Chennai: Madras high court has set aside an order of a single judge directing the state govt to pay Rs 3 lakh as compensation to a woman who became pregnant after undergoing a family planning (tubectomy) surgery and free education for the child.“This court could understand the sympathy expressed by the single judge towards the petitioner, who would have difficulty raising the child alone after losing her husband. However, since a govt order was already in place providing compensation of Rs 60,000 in cases involving failure of tubectomy, the single judge’s order could not be sustained,” the first bench of Chief Justice Sushrut Arvind Dharmadhikari and Justice G Arul Murugan said.Citing a judgment rendered by a division bench of the court in Dhanam case, the court said, the standards and quality assurance in sterilization services state that female sterilization carries a small risk of failure, about 5 in 1,000 in the first year.“It is also stated that a woman who misses her period should report to the health facility within two weeks, and that she should then be offered free termination of pregnancy and repeat sterilization,” the court said.This apart, the Supreme Court has made it clear that the issue of negligence cannot be decided in a writ petition, the judges pointed out.“The apex court emphasized that in cases where there are disputed questions of fact, the high court may decide to decline exercising writ jurisdiction and that negligence in such cases had to be established first by the claimants,” the court said.This does not leave the woman without a remedy. The govt has a scheme for exactly this situation providing Rs 60,000 compensation. If the woman believes she has a claim for more, because of negligence on the part of the doctor or the hospital, she must prove it before a civil court, where both sides can lead evidence, the bench said.
