Dismissed

Smt. N. Sumathi v. the State of Tamil Nadu

Madras HC17 Jun 2013SA/572/2013

Case brief

AI extract

What is this about?

In a second appeal regarding medical negligence from a failed sterilisation operation, the High Court of Madras upheld the first appellate court's dismissal of the suit. The court held that mere pregnancy after the procedure does not prove negligence absent evidence of surgical fault or failure to explain risks, and natural recanalisation is a valid cause.

What did the court decide?

The second appeal was dismissed with no order as to costs.

Smt. N. Sumathi Vs the State of Tamil Nadu — Medical Negligence | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED:17.06.2013

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Coram:

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THE HONOURABLE MR.JUSTICE G.RAJASURIA

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S.A.No.572 of 2013

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N.Sumathi

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... Appellant/Plaintiff

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vs.

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The State of Tamil Nadu
rep.by its Secretary
Health and Family Welfare
Department, Fort St.George
Chennai 600 009.

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The Joint Director
Health and Family Welfare
Department, Government
General Hospital, Tirupur.

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The Chief Medical Officer Government Hospital Kottur, Pollachi Taluk.

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Mariammal

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... Respondents/Defendants

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This second appeal is directed against the judgement and decree dated 13.07.2011 passed by the learned Additional District and Sessions Judge cum Fast Track Court No.II, Coimbatore in A.S.No.81 of 2009 in reversing the judgment and decree dated 15.12.2008 passed by the learned Subordinate Judge, Pollachi in O.S.No.180 of 2004.

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For Appellant : Mr.L.Mouli

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JUDGMENT

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This second appeal is focussed by the plaintiff, inveighing the judgement and decree dated 13.07.2011 passed by the learned Additional District and Sessions Judge cum Fast Track Court No.II, Coimbatore in A.S.No.81 of 2009 in reversing the judgment and decree dated 15.12.2008 passed by the learned Subordinate Judge, Pollachi in O.S.No.180 of 2004.

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https://hcservices.ecourts.gov.in/hcservices/

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The parties, for the sake of convenience, are referred to here under according to their litigative status and ranking before the trial Court.

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Heard the learned counsel for the appellant.

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Compendiously and concisely, the germane facts absolutely necessary for the disposal of this second appeal would run thus:

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a] Pithily and precisely, the facts as stood unveiled and uncurtained from the plaint averments would run thus:

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a] The plaintiff, Sumathi filed the suit seeking the following reliefs:

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to grant a decree directing the defendants to pay a sum of Rs.3,00,000/- (Rupees three lakhs only) towards damages to the plaintiff with interest from 8.3.2000 at 24% till realisation and for costs.

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on the main ground that she underwent sterilisation operation on 25.12.1997 and as on that date, she had already two children to her credit. It so happened that even after the sterilisation operation, she got conceived and gave birth to a child. Whereupon she filed the suit seeking the aforesaid reliefs by contending that there was medical negligence in conducting the medical operation, which alone had resulted in the plaintiff giving birth to her third child.

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b] Per contra, D4 filed the written statement, which was adopted by the other defendants, the warp and woof of the averments therein would run thus:

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There is nothing to indicate that there was any medical negligence on the part of the Doctor, who conducted the operation. The plaintiff also did not take any steps to undergo abortion on knowing that she got conceived.

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Accordingly, they prayed for the dismissal of the suit.

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c] Whereupon issues were framed by the trial court.

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d] Up went the trial, during which, the plaintiff examined herself as PW1 along with P.W.2 and marked Exs.A1 to A9. On the side of the defendants, DW1 and DW2 were examined and Exs.B1 to B4 were marked.

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e] Ultimately, the trial court decreed the suit awarding Rs.1,08,000/- as damages; as against which, the defendants' preferred appeal; whereupon, the first appellate court reversed the judgment and decree of the trial court and dismissed the original suit.

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f] Challenging and impugning the judgment and decree of the first appellate court, the plaintiff has preferred this second appeal on various grounds and also suggesting the following substantial questions of law:

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Whether the lower appellate court erred in holding that the appellant has conceived due to spontaneous and natural recanalization of the severed fallopian tubes without any evidence on record?

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Whether the lower appellate court erred in holding that the appellant was explained about pros and cons of the sterilisation operation by misconstruing the exhibit B-1?

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Whether the lower appellate court is correct in holding that the appellant conceived after 1 ½ years after the operation itself proof that there is no possibility of medical negligence based on theory of probability and not based on oral and documentary evidence?

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[extracted as such]

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The learned counsel for the plaintiff, placing reliance on the grounds of second appeal would pyramid his argument, the epitome and the long and short of it would run thus:

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Ex facie and prima facie, it is pellucidly and palpably clear that the Doctor, who conducted the sterilisation operation failed to exercise due care and skill in conducting the operation and because of that alone, within a period of a year and a half, the plaintiff got conceived and that itself betokens and bespeaks about the negligence of the Doctor, who conducted the operation and the trial court appropriately and appositely, correctly and legally awarded damages; but the first appellate court on conjectures and surmises, simply reversed the findings of the trial court and dismissed the original suit itself, warranting interference in this second appeal.

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At the outset itself, I would like to fumigate my mind with the following decisions of the Hon'ble Apex Court and certain excerpts from those decisions would run thus:

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(i) (2005) 7 SCC 1 [State of Punjab vs. Shiv Ram and others].

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We are, therefore, clearly of the opinion that merely because a woman having undergone a sterilisation operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child. The claim in tort can be sustained only if there was negligence on the part of the surgeon in performing the surgery. The proof of negligence shall have to satisfy Bolam's test. So also, the surgeon cannot be held liable in contract unless the plaintiff alleges and proves that the

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surgeon had assured 100% exclusion of pregnancy after the surgery and was only on the basis of such assurance that the plaintiff was persuaded to undergo surgery. As noted in various decisions which we have referred to hereinabove, ordinarily a surgeon does not offer such guarantee.

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The cause of failure of the sterilisation operation may be obtained from laparoscopic inspection of the uterine tubes, or by x-ray examination, or by pathological examination of the materials removed at a subsequent operation of resterilisation. The discrepancy between operation notes and the result of x-ray films in respect of the number of rings or clips or nylon sutures used for occlusion of the tubes, will lead to logical inference of negligence on the part of the gynaecologist in case of failure of sterilisation operation. (See Law of Medical Negligence and Compensation by R.K. Bag, 2nd Edn., p. 139)

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Mrs K. Sarada Devi, the learned counsel appearing for the plaintiff-respondents placed reliance on a two-Judge Bench decision of this Court in State of Haryana v. Santra⁷ wherein this Court has upheld the decree awarding damages for medical negligence on account of the lady having given birth to an unwanted child on account of failure of sterilisation operation. The case is clearly distinguishable and cannot be said to be laying down any law of universal application. The finding of fact arrived at therein was that the lady had offered herself for complete sterilisation and not for partial operation and, therefore, both her fallopian tubes should have been operated upon. It was found as a matter of fact that only the right fallopian tube was operated upon and the left fallopian tube was left untouched. She was issued a certificate that her operation was successful and she was assured that she would not conceive a child in future. It was in these circumstances, that a case of medical negligence was found and a decree for compensation in tort was held justified. The case thus proceeds on its own facts.

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The methods of sterilisation so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilised woman can become pregnant due to natural causes. Once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. A reference to the provisions of the Medical Termination of Pregnancy Act, 1971 is apposite. Section 3 thereof permits termination of

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pregnancy by a registered medical practitioner, notwithstanding anything contained in the Penal Code, 1860 in certain circumstances and within a period of 20 weeks of the length of pregnancy. Explanation II appended to subsection (2) of Section 3 provides:

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“Explanation II.—Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.”

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And that provides, under the law, a valid and legal ground for termination of pregnancy. If the woman has suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.

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The cause of action for claiming compensation in cases of failed sterilisation operation 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 the child to go or not to go for medical termination of pregnancy. Having gathered the knowledge of conception in spite of having undergone the sterilisation operation, if the couple opts for bearing the child, it ceases to be an unwanted child. Compensation for maintenance and upbringing of such a child cannot be claimed."

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(ii) (2005) 7 SCC 22 [State of Haryana vs. Raj Rani]

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"3. A three-Judge Bench of this Court has held in State of Punjab v. Shiv Ram¹ that childbirth in spite of a sterilisation operation can occur due to negligence of the doctor in performance of the operation, or due to certain natural causes such as spontaneous recanalisation. The doctor can be held liable only in cases where the failure of the operation is attributable to his negligence and not otherwise. Several textbooks on medical negligence have recognised the percentage of failure of the sterilisation operation due to natural causes to be varying between 0.3% to 7% depending on the techniques or method chosen for performing the surgery out of the several prevalent and acceptable ones in medical science. The fallopian tubes which are cut and sealed may reunite and the woman may conceive though the surgery was performed by a proficient doctor successfully by adopting a technique recognised by medical science. Thus, the pregnancy can be for reasons dehors any negligence of the surgeon. In the absence of proof of negligence, the surgeon cannot be held liable to

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pay compensation. Then the question of the State being held vicariously liable also would not arise. The decrees cannot, therefore, be upheld."

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A mere running of the eye over those decisions would exemplify and demonstrate, display and connote that merely because, after the sterilisation operation, a lady gives birth to a child, there is no presumption that there was medical negligence.

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The onus probandi is on the part of the plaintiff to prove that there was medical negligence. The first appellate court correctly pointed out that in these days, there are methods to find out as to whether the plaintiff conceived after the operation due to spontaneous recanalisation of fallopian tubes out of natural causes or because of the negligence of the Doctor. Absolutely, there is no iota or shred, shard or miniscule extent of evidence to show that there was any such negligence on the part of the Doctor, who conducted the operation. It has also been highlighted by the defendants that the plaintiff never even took care to approach the Government Hospital for getting the pregnancy aborted at the earliest point of time. In such a case, I could see no illegality or infirmity in the judgment and decree of the first appellate court, warranting interference in this second appeal.

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In the result, this second appeal is dismissed. However, there
shall be no order as to costs.
Sd/-
Assistant Registrar
/true copy/
Sub Assistant Registrar
vj2
To
1. The Additional District and Sessions Judge,
cum Fast Track Court No.II, Coimbatore.
2. The Subordinate Judge, Pollachi.
One cc to Mr.L.Mouli, advocate SR.No.29438

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S.A.No.572 of 2013 NG(CO) SKY/8/7

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https://hcservices.ecourts.gov.in/hcservices/

Smt. N. Sumathi v. the State of Tamil Nadu

Case brief

What is this about?

What did the court decide?

Smt. N. Sumathi v. the State of Tamil Nadu

Case brief

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