DOES CONCEPTION OF PREGNANCY POST TUBECTOMY COME UNDER THE ACT OF MEDICAL NEGLIGENCE?

This article is written by Ritika Sharma” from “Ansal University. This article has been curated by Himanshu Raj of Chanakya National Law University, Patna.

Introduction

There were various methods used for birth control during ancient times but it was in the 20th century that safe and secure birth control methods became available. Allowing women to plan for their futures, become more self- reliant by having time to invest in their careers and to have more control over life, birth control plays an important role in women’s life. 

Among various methods available for birth control, tubectomy has become an increasingly prevalent method for female sterilization in India. It is also called as “tubal ligation” which means “getting your tubes” tied to prevent pregnancy. It is the process in which the fallopian tubes are blocked, sealed or severed, thereby preventing the egg released by the ovary from reaching the uterus. But it is not an absolute method of preventing pregnancy.

Doctors performing the operation of tubectomy at the time of child delivery cannot be held liable for medical negligence for not advising the patient about the chances of conceiving in future, held by the Punjab and Haryana high court.

Facts of the case

 After twenty- six years, the charge of medical negligence against the doctor was set aside by the Punjab and Haryana high court. In this case the plaintiff/ respondent was admitted to the clinic of appellant and gave birth to her fourth child through caesarean section. At the time of delivery, the appellant performed a tubectomy procedure after obtaining consent from the plaintiff/ respondent to prevent further pregnancy. Respondent was assured by the appellant that after the delivery she will never conceive in future. Thereafter, the plaintiff/ respondent was discharged from the clinic. However, after some time the plaintiff/ respondent still conceived pregnancy and gave birth to her 5th child. For this reason, the plaintiff/ respondent filed a suit against the appellant before the trial court. It was alleged that due to the medical negligence of appellant she conceived her 5th child. The decision of the trial court came in favour of the plaintiff/ respondent, and the appellate court also concurred with the findings of the trial court. Afterwards, the appellant filed an appeal before the hon’ble high court, challenging the decision of both the courts.

Issue involved

The issue involved in the above case was whether the appellant was held liable for medical negligence for not informing the chances of future pregnancy that could arise in spite of tubectomy surgery?

Plaintiff/ respondent alleged that she gave her consent to perform the operation only on the persuasion of appellant. She also argued that if she was not assured by the appellant that she will not conceive in future, then she would have never given her consent to perform operation at the of delivery. Therefore, the respondent submitted that tubectomy was a failure and she conceived her 5th child due to appellant’s medical negligence. She asked for the damages of Rs. 1.5 lakhs from appellant.

On the other hand, it was submitted by the appellant that it was necessary to conduct a caesarean section. She conducted the operation after obtaining the consent from plaintiff/ respondent husband and to prevent future pregnancy, tubectomy was also performed. This was done in the presence of Chief Anesthetic. She further submitted that it was very well informed to the husband of the respondent about the chances of future pregnancy and the operation was held successfully without any negligence. 

Decision of court

Justice Rekha Mittal observed that the counsel of respondent had not referred to any medical test, nor did it examine any expert, that it was not advisable to perform tubectomy procedure along with caesarean section. It was also observed that there was no evidence to prove that the chances of failure of sterilization were more than seven per cent when the tubectomy is performed with caesarean section. There was no proof that sterilization failed due to negligence of appellant. The high court took the reference of State of Punjab v. Shiv Ram & other’s case and relied on the observation of hon’ble supreme court. Finally, it was held that the operation was conducted properly by the appellant and there was no negligence on part of the appellant performing the operation. Suit of respondent/ plaintiff was dismissed leaving the parties to bear their own costs. Judgement passed by the trial and appellate court was set aside and the appeal was allowed.

Conclusion

If one has a duty to perform, exercise reasonable care and incase breaches the duty either by act or omission, can be held liable for negligence. Doctors have certain duties to perform and the breach of duties amount to negligence. Doctors have a duty to obtain patient consent before performing any surgery. But medical science is not an exact science; results vary from person to person. A professional may be held liable for negligence either if he/ she does not possess the essential skill which he/ she is supposed to have possessed, or, if he/ she does not exercise or work with proficiency in particular case. In the above case the plaintiff has not alleged that the doctor who performed the tubectomy was not competent to perform the surgery. If the doctor is taking due care of the patient and conducting the operations successfully, he/ she cannot be held liable for negligence.