RAMESHWAR PD.AGRAWAL vs MD.ABAS ANSARI

THE present appeal is directed against the order dated 17.11.1995 passed by District Forum, West Champaran, Bettiah directing the appellant-opposite party for his negligence to pay a sum of Rs. 53,685/- as compensation and Rs. 1,000/- as cost to the complainant-respondent.

THE facts of the complaint case in brief are that the complainant, Md. Abas Ansari''s wife had complaint of pain in the abdomen who consulted the opposite party after paying his consultation fee of Rs. 35/-. He informed the complainant that there is inflamation in the uterus of his wife which needs to be removed. On his proposal for going to Patna or Darbhanga for treatment the opposite party advised him to get the operation done at Bettiah which will be cheaper. He charged Rs. 1,200/- for surgical operation and Rs. 1,000/- for medicines and performed the operation on 30.4.1994. His wife after operation remained under the care of the opposite party for ten days when he had to pay Rs. 20/- per day for room rent. Besides that he incurred an expenditure of Rs. 4,000/- over injection, medicine etc. after the operation. After discharge of the patient by the opposite party he spent Rs. 2,000/- over purchase of medicine prescribed by the opposite party. THE tube from the urinary bladder was removed after ten days and the patient was discharged. But the patient''s problem of frequent urination kept continuing. THE patient kept on consulting the opposite party who was prescribing medicines and was charging Rs. 35/- every month with no redressal. Finding no improvement in the condition of the patient, the complainant asked the opposite party if the treatment of the patient be not within his control, he may refer the patient to some doctor at Patna or Darbhanga for better treatment. On his insistence the patient was referred to Dr. Mira Choudhary who after examination gave the opinion that the patient needs to be taken to Patna for proper treatment. THE treatment at Bettiah was not possible as some hole had occurred in the urinary bladder while removing uterus. It is a case of V.V.F. which requires major operation. THE prescription of Dr. Mira Choudhary was shown to the opposite party who talked to Dr. Choudhary on phone for a long time. THEreafter he referred the patient to Patna. THE doctor at Patna felt that removal of the tube from the urinary bladder just after ten days was the reason for the complication. It should have been removed after 20 days. He had to spend a sum of Rs. 30,000/- on treatment and Rs. 15,000/- on transport cost. He suffered a loss of Rs. 53,685/- in total on various counts because of negligence shown by the opposite party. He, therefore, prayed that the opposite party may be directed to pay the above amount to him. The opposite party in his written version has admitted that he had examined the patient and had advised for removal of the uterus after necessary investigation. He indicated his fees for operation and denied having suggested that the operation at Bettiah would be cheaper. He also denied having charged Rs. 1,000/- for medicines. He only prescribed medicines which were purchased by the attendant of the patient. The operation was successfully performed. While removing uterus, a lump was observed in the urinary bladder which was also removed. The patient remained under his care for 10 days. The patient had no problem at all. She had no complaint when she was discharged after ten days. She had problem of leakage of urine after sometime. He prescribed medicines related to tumour. Later on she informed the opposite party that urine was leaking through the birth canal. But she refused to get the birth canal inspected by a male doctor. She was, therefore, referred to a lady doctor, Dr. Mira Choudhary who after examination of the patient identified the ailment as V.V.F. This is a known complication after such operation and it does not indicate any deficiency in service. The opposite party reiterated that the patient had no complaint when she was discharged after ten days of operation. There was no lack of adequate care on the part of the opposite party in treatment of the patient.

It is found that the wife of the complainant had consulted the opposite party for her complaint of pain in the abdomen. It is admitted that the patient was operated upon by the opposite party for removal of uterus. It is also admitted that the patient remained under the care of the opposite party for ten days after which she was discharged. It is also admitted that the patient was referred to Dr. Mira Choudhary who diagnosed the complication as V.V.F. which according to the opposite party is possible in case of such operation. The main point at issue is to find out if V.V.F. developed one to removal of indwelling catheter by the opposite party only after ten days as alleged by the complainant or due to any other negligence on the part of the opposite party. The complainant says that the doctor at Patna gave the opinion that the tube from the urinary bladder should have been removed after 20 days and not after ten days only. But this is not supported by any document on record to show expert opinion that the tube was removed prematurely. The complainant has not adduced any evidence to support his allegations in the complaint petition. The opposite party has denied the allegation although he too has not adduced any evidence in support of his contention. But the onus of proving deficiency in service on the part of the opposite party lies on the complainant. He has not even filed affidavit in support of the contents of the complaint petition.

ON referring to the medical papers filed by the complainant it is found that the patient had consulted the opposite party on 22.1.1994 with pain in abdomen since 1988. The opposite party advised for ultra sonography of urinary system besides x-ray of abdomen, blood and urine tests. Ultra sound scan report indicates inter alia bulky uterus and fluid in cub-do-sac (space between bladder and uterus). ON the basis of the test reports, uterus was removed and entrometriosis in urinary bladder was done. Wound was closed in layers and indwelling catheter was placed in urethra which was removed after ten days. After she had the problem of incontinence (urine coming through vagina) on removal of the catheter the patient was referred to Dr. Mira Choudhary a lady doctor at Bettiah. After I.V.P. test she diagnosed the ailment as V.V.F. (vesico vaginal fistula). She referred the patient to Patna for repair of urinary bladder. The opposite party also referred the patient to IGIMS, Patna. It is not so far known if V.V.F. existed from before or developed after operation performed by the opposite party on 30.1.1994. But fluid had been observed in cub-do-sac in ultra sonography before the operation which may have been possible because of leakage in the bladder. But it has not been established by the opposite party to show that the source of fluid in cub-do-sac was because of some hole in the urinary bladder from before. It may, therefore, be reasonable to assume that V.V.F. occurred during removal of uterus. Uterus and urinary bladder being very close to each other possibility of occurrence of V.V.F. during operation cannot be ruled out. On referring to Shaw''s Text Book of Operative Gynaecology at page 343 it is stated "that majority of fistula develop after gynaecological operations. Such fistula result 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 V.V.F.". Thus occurrence of V.V.F. is a known complication which could not be detected by the opposite party at the time of hysterectomy. Further the complainant has alleged that the complication of V.V.F. occurred because of removal of indwelling catheter only after ten days as suggested by Patna doctor. There is nothing on record to support the allegation. In fact Shaw''s Text Book at page-90 says that an indwelling urethral incatheter for 10 days and chemotherapeutic cover should suffice to ensure a satisfactory outcome. Thus this allegation of the complainant is also not supported by standard text book.

THE Supreme Court in famous case of Indian Medical Association v. V.P. Shantha & Ors., III (1995) CPJ 1 (SC), had held that "medical practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise reasonable degree of care. Neither the very highest nor a very low degree of care and competence judged in the light of circumstances of each case is what law requires". THE opposite party has exhibited expert skill in performing hysterectomy and entrometriosis. Complication of V.V.F. during the above operation occurred which may occur as explained earlier. THE opposite party, therefore, when put to the test laid down in the above judgment of the Supreme Court cannot be held guilty of any negligence. In view of the above discussion, it is seen that the order of the District Forum cannot be sustained in absence of any evidence in support of the allegations and also on examination of medical papers filed by the complainant. We, therefore, hold that there was no negligence or deficiency on the part of the opposite party in performing the operation and treatment of the patient. The appeal is, therefore, allowed and the impugned order is set aside. The complaint petition is dismissed.

THERE is no order as to cost. Appeal allowed.