Madras High Court
B.Lekhsmi vs The Principal Secretary To ... on 10 November, 2023
W.P.(MD)No.9596 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 10.11.2023
CORAM
THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH
W.P.(MD)No.9596 of 2021
and
W.M.P.(MD).No.13526 of 2023
B.Lekhsmi ... Petitioner
Vs
1.The Principal Secretary to Government,
Health and Family Welfare Department,
St.George Fort,
Chennai -600 009.
2.The Director,
Medical and Rural Health Services,
DMS Complex,
361, Anna Salai, Chennai – 600 018.
3.The District Collector,
Kanyakumari District,
Nagercoil.
4.The Joint Director of Health Services,
Kottar,
Nagercoil.
5.The Deputy Director of Health Services,
Krishnan Kovil,
Nagercoil.
1/12
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W.P.(MD)No.9596 of 2021
6.Dr.S.Rajesh Sathya
Medical Superintendent,
CSI Mission Hospital,
Neyyoor, Kanyakumari District
7.Leethial Selvi,
Obstetrician and Gynaecologist,
Chief Medical Officer,
CSI Mission Hospital,
Nagercoil. ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of
India for issuance of Writ of Mandamus, directing the respondents to pay a
compensation of Rs.25,00,000/- to the petitioner and further directing
respondents 1 to 5 to take appropriate action against the 6th and 7th
respondents
For Petitioner : Mr.C.T.Perumal
For R-1 to R-5 : Mr.A.K.Manikkam,
Special Government Pleader
For R-6 & R-7 : Mr.F.Deepak
ORDER
This Writ Petition has been filed for the issue of writ of
mandamus directing the respondents to pay compensation of a sum of
Rs.25,00,000/- (Rupees Twenty Five Lakhs only) to the petitioner and to
take action against the sixth and seventh respondents based on the
representation given by the petitioner in this regard.
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W.P.(MD)No.9596 of 2021
2. Heard the learned counsel on either side.
3. The case of the petitioner is that she was already having
two children and hence, she opted for sterilization operation which was
done in the sixth respondent Hospital. This operation was performed by
the seventh respondent. The grievance of the petitioner is that in spite of
undergoing the sterilization operation, she became pregnant and it became
complicated and it was diagnosed as “Ectopic Gestation Fallopian Tube”.
In view of the same, it resulted in an abnormal pregnancy causing health
complications and the petitioner was forced to incur heavy medical
expenditure. The petitioner also delivered the child. It is under these
circumstances, a representation was made seeking for compensation for the
negligence caused by the sixth and seventh respondents. Since no action
was taken, the present Writ Petition has been filed before this Court.
4. The fourth respondent has filed a counter affidavit. The
relevant portions in the counter affidavit are extracted hereunder:
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W.P.(MD)No.9596 of 2021
“6. It is submitted that the petitioner
underwent 1st Sterilization Operation LSCS on
30.07.2014 at 6 respondent Hospital which is
approved by the Deputy Director of Medical Rural
Health Services and Family Welfare Kanyakumari
District the fifth respondent herein. After four
years Medical Complication in the petitioner’s
health. In this regard the Government of India
had issued a manual for Female Sterilization 2013
and it reveals that Female Sterilization greatly
reduces the risk of Ectopic Pregnancy. Ectopic
pregnancies are very rare among women who
have had a sterilization procedure The rate of
ectopic 6 per 1000 women per year
7) With reference to the para 7 of the
affidavit, it is submitted that female sterilization is
very effective and it is intended to be permanent.
But it is not 100% effective as there is very rare
chance of becoming pregnant even after the
sterilization 5 women out of 1000 become
pregnant with a year after the family planning
surgery and this risk remain beyond the first year
until the women reaches the menopause stage.
Presently occurs to the women after sterilization
when the fallopian tube open spontaneously. But
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W.P.(MD)No.9596 of 2021
in this case, the petitioner has become pregnant
after 4 years and also pregnancy occurs in tube
itself. (Ectopic) Therefore, there is no negligence
on the part of the sixth respondents hospital in
performing the surgery.”
5. The short issue that arises for consideration is as to whether
the sixth and seventh respondents can be made liable for the pregnancy of
the petitioner even after the sterilization operation was conducted on the
petitioner. The issue in hand is squarely covered by the Judgment of the
Hon'ble Apex Court in the case of State of Punjab Vs. Shiv Ram and
Others reported in (2005) 7 SCC 1 and the relevant portions in the
Judgment are extracted hereunder:
“25. 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
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W.P.(MD)No.9596 of 2021
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.
26. 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)
27. Mrs. K. Sarada Devi, the learned
counsel appearing for the plaintiff-respondents
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W.P.(MD)No.9596 of 2021
placed reliance on a two-Judge Bench decision of
this Court in State of Haryana & Ors. v. Santra,
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.
28. The methods of sterilization so far
known to medical science which are most popular
and prevalent are not 100% safe and secure. In
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W.P.(MD)No.9596 of 2021
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."
29. And that provides, under the law, a valid
and legal ground for termination of pregnancy. If
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W.P.(MD)No.9596 of 2021
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.
30. 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.”
6. It is clear from the above Judgment that merely because a
woman had undergone a sterilization operation and thereafter, she became
pregnant and delivered the child, the operating surgeon or the Hospital
cannot be held liable for compensation on account of the unwanted
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W.P.(MD)No.9596 of 2021
pregnancy or the unwanted child. The Hon'ble Apex Court dealt with in
detail the various reasons for the failure of the sterilization operations. It
was noted that the methods of sterilization that are so far known to the
medical science are not 100% safe and secure. In spite of the sterilization
operation being performed, the woman can become pregnant due to natural
causes. Therefore, the Hon'ble Apex Court held that merely because a
sterilization operation had taken place, that is not an assurance that the
women will never become pregnant and such 100% assurance cannot be
given by any one.
7. In the instant case, the only grievance of the petitioner is
that the sterilization operation was performed by the sixth and seventh
respondents and in spite of the same, she became pregnant and it resulted
in some complications and as a result, the petitioner had incurred huge
expenditure. This cannot be a cause of action for directing the sixth and
seventh respondents to pay compensation to the petitioner in the light of
the Judgment of the Hon'ble Apex Court in Shiv Ram case referred supra.
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W.P.(MD)No.9596 of 2021
8. In the result, this Writ Petition stands dismissed. No costs.
Consequently, the connected miscellaneous petition is closed.
10.11.2023
NCC:yes/no
Index:yes/no
Internet:yes/no
tsg
To
1.The Principal Secretary to Government,
Health and Family Welfare Department,
St.George Fort,
Chennai -600 009.
2.The Director,
Medical and Rural Health Services,
DMS Complex,
361, Anna Salai, Chennai – 600 018.
3.The District Collector,
Kanyakumari District,
Nagercoil.
4.The Joint Director of Health Services,
Kottar,
Nagercoil.
5.The Deputy Director of Health Services,
Krishnan Kovil,
Nagercoil.
https://www.mhc.tn.gov.in/judis
W.P.(MD)No.9596 of 2021
N.ANAND VENKATESH, J.
tsg
W.P.(MD)No.9596 of 2021
10.11.2023
https://www.mhc.tn.gov.in/judis
