F.A.No.1378/2007 AGAINST C.D.No.244/2005  DISTRICT FORUM, KARIMNAGAR.

Between:

1. The District Collector

    Karimnagar.

2. The District Medical and

    Health Officer, Karimnagar.

3. The Medical Officer,

     P.H.C. Vemulawada,

     Karimnagar.                                                                                                              Appellants/

                                                                                                                                       Opp.parties

                   And

Smt.Ragiri Mamatha,

W/o.Madhukar, Occ:Labour,

R/o.H.No.10-3-39, New Urban Colony,

Vemulawada, Karimnagar.                                                                                           Respondent/

                                                                                                                                       Complainant

Counsel for the Appellants: G.P. for state

Counsel for the Respondent: served.

QUORUM:   THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT                                                   AND

SMT.M.SHREESHA,  MEMBER

.

MONDAY, THE TWENTY EIGHTH DAY OF JUNE,

TWO THOUSAND TEN

(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member.)
***

        Aggrieved by the order in C.C.No.244/2005 on the file of District Forum, Karimnagar, opposite parties preferred this appeal.

        The brief facts as set out are that the complainant had two daughters and one son and intended to go for family planning operation and on 18-11-2004 joined in the camp at PHC, Vemulawada on 18-11-2004 at 3.00 p.m.  The resident doctor of PHC Vemulawada, Doctor R.Maheshwar Rao, and two other doctors by name Doctor Penchalaiah and Dr.J.Ramesh attended the camp and operated upon the complainant due to which the complainant became serious within one hour of the operation.  The resident doctor called the husband of the complainant and informed him that the complainant was in a serious condition and to shift her to Head Quarters hospital, Karimnagar.  Immediately she was shifted and she had gone undergone treatment for a period of 10 days at Karimnagar hospital and the doctor of Karimnagar hospital informed the complainant that the doctors who operated upon the complainant at PHC Vemulawada instead of doing Tubectomy operation, opened small intestine accidentally and due to that the complainant is not able to attend her own work including house hold duties and she is almost on bed and not able to move from the bed and her health is decreasing due to rash and negligent operation and the family planning operation was also not completed.  The complainant lodged a complaint before the Police on 12-12-2004 and the police registered a crime No.195/2004 U/s.337 IPC.  Hence the complaint for a direction to the opposite parties claiming compensation of Rs.5,00,000/- for the maintenance of the further child born due to failure of Tubectomy operation.

        Opposite party No.2 filed counter which was adopted by opposite parties 1 and 3  denying the averments of the complaint and stated that the complainant filed a false case.  They admitted that there was a family planning camp on 18-11-2004 at PHC Vemulawada and that a number of persons attended the said camp and got operated successfully.  There was no complaint from the persons those who have undergone operations at Vemulawda and the complainant filed this complaint creating false documents to extract money  and prayed for dismissal of the complaint.

        Based on the evidence adduced i.e. Exs.A1 to A5 and B1 and B2 and the pleadings put forward, the District Forum allowed the complaint in part and directed the opposite parties to pay Rs.3,00,000/- to the complainant with 9% interest from the date of filing the petition i.e. 30-12-2005 together with costs of Rs.1,000/-

Aggrieved by the said order, opposite parties preferred this appeal.   The facts not in dispute are  that the complainant attended the family planning operation camp held at PHC Vemulawada on 18-11-2004 and the resident doctor of PHC Vemulawada i.e. R.Maheswara Rao, Dr.Penchaliah and Dr.J.Ramesh operated upon the complainant  and it is the complainant’s case that one hour after operation, she became serious and was shifted to Karimnagar hospital where the attendants were informed that sigmoid colon was cut.  It is the complainant’s further case that she underwent severe physical pain and could not attend to her day today duties and spent huge amount of money for treatment and the family planning operation was not conducted properly as a result of which she gave birth to a fourth child.  As per Ex.A3, the patient i.e. P.W.1 was admitted in Govt. Head Quarter hospital on 18-11-2004   at 6.25  p.m. and it is noted in the case sheet as post tubectomy case.  P.W.2, Dr.Y.Narendra, a retired General Surgeon      deposed in his evidence as follows:

‘We have recorded in the case as post tubectomy case and it is not        

 mentioned in the case sheet whether tubectomy was done or not.   

The learned counsel for the appellants/opposite parties contended that the respondent/complainant has given her consent for the tubectomy operation and it is only because of failure rate and there is inherent risk of 0.3% to 0.7% that the patient had become pregnant.  There is neither negligence nor deficiency of service on behalf of the opposite parties and further contended that the patient was well treated medically and the PHC doctor and staff of Vemulawada took good care when her sigmoid colon was cut off.  It is an admitted fact by opposite party No.2 in their counter that sigmoid colon was cut off during the tubectomy operation but it is the appellants/opposite parties case that immediately after the incident, Dr.Penchaliah, M.S. Surgeon has treated her sigmoid colon section at PHC Vemulawada and even shifted her to District Head Quarters Hospital with three staff members.   

        It is apparent from the face of record that it is an admitted fact that the sigmoid colon was cut off accidentally while Dr.Ramesh at PHC Vemulawada operated and the complainant had to undergone severe pain and was forced to be shifted to Karimnagar hospital.  Based on the case sheet and the admission of the O.P.3 doctor,  we are of the considered view that the complainant had to undergo a lot of physical pain and agony because of the accidental cut of her sigmoid colon while conducting the tubectomy operation, however to attribute negligence for failure of the tubectomy operation cannot be sustained.    While we hold that the doctor is liable for the accidental cut off sigmoid colon thereby causing severe pain and also necessitating extra expenses and further treatment at Karimangar hospital and observe that the complainant is entitled to a compensation of Rs.1,00,000/- including medical expenses incurred, we further observe that tubectomy operation carries a risk of 0.3% to 7% as per standards of medical parlance and the failure of sterilization operation alone cannot be construed as medical negligence i.e. the doctor cannot be held liable for the birth of the fourth child.  We rely on the judgments reported in  (2005) 7 Supreme Court Cases 22 in  STATE OF HARYANA AND OTHERS v. RAJ RANI in which the Apex court held as follows:

        ‘Childbirth in spite of sterilization 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 text books on medical negligence

          have recognized the percentage of failure of the sterilization 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 scaled may reunited and the woman may conceive

          though the surgery was performed by a proficient doctor successfully

          by adopting a technique recognized by medical sciences.  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

          pay compensation.  Then the question of the State behind held vicariously

          liable also would not arise”.

          We also rely on the judgement reported in AIR 2005 SC 3280 in STATE OF PUNJAB v. SHIVRAM AND OTHERS in which the apex court held that

        ‘Compensation can be awarded only if failure of operation is attributed to the negligence of the doctor.  Failure due to natural causes do not provide ground for claim and if the claimants opt for bearing a child despite failure of operation, they cannot claim compensation for upbringing the child’.

To reiterate, keeping the aforementioned judgments in view, we do not hold the appellants are liable for failure of the sterilization operation but however, keeping in view the admitted fact that the sigmoid colon was cut while performing the tubectomy operation, we are of the view that the appellants/opposite parties are liable to pay an amount of Rs.1,00,000/- towards medical expenses and mental agony which the complainant had to undergo together with interest at 9% p.a. on Rs.1,00,000/- from the date of filing the complaint i.e.30-12-2005 till the date of realization with costs of Rs.1,000/-.

        In the result this appeal is allowed in part and the order of the District Forum is modified by reducing the compensation granted from Rs.3,00,000/- to Rs.1,00,000/-  and directing to pay interest on Rs.1,00,000/- with interest at 9% p.a. from the date of filing the complaint i.e.30-12-2005    till the date of realization together with costs of Rs.1,000/-.

Sd/-PRESIDENT.

                                                                                                        Sd/-MEMBER.

JM                                                                                                             Dt.28-6-2010