondents.
9. Aggrieved by the order of the District Forum, the complainant has filed appeal contending that the District Forum failed to consider the evidence on record in proper perspective and it failed to appreciate that she had undergone sterilization as she did not want to bear further children and she could not opt for abortion of the fourth pregnancy out of love, affection and sentiment and attachment that an Indian mother has for the child in womb.
10. The learned counsel for the appellant and respondents has filed written submissions.
11. The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of facts or law?
12. Most of the facts such as the appellant joining the respondent no.1-hospital on 02.11.2004 for delivery of third child and her undergoing family planning operation on 03.11.2004 as also the appellant conceiving in the year 2011 and her giving birth to a female child on 13.04.2011 at Surya Hospital are not disputed. The learned counsel for the appellant has contended that the appellant and her husband are illiterates and on the advice of the respondents that on undergoing sterilization operation, children will not born to her, the appellant had undergone tubectomy and the surgeon Dr.Prameela Devi who performed the operation upon the appellant assured her that she will not beget children.
13. The learned counsel submitted that the appellant’s relatives who had undergone sterilization operation did not come across a single case of failure and that there is no entry in the case sheet that the appellant was informed of the chance of begetting children in future and the chance of failure of sterilization operation. He has submitted that the appellant had undergone tubectomy as they could not bear additional monetary burden for the fourth child and they suffered for no fault of their own. The learned counsel placed reliance on the following decisions and medical literature:
1) Medical Jurisprudence & Toxicology (Law, Practice & Procedure) by Dr.K.S.Narayan Reddy.
2). Law for medical practitioners & hospitals by Dr.Ch.Rajender.
3) Samira Kohlli vs Dr.Prabha Manchanda and another.(2008)2 SCC.
4). State of Haryana and others vs Santra (Smt). (2000)5 SCC 182.
5). V.Kishan Rao vs Nikhil Super Speciality Hospital and another (2010)5 SCC 513.
6). Municipal Corporation of Delhi vs Subhagwanti and others AIR 1966 SC 1750(1).
7). Achutrao Haribhau Khodwa and others vs State of Maharashtra and others. (1996)2 SCC 634.
8). Dharmendra Goel vss Oriental Insurance Company Ltd. III (2008) CPJ 63.
9). Saroj Chandoke vs Gangaram Hospital and another III (2007) CPJ 189(NC).
10). Punnam Somalakshmi and others vs Government of A.P. and others. 2007(3) ALD 159.
11). Shobha and others vs Governemnt of NCT of Delhi and others. III (2006) ACC 145.
12). The Lal Bahadur Shastri Hospital vs Smt.Daya and another. In LPA No.72 of 2012 decided on 30.01.2012.
13). Union of India vs Revathi. 2010 Law Suit (Mad) 4237.
14) Laxmi Devi vs High Court of Delhi. LAWS (DLH)-2005-3-93.
14. The learned counsel for the respondents has submitted that the operation was successful and the appellant has not approached the respondents with any complaint or problem after the operation until issuing of the notice. He has submitted that failed tubectomy and failed induction in the discharge card issued by Surya Hospital do not show negligence of the respondents in conducting tubectomy on the appellant and failure of tubectomy, natural cause cannot be attributed to the respondents. The learned counsel submitted that the decision in Santra (supra) relied upon by the counsel for the appellant was distinguished in State of Punjab vs Shivaram’. He has submitted that no cause of action arose for the appellant to file the complaint. The learned counsel placed reliance on the following decisions:
1) State of Punjab vs Shiva ram. IV (2005) CPJ 14.
2) Chief Executive Officer vs Suguna Bai. 2010 CTJ 187.
3) Union of India vs Smt.Omvati. 2012(4) CPR 292 SC.
4) Balvinder Kaur vs State of Punjab. 2007(2) CPJ 444 NC.
15. Sterilization is a procedure to make a male or female person sterile, without any interference with his/her potency. It is performed to limit the size of the family. The family method may be surgical, radiological, chemical or mechanical. Permanent sterilization may include vasectomy in male, tubectomy in female and exposure to deep X-rays in both sexes. The temporary sterilization may include Coinus Interruptus, Loop, and Oral Hormonal Pills. Foam Tablets and Diaphragm, Spermicidal jellies and condom.
16. There are several Enactments to regulate the practice and performance of medical practitioners. Indian Medical Degrees Act, 1916 regulates the grant of titles, viz., qualification in western medical science. The Dentist Act, 1948 provides for constitution of Dental Council of India and regulates it the profession of dentistry in India. The Indian Medical Council Act, 1956 was passed to constitute Medical Council which maintains a register of medical practitioners known as Indian Medical Register, and the Council prescribes standards of postgraduate education in India and can give recognition to foreign qualification of Indian nationals.
17. In ‘Medical Jurisprudence & Toxicology’, the functions of State Medical Councils are described as 1) appointing a Registrar to maintain Medical Register of medical practitioners, 2) Disciplinary Control such as power to remove the names of medical practitioners permanently or for a specific period from the Register, 3) issuing ‘warning notice’. According to the author, the following misconduct of the medical practitioner invites issuing of warning notice:
'(1) (a) Adultery (voluntary sexual intercourse between a married person, and a person married or not, other than his or her spouse).
(2) Improper conduct or association with a patient or member of the patient’s family.
(3) Conviction by a Court of Law for offences involving moral turpitude.
(4) Issuing a false, misleading or improper certificate in connection with sick benefit, insurance, passport, attendance in Court, public services, etc.,
(5) Withholding from health authorities information of notifiable diseases.
(6) Performing or enabling an unqualified person to perform an abortion or any illegal operation for which there is no indication.
(7) Violating the provisions of the Drugs Act.
(8) Selling Scheduled Poisons to the public under cover of his qualifications, except to his patients.
(9) Dichotomy or fee-splitting, i.e., receiving or giving commission or other benefits to a professional colleague or manufacturer or trader in drugs or appliances or a chemist, dentist, etc.,
(10) Using of touts or agents for procuring patients.
(11) Disclosing the secrets of a patient that have been learnt during his professional experience, except in a Court of law.
(12) Covering, i.e., assisting someone who has no medical qualification to attend, treat, or perform an operation on some person in cases requiring professional discretion or skill.
(13) Association with manufacturing firms:
(a) A physician should not hold any personal ownership in patents for any drug, apparatus, instrument or appliance used in medicine or surgery. He should not solicit or receive rebates or commission from prescribing of any agent used therapeutically.
(b) A physician must not write prescriptions in private formulae of which only he or a particular pharmacy has the key. He can keep certain lotions or mixtures, as long as the formulae of the same are available.
(14) Advertising: (a) A physician should not publish on his own in the lay press, reports of cases treated or operated on by him. He should not sanction the publication of any certificates for drugs, or appliances issued by him. (b) A physician must not exhibit publicly the scale of fees except in his consulting or waiting room. (c) A physician can announce in lay or professional press, his starting of practice, interruption or restarting it after a long interval, or a change of his address, but such an announcement shall not appear more than twice. (d) A physician can write to the lay press under his own name on matters of public health, hygienic living or can deliver public lectures, give talks on the radio for the same purpose. (e) An institution, such as a maternity home, a sanatorium, a house for the crippled or blind, etc., may be advertised in the lay press, but the name of the doctor should not appear. (f) It is improper for a physician to use an unusually large signboard and to write on it anything other than his name, qualification and name of his specialty. The same should be the contents of his prescription paper, which may in addition contain his address and telephone number. It is improper to affix a signboard on a chemist’s shop, or in places where he does not reside or work. (g) He should not advertise himself through manufacturing firms directly or indirectly.
(15) Professional association with bodies or societies of unqualified persons formed for the purpose of turning unqualified practitioners.
(16) Running an open shop for sale of medicines, for dispensing prescriptions of other doctors, or for sale of medical or surgical appliances.
(17) Refusal to give professional service on religious grounds.
(18) Drunk and disorderly so as to interfere with proper skilled practice of medicine.'
18. Of the various types of duties such as Duty to exercise reasonable degree of skill and knowledge, Attendance and Examination, Furnish proper and suitable medicines, Duty to give instructions to the patient and third parties, to inform the patient of risk duties with regard to operation, professional secrecy, the learned counsel for the appellant has laid stress on the following duties of the doctor:
‘1) Duty to exercise a reasonable degree of skill and knowledge: This duty arises the moment the physician-patient relationship is established. The physician-patient relationship begins when the physician agrees to treat the patient. He owes this duty to the child even when engaged by his father. He owes this duty even in an acute emergency as soon as he approaches a patient with the object of treating him. He owes this duty even when patient is treated free of charge. It neither guarantees cure nor an assured improvement. A practitioner is not liable because some other doctor of greater skill and knowledge would have prescribed a better treatment or operated better in the same circumstances.
2) Duty to give instructions: The doctor should give full instructions to his patients or their attendants, regarding the use of medicines and diet. He should mention the exact quantities and precise timing for taking medicines.
3) Duty to inform patient of risks: A mentally sound adult patient must be told of all the relevant facts. If the treatment or operation contemplated carries special risks which are known to the doctor but are probably not known to the patient, the doctor should inform the patient of these risks and obtain his consent. But under certain conditions arising out of psychological factors, some facts have to be withheld.
4) Duties with regards to operations: (1) He should explain the nature and extent of operation and take consent of the patient. (2) He should take proper care to avoid mistakes, such as performance of operations on the wrong patient or on the wrong limb. (3) When a surgeon undertakes to operate, he must not delegate that duty to another. (4) He must not experiment. (5) He must keep abreast of current standard practice and must follow it. (6) He must operate with proper and sterilized instruments. (7) He should make sure that all the swabs, instruments, etc., put in are removed. (8) He should take proper post-operative care and should give proper directions to his patient when discharging him.
5) Duties with regard to consultation: Consultation should be advised preferably with a specialist in the following conditions. (1) If the patient requests consultation. (2) In an emergency. (3) When physician’s equipment or facilities are inadequate. (4) if the quality of the care or management can be considerably enhanced. (5) When the case is obscure or has taken a serious turn. (6) When an operation or a special treatment involving danger to life is to be undertaken. (7) When an operation affecting vitality of intellectual or generative functions is to be performed. (8) When an operation is to be performed on a patient who has received serious injuries in a criminal assault. (9) When an operation of mutilating or destructive nature is to be performed on an unborn child. (10) When a therapeutic abortion is to be procured. (11) When a woman on whom criminal abortion has already been performed has sought advice for treatment. (12) In homicidal poisoning.
6) Professional secrecy: It is an implied term of contract between the doctor and his patient. The doctor is obliged to keep secret, all that he comes to know concerning the patient in the course of his professional work. Its disclosure would be a failure of trust and confidence. The patient can sue the doctor for damages if the disclosure is voluntary, has resulted in harm to the patient and is not in the interest of the public.’
19. The author defined professional negligence as absence of reasonable care and skill or willful negligence of medical practitioner in the treatment of a patient which causes bodily injury or death of the patient. The instances of medical negligence, according to the author are:
‘1) Failure to obtain informed consent.
2) Failure to examine patient himself.
3) Failure or delay in diagnosis.
4) Making a wrong diagnosis due to absence of skill or care.
5) Failure to attend the patient in time, or failure to attend altogether.
6) Failure to provide a substitute during his absence.
7) Failure to immunize and to perform sensitivity tests when indicated.
8) To delegate his duty of treating or operating upon a patient to another doctor without the consent of the patient.
9) Failure to give proper instructions.
10) Failure to give proper post-operative care.
11) Failure to keep abreast of advances in medical sciences.
12) Failure to warn the patient of side-effects.
13) Failure to obtain consultation where appropriate.
14) Experimenting on patient without consent.
15) Giving overdose of medicine and giving poisonous medicines carelessly.
16) If his negligence causes others to catch a disease from his patient.
17) Negligent management of procedures.
18) Continue a practice regarding which several warnings as to its dangers have been given.
19) Iatrogenic medical complications during diagnosis or treatment.
20) Not reading the X-ray film correctly or in failing to get it read by a competent person.
21) Prematurely discharging the patient.’
20. The author has opined that the doctor is not liable 1) for an error of Judgment or of diagnosis, if he has secured all necessary date on which to base a sound judgment. For the treatment of a disease or injury, the doctor may adopt the one which in his judgment, will be more effective and appropriate. In such case, the doctor is not liable for an injury resulting from an error in his judgment. (2) For failure to cure or for bad result that may follow, if he has exercised reasonable care and skill. (3) if he exercises reasonable care and skill, provided that his judgment conforms to the accepted medical practice, and does not result in the failure to do something or doing something contrary to accepted medical practice’. The learned counsel for the appellant has laid stress on the corporate negligence described in the same book of Dr.Narayana Reddy which is extracted below:
'CORPRATE NEGLIGENCE: It is the failure of those persons who are responsible for providing the accommodation and facilities necessary to carry out the charitable purpose of the corporation, to follow the established standard of conduct. It occurs when the hospital provides defective equipment or drugs, selects or retains incompetent employees, or fails in some other manner to meet the accepted standard of care, and such failure results in injury to a patient to whom the hospital owes a duty. It also includes the negligent actions of the hospital administrators. If a hospital knows or should have known, that one of the patient is likely to be a victim of professional negligence by a doctor on its staff, the hospital is liable, even though that doctor is an independent with staff privilege at the hospital.'
21. In the same book, viz., Medical Jurisprudence & Toxicology, the author describes under the caption, ‘Consent in Medical Practice’, the kinds of consent, informed consent and full disclosure as under:
'CONSENT IN MEDICAL PRACTICE
‘Consent means voluntary agreement, compliance or permission. To be legally valid, it must be given after understanding what it is given for, and of risks, involved.
Kinds of consent: Consent may be (1) Express i.e., specifically stated by the patient, or (2) Implied. Express consent may be (a) verbal, or (b) written.
An adult patient of sound mind who (1) knows that he can either agree or refuse to submit to treatment or an operation, (2) knows or has been fully or fairly informed by his doctor as to what is to be done, and (3) then cooperated with the physician, has impliedly consented in words. The fact that a patient attends the hospital or calls the doctor to his house complaining of illness, implies that he consents to a general physical examination, to determine the nature of the illness. Consent is implied when a patient holds out his arm for an injection. Such implied consent is the consent usually given in routine practice.
Informed Consent: Informed consent implies an understanding by the patient of (1) the nature of his condition, (2) the nature of the proposed treatment or procedure, (3) the alternative procedure, 94) the risks and benefits involved in both the proposed and alternative procedure, (5) the potential risks of not receiving treatment, and (6) the relative chances of success or failure of both procedures, so that he may accept or reject the procedure. All disclosures must be in language the patient can understand. This disclosure will very much reduce litigation, when the results are unsatisfactory or unexpected. The patient must show that the doctor did not adhere to accepted medical standards to prove liability for lack of informed consent.
Full Disclosure: The factors which a doctor must disclose depends on the normal practice in his community, and on the circumstances of the case. The doctor has to decide, after taking into consideration all aspects of the patient’s personality, physical and mental state, how much can be safely disclosed. The doctor need not disclose risks of which he himself is unaware. A physical need not inform the patient of risks that a person of average intelligence would be aware of, or in an emergency situation. In general, the patient should ordinarily be told everything. The physician need not given information to those patients who waive their rights, but the waiver should be clearly written in the record’.
22. According to Dr.Narayan Reddy, the doctor is required to furnish information to the patient before seeking for his consent and treatment without the patient’s consent is an assault in law. He has assigned the following reasons for obtaining consent and the rules therefor:
Reasons for obtaining Consent: (1) to examine, treat or operate upon a patient without consent is assault in law, even if it is beneficial and done in good faith. The patient may recover damages. (2) If a doctor fails to give the required information to patient before asking for his consent to a particular operation or treatment, he may be charged for negligence’.
RULES OF CONSENT:
(1) Consent is necessary for every medical examination. Ordinarily, formal consent to medical examination is not required, because the patient behaves in a manner which implies consent.
(2) Oral consent should be obtained in the presence of a disinterested third party, e.g., nurse.
(3) Written consent is not necessary in any case. However, it should be taken for proving the same in the Court if necessity arises. Written consent should refer to one specific procedure, and not blanket permission on admission to hospital. Written consent should be in proper form and suitably drafted for the circumstances. The wording should include a phrase to confirm that the patient has been informed of the nature of the procedure, before signing and witnessing takes place.
(4) Any procedure beyond routine physical examination, such as operation, blood transfusion, collection of blood, etc., requires express consent. It must be taken before the act, but not at the time of admission into the hospital.
(5) The doctor should explain the object of the examination of the patient, and patient should be informed that the findings will be included in a medical report.
(6) The doctor should inform the patient that he has right to refuse to submit to examination and that the result may go against him. If the patient refuses, he cannot be examined.
(7) The consent should be free, voluntary, clear, intelligent, informed, direct, and personal. There should be no undue influence, fraud, misrepresentation of facts, compulsion, threat of physical injury, death or other consequences.
(8) In criminal cases, the victim cannot be examined without his/her consent. The Court also cannot force a person to get medically examined, against his will. (A) In cases of rape, the victim should not be examined without written consent. (B) In medico-legal cases of pregnancy, delivery and abortion, the woman should not be examined without her consent.
(9) (A) A person is arrested on a charge of committing an offence, and there may be reasons for believing that an examination of his person will provide evidence as to the commission of an offence. A registered medical practitioner can examine such person, even by using reasonable force, if the examination is requested by a police officer not below the rank of sub-inspector. If the accused refuses examination, this may go against him in criminal proceedings. (B) In the case of a female, the examination should be made only by or under the supervision of a female registered medical practitioner (S.53, Cr.P.C.). Under S.54, Cr.P.C., an arrested person at his request may be examined by a doctor to detect evidence in his favour’.
23. The Government of India has issued guidelines for sterilization which prescribe minimum age of wife and the husband as 20 years and 45 years and the difference between the age of the wife and the husband should not be less than 25 years. The guidelines read as under:
'(a) The age of the husband should not ordinarily be less than 25 years nor should it be over 50 years.
(b) The age of the wife should not be less than 20 years or more than 45 years.
(c) The motivated couple must have 2 living children at the time of operation.
(d) If the couple has 3 or more living children, the lower limit of age of the husband or wife may be relaxed at the discretion of the operating surgeon.
(e) It is sufficient if the acceptor declares having obtained the consent of his/her spouse to undergo sterilization operation with out side pressure, inducement or coercion, and that he/she knows that for all practical purposes, the operation is irreversible and also that the spouse has not been sterilized earlier'.
24. In ‘Samira Kohli’ (supra), the Hon’ble Supreme Court considered what informed consent which is has to be obtained by a medical practitioner. The Supreme Court dealt with the necessity of the reasons for obtaining consent, full disclosure and informed consent are elaborately dealt with which in brief are :
'(i) A doctor has to seek and secure the consent of the patient before commencing a 'treatment' (the term 'treatment' includes surgery also). The consent so obtained should be real and valid, which means that: the patient should have the capacity and competence to consent; his consent should be voluntary; and his consent should be on the basis of adequate information concerning the nature of the treatment procedure, so that he knows what he is consenting to.
(ii) The 'adequate information' to be furnished by the doctor (or a member of his team) who treats the patient, should enable the patient to make a balanced judgment as to whether he should submit himself to the particular treatment or not. This means that the doctor should disclose (a) nature and procedure of the treatment and its purpose, benefits and effect; (b) alternatives if any available; (c) an outline of the substantial risks; and (d) adverse consequences of refusing treatment. But there is no need to explain remote or theoretical risks involved, which may frighten or confuse a patient and result in refusal of consent for the necessary treatment. Similarly, there is no need to explain the remote or theoretical risks of refusal to take treatment which may persuade a patient to undergo a fanciful or unnecessary treatment. A balance should be achieved between the need for disclosing necessary and adequate information and at the same time avoiding the possibility of the patient being deterred from agreeing to a necessary treatment or offering to undergo an unnecessary treatment.
(iii) Consent given only for a diagnostic procedure, cannot be considered as consent for therapeutic treatment. Consent given for a specific treatment procedure will not be valid for conducting some other treatment procedure. The fact that the unauthorized additional surgery is beneficial to the patient, or that it would save considerable time and expense to the patient, or would relieve the patient from pain and suffering in future, are not grounds of defence in an action in tort for negligence or assault and battery. The only exception to this rule is where the additional procedure though unauthorized, is necessary in order to save the life or preserve the health of the patient and it would be unreasonable to delay such unauthorized procedure until patient regains consciousness and takes a decision.
(iv) There can be a common consent for diagnostic and operative procedures where they are contemplated. There can also be a common consent for a particular surgical procedure and an additional or further procedure that may become necessary during the course of surgery.
(v) The nature and extent of information to be furnished by the doctor to the patient to secure the consent need not be of the stringent and high degree mentioned in Canterbury but should be of the extent which is accepted as normal and proper by a body of medical men skilled and experienced in the particular field. It will depend upon the physical and mental condition of the patient, the nature of treatment, and the risk and consequences attached to the treatment.
The 'real consent: concept has, herein, been preferred over the 'reasonably prudent patient test' having regard to the ground realities in medical and health care in India. But if medical practitioners and private hospitals become more and more commercialized, and if there is a corresponding increase in the awareness of patient’s rights among the public, inevitably, a day may come when the Court may have to move towards Canterbury. But not for the present'.
The Supreme Court held that the correctness of treatment procedure does not make the treatment legal in absence of the consent. Their Lordships observed:
'We may also refer to the following guidelines to doctors, issued by the General Medical Council of UK in seeking consent of the patient for investigation and treatment:
'Patients have a right to information about their condition and the treatment options available to them. The amount of information you give to each patient will vary, according to factors such as the nature of the condition, the complexity of the treatment, the risks associated with the treatment or procedure, and the patient’s own wishes. For example, patients may need more information to make an informed decision about the procedure which carries a high risk of failure or adverse side-effects; or about an investigation for a condition which, if present, could have serious implications for the patient’s employment, social or personal life.'
25. In ‘Santra’ (supra), the question that fell to the consideration of the Apex Court was as to the liability of the persons or the state to maintain an unwanted child born consequently to failed sterilization. The Supreme Court observed that parents are under an obligation to maintain their children. The Court observed that the doctor and the State as well is held responsible in damages in case of failure of sterilization operation on account of his negligence. The statutory liability of parents was held not a bar to claim damages on account of medical negligence as under:
'Similarly, under the Mohammedan law, a father is bound to maintain his sons until they have attained the age of puberty. He is also bound to maintain his daughters until they are married. (See: Mulla’s Principles of Mohammedan Law (19th Edn.), p.300.) But the statutory liability to maintain the children would not operate as a bar in claiming damages on account of tort of medical negligence in not carrying out the sterilization operation with due care and responsibility. The two situations are based on two different principles. The statutory as well as personal liability of the parents to maintain their children arises on account of the principles that if a person has begotten a child, he is bound to maintain that child. Claim for damages, on the contrary, is based on the principle that if a person has committed a civil wrong, he must pay compensation by way of damages to the person wronged'.
26. ‘KIshan Rao’ (supra), is a case wherein the Supreme Court held that expert evidence in medical negligence cases in Consumer Forum cannot be considered as mandatory and the necessity of an expert’s evidence would depend on facts of the case which would vary from case to case as also it was held that it is the Consumer Forum which would decide whether the expert need or need not be examined. The Principle of res ipsa loquitor was held to have its application where negligence of the doctor is manifest. Their Lordships held:
'Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. (para 18).
In a case where negligence is evident, the principle of res ipsa loquitor operates and the complainant does not have to prove anything as the thing (res) proves itself. In such a case it is for the respondent to prove that he has taken care and done his duty to repel the charge of negligence. (para 50).
This Court however makes it clear that before the Consumer Fora if any of the parties wants to adduce expert evidence, the members of the For a by applying their mind to the facts and circumstances of the case and the materials on record can allow the parties to adduce such evidence if it is appropriate to do so in the facts of the case. The discretion in this matter is left to the members of the Fora especially when retired Judges of the Supreme Court and the High Courts are appointed to head the National Commission and the State Commissions respectively. Therefore, these questions are to be judged on the facts of each case and there cannot be a mechanical or straitjacket approach that each and every case must be referred to experts for evidence'(para 56).
27. The principle of res ipsa loquitor was considered to be applicable in Subhagwatnti (supra), where negligence tells its own story on the part of the defendant. It was held:
'An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant’s negligence, or where the event charged as negligence ‘tells its own story’ of negligence on the part of defendant, the story so told being clear and unambiguous. To these cases the maxim res ipsa loquitur applies. Whether the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part'.
28. In ‘Achutrao’ (supra), an action for negligence against the doctor in tort was held maintainable .The duty of the doctor and possibility of difference in opinion of the doctors etc was considered as:
'skill of medical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient. Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable.
In cases where the doctors act carelessly and in a manner which is not expected of a medical practitioner, then in such a case an action in torts would be maintainable. As held in Laxman case by this Court, a medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor'.
29. In ‘Dharmendra Goel’ (supra), the vehicle was comprehensively insured on 19.01.2000 and after the policy was expired, it was renewed on 19.01.2001 and after it being expired, the policy was again renewed in February, 2002 and the vehicle met with an accident in the month of September, 2002. The insurance company collected premium in the month of February, 2002 on the assessed value for Rs.3,54,000/-. The surveyor declared the vehicle as ‘total loss’. The surveyor assessed the value of the vehicle at Rs.1,80,000/-. As the insurance company declared the value of the vehicle at the time of renewing the insurance policy, the Supreme Court held that it is not for the insured to produce evidence to prove that the assessment of loss made by the surveyor is on lower side. In such matters where particular claim for compensation is possible, the Supreme Court held that the court must take a realistic view and the claim ‘should not be denied on hyper technical grounds’.
30. ‘Saroj Chandhoke’ (supra) is a case where consent was obtained for ‘Total Abdominal Hysterectomy’ and Dilation and Curettage was carried out, Hysterectomy was performed initially through vaginal route; both ovaries and fallopian tubes and kidney of the patient were removed without her knowledge and the National Commission held:
'In conclusion it is held that
i) In a simple hysterectomy operation, the complainant lost her ovaries and left kidney. She was required to undergo other operations for control of fecal discharge from vagina. She was required to stay in the hospital for complete cure for months.
ii) Informed consent was obtained only for TAH. There was no necessity of trying to operate via vaginal route.
iii) No consent was obtained for removal of ovaries in advance planned surgery.
iv) In the present case, the question is not whether TAH is preferable to VH. The patient was prepared for TAH and had given written consent for TAH and no consent was obtained or no information was given to the patient that her ovaries would be removed. In such set of circumstances, it cannot be said that because a surgeon is expert in the field he/she can carry out the surgery of his choice. If he/she does so, he/she does it at his/her risk in case of mishap.
No doubt, in case of emergency there can be deviation in mode of surgery, but not in a planned surgery where express consent for a particular mode is taken from the patient, particularly, when there is no emergency.
v) Before performing surgery, properly informed written consent is must. No doubt, while operating, to control adverse situation or to save the life of the patient or for benefit of the patient, other procedure could be followed or other part of the body could be operated.
vi) As held in Spring Midows Hospital (supra) it is to be seen that superiority of the Doctor is not abused in any manner. Further, if during the operation any mishap occurs because of error of judgment, it would be deficiency in service or negligence, if that would not have been committed by a reasonably competent professional man professing the standard and type of skill that a surgeon held out as having. The opposite party no.2 is an expert Gynaecologist who has performed many such operations as contended by her and opposite party No.1 is a known big Hospital. In such a case, it is difficult to accept that for no fault there was avulsion of vein to such an extent that left kidney was required to be removed. Inference could be that there was some error which resulted in cut of a vein.
vii) Further, it was the duty of the Doctor to advise the patient that D&C should be performed reasonably well in advance of performing the operation for hysterectomy.
viii) For finding out deficiency in service, motive is not relevant ingredient. Act may be bona fide. But, if it is performed negligently or if any error is committed which the ordinary skilled person would not commit, then it is deficiency in service’.
31. In ‘Punnam Somalakshmi’ (supra), the Andhra Pradesh High Court observed that the petitioners could have opted for medical termination of pregnancy in case the sterilization operation failed and the point of time at which grievance is made would assume significance and the claimants could have approached civil court. The High Court felt that directing the claimants to approach at such length of time would lead to several complications and it awarded a sum of Rs.50,000/- to the mother and an amount of Rs.1,00,000/- to the baby who was born after her mother undergone sterilization. The High Court held:
'Award of compensation, by its very nature, depends upon the proof of negligence on the part of the persons against whom it is claimed. The failure of the operation conducted upon the first petitioner is evident from the very fact that the third petitioner was born more than one year after the operation. However, before it is held that the failure was on account of negligence attributable to the respondents alone, specific facts are required to be pleaded and thereafter proved in a given case. Negligence on the part of the person, who has undergone the operation leading to failure, cannot be ruled out. The point of time at which the grievance is made out would also assume significance. If the complaint comes to be made immediately after the grievance is felt, the person, who is otherwise, responsible, may have an opportunity to take corrective steps. Delay in this regard, would have its own effect. The parties would have an opportunity to put forward their contentions, and to adduce evidence, if trial is conducted. In a writ petition filed under Article 226 of the Constitution of India, such an exercise almost becomes impossible. Strictly speaking, the petitioners must have approached the civil Court for redressal. However, this Court is of the view that directing them to the civil Court as this length of time would lead to several complications.
Assessment of compensation in the matters of this nature poses its own difficulty. Though a fourth child may be a burden to the family with limited resources, civilization does not permit one to call such a child as ‘unwanted’. No child, or for that matter no creature is unwanted. The fact that people are spending millions of rupees in fertility clinics to beget children and are prepared to spend huge amounts for taking children on adoption needs to be kept in mind. One cannot call a child as unwanted, simply because it is born after sterilization operation was conducted. Even from the point of view of incurring expenditure for bringing up the child, in the Indian context of the society, a child is never treated as burden to the parents. At the most, the society must feel its obligation to assist the parents to overcome the poverty, in bringing up the child in a better way. No parents, worth their name would declare that they would not bring their child unless necessary assistance is provided'.
32. In ’Shoba’ the Delhi High Court awarded a sum of Rs.3,25,000/- to the claimant who gave birth to a child after undergoing sterilization operation. The Andhra Pradesh High Court observed in ‘Punnam Somalakshmi’ (supra) discussed the decision and observed: 'In that case, the Delhi High Court entertained a writ petition filed by a woman, who gave birth to a child even after undergoing sterilization operation. It was rendered by a learned Single Judge and it is not known whether any appeal was preferred against it, either in the same High Court or before the Supreme Court. The Delhi High Court awarded a sum of Rs.3,25,000/-, as compensation various heads'. The Delhi High Court held that the State is liable for upbringing of the fifth child born to the claimant who had already undergone sterilization operation and it was observed:
'Further, it will also be useful to note provisions of Clauses, ‘a’, ‘e’, and ‘f’, of Article 39 which are as under:
'Article 39. Certain principles of policy to be followed by the State.-The State shall, in particular, direct its policy towards security-
(a) that the citizens, men and women equally, have the right to an adequate means to livelihood;
xx xx xx
(e) that the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;
(f) that children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment'.
In a case like this, therefore, child has to be provided with proper opportunities and facilities to develop in a healthy manner. It is clear that the petitioner did not want fifth child as she and her husband had no economic means to bring up another child. When this child is born because of the negligence of the respondents, instrumentalities of the State, it becomes bounden duty of the State to meet the expenses for bringing up this child. This family child ha right to education (Art.41). Further, as per Art.45 the Government is to endeavour to provide free and compulsory education for children, Art.47 casts duty upon the State to raise the level of nutrition and the standard of living and to improve public life. With these kinds of Directive Principles of State Policy, liability of maintenance and upbringing of fifth child of the petitioner, for the birth of which the State is responsible, cannot be shied away. Thirdly, grant of such compensation in writ proceedings as a public law remedy due to negligence of the State has now come to be recognized by series of judgments of the Supreme Court as well as various High Courts. Without elaborating the dicta laid down in these judgments, purpose would be served in enlisting the same:
(i) Chairman, Railway Board and Others v.Chandrima Das (Mrs.) and Others (supra).
(ii) Tamil Nadu Electricity Board v. Sumathi and Others (supra).
(iii) Thirath Ram Saini v. State of Punjab and Others (supra).
(iv) Nilabati Behera (Smt.) @ Lalita v. State of Orissa and Others (supra).'
33. In 'Laxmi Devi’ (supra), the Delhi High Court referred to its decision in 'Shoha’ (supra) and held that there were distinguishable features in the latter case; The High Court held:
'On the basis of the above ruling, Mr.Amiet Andley on behalf of the respondent submits that there was no reason to depart from the figure of Rs.10,000/-, as fixed in the Judgment of Smt.Shobha vs. Govt. of NCT of Delhi and Anr. (supra) as token damages in case of contributory negligence. In my view, in the present case, there are distinguishing features from that of WP (C) No.7515/2000. In the said case (WP(C).No.7515/2000), husband and wife were both Government employees, which would imply certain degree of education and a higher degree of awareness of facts of life. In the present case, petitioner Nos.1 and 2 are poor people. Petitioner No.2 is a part-time Chowkidar, engaged by the residents, who pay him individually some token amount and he barely collects about Rs.1500/- from different residents. Both are stated to be illiterate. The contributory negligence of petitioners in not approaching the doctors on time, has to be considered and determined, keeping in mind their background, general awareness and living conditions. While it is true that petitioner No.1 had also been a mother three times and the factum of having gone through the pregnancy three times and a missing menstruation period could have alerted her. However, at the same time, she would have the expectation and belief of being safe from pregnancy as a result of operation and thus ignore missing periods. Besides, delay and irregular menstruation following sterilization/tubectomy operation are also not unknown. Keeping in mind the lack of education background, economic conditions and the lack of awareness, the factum of failure of sterilization operation cannot be ignored. Petitioners could have been allured into the belief of being total safe from unwanted pregnancy.
In the light of the foregoing discussion, I am of the view that ends of justice would be sub-served by awarding total damages of Rs.30,000/- to the petitioners. Out of the said sum, Rs.25,000/- be kept in an FDR in a nationalized Bank till the minor child Mahesh attains majority. The interest to be available on 6 monthly basis for up-keep of the child, while the remaining sum of Rs.5,000/- be paid to the petitioners'.
34. The Delhi High Court dismissed the intra court appeal in ‘Lal Bahadur Shastri Hospital’ and confirmed the Judgment passed by the single judge. The claimant approached the hospital along with documents of sterilization and disclosed her doubt as to irregularities in her menstrual cycle. The OPD staff of the hospital assured that there was no chance of her getting pregnant and thereafter, the hospital pleaded before the court that the claimant had not approached it. The High Court held :
'We may notice that the appellant-hospital not only in para 7 of the counter affidavit but also in para 13 of the counter affidavit stated as under:-
'13. (wrongly numbered as 14) in reply to para 13 it is LPA 72/2012 Page 4 of 6 submitted that the birth of unwanted girl child was due to the sheer negligence on the part of the petitioner. It is a standard practice to advise the patients at the time of discharge after the sterilization operation to report immediately to the Hospital in case of missing menstruation beyond two weeks. It is pertinent to mention here that, had the petitioner following the advice given to her at the time of discharge, the present situation could easily be avoided by performing MTP without undue risk to the petitioner. It is further submitted that the petitioner reported to this Hospital very late in the month of August 2004, which clearly shows that the petitioner was not serious about the matter and allowed the situation to get out of control deliberately. It is further submitted that there is no negligence on the part of the answering respondent no.2/Doctors who had performed the sterilization operation on 13.03.2003. It is submitted that the tubectomy operation was carried out with utmost care but it was one of the case which falls under the failure rate in sterilization.'
We are unable to agree with the contention of the appellant Hospital. There is indeed an unequivocal admission of the respondents having visited the appellant Hospital in August, 2004. The appellant Hospital has not referred to the visit of August, 2004 on demurrer. Rather, when the respondents in the writ petition pleaded that they had visited the appellant Hospital in first week of August, 2004 and were not attended to, the appellant Hospital in the counter affidavit pleaded that the visit was 'very late in the month of August 2004' and denied that the respondents were not attended to. Rather it is the appellant Hospital which is now attempting to wriggle out of the admissions made. The appellant Hospital having made an unequivocal admission of the visit of August 2004 cannot now be permitted to wriggle out of the same. Once the visit of August 2004 is admitted, the LPA 72/2012 page 5 of 6 negligence of the appellant Hospital is writ large and no perversity or unreasonableness is found in the relief of compensation of Rs.2 lac granted by the Learned Single Judge'.
35. In ’S.Revathy’ (supra), the plaintiff who had undergone Tubectomy operation at Government Hospital conceived and gave birth to third child which according to the plaintiff is the proof of negligence and improper performance of operation due to lack of required precision assured and required to be performed. The Madras High Court held that Section 106 of the Evidence Act is an exception to Section 101 and as such the burden of proof lies on the doctor where the knowledge of particular question of fact is especially within his domain. The High Court referred to the deciding about female sterilization in the Book titled’ The Essentials of Contraceptive Technology’ which is mentioned as follows:
Very effective and permanent_
In the first year after the Procedure: 0.5 pregnancies per 100 women (1 in every 200 women).
Within 10 years after the procedure : 1.8 pregnancies per 100 women (1 in every 55 women).
Effectiveness depends partly on how the tubes are blocked, but all pregnancy rates are low.
Postpartum tubal litigation is one of the most effective female sterilization techniques. In the first year after the procedure _0.05 pregnancies per 100 women (1 in every 2,000 women). Within 10 years after the procedure 0.75 pregnancies per 100 women (1 in every 133).
Advantages and Disadvantages
Permanent. A single procedure leads to lifelong, safe, and very effective family planning.
Nothing to remember, no supplies needed, and no repeated clinic visits required.
No interference with sex. Does not affect a woman’s ability to have sex.
Increased sexual enjoyment because no need to worry about pregnancy.
No effect on breast milk.
No known long-term side effects or health risks.
Minilaparotomy can be performed just after a woman gives birth. (Best if the woman has decided before she goes into labor).
Helps protect against ovarian cancer.
Usually painful for several days after the procedure. Uncommon complications of surgery:
-Infection or bleeding at the incision.
-Internal infection or bleeding.
-Injury to internal organs.
With local anesthesia alone or with sedation, rate risks of allergic reaction or overdose.
With general anesthesia, occasional delayed recovery and side effects. Complications are more severe than with local anesthesia. Risk of overdose.
Very rarely, death due to anesthesia overdose or other complication.
In rare cases when pregnancy occurs, it is more likely to be ectopic than in a woman who used no contraception.
Requires physical examination and minor surgery by a specially trained provier.
Compared with vasectomy, female sterilization is:
-Slightly more risky.
-Often more expensive, if there is fee'.
36. As to the standard of reasonable care that a doctor is required to exercise in the given circumstances, the High Court observed:
'In a case of failed Sterilization i.e., where the Defendants negligent performance of a Sterilisation Operation results in the birth of a healthy child a public policy does not prevent the parents from recovery damages for the unwanted birth, even though the child may in fact be wanted by the time of its birth. Also, damages are recoverable for personal injuries in regard to the period upto delivery of the child and in the Medical loss involved in the expense of losing paid occupation and the obligation of having to pay for the upkeep and care of an unwanted child as per decision Allen v.Bloomsbury Health Authority, 1993 1 AIIER 651.
Moreover, the damages may include the loss of earnings for the mother maintaining the child (taking into account of child benefit) (as to the child benefit See Social Security and Pensions Vol 44(2) (Reissue Para 237 et seq.) and pain and suffering to the mother as per dec
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ision Emeh v.Kensington & Chelsea and West Minister Area Health Authority. A Practitioner must bring to his task a reasonable degree of a skill and knowledge and ought to exercise a reasonable decree of care failure to use due skill in diagnosis with the result that the wrong treatment is given is negligence as per decision Pundey v.Union Castle Mail SS CO. Ltd., 1953 1 LloydsRep 73; Newton v.Newton’s Model Laundry, 1959 Times 3 November (failure to diagnose broken patella after 12 foot fall'. 37. The High Court held that non-examination of the doctor who performed tubectomy on the plaintiff is fatal to the case of the defendants and held the award of compensation granted by the trial court is fair, sensible, equitable and prudent in the following words: 'In the present case, the fact which has been pre-eminently within the knowledge of the trained Assistant who performed the operation on the Plaintiff (under the supervision of the third Appellant/Third Respondent/DW1) has not been examined as a witness before the trial Court which is admittedly an unfavourable circumstance against the Appellants/Defendants and therefore the chance of pregnancy of 0.5% put forward on the side of the Appellants/Defendant is not accepted by this Court. Consequently, the Award of compensation for Rs.1,50,000/- (rupees one lakh fifty thousand only) as determined by the trial Court in Para 15 of its Judgment (Rs.25,000/- towards Pain and sufferings, Rs.25,000/- towards mental agony and Rs.1,00,000/- towards up-bringing of the child and for marriage and maintenance expenses etc.) cannot be said to be an excessive, exorbitant or an arbitrary one. Per contra, the same is a Fair, Sensible, Equitable and Prudent one too. However, this Court exercising its discretion awards only interest @ 9% per annum for the said sum of Rs.1,50,000/- from the date of Plaint till date of realization together with proportionate costs which sum is directed to be paid by the Appellants 1 and 2 on behalf of the Third Respondent of its vicarious liability for the wrong committed on the Respondent/Plaintiff. Resultantly, the Appeal succeeds in part'. 38. In the case on hand, the facts as to the appellant undergoing tubectomy in the respondent no.1-hospital on 03.11.2004 and she thereafter conceiving and giving birth to fourth child on 13.04.2011 in Surya Hospital, the question that falls for consideration is whether the respondent no.1 or doctor Prameela Devi who performed sterilization upon the appellant obtained informed consent from her and her husband as contended by the learned counsel for the appellant as also whether there is cause of action for the appellant to file the complaint as contended by the learned counsel for the respondents. 39. Dr.Bhasker whose signature is found in the consent form, as rightly contended by the learned counsel for the appellant, is not the member of the team who performed the operation upon the appellant. It is true that Dr.Bhasker was not examined or did not file his affidavit to establish that he explained the appellant about the procedure and risk and complications involved therein as also the alternative treatment. The learned counsel for the appellant has contended that consent for normal delivery and sterilization operation at page 44 and 54 of the case sheet are one and the same and that page 44 and 54 o the ExB1 as to consent is left blank and he further contended that page 48 of ExB1 is created by the respondents to suit their case. Paragraph 29 of the written argument read as under: '29.It is submitted that the Hon’ble Forum failed t observed (sic. observe) that Page 48 of Ex.B-1, Progress Sheet (By doctors) no date and time, a manual writing in English alleged that a Informed Prognosis Consent written on behalf of the Appellant in English language INFORMED PROGNOSIS CONSENT I, Mrs.K.Dhanalakshmi been explained by the attending doctors about the critical nature of pour prognosis of the diseases. I have been fully explained regarding the treatment included and the complication known to occur during the course of the disease even after almost care, skill and treatment being used. I am fully aware of the bad prognosis of the disease including possibility of death during the course of the treatment. I have been fully explained the above contents is (sic.in) my own language. I have fully understood the same. I shall not hold the Doctor, staff or management for any complication including death occurring during the treatment. Signature of the Doctor : Dr.Bhaskar Signature of the Patient : in Telugu Language incorrect Signature with marking (It is not signature of the Appellant signed in English) Signature of the Attendent : Signed in Telugu as K.Venkatesh (not signed on line meant for signature, It is not signature of Appellant’s Husband) Relationship to the Patient : In Telugu language Husband It is created forgery consent for the purpose of the this case by the O.Ps.' 40. In so far as the contention that the respondents leaving blank the pages 44 and 54 of ExB1, this Commission can consider the aspect. However, the contention that the consent form is fabricated is a question of disputed fact as the signature purportedly of the appellant appears in Telugu and English at different pages of the case sheet, we are of the considered view that such question cannot be adjudicated by this Commission in summary proceedings. In view of the decisions of the High Courts relied upon by the learned counsel for the appellant and discussed herein above, the appellant can approach the civil court or High Court. As such, we are not inclined to interfere with the findings returned by the District Forum. However, the appellant in view of our finding that disputed question of fact cannot be decided by Consumer Forum, has to be afforded benefit of Section 14 of the Limitation Act. 41. In the result, the appeal is dismissed confirming the order of the District Forum with liberty to the appellant to approach appropriate Forum or Court. In the event the appellant approaches the appropriate Court, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Hon’ble Supreme Court in 'Trai Foods Ltd vs. National Insurance Company Ltd and others' reported in III (2012) CPJ 17'.