MORE THAN 26 years after she was held guilty of medical negligence for an unsuccessful tubectomy operation, the Punjab and Haryana High Court has set aside the orders passed by the lower courts asking the doctor to pay damages to the tune of Rs 1,50,000 to a woman. The complainant had given birth to a child despite undergoing tubectomy.
The judgement, in the matter dating back to 1987, has been delivered by a single bench of the High Court on July 8. The trial court had decided the suit in 1994 and thereafter the case went to appellate court, which gave its verdict in 1997. The matter reached High Court the same year and had remained pending since then.
After giving birth to her fourth child in 1987, a woman from Jalandhar had undergone a tubectomy at a clinic. The doctor performed tubal ligation at the time of delivery. It is a surgical procedure for contraception in women.
However, the woman later became pregnant and filed a suit against the doctor. The woman alleged she has got fifth child due to the professional negligence of the doctor. The pregnancy has caused great mental agony to her as she feels ashamed in the eyes of relatives and general public, it was argued while seeking damages from the doctor.
The counsel representing the doctor rejected the contentions in court and submitted that it was explained to the woman’s husband at the time of operation in 1987 that tubes are likely to slip during regress later as the uterus gets enlarged at the time of delivery of child.
The trial court, while asking the doctor to pay Rs 1.5 lakh in damages, in its ruling in 1994 said it was obligatory upon the doctor to advise the woman to wait some time for the tubectomy since the chances of failure of operation were more in case done at the time of delivery. The appellate court in 1997 concurred with the findings of the lower court.
Justice Rekha Mittal in the ruling took note of ‘Shaws’s Textbook of Gynaecology, which states that “failure rate of sterilisation varies from 0.4 per cent in Pomeroy’s technique, 0.3-0.6 per cent by Laparoscopic method to 7 per cent by Madlener method”. The pregnancy occurs because of faulty technique or due to spontaneous recanalization, as per the textbook.
The court said the counsel representing the woman has not referred to any medical text or opinion that it is not advised to perform the tubectomy along with cesarean section. It added that the counsel has not even referred to any medical text that chances of failure of sterilization are more than 7 per cent if tubectomy is performed with cesarean section. It also said no evidence has been produced either by getting laparoscopy inspection of uterine tubes or by pathological examination of materials removed at a subsequent operation of re-sterilization to prove the negligence.
Observing that it is difficult to sustain the findings of the lower courts in light of the Supreme Court verdict in Shiv Ram and others’ case, Justice Mittal said, “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 and accordingly set aside”.