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Delhi High Court: Unsuccessful Sterilization Operation does not mean Medical Negligence, If the patient & her relatives were informed about chances of its failure

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Dr KK Aggarwal    25 August 2018

In the matter titled as “Lok Nayak Hospital versus Prema, RFA No. 56/2006” the Hon’ble High Court of Delhi vide judgment dated 06.08.2018 has held that medical negligence is not proved in case of unsuccessful sterilization operation, if the doctor / hospital has duly got the consent form and other forms signed by the patient and counter signed by her relatives in which it was specifically mentioned by the doctor / hospital that the operation need not be always successful and there are always some chances of failure, and if the operation is not successful the hospital or the concerned Doctor will not be held responsible.

Facts of the case

The respondent/plaintiff filed the subject suit by pleading that she was operated upon on 15.5.2001 in the appellant’s/defendant’s hospital by the concerned doctor namely Dr. Deepa. Respondent/plaintiff pleaded that she took all post operative care including taking all prescribed medicines as also precaution but after a few months of the operation she suspected that she had conceived and therefore when she went to the Physical Health Centre at Dayalpur, Delhi, on 21.10.2002 and has got herself examined on 23.10.2002, it was discovered that respondent/plaintiff was pregnant as the tubectomy operation performed on her had failed. Respondent/plaintiff pleaded that Dr. Deepa (defendant no. 1 in the suit) fell short in taking reasonable and due care while performing the sterilization operation, resulting in defect and deficiency in the operation, therefore respondent/plaintiff became pregnant again to have her 7th child. After serving a legal notice/Ex. P-3 and which was replied to by the appellant/defendant no.2 vide reply dated 24.1.2003, Ex. P-2, the subject suit was filed.

The suit was contested by the appellant/defendant and it was denied that there was any negligence while performing the sterilization operation. The appellant/defendant pleaded that the respondent/plaintiff before performing her operation had signed two forms on 14.5.2001, and which forms were also counter-signed by the sister-in-law/Bhabhi of the respondent/plaintiff namely Ms. Suman, and that in these forms Ex. PW-1/D-1 and Ex. PW-1/D-2, it was specifically mentioned by the appellant/defendant that the operation need not be always successful and there are always some chances of failure, and if the operation is not successful the appellant/defendant or the concerned Doctor will not be held responsible. The contents of these documents were explained to the respondent/plaintiff in Hindi in the presence of her sister-in-law/Bhabhi, namely Ms. Suman. It was denied that the appellant’s/defendants doctors had given an assurance that the operation would be 100% successful. Appellant/defendant contended that the respondent/plaintiff was herself responsible because she could have got done the abortion in time, but she did not get such abortion done. The suit was therefore prayed to be dismissed.

The only relevant issue was issue no. 1 and the trial court has decided this issue in favour the respondent/plaintiff. Trial court has held that the respondent/plaintiff had not signed the forms Ex. PW1/D-1 and Ex. PW-1/D-2 inasmuch as she has specifically denied the signing of these forms by her and her sister-in-law/Bhabhi/Ms. Suman, and consequently, the trial court believed such stand of the respondent/plaintiff. Trial court has also held that since the concerned doctor namely Dr. Deepa, defendant no. 1 in the suit, did not depose and adverse inference has to be drawn against the appellant/defendant. Trial court has also observed that the signing of the forms Ex. PW1/D-1 and Ex. PW-1/D-2 by the respondent/plaintiff were not believable because the forms are dated 14.5.2001 and the operation was conducted on 15.5.2001. Trial court therefore held that the appellant/defendant was guilty of negligence in performing tubectomy operation which resulted in the birth of the respondent’s/plaintiffs 7 th child, and therefore the suit was decreed for the sum of Rs. 2,20,000/-

Issue before the Hon’ble High Court

The only issue to be decided by the Hon’ble High Court was whether the trial court has rightly held that the appellant/defendant was guilty of negligence on account of the sterilization operation conducted on the respondent/plaintiff being unsuccessful.

Judgement of the Hon’ble High Court

8. Firstly, it is to be noted that the only allegation of negligence alleged by the respondent/plaintiff against the appellant/defendant is that the tubectomy/sterilization operation failed. Since medically there is never a 100% chance of success in sterilization operations, the mere fact that the operation was not successful, that by itself cannot be a reason to hold the appellant/defendant and its doctors guilty of negligence. This aspect is no longer res integra and is so held by a Division Bench of this Court in the case of Smt. Madhubala Vs. Govt. of NCT of Delhi, 118 (2005) DLT 515 (DB).

13. At this stage, I may note that the trial court has arrived at a completely perverse and illegal finding that the forms Ex. PW-1/D-1 and Ex. PW-1/D-2 do not bear the signatures of the respondent/plaintiff and her sister-in-law/Bhabhi/Ms. Suman and inasmuch simple denial by the respondent/plaintiff of her thumb impression on forms Ex. PW-1/D-1 and Ex. PW-1/D-2 and the signatures of her sister-in-law/Bhabhi/Ms. Suman is not enough because of various reasons. Firstly, signing of such forms is always and invariably got done by any private or public Hospital before a tubectomy/sterilization operation. Secondly, the documents Ex. PW1/D-1 and Ex. PW-1/D-2 contain the thumb impressions of the respondent/plaintiff and whereas a signature can be forged but thumb impressions can never be forged. Thirdly, admittedly, the name of the sister-in-law/Bhabhi of the respondent/plaintiff is Ms. Suman and how would the appellant/defendant have known the name of the sister-inlaw/Bhabhi of the respondent/plaintiff as Ms. Suman and who has signed as her full name Suman on the two forms. Trial court therefore ought not to have believed the self serving denial of the respondent/plaintiff of her thumb impression and signatures of her sister-in-law/Bhabhi/Ms. Suman on the forms Ex. PW-1/D-1 and Ex. PW-1/D-2.

14. In my opinion, the trial court has also unnecessarily laid emphasis on the defendant no. 1/Dr. Deepa in the suit for not appearing and deposing and therefore adverse inference has been drawn against the appellant/defendant, inasmuch as in my opinion there was no need of the defendant no. 1/Dr. Deepa to appear and depose inasmuch there was no specific case of negligence against the defendant no. 1/Dr. Deepa except that the operation was unsuccessful. Once the forms Ex. PW-1/D-1 and Ex. PW-1/D-2 are proved it cannot be argued by the respondent/plaintiff that there was 100% assurance given of the operation of being successful and which medically also is never 100% success.

Advisory

Dr KK Aggarwal and Ira Gupta

Before performing tubectomy/sterilization operation, every doctor and hospital should specifically inform the patient and her relatives that medically the said operation is not 100% successful. There should be an informed consent form which specifically mentions that sterilization operations are not 100% successful and the same should be signed by the patient and her relatives (with their name). The thumb impressions of the patient and her relatives should also be taken as the same cannot be forged along with their signatures.

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