PUNJAB STATE Vs. GURMIT KAUR & ORS

JUDGEMENT

(1.) The State is the defendant in the suit and is in second appeal having lost in both the Courts. The issue in the suit is an unsuccessful In State of Punjab v. Shiv Ram & ors., 2005 AIR(SC) 3280 , the Supreme Court had occasion to deal with a situation similar to the one here, of a trial in a suit for damages brought by a married woman who delivered a child after undergoing a sterilization operation. The Supreme Court held that the surgeon or the employer cannot be held liable for compensation on account of unwanted pregnancy or the birth of an unwanted child after an unsuccessful tubectomy operation performed by the defendants, who are Government doctors. Negligence is imputed to the defendants for the failure.

(2.) It stands settled that a claim in tort can be sustained only if there was proven negligence on the part of the surgeon in performing the operation. So long as the operating medical practitioner follows a practice acceptable to the medical profession, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the performing doctor followed. Para. 20 of reported judgment in Shiv Ram's case would be useful to reproduce for a better understanding of the moot point. It reads as under:-

(3.) In view of above, there appears to be no life in this appeal and the issue raised is not res integra. The Supreme Court Shiv Ram's case observed after noticing medical literature that: "The methods of sterilization so far known to medical science which are most popular and prevalent are not 100% safe and secure. In spite of the operation having been successfully performed and without any negligence on the part of the surgeon, the sterilized woman can become pregnant due to natural causes." The leading case on medical negligence re: Bolam v. Friern Hospital Management Committee, 1957 1 WLR 582 and the tests laid down therein have been approved by the Supreme Court in Jacob Mathew v. State of Punjab & Anr., 2005 6 SCC 1 in its applicability to India. The Court culled out the following acid tests from Bolam holding in summary as follows in Shiv Ram:-