MEDICAL NEGLIGENCE IN STERLIZATION OPERATIONS –NOT ALWAYS MERITLESS

        “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.”

This is what the established fact as per medical science is

Hence whenever any question comes before the courts for admission, it is observed that court staff out rightly rejects the case for registration. It is often argued that there cannot be any allegation of negligence in cases of sterilization operation which is not true. Though it is an established scientific theory that as per the medical books and literature after a sterilization operation, due to natural reasons, women may conceive National commission has gone into details of one case and held that it needs to be seen whether sterilization has failed due to natural reason or due to negligence on the part of surgeon .In other words every case of negligence is to be thoroughly checked on the basis of evidence and  it must be seen whether pregnancy occurred due to natural reason or due to surgeon’s negligence .

Let us see the legal and medical position in this particular line

As per Medical Termination of Pregnancy Act, 1971, once the woman misses the menstrual cycle, it is expected of the couple to visit the doctor and seek medical advice. Section 3.of Medical Termination of Pregnancy Act, 1971 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 subsection (2) of Section 3 provides.

“where any pregnancy occurs as a result of failure of any device or method used by any married women 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 women have suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971.”

As far as legal claim for compensation of a woman is concerned who has undergone sterilization operation, failure due to natural causes would not provide any ground for claim. It is for the women who have 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. 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.

In the case in hand as decided by the National Commission in the matter of Smt Mithlesh Vs Medical Officer (In charge) District Ghaziabad Revision Petition No. 3997 of 2014 from the order dated 10.09.2014 of the Uttar Pradesh State Consumer Disputes Redressal Commission, Luck now in Appeal no. 2278 of 2011the facts in brief are –

The operation of the petitioner was conducted by Dr Manju Sharma at Primary Health Centre, Dhaulana on 12.12.2003 with full precaution and the same was in accordance with medical standards. However, after the operation, the child was born to petitioner on 28.08.2004; the details of the same are mentioned in the Ánganwadi and family planning register. The petitioner gave birth to the child 35 weeks and 5 days after the operation, while the normal period for the birth of a child is 37 weeks to 42 weeks. From the same it was clear that the petitioner had conceived the child prior to the operation. Though at the time of operation, it has to be enquired from the women as to whether they were pregnant and regarding the last period cycle and after getting the information, operation is conducted and advise given that if in the next month menses is not there then she should immediately contact to the health center. But the petitioner, at the time of inquiry, had given wrong information regarding pregnancy and she did not contact the doctor nor to A N M for not having menses thereafter. As per medical guide if the pregnancy is less than six weeks then it is not possible to know the pregnancy by the normal vaginal test .After the operation, the petitioner  neither gave any information to the primary health center nor to the doctor and neither her name was entered in the register. If the petitioner would have provided information to the doctor or primary health center the termination of pregnancy would have done within 20 weeks. Due to omission to do so and the carelessness of the petitioner the child was born... Compensation for maintenance and upbringing of such a child cannot be claimed if the couple opts for bearing the child because it ceases to be an unwanted child,

Further, the family planning operation was conducted by Dr Sharma in the Family Planning Operation Camp without any charge and no fee was charged from the petitioner for the operation. The grant of ₹ 150/- was to paid to the petitioner for sterilization operation by Government was not taken by the respondent but the same was paid to the petitioner. The details are recorded in the Register. The petitioner has not given any evidence to show that she has paid ₹ 65/- for the operation and that the grant given by the Government was retained by the respondents. She is not entitled to any claim on this ground also as she had not paid any consideration /fee for the operation .Hence National Commission did not find any substance in the present case decided on 14 nov.2014.

In yet another case decided by this commission by the Coordinate Bench of this Commission in RP no. 1582 of 2014 decided on 15^th October 2014 in Dr P R Venugopal vs. T K Sheena and Ors., have held that:

‘In the case in hand, Dr. Venugopal was a qualified Gynaecologist. We do not find any negligence committed by him in conducting the tubectomy operation. He has explained about the fact of non-resection of Right fallopian tube, and asked for follow-up by HSG. The patient did not turn up for further investigations as advised by OP-2. The surgery was performed by a technique known and recognized by medical science. Therefore, in our opinion, failure, due to natural causes would not provide any ground for claim. If the couple opts for bearing the child, it ceases to be an unwanted child.”

The above discussion makes certain things clear with regard to medical negligence in sterilization cases:

·                     Failure, due to natural causes would not provide any ground for claim. If the couple opts for bearing the child, it ceases to be an unwanted child. 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.”

·                     If the women have suffered an unwanted pregnancy, it can be terminated and this is legal and permissible under the Medical Termination of Pregnancy Act, 1971

DR PREM LATA

 

 

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