Supreme Court Appeal (Civil) 5128 of 2002 : Doctors not liable for failed Sterilisation

CASE NO.:
Appeal (civil) 5128 of 2002

PETITIONER:
State of Punjab

RESPONDENT:
Shiv Ram & Ors.

DATE OF JUDGMENT: 25/08/2005

BENCH:
CJI R.C. LAHOTI,C.K. THAKKER & P.K. BALASUBRAMANYAN

JUDGMENT:
J U D G M E N T

R.C. Lahoti, CJI

The plaintiffs-respondents, respectively husband and wife, filed a suit against the State of Punjab, the appellant before us and a lady surgeon who was in the State Government's employment at the relevant time, for recovery of damages to the tune of Rs.3,00,000/- on account of a female child having been born to them in spite of the wife-respondent No. 2 having undergone a tubectomy operation performed by the lady surgeon. According to the plaintiffs-respondents, they already had a son and two daughters from the wed-lock lasting over 17 years. In response to a publicity campaign carried out by the Family Welfare Department of the appellant-State, respondent No. 2 with the consent of respondent No.1, underwent a sterilization operation on 1.8.1984. A certificate in this regard bearing mark of identification No. 505, duly signed by the lady surgeon who performed the said surgery, was issued to her. She was given a cash award of Rs.150/- as an incentive for the operation. On 4.10.1991, respondent No. 2 gave birth to a female child. After serving a notice under Section 80 of the Code of Civil Procedure, a suit for recovery of damages was filed on 15.5.92 attributing the birth of the child to carelessness and negligence of the lady surgeon. The plaint alleged inter alia that the respondents considered abortion to be a sin and that is why after knowing of the conception they did not opt for abortion.

The State was impleaded as defendant No. 1 and the lady surgeon who performed the surgery was impleaded as defendant No.2.

The defendants filed a joint written statement. It was submitted that there was no negligence or carelessness in the performance of the surgery. It is stated in authoritative text books of medical science that pregnancy occurring after sterilization may be attributable to natural failure. It was also submitted that the plaintiffs having learnt of the unwanted pregnancy, should have sought medical opinion and opted for medical termination of pregnancy within 20 weeks which is
permissible and legal.

The parties went to trial. The plaintiff No.1, that is the husband, deposed on oath to substantiate the plaint averments. The wife, plaintiff No.2, did not appear in the witness box. On behalf of the defendants, one Dr. Sham Lal Thukral, Medical Officer, Civil Hospital, Bhatinda appeared to depose that medical science recognises failure of sterilization operations to the extent of 0.3% to 3% and the consequences of such failure can promptly be taken care of by the pregnant woman by undergoing abortion. The deponent produced five extracts (marked as Exhibits D2 to D6) from different textbooks of gynaecology in support of his statement. Original books were
produced for the perusal of the court and returned. The trial court and the first appellate court have not doubted the correctness of the expert medical opinion as expressed in the textbooks cited before the Court. However, the two courts have proceeded on the reasoning that on the birth of a child to a woman who was allured into undergoing sterilization operation by the State in pursuance of its Family Planning Schemes, the State was liable to compensate for the consequences of the
operation having failed. The suit was decreed for Rs.50,000/- with interest and costs. The decree for compensation passed by the trial court has been upheld by the first appellate court. The second appeal preferred by the State has been summarily
dismissed.

At the very outset, the learned Additional Advocate General appearing for the State of Punjab submitted that the appellant-State was not very serious about denying the payment of Rs.50,000/- to the plaintiffs-respondents as they are poor persons, but the State was certainly interested in having the legal issue resolved. He further submitted that the filing of such suits in the civil court or complaints before the Consumer Fora, are on an increase and decrees are being passed against the State without any basis in law and, therefore, the position of law needs to be clarified and settled.

Very recently, this Court has dealt with the issues of medical negligence and laid down principles on which the liability of a medical professional is determined generally and in the field of criminal law in particular. Reference may be had to Jacob Mathew v. State of Punjab & Anr. (2005) 6 SCC 1. The Court has approved the test as laid down in Bolam v. Friern Hospital Management Committee, [1957] 1 W.L.R. 582, popularly known as Bolam's Test, in its applicability to India. The relevant principles culled out from the case of Jacob Mathew (supra) read as under:

(1) Negligence is the breach of a duty caused by omission to
do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a
prudent and reasonable man would not do. The definition
of negligence as given in Law of Torts, Ratanlal & Dhirajlal
(edited by Justice G.P. Singh), referred to hereinabove,
holds good. Negligence becomes actionable on account of
injury resulting from the act or omission amounting to
negligence attributable to the person sued. The essential
components of negligence are three: 'duty', 'breach' and
'resulting damage'.


(2) A simple lack of care, an error of judgment or an accident,
is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice
acceptable to the medical profession of that day, he cannot
be held liable for negligence merely because a better
alternative course or method of treatment was also
available or simply because a more skilled doctor would
not have chosen to follow or resort to that practice or
procedure which the accused followed. When it comes to
the failure of taking precautions what has to be seen is
whether those precautions were taken which the ordinary
experience of men has found to be sufficient; a failure to
use special or extraordinary precautions which might have
prevented the particular happening cannot be the standard
for judging the alleged negligence.


(3) 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. It is not
possible for every professional to possess the highest level
of expertise or skills in that branch which he practices. A
highly skilled professional may be possessed of better
qualities, but that cannot be made the basis or the
yardstick for judging the performance of the professional
proceeded against on indictment of negligence.


This Court has further held in Jacob Mathew's case
(supra):-
"Accident during the course of medical or
surgical treatment has a wider meaning.
Ordinarily, an accident means an unintended
and unforeseen injurious occurrence;
something that does not occur in the usual
course of events or that could not be
reasonably anticipated (See, Black's Law
Dictionary, 7th Edition). Care has to be taken
to see that the result of an accident which is
exculpatory may not persuade the human mind
to confuse it with the consequence of
negligence."


The plaintiffs have not alleged that the lady surgeon who
performed the sterilization operation was not competent to
perform the surgery and yet ventured into doing it. It is neither
the case of the plaintiffs, nor has any finding been arrived at by
any of the courts below that the lady surgeon was negligent in
performing the surgery. The present one is not a case where
the surgeon who performed the surgery has committed breach
of any duty cast on her as a surgeon. The surgery was
performed by a technique known and recognized by medical
science. It is a pure and simple case of sterilization operation
having failed though duly performed. The learned Additional
Advocate General has also very fairly not disputed the vicarious
liability of the State, if only its employee doctor is found to have
performed the surgery negligently and if the unwanted
pregnancy thereafter is attributable to such negligent act or
omission on the part of the employee doctor of the State.

The learned Advocate General has brought to our notice a
number of textbooks on gynaecology. We refer to some of them.

In Jeffcoate's Principles of Gynaecology, revised by
V.R. Tindall, MSc.,MD,FRCSE, FRCOG, Professor of Obstetrics
and Gynaecology, University of Manchester (Fifth Edition)
published by Butterworth Heinemann, the following technique of
female sterilization are stated:
"Female Sterilization
Techniques

1. Radiotherapy

A menopausal dose of external beam
irradiation to the ovaries is only attractive in so
far that they sterilize without involving the
woman in an operation. Their disadvantages
(as stated at pages 93 and 528) are such that
they are rarely used except in older women
who are seriously ill.

2. Removal of the ovaries

This sterilizes (provided an accessory ovary is
not overlooked) but is very rarely indicated as
it often results in severe climacteric symptoms.


3. Removal of the uterus

This is effective but involves an unnecessarily
major operation and destroys menstrual as
well as reproductive function. Its chief place is
in those cases where the need for sterilization
is associated with disease in the uterus or
cervix. But, to preclude further childbearing, it
is commonly carried out as part of another
operation. Examples are vaginal hysterectomy
as part of the cure of prolapse, and caesarean
hysterectomy. The latter is sometimes
advocated, in preference to caesarean section
and tubal ligation, on the grounds that it
prevents future uterine disease as well as
conception. Those women who have ethical
objections to tubal ligation may well prefer to
have a 'scarred uterus' removed. Except in
special circumstances, however, caesarean
hysterectomy is not justified as a sterilization
procedure.

As an elective sterilization procedure for
non-pregnant women, some gynaecologists
advocate hysterectomy (preferably vaginal) in
preference to tubal resection. This is because it
removes the possibility of the future
development of uterine disease such as
carcinoma of the cervix and eliminates the
chance of the woman suffering menstrual and
other upsets which sometimes follow less
radical procedures. Hysterectomy, however,
carries a much higher immediate morbidity
rate than does surgical tubal resection and can
be followed by other disturbances and regrets
at loss of menstrual function  an outward
sign of femininity."


4. Resection of fallopian tubes

Provided the pelvic organs are healthy,
one of the best methods is to remove 1-2 cm
of the middle of each tube and to bury the
ligated ends separately under the peritoneum.
Sometimes the cornua of the uterus are
excised, together with the adjacent portions of
the tubes. Excision of the whole of both tubes
is not so safe because it leaves the ovum free
to wander into a possible uterine fistula and
fimbriectomy should never be performed.
Retention of the abdominal ostia is an
advantage for it tends to ensure that ova
become trapped in the occluded tubes.

Of the more simple 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. This
method has the advantage of avoiding
troublesome haemorrhage which can attend
the techniques described above, requires only
limited access, is speedy, and fails in not more
than 0.3 per cent of cases. The technique of
crushing and ligation of the tubes without
excising any part of them (Madlener operation)
is very unreliable, the failure rate being 3.0 per
cent; it is rarely practised now.


Whatever technique be used for dividing
the tubes, it is important to ligature their cut
ends with plain catgut. This is much more
likely to result in firm closure than is the use of
unabsorbable material, or even chromic gut.
Most failures are due to neglect of this
medicolegally very important point.


Resection of the tubes is usually carried
out abdominally and is particularly easy to
perform 2-4 days after delivery when the
uterus is an abdominal organ and the tubes
readily accessible. It can then, if necessary,
be carried out under local analgesia. Tubal
resection (preferably using the Pomeroy
technique) can also be performed vaginally
either during the course of another operation
or as the route of choice. As a method of
choice it is not new as is sometimes
suggested; it was regularly carried out in the
1920s."



Dealing with reliability of the sterilization procedures
performed and commonly employed by the gynaecologists, the
text book states (at p.621):-
Reliability
The only sterilization procedures in the female
which are both satisfactory and reliable are:
resection or destruction of a portion of both
fallopian tubes; and hysterectomy. No
method, however, is absolutely reliable and
pregnancy is reported after subtotal and total
hysterectomy , and even after hysterectomy
with bilateral salpingectomy. The explanation
of these extremely rare cases is a persisting
communication between the ovary or tube and
the vaginal vault.

Even when tubal occlusion operations are
competently performed and all technical
precautions are taken, intrauterine pregnancy
occurs subsequently in 0.3 per cent of cases.
This is because an ovum gains access to
spermatozoa through a recanalized inner
segment of the tube.

There is clinical impression that tubal
resection operations are more likely to fail
when they are carried out at the time of
caesarean section than at any other time. The
fact that they occasionally fail at any time has
led many gynaecologists to replace the term
'sterilization' by "tubal ligation" or "tubal
resection" in talking to the patient and in all
records. This has real merit from the
medicolegal standpoint."


[underlining by us]



In Shaw's Textbook of Gynaecology , after describing
several methods of female sterilization, the textbook states that
the most popular technique adopted in Mini-lapartomy
sterilization is Pomeroy method in which the fallopian tube is
identified on each side, brought out through the incision, and the
middle portion is formed into a loop which is tied at the base
with catgut and excised. The failure rate is only 0.4% and it is
mainly due to spontaneous recanalization. The operation is
simple, requires a short hospitalization, does not require any
sophisticated and expensive equipment like a laparoscope, and
can be performed in a primary health centre by a doctor trained
in this procedure. In Madlener method, a loop of the tube is
crushed and ligated with a non-absorbable suture. Failure rate
is of 7% and occurrence of an ectopic pregnancy are
unacceptable though it is a simple procedure to perform. There
are other methods, less popular on account of their indications,
which are also stated. Dealing with the topic of complications
and sequelae of sterilization, the textbook states:

"Failure rate of sterilization varies from 0.4%
in Pomeroy's technique, 0.3-0.6% by
laparoscopic method to 7% by Madlener
method. Pregnancy occurs either because of
faulty technique or due to spontaneous
recanalization."



In 'The Essentials of Contraceptive Technology',
written by four doctors and published by Center for
Communication Programs, The Johns Hopkins School of Public
Health in July, 1997, certain questions and answers are stated.
Questions 5 and 6 and their answers, which are relevant for our
purpose, read as under:

"5. Will female sterilization stop working
after a time? Does a woman who had a
sterilization procedure ever have to worry
about getting pregnant again?

Generally, no. Female sterilization should be
considered permanent. Failure rates are
probably higher than previously thought
however. A major new US study found that the
risk of pregnancy within 10 years after
sterilization is about 1.8 per 100 women 
about 1 in every 55 women. The risk of
sterilization failure is greater for younger
women because they are more fertile than
older women. Also, some methods of blocking
the tubes work better than others. Methods
that cut away part of each tube work better
than spring clips or bipolar electrocoagulation
(electric current). Effectiveness also depends
on the skill of the provider.

The same US study found that 1 of every 3
pregnancies after sterilization was ectopic. If a
woman who has had sterilization ever thinks
that she is pregnant or has an ectopic
pregnancy, she should seek help right away.

[underlining by us]



6. Pregnancy after female sterilization is
rare but why does it happen at all?

The most common reason is that the woman
was already pregnant at the time of
sterilization. Pregnancy also can occur if the
provider confused another structure in the
body with the fallopian tubes and blocked or
cut the wrong place. In other case pregnancy
results because clips on the tubes come open,
because the ends of the tubes grow back
together, or because abnormal openings
develop in the tube, allowing sperm and egg to
meet."



In newsletter "alert" September, 2000 issue, Prof.(Dr.)
Gopinath N. Shenoy writes:

"Female sterilization can be done by many
methods/techniques, which are accepted by
the medical professionals all over the world. It
is also an accepted fact that none of these
methods/techniques are cent percent 'failure
free'. This 'failure rate' may vary from method
to method. A doctor is justified in choosing
one method to the exclusion of the others and
he cannot be faulted for his choice if his choice
is based on reasonable application of mind and
is not 'palpably' wrong. A doctor has
discretionary powers to choose the
method/technique of sterilization he desires to
adopt."

[emphasis supplied]


In "The New England Journal of Medicine" , owned,
published and copyrighted by Massachusetts Medical Society, the
result of a research carried out by a team of doctors has been
published and widely circulated. 10,685 women enrolled and
eligible for long term follow up and willing to cooperate and
providing information were studied. The relevant part of the
result of the study reads as under:

"The median age of women at the time of
sterilization was 30 years (range, 18 to 44;
mean [+ SD],31+6). Most women were white
and had been pregnant at least twice (Table
1). In all, 143 women (1.3 percent) reported
pregnancies that were classified as true failure
of sterilization. For 66.4 percent of these
pregnancies, the classification was based on a
review of medical reports by the investigators.
The remainder were classified on the basis of
the woman's history alone."


In Medico-legal Aspects in Obstetrics and
Gynaecology, edited by three doctors, Chapter 18, deals with
Medico-legal Problems in Sterilization Operations. It is stated
therein that there are several methods of female sterilization of
which one that will suit the patient and the
surgeon/gynaecologist should be selected. In India, Pomeroy's
method is widely practised. Other methods include  Madlener's,
Irving's, Uchida's methods and so on. The text further states
that failure is one of the undesirous outcome of sterilization.
The overall incidence of failure in tubectomy is 0.4 per 100
women per year. The text describes the following events
wherefrom sterilization failure usually results:
i. Spontaneous recanalisation or fistula formation
is perhaps the most common cause of failure.
Though these are generally non-negligent
causes of failure, it is very difficult to convince
the patient if they are not informed beforehand
about the possibility.

ii. Undetected pregnancy at the time of
sterilization is an indefensible offence. To
avoid such incidence, tests to detect pregnancy
should be done before sterilization operation is
undertaken.

iii. Imperfect occlusion of the tube is a technical
loophole which may result in an unwanted
pregnancy. The chance is particularly high in
laparoscopic methods. If a gynaecologist fails
to place ring on any one of the tube due to
improper visualization, he or she must inform
the patient and her husband, and some other
contraceptive method should be advised.

iv. Occlusion of the wrong structure(s), e.g. round
ligament is a common, indefensible error which
may particularly happen if the surgeon is
inexperienced. This is more frequent in
laparoscopic methods where even confirmation
of the structure by biopsy is difficult, in case of
doubt.

It is thus clear that there are several alternative methods
of female sterilization operation which are recognized by medical
science of today. Some of them are more popular because of
being less complicated, requiring minimal body invasion and
least confinement in the hospital. However, none is foolproof
and no prevalent method of sterilization guarantees 100%
success. The causes for failure can well be attributable to the
natural functioning of the human body and not necessarily
attributable to any failure on the part of the surgeon.
Authoritative Text Books on Gynaecology and empirical
researches which have been carried out recognize the failure
rate of 0.3% to 7% depending on the technique chosen out of
the several recognized and accepted ones. The technique which
may be foolproof is removal of uterus itself but that is not
considered advisable. It may be resorted to only when such
procedure is considered necessary to be performed for purposes
other than merely family planning.
An English decision Eyre v. Measday (1986) 1 ALL ER 488
is very near to the case at hand. The facts of the case were that
in 1978, the plaintiff and her husband decided that they did not
wish to have any more children. The plaintiff consulted the
defendant gynaecologist with a view to undergoing a sterilization
operation. The defendant explained to the couple the nature of
the particular operation he intended to perform, emphasising
that it was irreversible. He stated that the operation 'must be
regarded as a permanent procedure' but he did not inform the
plaintiff that there was a small risk (less than 1%) of pregnancy
occurring following the operation. Consequently, both the
plaintiff and her husband believed that the result of the
operation would be to render her absolutely sterile and incapable
of bearing further children. In 1979 the plaintiff became
pregnant and gave birth to a child. The plaintiff brought an
action against the defendant for damages, inter alia, for breach
of contract, contending that his representation that the operation
was irreversible and his failure to warn her of the minute risk of
the procedure being unsuccessful, amounted to breach of a
contractual term, or express or implied collateral warranty, to
render her irreversibly sterile. The judge dismissed her claim
and the plaintiff appealed to the Court of Appeal.

The Court held 

"(1) The contract undertaken by the defendant
was to carry out a particular type of operation
rather than to render the plaintiff absolutely
sterile. Furthermore, the defendant's
representations to the plaintiff that the
operation was 'irreversible' did not amount to
an express guarantee that the operation was
bound to achieve its acknowledged object of
sterilizing the plaintiff. On the facts, it was
clear that the representations meant no more
than that the operative procedure in question
was incapable of being reversed.

(2) Where a doctor contracted to carry out a
particular operation on a patient and a
particular result was expected, the court would
imply into the contract between the doctor and
the patient a term that the operation would be
carried out with reasonable care and skill, but
would be slow to imply a term or unqualified
collateral warranty that the expected result
would actually be achieved, since it was
probable that no responsible medical man
would intend to give such a warranty. On the
facts, no intelligent lay bystander could have
reasonably inferred that the defendant was
intending to give the plaintiff a guarantee that
after the operation she would be absolutely
sterile and the fact that she believed that this
would be the result was irrelevant."


The appeal was dismissed. The Court of Appeal, upheld
the finding of the trial judge that the risk of pregnancy following
such a procedure to which the plaintiff was subjected is
described as very small. It is of the order of 2 to 6 in every
1000. There is no sterilization procedure which is entirely
without such a risk.

Slade L J, stated in his opinion that "in the absence of any
express warranty, the court should be slow to imply against a
medical man an unqualified warranty as to the results of an
intended operation, for the very simple reason that, objectively
speaking, it is most unlikely that a responsible medical man
would intend to give a warranty of this nature. Of course,
objectively speaking, it is likely that he would give a guarantee
that he would do what he had undertaken to do with reasonable
care and skill; but it is quite another matter to say that he has
committed himself to the extent suggested in the present case."

Purchas LJ, stated in his opinion that "it is true that as a
matter of deliberate election the defendant did not, in the course
of describing the operation which he was recommending,
disclose that there was a very small risk, one might almost say
an insignificant risk, that the plaintiff might become pregnant.
In withholding this information it must be borne in mind, first
that the defendant must have believed that the plaintiff would be
sterile, second that the chances were extremely remote that the
operation would be unsuccessful, third that in withholding this
information the defendant was following a practice acceptable to
current professional standards and was acting in the best
interest of the plaintiff, and fourth that no allegation of
negligence in failing to give this information to the plaintiff is
pursued any longer in this case. There are, therefore, in my
judgment, no grounds for asserting that the result would
necessarily be 100% successful."

In Thake v Morris , [1986] 1 All ER 497 (CA) the claim
for damages was founded on contract and not in torts. The
Court of Appeal firmly rejected the possibility of an enforceable
warranty. Neill L J said:

"a reasonable man would have expected the
defendant to exercise all the proper skill and care of
a surgeon in that speciality: he would not have
expected the defendant to give a guarantee of 100%
success."

Nourse L J said:

"of all sciences medicine is one of the least exact. In
my view, a doctor cannot be objectively regarded as
guaranteeing the success of any operation or
treatment unless he says as much in clear and
unequivocal terms."


We are, therefore, clearly of the opinion that merely
because a woman having undergone a sterilization 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 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.

The cause of failure of sterilization 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 re-sterilisation.
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, Second Edition, p.139)

Mrs. K. Sarada Devi, the learned counsel appearing for the
plaintiffs-respondents placed reliance on a 2-Judge Bench
decision of this Court in State of Haryana & Ors. v. Smt.
Santra, JT 2000 (5) SC 34, 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 sterilization 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 sterilization 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.

The methods of sterilization 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 sterilized 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 pregnancy by a registered medical practitioner,
notwithstanding anything contained in the Indian Penal Code,
1860 in certain circumstances and within a period of 20 weeks
of the length of pregnancy. Explanation II appended to sub-
section (2) of Section 3 provides ____
"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."



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.

The cause of action for claiming compensation in cases of
failed sterilization operation arises on account of negligence of
the surgeon and not on account of child birth. 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
sterilization 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.

For the foregoing reasons, we are of the opinion that the
judgments and the decrees passed by the High Court and courts
below cannot be sustained. The trial court has proceeded to
pass a decree of damages in favour of the plaintiffs-respondents
solely on the ground that in spite of the plaintiff-respondent No.2
having undergone a sterilization operation, she became
pregnant. No finding has been arrived at that will hold the
operating surgeon or its employer __ the State, liable for
damages either in contract or in tort. The error committed by
the trial court, though pointed out to the first appellate court and
the High Court, has been overlooked. The appeal has, therefore,
to be allowed and the judgment and decree under appeal have
to be set aside.

We have decided the question of law and held that the
decree awarding the damages was totally uncalled for and had
no foundation in law, and therefore, has to be set aside. The
present case is an occasion, which we would like to utilize for the
purpose of making certain observations on three related topics
noted hereunder.

(1) Jacob Mathew's case (2005) 6 SCC1 : a post script


In Jacob Mathew this Court dealt with the liability of a
medical practitioner in criminal law. Of course, the decision also
discussed in detail the law of medical negligence in general and
indicated the parameters of fixing liability. The distinction
between the concept of negligence in civil law and negligence in
criminal law was highlighted. The present case deals with the
law of negligence in tort. The basis of liability of a professional
in tort is negligence. Unless that negligence is established, the
primary liability cannot be fastened on the medical practitioner.
Unless the primary liability is established, vicarious liability on
the State cannot be imposed. Both in criminal jurisprudence and
in civil jurisprudence, doctors are liable for consequences of
negligence. In Jacob Mathew even while dealing with criminal
negligence, this Court has indicated the caution needed in
approaching a case of medical negligence having regard to the
complexity of the human body which is subjected to treatment
and the uncertainty involved in medical procedures. A doctor, in
essence, needs to be inventive and has to take snap decisions
especially in the course of performing surgery when some
unexpected problems crop up or complication sets in. If the
medical profession, as a whole, is hemmed in by threat of action,
criminal and civil, the consequence will be loss to the patients.
No doctor would take a risk, a justifiable risk in the
circumstances of a given case, and try to save his patient from a
complicated disease or in the face of an unexpected problem
that confronts him during the treatment or the surgery. It is in
this background that this Court has cautioned that the setting in
motion of the criminal law against the medical profession should
be done cautiously and on the basis of reasonably sure grounds.
In criminal prosecutions or claims in tort, the burden always
rests with the prosecution or the claimant. No doubt, in a given
case, a doctor may be obliged to explain his conduct depending
on the evidence adduced by the prosecution or by the claimant.
That position does not change merely because of the caution
advocated in Jacob Mathew in fixing liability for negligence, on
doctors.

(2) How the medical profession ought to respond

Medical profession is one of the oldest professions of the
world and is the most humanitarian one. There is no better
service than to serve the suffering, wounded and the sick.
Inherent in the concept of any profession is a code of conduct,
containing the basic ethics that underline the moral values that
govern professional practice and is aimed at upholding its
dignity. Medical Ethics underpins the values at the heart of the
practitioner-client relationship. In the recent times, professionals
are developing a tendency to forget that the self-regulation
which is at the heart of their profession is a privilege and not a
right and a profession obtains this privilege in return for an
implicit contract with society to provide good, competent and
accountable service to the public. It must always be kept in mind
that doctor's is a noble profession and the aim must be to serve
humanity, otherwise this dignified profession will lose its true
worth.

Medical profession has long subscribed to a body of ethical
statements developed primarily for the benefit of the patient.
The oldest expression of this basic principle comes from
Hippocrates, an early Greek Physician, born in 460 B.C. who
came to be known as the "Father of Medicine" and had devoted
his entire life to the advancement of medical science. He
formulated a code of conduct in the form of the Hippocratic
Oath, as he realized that knowledge and skill were not enough
for a physician without a code of standards and ideals. He coined
an oath of integrity for physicians, a code of standards and
ideals to which they must swear to adhere in the practice of their
profession. This continues till date to be the oath administered
to doctors when they join the profession:
"I swear by Apollo the physician, by Fsculapius, Hygeia,
and Panacea, and I take to witness all the gods, all the
goddesses, to keep according to my ability and my
judgement, the following Oath.

To consider dear to me as my parents him who taught me
this art; to live in common with him and if necessary to
share my goods with him; to look upon his children as my
own brothers, to teach them this art if they so desire
without fee or written promise; to impart to my sons and
the sons of the master who taught me and the disciples
who have enrolled themselves and have agreed to the
rules of the profession, but to these alone the precepts and
the instruction. I will prescribe regimens for the good of
my patients according to my ability and my judgement and
never do harm to anyone. To please no one will I prescribe
a deadly drug nor give advice which may cause his death.
Nor will I give a woman a pessary to procure abortion. But
I will preserve the purity of my life and my art. I will not
cut for stone, even for patients in whom the disease is
manifest; I will leave this operation to be performed by
practitioners, specialists in this art. In every house where I
come I will enter only for the good of my patients, keeping
myself far from all intentional ill-doing and all seduction
and especially from the pleasures of love with women or
with men, be they free or slaves. All that may come to my
knowledge in the exercise of my profession or in daily
commerce with men, which ought not to be spread abroad,
I will keep secret and will never reveal. If I keep this oath
faithfully, may I enjoy my life and practice my art,
respected by all men and in all times; but if I swerve from
it or violate it, may the reverse be my lot."


Many versions of Hippocratic Oath are prevalent. "Light
From Many Lamps" a book edited by Lilian Eichler Watson
contains a little different phraseology of that oath but certainly a
beautiful commentary on the significance of the Hippocratic
Oath. We would like to reproduce the oath and the commentary
hereunder: (pages 181-182);
"I do solemnly swear by that which I hold most
sacred:

That I will be loyal to the profession of
medicine and just and generous to its members;

That I will lead my life and practice my art in
uprightness and honor;

That into whatsoever house I shall enter, it
shall be for the good of the sick to the utmost of my
power, I holding myself aloof from wrong, from
corruption, and from the temptation of others to
vice;

That I will exercise my art solely for the cure of
my patients, and will give no drug, perform no
operation for a criminal purpose, even if solicited, far
less suggest it;

That whatsoever I shall see or hear of the lives
of men which is not fitting to be spoken, I will keep
inviolably secret.

These things I do promise, and in proportion as
I am faithful to this my oath may happiness and
good repute be ever mine __ the opposite if I shall be
forsworn."

[F.N.: The Hippocratic Collection, containing
the best of the ancient Greek medical writings, was
put together by Aristotle and has survived through
the centuries. The "Hippocratic Oath" is one of the
last and most inspiring passages in this Collection.
There are a number of versions of the famous Oath;
but the form given here is the one commonly used
today; and is an adaptation of a translation from the
original Greek.]

"The medical profession is and always has been one
of the most ethical of all professions; and this is due
at least in part to the centuries-old influence of the
Hippocratic Oath. This famous Oath has kept alive
the high standards and ideals set by Hippocrates,
and forms the basis of modern medical ethics.

Written more than twenty centuries ago, the
Hippocratic Oath has inspired generations of doctors
. . . and continues to do so even now. The Oath is
still administered by medical schools to graduating
classes; and thousands of physicians have framed
copies on their walls along with their diplomas.
Conscientious practitioners continue to live up to the
principles and ideals set down for their profession so
long ago by the "Father of Medicine."

Though it was written specifically for
physicians, the Hippocratic Oath sets an enduring
pattern of honor, integrity, and devotion to duty for
all people, in all professions." And certainly to
surgeons."





Many people argue that the original Hippocratic Oath is
inappropriate in a society that has seen drastic socio-economic,
political and moral changes, since the time of Hippocrates.
Certain parts of the original oath such as teaching the master's
sons the secrets of medicine without fees and the promise not to
bring a knife to another's body but to leave it to 'practitioners of
the craft' have been rendered obsolete as the modernisation of
education has led to the teaching of medical science in
institutions of higher learning, and specialisation in medicine has
led to physicians who specialise in a variety of fields including
surgery. Similarly, the legalisation on abortion and physician-
assisted suicide in certain parts of the world, has made it
awkward for some medical practitioners there to carry on in the
tradition of the original oath.
This has led to the modification of the oath to something
better suited for our times. One of the most widely used versions
is The Declaration of Geneva which was adopted by the
General Assembly of the World Medical Association at Geneva in
1948. Written with the medical crimes committed in Nazi
Germany in view, it is a 'declaration of physicians' dedication to
the humanitarian goals of medicine.' It is also perhaps the only
one to mention treating people equally, without regard as to
race, religion, social standing and political affiliations:
"I solemnly pledge myself to the service of humanity. I
will give to my teachers the respect and gratitude which
is their due. I will practice my profession with conscience
and dignity. The health of my patient will be my first
consideration. I will respect the secrets which are
confided in me. I will maintain by all means in my power
the honour and noble traditions of the medical profession.
My colleagues will be my brothers and sisters. I will not
permit consideration of religion, nationality, race or social
standing to intervene between my duty and my patient. I
will maintain the utmost respect for human life even
under threat. I will not use my medical knowledge
contrary to the laws of humanity. I make these promises
solemnly, freely and upon my honour."



In recent times the self regulatory standards in the
profession have shown a decline and this can be attributed to
the overwhelming impact of commercialization of the sector.
There are reports against doctors of exploitative medical
practices, misuse of diagnostic procedures, brokering deals for
sale of human organs, etc. It cannot be denied that black sheep
have entered the profession and that the profession has been
unable to isolate them effectively. The need for external
regulation to supplement professional self-regulation is
constantly growing. The high costs and investments involved in
the delivery of medical care have made it an entrepreneurial
activity wherein the professionals look to reaping maximum
returns on such investment. Medical practice has always had a
place of honour in society; currently the balance between service
and business is shifting disturbingly towards business and this
calls for improved and effective regulation, whether internal or
external. There is need for introspection by doctors  individually
and collectively. They must rise to the occasion and enforce
discipline and high standards in the profession by assuming an
active role.


(3) Need for devising a welfare fund or insurance scheme

Failure of many a sterilization operation, though
successfully performed, is attributable to causes other than
medical negligence as we have already discussed hereinabove.
And, yet the doctors are being faced with claim for damages.
Some of the claims have been decreed by the courts without
arriving at any finding providing a foundation in law for
upholding such a claim. The state is also being called upon to
honour such decrees on the principle of vicarious liability when
the surgeon has performed a surgery in discharge of his duty.
Mostly such surgeries are performed on a large scale and as a
part of family welfare programmes of the Government.
Obviously, such programmes are in public interest. Such like
decrees act as a disincentive and have deterrent effect on the
surgeons performing sterilization operations. The State, flooded
with such decrees is also inclined not to pursue family planning
camps on large scale though in public interest.

In Javed & Ors. v. State of Haryana & Ors. (2003) 8
SCC 369, popularly known as 'Two-Child Norm' case, this Court
had an occasion to deal with the problem of increasing
population, the danger which it poses for the progress of the
nation and equitable distribution of its resources and upheld the
validity of the Haryana legislation imposing a disqualification on
persons having more than two children from contesting for an
elective office. The fact cannot be lost sight of that while
educated persons in the society belonging to the middle-class
and the upper class do voluntarily opt for family planning and
are careful enough to take precautions or remedial steps to
guard against the consequences of failure of sterilization, the
illiterate and the ignorant and those belonging to the lower
economic strata of society face the real problem. To popularize
family planning programmes in such sections of society, the
State Government should provide some solace to them if they,
on account of their illiteracy, ignorance or carelessness, are
unable to avoid the consequences of a failed sterilization
operation. Towards this end, the State Governments should
think of devising and making provisions for a welfare fund or
taking up with the insurance companies, a proposal for devising
an appropriate insurance policy or an insurance scheme, which
would provide coverage for such claims where a child is born to
woman who has undergone a successful sterilization operation,
as in the present case.

Conclusion
The appeal is allowed. The judgment and decree passed by the trial court and upheld by the first appellate court and the High Court are set aside. The suit filed by the plaintiffs-respondents is dismissed. However, as we have already stated, in view of the concession given by the learned Additional Advocate General appearing for the appellant State, the amount of Rs.50,000/- if already paid to the plaintiff-respondent shall not be liable to be refunded by way of restitution. No order as to
costs.