Can a doctor be held liable for a failed tubectomy and asked to compensate a woman who conceives despite tubectomy and gives birth to a child? In an order of far-reaching significance, the apex consumer court recently dismissed a woman’s claim for compensation in such a case.

The apex consumer court based its decision on the judgement of the Supreme Court in the case of State of Punjab vs Shiv Ram and Ors, wherein the court had made three points: (a) despite 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; (b) the cause of action for claiming compensation in cases arises on account of negligence of the surgeon; (c) if a woman gets pregnant due to failed tubectomy she can resort to termination of pregnancy. On the basis of this, the National Consumer Disputes Redressal Commission did not award any compensation.

In fact it went so far as to blame the woman for not resorting to termination of pregnancy if she did not want to have the child. However, the commission suggested that the opposite party, the director of medical services, may consider payment of some ex-gratia. (RP No. 3990 of 2007).

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 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 or from rural areas and many are 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? Hopefully, the apex consumer court will consider some of these issues when it looks at cases seeking compensation for failed tubectomy.