Medical Negligence | Kerala High Court Refuses Compensation To 39-Yr-Old Woman Who Delivered 5th Child Despite Post-Partum Sterilization

The Kerala High Court on Tuesday refused compensation claim of a 39-year-old woman, who alleged that she conceived and gave birth to a fifth child despite having undergone Post Partum Sterilization (PPS) surgery due to the negligence of the doctor who performed the same. 

After referring to several precedents and medical opinions which affirmed the possibility of a pregnancy even after PPS surgery in certain exceptional cases, Justice CS Sudha noted that the appellant/plaintiff had conceived and delivered her fifth child nearly 5 years after the PPS surgery. 

"Had the surgery actually been a failure as alleged by the plaintiff (appellant mother), the chances or possibility of the plaintiff conceiving would have been much earlier...The time gap between the surgery and the plaintiff conceiving also probabilises the contention of the defendants that it was due to the natural cause referred to hereinabove that the plaintiff happened to conceive and deliver her 5th child and not due to any negligence or carelessness of the 2nd defendant (2nd respondent doctor) in carrying out the surgery," the court observed. 

The appellant had filed the plea averring that she was from a poor family and already had four children. She submitted that she and her husband had consulted defendant No.2-doctor at a Government Hospital to ensure that they did not have any more children. Following the doctor's recommendation, she had undergone PPS Surgery, which she was told would ensure no further pregnancies.

However, subsequently, the appellant did conceive, allegedly due to the negligent manner in which the doctor had performed the surgery. She thus claimed Rs. 2 lakhs as compensation for the mental agony, pain, and suffering, as well as the expenditure incurred by her. 

Defendant No.2-doctor submitted that he was a qualified and experienced gynecologist who had performed several sterilization surgeries and that the appellant's case had been the first failure reported. The doctor disputed the appellant's claim of negligence and averred that he had performed the surgery with utmost care, caution, and devotion.

The doctor informed the court about the rare possibility of failures in sterilization surgeries, which he conceded, was not a foolproof method to avoid further pregnancy. He added that the appellant had also been informed about the chances of failure before the surgery was carried out. 

On dismissal of the suit for compensation by the trial court, the plaintiff filed the present appeal. 

The court perused a plethora of precedents such as State of Punjab v. Shiv Ram (2005) and State of Kerala v. P.G. Kumari Amma (2011) to determine the negligence of medical professionals.

It took note of the settled legal position that cause of action for claiming compensation in cases of failed sterilization surgery would arise on account of surgeon's negligence and not on account of childbirth, and that failure due to natural causes would not be any basis for a claim for compensation. 

In the present case, it was found that the appellant had failed to discharge the initial burden of prima facie proving negligence and carelessness on the part of the doctor in performing the surgery. The court further noted that she had no case that the doctor did not possess requisite skill and competence to perform the surgery before venturing into performing the same. 

"The only case pleaded and established by the plaintiff is that though she had undergone P.P.S. surgery, she conceived, which fact speaks for itself that the surgery was a failure, as proper care and caution had not been taken by the second defendant in performing the surgery. This according to the settled position of law, as can be discerned from the aforesaid judgments, is not sufficient for the plaintiff to succeed," Justice Sudha observed. 

Considering the possibility of pregnancy even after PPS surgery in rare cases, and also the time gap of 5 years in the delivery of the appellant's fifth child after the surgery, the court was fortified in its view that no negligence could be attributed to the doctor. 

"In the facts and circumstances of the case and in the light of the precedents referred to, it can only be held that, as no negligence or carelessness on the part of the 2nd defendant has been established, the claim for damages cannot succeed. That being the position there can be no vicarious liability of the 1st defendant, employer. I find no infirmity in the findings of the trial court calling for an interference by this Court," it observed while dismissing the appeal. 

Counsels for Appellant: Advocates VRK Kaimal and NM Madhu

Counsels for Respondents: Senior Government Pleader V Manu and Advocate TJ Lakshmanan Iyer

Case Title: XXX v. District Collector & Ors., RFA NO. 9 OF 2003-A

Citation: 2023 LiveLaw (Ker) 697

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