GURUVAMMAL vs G. NAVANEETHAN (DR.)

THE complainant in O.P. 30/2000 on the file of District Forum, Madurai is the appellant herein.

HER case was as follows: She was a poor vendor with a family of four daughters. HER husband was a mill worker. She was suffering from pain in her lower abdomen for over two years having menstrual period four to five times every month. She consulted the first opposite party, a General Surgeon who after examination, diagnosed it as tumour (Fibroid Uterus) and advised its removal. The complainant paid Rs.15,000 as charges demanded for the surgery. She was admitted as in-patient on 24.3.1999. On 27.4.1999, without the aid of gynaecologist, the surgery was done at about 3.00 p.m. The first opposite party, during the surgery had carelessly and negligently stitched the ureter along with vagina, the urethra organ for discharge of urine which started coming out through vagina. The first opposite party assured the complainant that the urine tube would be removed within few days, but it was removed only after 10 days. The steps taken to stop the leaking of urine failed, the abdominal and pelvis pain surfaced and continued and the stomach swelling made the complainant look like a pregnant woman. Though the complainant had spent Rs. 15,000, she was not relieved of the pain and the umbilical hernia. On inquiry, it was admitted that urine leak was a mistake by the first opposite party who advised a second surgery. The complainant requested the first opposite party to do the second surgery free of cost as it was only due to his mistake, the second surgery became necessary. The first opposite party refused to oblige. The complainant approached Government Rajaji Hospital whose doctors, after examination identified the negligence caused by the earlier hysterectomy and that the leak and pain was due to Vaginal Fistula. She was advised Tranvesical repair which was to be done only after her regaining bodily strength. The repair was done on 30.9.1999. She was in the hospital till 15.10.1999. The urine leak stopped, but the bulging of stomach continued making her immobile most of the time. The legal notice sent on 16.8.1999 got an answer with untenable and blatant denials necessitating the filing of the complaint for gross negligence, deficiency in service and for payment of compensation for such deficiency and costs. The first opposite party filed a version denying any deficiency in service on his part and further stated that the surgery was done with the aid and in the presence of N. Gomathy, Gynaecologist. On completion of various tests and examination only surgery under spinal anaesthesia was done on 27.4.1999 at 3.00 p.m. It was done with due care and skill. Foley''s catheter was inserted to drain urine. Clear urine was drained. On the third post operative day, the catheter came out. But the complainant refused to have it put back. She left hospital against medical advice on 8.5.1999. Even at the time of admission, Dr. Gomathy had observed and noted Umbilical Hernia which was not attributable to VVF for it was a post operative risk in gynaecological operation. Even when the complainant was presented with this inherent risk for the occurrence of which, the first opposite party was ready to do corrective surgery free of cost, she was not willing. There was no negligence or deficiency in service on the part of the first opposite party. The complaint was liable to be dismissed. The second opposite party, Insurance Company had stated that they were not liable to pay any compensation and if at all any claim became payable the first opposite party was alone liable to pay the same.

Before the District Forum, on the side of the complainant, Ex. A1 to Ex. A8 were marked while on the side of the first opposite party Ex. B1 and Ex. B3 were marked and on the side of the second opposite party, Ex. B2 was marked. The District Forum found from Ex. A8, case sheet, that the complainant had not suffered any damage from Ureter, that Ex. B1 showed that the surgery was done with the assistance of anaesthetist and gynaecologist, that the main complaint that the first opposite party stitched ureter along with vagina was not proved by any expert evidence. In Ex. A8, it had been stated that the complaint of leaking of urine bladder was irregular, kidney was also normal, that she was admitted on 8.9.1999 and discharged on 15.10.1999 and if urine was continuously flowing, she would not have been discharged. On 3.8.1999, urethrascopy was done which showed no damage to urethra. From Ex. A8, it was clear that the complainant had a fistula which connected her bladder with vagina and for the removal of the fistula she underwent the second surgery. The surgery was done 1 inch below the navel region and it could not cause umbilical hernia. The complainant had developed only Vasicovaginal Fistula and that she did not have Ureter Vaginal Fistula. The District Forum, by order dated 22.5.2003, dismissed the complaint. It is as against that, the present appeal has been filed.

THE learned Counsel for the complainant/appellant, Mr. Natarajan, vehemently submitted that the presumptions of the District Forum were not at all justified. THE first opposite party in his cross-examination had admitted that he had not noted the presence of doctors in the case sheet, that in Ex. A7, the doctor had not mentioned about umbilical hernia. But the version portrayed a different story. THE District Forum ought to have held that the first opposite party had been negligent and because of his negligence, the second surgery was necessitated and the complainant was entitled to compensation. Per contra, Mr. Veera Raghavan, the learned Counsel for the first opposite party made the following submissions: On 25.4.1999, she was admitted in Gowri Nursing Home for treatment by the first opposite party. She was aged 42 in 1999 as could be seen from Ex. A8 and Ex. B1 case sheet. She was admitted for excessive bleeding per vagina. From her letter, Ex. A3, dated 16.8.1999, to the Consumer Protection Centre, she had pain in her lower abdomen for about two years prior to that date and she had menstrual periods four or five times each month. Ex. A7 was case record for her treatment from 22.1.1999 at ESI Hospital. It could be seen that hers was a case of fibroid uterus. She had taken treatment upto 16.4.1999 for two months and 24 days. She was admitted in Gowri Nursing Home on 25.4.1999 and discharged on 8.5.1999. Ex. B1 case record shows that she had inter-menstrual bleeding 3 to 4 years - pain. Treated outside by many doctors. Advised hysterectomy earlier. Umbilical hernia-Patient not interested in correction. Thus, umbilical hernia was already there at the time of her admission. Dr. Gomathy had seen her as could be seen from Ex. B1. She had noted that removal of uterus was advised by the doctors who had seen earlier. The first opposite party also in his evidence had referred to this. At page 3, Dr. Gomathy had also noted about umbilical hernia. Page 4 of Ex. B1, fibroid uterus combined with cervicitis and infection i.e., to say that her cervix was also inflamed. She was operated on 27.4.1999 at 3.00 p.m. Consent letter was part of Ex. B1. Dr. Gomathy had informed the complainant and her husband about the nature of the illness. The first opposite party and Dr. Gomathy had attended on her. Ex. B1 did not mention about any damage to the bladder. Foley''s catheter was introduced and it revealed clean urine. Ex. A8, case sheet of the complainant''s second surgery which she underwent in Government Rajaji Hospital did not show any damage to ureter. On 29.4.1999, on the third day after the surgery by the first opposite party, it was recorded that catheter had fallen and she was not willing for re-insertion of catheter. On 2.5.1999, it was noted that she was conscious, without fever, minimal fluid discharge per vagina, vaginal trickling. On 7.5.1999, suture removal was done, wound found to be healthy. On 8.5.1999, the complainant left against medical advice. The complaint that there was no anaesthetist and no gynaecologist was wrong as could be seen from the exhibits. As regards the allegation that the doctors stitched ureter vaginal flesh, Ex. A8 would show that there was no backlog of urine and the kidney was normal. Every person had two ureters, one leading from the left kidney to the bladder, the other from the right kidney to the bladder. They joined the bladder at two different points. Even if one ureter had been stitched, then urine flowing through other undamaged ureter would flow into bladder and this quantity of urine must be discharged from the bladder through urethra. So if the complenant''s version was true, urine must have been flowing out both from vagina and through urethra. This was not her case. The case record relating to the second surgery done at Government Rajaji Hospital Ward falsify her case that the doctors there told her about the ureter being stitched with the flesh of vagina and it was attributed to the negligence of the first opposite party. The discharge summary Ex. A6 showed that the diagnosis was Supra Diagonal VVF which meant Vesico Vaginal Fistula and the procedure done was VVF repair. In the operative procedure, it was mentioned Fistula was found way from the ureteric orifice; fistula was dissected from the bladder and vagina. Foley''s catheter 16F was passed through urethra. Fistula opening was closed. Thus, it would be clear that her ureter had not suffered any damage or injury. The Counsel also relied on medical literature.

IT is not necessary to go into details. Suffice it to say that the complainant had not established her case that there was any deficiency in service on the part of the first opposite party. Her case that during the surgery, she was not assisted by gynaecologist has been falsified by production of the case summary where the anaesthetist and Dr. Gomathy, gynaecologist had made their remarks that would conclusively prove that they were present during the surgery first opposite party performed on the complainant. With regard to the stitching of ureter to vaginal flesh; it could be seen that the complainant had not substantiated the same. The second surgery performed at Government Rajaji Hospital records also clearly falsify the stand of the complainant. The complainant had not produced any expert opinion to show that the first opposite party stitched ureter with vaginal flesh. The complainant had developed Vasico Vaginal Fistula as a post operative complication and she did not have ureter vaginal fistula. In Dr. Rameshwar Pd. Agrawal v. Md. Abas Ansari, I (2000) CPJ 433, the Bihar State Consumer Commission at Patna has referred to Medical Literature and held that uterus and urinary bladder being very close to each other, possibility of occurrence of VVF during operation cannot be ruled out. In Shaw''s Text book of operative gynaecology, at page 343, it is stated that majority of fistula developed after gynaecological operations, such fistula results from injury to the bladder during hysterectomy. In many cases, the damage is not recognised at the time of operation. The bladder may be injured during the operation of anterior colporrhaphy or vaginal hysterectomy with the development of VVF. Thus occurrence of VVF is a known complication which could not be detected by the first opposite party at the time of hysterectomy. It is not necessary to refer to any other authority. The complainant had come forward with a specific case and had failed to establish the same. As has been pointed out, in Jacob Mathew (Dr.) v. State of Punjab and Anr., III (2005) CPJ 9 (SC)=III (2005) CCR 9 (SC)=VI (2005) SLT 1=122 (2005) DLT 83 (SC), a surgery cannot and does not guarantee that the result of the surgery would invariably be beneficial much less to the extent of 100% for the person operated on. In the present case, the first opposite party had exercised an ordinary skill of an ordinary competent man exercising that particular art. A simple lack of care and error of judgment or accident is not proof of negligence on the part of medical professional. So long as a doctor follows a practice acceptable to the medical profession on that day, 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 opposite party followed. The complainant in the present case has not produced any positive evidence to establish the negligence pleaded by her. The complication in the present case had arisen not because of anything wanting in the performance of the surgery by the first opposite party, but because of what was inherent that accompanied that surgery.

FOR all the reasons stated above, we hold that the District FORum had rightly found that there was no negligence on the part of the first opposite party. The appeal fails and the same is dismissed. Appeal dismissed.