MACHINENI RAMA RAO vs PADMAVATHI @ PADMA SREE

THE opposite party in C.D. No. 273/98 on the file of the District Consumer Forum-2, Vijayawada is the appellant. THE complainant, a married woman with three children was hale and hearty upto middle of 1992. She approached the opposite party/appellant herein with a complaint of pain in the abdomen and weakness. THE opposite party operated on her on 20.8.1992 with token No. 3081 for removal of irregular growth of flesh in her stomach. It is the case of the complainant that after surgery she was not able to pass urine normally. Hence, she attributes negligence to the opposite party in conducting the operation as she cannot pass urine without using the catheter.

IN the counter filed by the opposite party it is stated that the complainant approached him on 18.5.1992 with a complaint of abdominal pain, urine trouble and weakness. He conducted necessary tests and found that she was suffering from growth of mass in her lower abdomen. He prescribed antibiotics, but as there was no improvement she approached him again on 26.5.1992. He conducted scanning of the abdomen and found that the urine bladder was distended and also ovarian cyst. He opined that removal of ovarian cyst is necessary to improve her health. Accordingly on 2.6.1992 he performed the surgery and removed adhesives of the bladder and also the ovarian cyst. After the surgery the complainant was not able to pass urine. Therefore, she was advised to consult Urologist by name Dr. Prasanth Kumar at Vijayawada. The ill-health of the complainant is not due to the operation conducted by him. The complainant examined four witnesses including herself and marked Exs. A-1 to A-24. The opposite party also examined two witnesses including the opposite party as R.W.1, besides marking Exs. B-1 to B-5.

On the basis of the evidence on record the District Forum held that there is deficiency of service on the part of the opposite party and accordingly directed him to pay a sum of Rs. 35,000/- with interest at 12% per annum together with costs of Rs. 5,000/-. It is this order that is questioned in this appeal.

THE complainant approached the opposite party for pain in the lower abdomen. She was passing urine normally but after the surgery was conducted by the opposite party for removal of the ovarian cyst, she was unable to pass urine normally and as such catheter was inserted after operation. She could not pass urine for about ten days while she was an inpatient in the hospital. THErefore, the question is, whether the incapacity of the complainant to pass urine in a normal way is due to the surgery performed by the opposite party ? It is the evidence of P.W. 1 that she passed urine normally before she went to the operation theatre. It is admitted by R.W.1, the opposite party that even after ten days the complainant was not passing urine. In other words, the obstruction to pass urine continued even after ten days after operation. It is also his evidence that he referred P.W.1 to Dr. Prasant Kumar of Vijayawada. THE latter was examined as R.W. 2, who states that urinary bladder of P.W.1 was not able to generate sufficient pressure to pass urine. Apart from P.W. 1, the complainant examined P.Ws. 3 and 4. P.W. 4 stated in her evidence that whenever an ovarian cyst operation was conducted on a female usually a surgeon would write operative notes and post operative instructions. Nothing of this sort is produced by the opposite party. Hence P.W.4 is of the opinion that if operative notes are available which would enable to spell out the negligence of the doctor who conducted the operation. She was not cross-examined. THErefore, her evidence goes unchallenged. We shall now refer to the evidence of P.W. 3 who worked as Superintendent of Government General Hospital, Guntur and Chairman of the Medical Board, Guntur. He was directed by the Director of the Medical Education under a letter dated 22nd July, 1996 to constitute a Medical Board and submit a report after examining P.W. 1. He submitted the report, Ex. A-24 which clearly shows that the complainant has post operative retention of urine and is on intermittent catheterisation. P.W. 3 was also not cross-examined and his evidence also goes unchallenged. Dr. Surya Prakash, Urologist of NIMS also examined P.W. 1 and gave his opinion under Ex. A-20 which shows that the bladder is not contracting. He prescribed some medicines. THE bladder which was functioning normally till the date of operation suddenly stopped contracting after operation. In juxtaposition the evidence of R.W.1 shows that he found distended bladder in the scanning and when he noticed ovarian cyst, he decided to remove the cyst. He filed Ex. B-5 inpatient sheet wherein it is noted, cyst found adherent to bladder. It is seen on the reverse of Ex. B-5 " bladder repair cyst removed". As already seen he has not produced the pre operative notes although the complainant was an inpatient for more than ten days after operation. Though he admits that he got all the tests done, such as blood test, urine test etc. on 26.5.1992, but they are not produced. It is also stated in the evidence of R.W.1 that he took the abdomen scanning of P.W.1 and found the urinary bladder distended. THE scanning report is also not filed. As seen from the evidence of R.W. 4 that if the operative notes are available one would know the negligence of the doctor who conducted the operation. In this case both the operative notes as well as the tests conducted before operation were withheld from filing before the District Forum. THE inference is obvious. Had they been filed they would run counter to the claim of the opposite party. In the absence of production of the scanning report it cannot be said that the complainant was having distended urinary bladder. As already seen Ex. A-24 the opinion of the Medical Board, shows that the complainant has post operative retention urine. This opinion in our view should set at rest all the dispute about the existence of the distended bladder before the surgery. Ex. A-11 is another report of scanning which is of much later date i.e. 8.5.1995 conducted in University General Hospital, Vijayawada shows urine bladder distended, wall thickened and the wall thickness is about 8 mm. Under Ex. A-18 Cystometry and EMG record done by NIMS by Dr. B. Surya Prakash, Urologist shows that the bladder is not contracting. He gave his opinion under Ex. A-20. Even R.W. 1 admits that P.W.1 was not using catheter before operation. Ex. B-5 also does not disclose any complaint by the complainant about any defect in passing urine. In Ex. B-5 it is clearly mentioned that P.W. 1 complained of weakness and pain in lower abdomen. It is therefore clear that P.W. 1 was able to pass urine freely before the operation. After operation she was unable to pass urine except on using catheter. Even ten days after operation, there is no improvement in her condition. Except the ipse dixit of R.W. 1 not a scrap of paper is produced by him in support of his contention, except Ex. B-5 which in our view cannot come in aid of the opposite party, which did not see the light of the day for a long time. Even though he admits that he maintained inpatient register, even the said register is not produced which would have strengthened Ex. B-5 that it is maintained in the regular course of business. Without examining the cause of distended bladder proceeding to remove ovarian cyst in our opinion is certainly a deficiency. Opening abdomen for removal of the cyst alone without finding the cause for distended bladder amounts to deficiency in service. THE complainant was not told that she would have to run with catheter throughout her life and her consent was not taken. THE complainant who was passing urine normally till the time of taking to the operation theatre comes out with catheter. THEre is no satisfactory explanation forthcoming from the appellant for this situation. As Ex. A-24 clearly shows that this is a post operative problem the principle of res ipsa loqutur clearly applies to this case and there is no explanation worthy of acceptance coming from the appellant that the complainant was having this problem even before the operation. THEre is no iota of evidence supporting the version of the appellant. THE learned Counsel for the appellant contends that the evidence of R.W. 2 shows that there is no possibility of urinary problem if the cyst is removed. This evidence in our view cannot dwindle the effect of Ex. A-24 coupled with the evidence of P.W. 3. THE over-whelming evidence and the circumstances clearly point out that there is negligence on the part of the opposite party in conducting the surgery which alone is responsible for the situation in which the complainant was placed. As such we have no hesitation in holding that there is deficiency of service on the part of the appellant/opposite party in the C.D. and we accordingly agree with the finding of the District Forum in all respects. It is the contention of the complainant that a sum of Rs. 5,000/- was paid towards operation charges to the appellant. We have no hesitation to accept this version as it cannot be said to be unusual though denied by the opposite party, as the opposite party is not running the clinic as a free walk-in clinic. The award of Rs. 35,000/- in our view considering the overall view of the matter cannot be said to be excessive or unreasonable. For all these reasons we do not find any ground to interfere with the order under appeal. The appeal therefore fails and is accordingly dismissed. Time for payment six weeks. Appeal dismissed.