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SUBMITTED BY:
NIKET JAIN
B.B.A. LL.B. (HONS.)
YEAR III
ROLL NO. A035
SYNOPSIS
LIABILITY OF STATE FOR FAILED STERILIZATION
OPERATIONS
RESEARCH PROBLEM
As seen in the Shiv Ram case1, one of the respondents underwent a tubectomy
operation through the publicity campaign of the Family Welfare Department.
The Apex Court held that the respondents were not entitled to any sort of
compensation from the State Government on account of unwanted pregnancy.
Therefore, even after being assured that the respondent would not get pregnant,
no sort of compensation was awarded for the contrary.
RESEARCH QUESTIONS
Whether all failed sterilization operations amount to medical negligence
under Section 304A of the Indian Penal Code.
What are the main principles and reasonings to be considered before
determining if a State is liable for a failed sterilization operation?
How has the Court interpreted the relevant statutes while determining the
above cases?
Whether every victim of a failed sterilization operation is entitled to a
compensation.
Whether the decisions taken by the judiciary on the above matter are
good judgments.
Whether there is a need for amendment of the existing law in the light of
its interpretation.
REVIEW OF LITERATURE
Public policy requires us to hold that the birth of a child is always a blessing
to its parents and that this benefit must, as a matter of law, totally offset
concomitant financial burdensWe may take judicial notice of the fact that
raising a child from birth to maturity is a costly enterprise, and hence
injurious2
-Justice Peters, Connecticut Supreme Court
The above statement suggests that pregnancy should always be treated as a
bliss. But this same bliss also comes with several financial constraints. It is
never easy to upbring a child without severe monetary burden. If the parents
have taken necessary steps to sterilize themselves then why shouldnt they be
compensated for the failure of such an operation? What wrong have they done?
since the petitioner No.1 never wanted another child who was born due to
the negligence and callous attitude of the surgeon, who is an officer of the State,
it is the duty of the State to maintain the child.3
-Justice Raza, Allahabad High Court
The above statement makes it clear that the State is vicariously liable for the
acts of the surgeon. If the negligent attitude of the surgeon leads to a failure in
the sterilization operation, then it is clear that the couple should be compensated
for a mistake which they never committed.
METHODOLOGY
The scope of this project is limited to subjective analysis of the decisions of the
judiciary on the liability of the State, for failed sterilization operations. This
paper deals in-depth with the stance of Section 304A of the Indian Penal Code
and the interpretation of the courts on this subject. Since the paper is based on
opinions formed after in-depth analysis of the judgments dealt with, it conveys
subjectivity and may vary from the general notion of perception.
The method of research adopted in this research paper is the Doctrinal method
of research. Primary and secondary sources of data have been used to formulate
opinions. Books and internet content constitute major part of the research and,
surveys and examinations have not been conducted for the same.
HYPOTHESIS
There is a strong need to protect the interests of the victims of failed sterilized
operations, who are seldom compensated for the same.
CASES ANALYZED
Achutrao Haribhau Khodwa v. State of Maharashtra4
State of Haryana & Ors. v. Smt. Santra5
State of Punjab v. Shiv Ram and Ors.6
41996 SCC (2) 634, JT 1996 (2) 624
5 (2000) 5 SCC 182, JT 2000 (5) SC 34
FACTS
The deceased, Chandrikabai was admitted in the Civil Hospital, Aurangabad, on
10th July, 1963, for delivering her child. This maternity hospital is attached to
the Medical College at Aurangabad, and respondent No. 2 was working in the
department of Obstetrics and Gynaecology as a doctor. It is she who attended
Chandrikabai. Respondent No. 3 was the Medical Officer of the said hospital,
while respondent No. 4 was the Dean of Medical College, Aurangabad.
Chandrikabai delivered a male child on 10th July, 1963. As she had got herself
admitted to this hospital with a view to undergo a sterilisation operation after
the delivery, the said operation was performed by respondent No. 2 on 13th
July, 1963. Soon thereafter Chandrikabai developed high fever and experienced
acute pain, which was abnormal after such a simple operation. Her condition
ISSUES
Whether the State of Maharashtra can be held liable for any negligence on
behalf of its employees.
Whether running a Government hospital falls within the Sovereign functions
of the State.
Whether the respondents, or any one of them acted negligently in the
discharge of their duties.
viz., a duty of care in deciding whether to undertake the case, a duty of care
in deciding whether treatment to give or a duty of care in the administration
of that treatment. A breach of any of those duties gives a right of action for
negligence to the patient. 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.
CONTENTIONS OF THE RESPONDENTS
According to respondent Nos. 2 and 3, they had prohibited Dr. Divan from
performing the second operation. The said respondents even denied that a
mop was recovered from the abdomen of Chandrikabai.
On behalf of the respondents, apart from themselves, two experts, namely
Dr. Marwa, Professor of Surgery, Medical College, Aurangabad and Dr. B.V.
Purandare, a leading Obstetrician and Gynaecologist of Bombay were
examined. According to Dr. Purandare, Chandrikabai was only suffering
from acute gastric disorder till 19th July, and it was necessary for the doctors
to have waited after removal of the pus on that day, and the second operation
was not necessary. Dr. Purandare deposed that in the absence of a post
mortem examination the exact and correct cause of death could not be
determined definitively. The opinion of Dr. Marwa was also to the same
effect.
The Respondents relied on the case of Kasturi Lal Ralia Ram Jain
v. The State of Uttar Pradesh.10Here, gold had been seized and the same had
been kept in a malkhana. The appellant demanded the return of his gold but
the same was not returned. It appeared that the gold had been
misappropriated by the person in-charge of the malkhana. While holding that
101965 AIR 1039, 1965 SCR (1) 375
there was negligence on the part of the police officers, the Court denied
relief by observing that the powers which were exercised by the police
officers could be properly characterised as sovereign powers and, therefore,
the claim could not be sustained.
JUDGMENT
Running a hospital is a welfare activity undertaken by the government. But it is
not an exclusive function or activity of the government so as to be classified as
one which could be regarded as being in exercise of its sovereign power. This
being so, the State would be vicariously liable for the damages which may
become payable on account of negligence of its doctors or other employees.
In cases where the doctors act carelessly and in a manner which is not expected
of a medical practitioner, then in such a case an action in torts would be
maintainable. As held in Laxman's case 11 by the Court,a medical practitioner
has various duties towards his patient and he must act with a reasonable degree
of skill and knowledge and must exercise a reasonable degree of care. This is
the least which a patient expects from a doctor.
Even if it be assumed that it is the second operation performed by Dr. Divan
which led to the peritonitis, as has been deposed to by Dr. Purandare, the fact
still remains that but for the leaving of the mop inside the peritoneal cavity, it
would not have been necessary to have the second operation. Assuming even
that the second operation was done negligently or that there was lack of
adequate care after the operation which led to peritonitis, the fact remains that
Dr. Divan was an employee of respondent No. 1 and the State must be held to
be vicariously liable for the negligent acts of its employees working in the said
hospital. The claim of the appellants cannot be defeated merely because it may
11 supra
BIBLIOGRAPHY
INTERNET
http://www.issuesinmedicalethics.org/index.php/ijme/article/view/440/802
http://www.thompsons.law.co.uk/clinical-negligence/failed-sterilisationcompensation-claims.htm
http://www.legalservicesindia.com/article/article/vicarious-liability-of-statein-sovereign-functions-580-1.html
https://www.researchgate.net/publication/267214194_Issue_of_Failed_Steril
ization_Medical_Negligence_and_Compensation_A_global_Review
STATUTES
Indian Penal Code, 1860
Consumers Protection Act, 1986
BOOKS
Textbook on The Indian Penal Code by K.D.Gaur., Fourth Edition