1. The present First Appeal has been filed by the appellantoriginal plaintiff under Section 96 of the Civil Procedure Code being aggrieved and dissatisfied with the judgment and order rendered in Civil Suit No.2944 of 1986 by the Learned Judge, Court No.9, Ahmedabad dated 26.03.1998 on the grounds stated in the memo of Appeal.
2. Heard learned counsel, Mr.J.V. Mehta for the appellant, learned counsel, Mr.H.K. Patel for the respondent no.1Ahmedabad Municipal Corporation and learned counsel, Mr.H.S. Munshaw for the respondent no.8.
3. Learned counsel, Mr.J.V. Mehta for the appellant has tried to submit that there was negligence on the part of the doctor, who has performed the operation. He submitted that as stated by the plaintiff at Exh.24 that as she had three issues, she decided to have a family planning operation, therefore, she had gone to the VS Hospital. Learned counsel, Mr.Mehta submitted that the family planning operation was performed and as she had a pregnancy of two months, it was terminated and, thereafter, laparoscopic operation was performed. He referred to the papers and submitted that she was advised to take rest for six months and also advised for followup check up every month. He submitted that she had followed the instruction and though she had visited for check up, she became pregnant. Learned counsel, Mr.Mehta submitted that when she came to know about the same, she again went to the doctor and confirmed about the pregnancy, where she requested for curette but it was not performed on the ground of respiratory system and ultimately a child was delivered. Learned counsel, Mr.Mehta, therefore, submitted that a precaution, which was required to be taken at the time of operation, has not been taken and it is only because of such failure of such operation, she had conceived and delivered a child. He submitted that if the operation was performed then the plaintiff would not have become pregnant except there was some lapse on the part of the doctor in operation. He submitted that fallopian tube was not properly operated at the time of laparoscopic operation. He has also referred to the instruction at Exh.69 and submitted that she had followed the instruction. He has therefore submitted that it was only on a failure of such operation, she had become pregnant and, therefore, the present Appeal may be allowed and the impugned judgment and order may be quashed and set aside.
4. Learned counsel, Mr.Munshaw appearing for the respondent no.8 has submitted that it is not correct to say that there was any negligence in performance of the operation. He submitted that after the operation was performed, she was advised to followup treatment or checkup and the instructions were given as narrated in Exh.69. Learned counsel, Mr.Munshaw submitted that if she has not followed the instructions then only it could result into such pregnancy conceiving child. He submitted that in fact, she had not immediately visited after she was pregnant as she could have immediately come to know about the development. Learned counsel, Mr.Munshaw submitted that inspite of that, she did not visit the doctor or hospital immediately and after some time i.e. about three months, she had gone to the doctor and, therefore, they had advised against curette. Learned counsel Mr.Munshaw submitted that as she was having difficulty about the respiratory system, it was not adviceable and, therefore, the doctor cannot take chance and again curette was not done. Therefore, learned counsel, Mr.Munsha submitted that it cannot be said that there was any failure or negligence in performance of the operation. He submitted that the standard of care as expected in such circumstances has been properly taken and the plaintiff has failed to show that the standard of care as expected of a doctor in exercise of skill was not shown. He submitted that in absence of any evidence regarding the evidence, the plaintiff would not have entitled to claim any compensation. Learned counsel, Mr.Munshaw submitted that it is required to be mentioned that inspite of taking all care and precaution, still there might be a failure of such operation for various reasons. In support of his submission, he has referred to and relied upon the judgment of this Court in case of Bharuch District Panchayat & Ors. Vs. Kanubhai Raijibhai Patel & Ors., reported in 1996(1) GLH 584 and emphasized the observations that “the most common reasons for pregnancies after sterilization are a pregnancy already conceived but too early to recognize, a surgical error in identifying a fallopian tube, spontaneous rejoining of a severed tube, or formation of a new passage in that tube that allows sperm and ovum to meet.” He submitted that as observed in this judgment, the plaintiff or the patient also has to be careful and if they had followed the instruction, perhaps the pregnancy could have been avoided and also she could have immediately contacted the doctor, it could have been terminated at initial stage. Learned counsel, Mr.Munshaw, therefore, submitted that there is no negligence and in absence of any specific evidence, such a negligence cannot be presumed. He, therefore, submitted that the impugned judgment and order is just and proper.
5. Learned counsel, Mr.H.K. Patel appearing for the respondent no.1Corporation has adopted the submissions of learned counsel, Mr.Munshaw and submitted that as there is no negligence pointed out from the material and evidence, the impugned judgment and order is just and proper and may not be interfered with. He has referred to the papers including the case papers and submitted that the instructions were given, which ought to have been followed. He submitted that even if she had conceived and realized about the pregnancy, she should have approached at the earliest so that suitable measures could have been taken. He, therefore, submitted that the present appeal may not be allowed.
6. In view of these rival submissions, it is required to be considered whether the impugned judgment and order calls for any interference and whether it can be said that the appellantplaintiff has been able to establish that the respondent no.2 has failed to take care and precaution in discharge of her duty while performing the operation.
7. Though the submissions have been made as discussed in the impugned judgment and order referring to the material and evidence, it is evident that Dr.Manharlal Somalal Brahmbhatt, who has been examined at Exh.91 has not supported the case of the plaintiff. It is also evident that when she had gone for the operation of family planning, she had a pregnancy of two months, which was terminated and, thereafter, laparoscopic operation was carried out. The case papers clearly suggest that she was advised for checkup every month upto six months but she has not followed the said advise. Again in March, 1984, when she came to know about her pregnancy, she had gone to the doctor and had confirmed the pregnancy. At that time, she was advised not to go for curette operation because of the difficulty of respiratory system. It is required to be mentioned that there is no clear evidence with regard to any failure or negligence on the part of the doctor. It is well accepted that in such cases of medical negligence, the doctor is required to exercise care as expected of a member of the profession trained in that particular profession. However once it is shown that there is no negligence or failure in taking such care, the doctor could not be saddled with the liability as there may be various circumstances in such cases of family planning. It is also expected that there are chances of failure inspite of taking of care and precaution.
8. A useful reference can be made to the judgment of this Court in case of Bharuch District Panchayat & Ors. Vs. Kanubhai Raijibhai Patel & Ors., reported in 1996 (1) GLH 584, wherein this aspect has been discussed in detailed and it has been observed referring to the research and the details that the contentions regarding the negligent cannot be accepted.
9. Therefore, considering this when there is no evidence with regard to the negligence of the doctor, merely because there is failure of such operation resulting into pregnancy by itself would not be sufficient to saddle the respondent with the liability. A word negligence under the Law of Torts has been well defined. Under the Law of Torts, word negligent has been defined and Word 'negligence' defined in Black's Law Dictionary (7th Edition) that “The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm, except for conduct that is intentionally, wantonly, or willfully disregardful of others' rights. The term denotes culpable carelessness.”
10. The Hon'ble Apex Court has also while considering the aspect of medical negligence and liability made observation with expression the word of caution that the doctor need not be held responsible in every case as there might be failure in treatment of the patient inspite of all care. A useful reference can be made to the judgment in case of Jacob Mathew Vs. State of Punjab & Anr., reported in AIR 2005 SC 3180, wherein the Hon'ble Apex Court in Para Nos.22 and 23 had made following observations : “22. The degree of skill and care required by a medical practitioner is so stated in Halsbury's Laws of England (Fourth Edition, Vol.30, Para 35) : "The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men.
Deviation from normal practice is not necessarily evidence of negligence. To establish liability on that basis it must be shown (1) that there is a usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care."
Abovesaid three tests have also been stated as determinative of negligence in professional practice by Charlesworth and Percy in their celebrated work on Negligence (ibid, para 8.110).
23. In the opinion of Lord Denning, as expressed in Hucks v. Cole, [1968] 118 New LJ 469, a medical practitioner was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field.”
11. The Hon'ble Apex Court has laid down the guidelines with regard to the test of determination the medical negligence in Para No.49 of the above judgment, which reads as under : “A 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.”
12. Therefore, the basis of liability of professional or doctor is negligence. In other words, unless the negligence is established, the liability cannot be fastened on the medical practitioner. Further, for the purpose of negligence as discussed, the standard of care expected of the member of profession is considered. The standard to be applied for judging whether the person has been negligence or not would be that of ordinary competent person exercising an ordinary skill in that profession. The Hon'ble Apex Court in case of Jacob Mathew (supra) has observed as under : “30. If the hands be trembling with the dangling fear of facing a criminal prosecution in the event of failure for whatever reason whether attributable to himself or not, neither a surgeon can successfully wield his lifesaving scalper to perform an essential surgery, nor can a physician successfully administer the lifesaving dose of medicine. Discretion being better part of valour, a medical professional would feel better advised to leave a terminal patient to his own fate in the case of emergency where the chance of success may be 10% (or so), rather than taking the risk of making a last ditch effort towards saving the subject and facing a criminal prosecution if his effort fails. Such timidity forced upon a doctor would be a disservice to the society.
31. The purpose of holding a professional liable for his act or omission, if negligent, is to make the life safer and to eliminate the possibility of recurrence of negligence in future. Human body and medical science # both are too complex to be easily understood. To hold in favour of existence of negligence, associated with the action or inaction of a medical professional, requires an in depth understanding of the working of a professional as also the nature of the job and of errors committed by chance, which do not necessarily involve the element of culpability.
32. The subject of negligence in the context of medical profession necessarily calls for treatment with a difference. Several relevant considerations in this regard are found mentioned by Alan Merry and Alexander McCall Smith in their work "Errors, Medicine and the Law" (Cambridge University Press, 2001). There is a marked tendency to look for a human actor to blame for an untoward event # a tendency which is closely linked with the desire to punish. Things have gone wrong and, therefore, somebody must be found to answer for it. To draw a distinction between the blameworthy and the blameless, the notion of mens rea has to be elaborately understood. An empirical study would reveal that the background to a mishap is frequently far more complex than may generally be assumed. It can be demonstrated that actual blame for the outcome has to be attributed with great caution. For a medical accident or failure, the responsibility may lie with the medical practitioner and equally it may not. The inadequacies of the system, the specific circumstances of the case, the nature of human psychology itself and sheer chance may have combined to produce a result in which the doctor's contribution is either relatively or completely blameless. Human body and its working is nothing less than a highly complex machine. Coupled with the complexities of medical science, the scope for misimpressions, misgivings and misplaced allegations against the operator i.e. the doctor, cannot be ruled out. One may have notions of best or ideal practice which are different from the reality of how medical practice is carried on or how in real life the doctor functions. The factors of pressing need and limited resources cannot be ruled out from consideration. Dealing with a case of medical negligence needs a deeper understanding of the practical side of medicine.
13. Therefore considering the above aspects, it can hardly be said that there is any negligence and the finding recorded and conclusion arrived at cannot be said to be erroneous, which would call for any interference by this Court. Therefore, the present First Appeal deserves to be dismissed and accordingly stands dismissed.
Sd/
(RAJESH H.SHUKLA, J.)
/patil