LexSTATE OF PUNJAB versus SHIV RAM AND ORS.
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STATE OF PUNJAB v. SHIV RAM AND ORS. AUGUST 25, 2005 [R.C. LAHOTI, CJ., C.K. THAKKER AND P.K. BALASUBRAMANYAN, JJ.] A B Tort-Medical Negligence-Failure of sterilization operation-When ationable-Unwanted pregnancy after undergoing sterilization operation- Held, claim in tort sustainable only if there is negligence on part of operating C surgeon-No finding that Lady surgeon was incompetent or negligent in performing the surge1y-The trial court decreed the suit for Rs. 50,000-- Supreme Court allowing the appeal, held no liability merely it sterilized women becomes pregnant duly performed sterilization operation not attributable to any failure on the part of surgeon-Failure due to natural D causes, no method of sterilization is fool proof-Santra 's case distinguished on facts-Case Law discussed-Various sterlizalion procedures and their failure rate due to natural causes discussed Medical Termination of Pregnancy Act, 1971-Section 3 subsection (2) e<pln. II-Termination of unwanted pregnancy-Pregnancy due to failure of E contraceptive device or method-Held, is a valid and legal ground for termination of pregnancy-If couple opts for bearing the child, it ceases to be unwanted. Tort-Unwanted child due to failure of sterilization operation due to natural causes-;<:ompensation for maintenance and upbringing of chi/d- Held, cannot be claimed. Medical practitioners-Liability in contract-No liability unless 100% guarantee of success given-Ordinarily such guarantee is not offered. ' Medical Practitioners~Medical ethics-Duty to serve humanity-Medical Code of Conduct~Jncre~sing need for e<ternal regulation 'of profession due to· decline in self-regulation, highlighted-Hippocratis Oath, ancient and modern versions called in aid-Role and significance of medical ethics emphasized. 991 F G H 992 SUPREME COURT REPORTS [2005] SUPP. 2 S.C.R. A Torts-Vicarious Liability-Doctors employed by state-Held, state B vicariously liable if doctors found to be negligent. Penal Code 1860, section 304A-Torts-Medical Practitioners-Claims for criminal or civil negligence-Need for restraint reiterated. Medical Insurance-Failure of sterilization operation due to natural causes-State Governments directed to devise a welfare fund or insurance scheme. In response to a publicity compaign carried out by the family welfare C department the appellant state plaintiff respondent No. 2 underwent a sterilization operation on 01.08.1984. A certificate to that effect, duly signed by the lady surgeon who performed the said surgery, wa~ issued to her. In 1991 she became pregnant and gave birth to a female child. The plaintiff-respondents brought an action against the state for damages D attributing birth of the child to carelessness and negligence of the lady surgeon. Defendant-appellants denied negligence or carelessness in the performance of surgery and pleaded that pregnancy occurring after sterilization may be attributed to natural failure. Also submitted that plaintiff should have opted for termination of unwanted pregnancy. Without doubting the expert medical opinion that medical science recognizes failure E of sterilization operation to the extent of .3% to 3%, the trial court decreed the suit for Rs. 50,000 holding state liable to compensate for failure of sterilization operation. The decision was confirmed by first appellate court aud the High Court. In appeal to this court; it was submitted on behalf of the state that state was not serious about denying the payment F of Rs. 50,000 to plaintiffs. However, the court was requested to clarify and settle the position of law with regard to liability of state to compensate for failure of sterilization operation. G Heavily relying on Jacob Mathew v. State of Punjab and allowing the appeal, the court HELD : l. This is not a case where the surgeon who performed the surgery has committed breach of any duty cast on her as a surgeon. The plaintiffs have not alleged that ~he lady surgeon who performed the sterilization operation was not competent to perform the surgery and yet H ventured into doing it. It is neither the case of the plaintiffs, nor has any - I r- STA TE v. SHIV RAM 993 finding been arrived at by any of the courts below that the lady surgeon A was negligent in performing the surgery. The surgery was performed by a technique known and recognized by medical science. It is a pure and simple case of sterilization operation having fai
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