Failed tubectomy: patient must get relief

Pushpa Girimaji

Can a doctor be held responsible for a failed tubectomy and asked to compensate a woman who conceives despite the operation and gives birth to a child? Several law courts around the country have dealt with this question and given different opinions. But in the first quarter of this year, two women—both from Karnataka— sought compensation for failed tubectomy. While the Karnataka High court awarded Savitri, a resident of Honnavalli village in Karnataka, Rs 1.8 lakh as compensation, the apex court told Lakshmi, also from Karnataka, that she was not entitled to damages.

The court, in fact, went so far as to blame the woman for not terminating the pregnancy if she did not want to have the child. It based its decision on the judgement of the Supreme Court in the case of state of Punjab vs Shiv Ram, wherein the court said that "the methods of sterilisation so far known to medical science which are most popular and prevalent are not 100 per cent safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilised woman can become pregnant due to natural causes".

The Supreme Court also remarked in this case that once the woman misses the menstrual cycle, it is expected of the couple to visit a doctor, and in case of unwanted pregnancy, terminate it. "The cause of action for claiming compensation in cases of failed sterilisation 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", the Supreme Court had said.

On the basis of this, the National Consumer Disputes Redressal Commission observed that the fact that the complainant conceived and gave birth to a child, by itself would not be sufficient to give a finding of deficiency in rendering medical service. Besides, she did not approach any hospital for termination for unwanted pregnancy once she realised the failure of the operation. It, therefore, did not award any compensation but suggested that the opposite party, the Director of Medical Services, may consider payment of some ex-gratia .

This order is most unfortunate because it does not take into consideration, the consumer’s or, in this case, the patient’s right to information and the fact that failure to respect that right constitutes deficiency in service. Let us assume that the tubectomy performed by the doctor was perfect and that there was no deficiency or negligence. But the question that needs to be asked here is: was the patient informed beforehand or later (after the tubectomy) by the doctor that there was a possibility of her becoming pregnant despite the tubectomy, and that if she missed a menstrual cycle, she should immediately have herself checked for pregnancy?

Failure to make this disclosure and warn the patient about the possible failure rate constitutes deficiency and negligence on the part of the doctor. Many of those who undergo tubectomy are from economically weaker sections, women from rural areas, and many of them, illiterate. If they are told that once tubectomy is performed, they will not conceive, why should they run to a doctor at the slightest sign of a delay in their menstrual cycle?

As I said earlier, failure to warn them of the consequences of failed tubectomy itself is negligence, and they need to be compensated if because of that negligence, they end up with an unwanted pregnancy. Besides, if the woman has been falsely promised that she will not conceive after tubectomy (and not informed of the possibility of failure), it constitutes an unfair trade practice because that promise was false or incorrect. Interestingly, the Delhi High court, in its order in the case of Laxmi vs Union of India, made some highly relevant observations.

Referring to the argument that the petitioners were guilty of contributory negligence in not approaching the hospital authorities and terminating the pregnancy when they realised that despite the tubectomy, Laxmi had conceived, the High Court pointed out that the couple was illiterate and poor. Said the High Court: "The contributory negligence of petitioners in not approaching the doctors on time has to be considered and determined, keeping in mind their background, general awareness and living conditions".

It pointed out that the woman could have been made to believe, following the operation, that she was completely safe from unwanted pregnancy, thereby resulting in her ignoring the missing periods. Besides, delay and irregular menstruation following sterilisation/tubectomy operation are also not unknown, the High Court pointed out. Hopefully, the apex court will consider some of these issues when it looks at cases seeking compensation for failed tubectomy.