P&H HC | Gynaecologists cannot be attributed with medical negligence if a woman conceives after undergoing tubectomy during childbirth via caesarean section

Punjab and Haryana High Court: In the instant appeal, the question before the Court was that whether the appellant can be attributed medical negligence merely because she did not explain to the respondent that at the time of delivery of child, uterus is of size of the child and the tubes get enlarged as well, and go back to their normal size after delivery; and during regress, the tubes are likely to slip thereby exposing chance of further pregnancy. Examining the facts, evidences adduced in the matter and the findings of the Trial Court, Bench of Rekha Mittal, J., held that the lower Courts attributing negligence to the appellant and fastening liability for payment of damages suffer from perversity as the respondent- plaintiff did not adduce any evidence or expert opinion which proves or explains that it not advisable to perform tubectomy along with caesarean section. Therefore it is difficult to sustain the findings of the lower Courts that tubectomy operation failed because of negligence attributable to the doctor. 

As per the facts, during the birth of the respondent-plaintiff’s 4^th child, the appellant performed the tubectomy operation. The respondent- plaintiff alleged that she was assured by the appellant that the after tubectomy operation, she will never conceive in future. However, the respondent conceived again. The respondent alleged that had full assurance not been given by the appellant, she would not have undergone tubectomy operation. The respondent claimed that the post- operation pregnancy was due to the professional negligence of the appellant. The respondent further stated that her 5^th pregnancy caused a great deal mental agony and mental/bodily pain and sufferings while giving birth to another child. Sumiti Arora appearing for the respondent pointed out the findings of the Trial Court according to which the appellant was found to be negligent because as an expert it was obligatory upon her to advise the respondent-plaintiff to wait for some time more to get the tubectomy operation done. Appearing for the appellant, T.N. Gupta submitted that the respondent did not adduce any evidence to suggest that the appellant was negligent in conducting tubectomy operation simultaneously with delivery of child through caesarean section. It was further argued that there is no medical text/opinion which suggests or supports the theory that tubectomy operation should not have been carried out at the time of delivery or the same was required to be carried out after the delivery.

Perusing the facts of the case, the Court observed the Supreme Court decision in State of Punjab v. Shiv Ram, (2005) 7 SCC 1, wherein the Court, in order to decide the case, referred to certain authoritative texts dealing with percentage of failure of sterilization conducted through different methods. The Court noted that in order to support contentions, the respondent did not refer to any medical text or opinion much less expert opinion of a professional in gynaecology/sterilization that it is not advised to perform tubectomy along with caesarean section. It was further noted that there is no evidence suggesting that sterilization, in the instant case, has failed merely because it was performed at the time of delivery. The Court also took notice of the fact that the respondent had admitted that the operation was conducted properly and there was no negligence on the part of surgeon while performing the operation. Taking a cumulative view of the facts, the Court held that findings of the lower Courts are unsustainable, thereby allowing the instant appeal and set aside the judgment and decrees passed by the lower Courts. [Dr Sushma Chawla v. Jasbir Kaur, 2020 SCC OnLine P&H 1000 , decided on 08-07-2020]