of Punjab Vs. Shiv Ram & Ors  Insc
447 (25 August 2005)
R.C. Lahoti,C.K. Thakker & P.K. Balasubramanyan
J U D
G M E N T R.C. Lahoti, CJI
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.
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.
State was impleaded as defendant No. 1 and the lady surgeon who performed the
surgery was impleaded as defendant No.2.
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.
parties went to trial. The plaintiff No.1, that is the husband, deposed on oath
to substantiate the plaint averments.
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
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
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,  1 W.L.R. 582, popularly known as Bolam's Test, in its
applicability to India.
relevant principles culled out from the case of Jacob Mathew (supra) read as
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'.
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.
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.
Court has further held in Jacob Mathew's case (supra):- "Accident during
the course of medical or surgical treatment has a wider meaning.
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.
learned Advocate General has brought to our notice a number of textbooks on gynaecology.
We refer to some of them.
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:
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.
Removal of the ovaries This sterilizes (provided an accessory ovary is not
overlooked) but is very rarely indicated as it often results in severe
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.
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
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.
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.
of the abdominal ostia is an advantage for it tends to ensure that ova become
trapped in the occluded tubes.
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
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.
failures are due to neglect of this medicolegally very important point.
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.
when tubal occlusion operations are competently performed and all technical
precautions are taken, intrauterine pregnancy occurs subsequently in 0.3 per
cent of cases.
is because an ovum gains access to spermatozoa through a recanalized inner
segment of the tube.
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:
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.
5 and 6 and their answers, which are relevant for our purpose, read as under:
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.
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.
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:
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
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
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.
overall incidence of failure in tubectomy is 0.4 per 100 women per year. The
text describes the following events wherefrom sterilization failure usually
recanalisation or fistula formation is perhaps the most common cause of
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ,  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
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:
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.
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.
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
case thus proceeds on its own facts.
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
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.
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
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
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
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.
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.
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.
position does not change merely because of the caution advocated in Jacob
Mathew in fixing liability for negligence, on doctors.
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.
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
profession has long subscribed to a body of ethical statements developed
primarily for the benefit of the patient.
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:
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.
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.
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);
do solemnly swear by that which I hold most sacred:
will be loyal to the profession of medicine and just and generous to its
will lead my life and practice my art in uprightness and honor;
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;
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
whatsoever I shall see or hear of the lives of men which is not fitting to be
spoken, I will keep inviolably secret.
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.
are a number of versions of the famous Oath;
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.
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.
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.
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.
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:
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
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
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.
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.
yet the doctors are being faced with claim for damages.
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.
such surgeries are performed on a large scale and as a part of family welfare programmes
of the Government.
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.
& 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.
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.