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Doctors not liable to pay damages: court

J. Venkatesan

For failure of operation if after sterilisation a child is born

NEW DELHI: The Supreme Court has held that a doctor could not be held liable to pay damages for the failure of a family planning operation if after sterilisation the woman begets a child.

Giving this ruling, a three-Judge Bench comprising Chief Justice R.C. Lahoti, Justice C.K. Thakker and Justice P.K. Balasubramanyan said the claim for damages could be sustained only if there was negligence on the part of the surgeon.

Considering the illiteracy of the women, ignorance or carelessness, the court asked the State governments to think of creating a welfare fund for providing relief to them.

The best course for the States would be to devise an insurance policy or scheme, which would provide coverage for such claims where a child was born to woman who had undergone a successful sterilisation operation.

Writing the judgment, the Chief Justice said the sterilisation methods so far known to medical science that were most popular and prevalent were 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 could become pregnant due to natural causes.

"And, yet the doctors are being faced with claim for damages. The courts have decreed some of the claims without arriving at any finding providing a foundation in law for upholding such claim. The State is also being called upon to honour such decrees on the principle of vicarious liability when the surgeon has performed in discharge of his duty."

Most such surgeries were performed on a large scale and as part of the Government's family welfare programmes. Obviously, such programmes were in the public interest. While so, decrees against doctors would act as a disincentive and have a deterrent effect on them. The State, flooded with such decrees, would be inclined not to pursue family planning camps on a large scale though in the public interest.

The Bench directed the Union and State governments to devise a welfare fund or insurance scheme to the persons in whose case operations had been unsuccessful. It, therefore, held "merely because a woman having undergone a sterilisation operation became pregnant and delivered a child, the operating surgeon or his employer cannot be held liable for compensation on account of unwanted pregnancy or unwanted child."

The decision came on an appeal by the Punjab Government against the award of Rs. 50,000 compensation by a lower court to a woman from Bathinda, who had conceived a child even after a sterilisation operation in August 1984. The High Court had upheld the award.

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