This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to pay `12,50,000 to the complainant with 18% interest and a sum of `2,000 as cost of proceedings.

          The case of the complainant in brief is as follows: The complainant was professionally a tailor she had suffered abdomen pain with fever and was examined by Dr.Hansary. He referred complainant to 1^st opposite party for obstetrics and gynecological examination.1^st opposite party admitted her in the hospital of 2^nd opposite party on 28.08.2007 and the complainant had undergone Hysterectomy on 31.08.2007. After the surgery complainant had developed urinary incontinence, vomiting fever and back ache. On 7.9.2007 she was discharged with all these problems with direction to continue the medicine and catheterization. But her condition became worse and on 11^th morning her abdomen became slowly enlarged since uterine leaks to the abdominal cavity. 12.9.2007 morning she was admitted to the Hospital of 2^nd opposite party. The urologist Dr.Sathyendran Nambiar examined her. After taking urine by catheterization and administering some medicine she was discharged on 13.9.2007 without fully recovery. She was still suffering from vomiting, fever and urinary complaints.  2.10.2007 she was again consulted by 1^st opposite party and after administering some medicine advised her to come after one week. On 8.10.2007 cystoscopy was done and it revealed fistular opening in urinary bladder after hysterectomy. So bladder catheterization was continued. Since there was no improvement she was again consulted by the urologist Dr.Sathyendran Nambir. On 15.10.2007 he has diagnosed it as vesico vagina fistula happened while hysterectomy. So he advised to repair the same after 6 months. It was informed to 2^nd opposite party and 1^st opposite party then admitted his default. From urology centre, Malabar Hospital VVF was repaired and she was discharged from there on 15.12.2007. It is due to the latches and negligence on the part of opposite party she had suffered these difficulties. Even now the complainant is suffering back pain, fatigue, abdominal pain, sexual disfunction, hormonal imbalance, urinary incontinence etc. She is mentally depressed and leads deserted life due to the ailment effected after the surgery. Even now she is under treatment for the urinary incontinence and other problems. She could not even care her daughter properly give enough guidance and attendance. Her family set up was totally disturbed due to the negligent act of opposite parties. Hence this complaint seeking relief.

          Pursuant to the notice opposite parties entered appearance and filed version separately, the brief of which is as follows. 1^st opposite party is a consultant gynecologist. The complainant has history of recurrent urinary tract infection for the last 5 years. The present symptoms shown since one week. Dr.Sathyendran Nambiar, Urologist examined her and on ultra sonography (USG) study which revealed a Fibroid of the uterus. Thus referred to 1^st opposite party and on examination found suprapubic mass of 14 weeks pregnant uterus. She gave a history of undergoing two previous caesarean section operations. 1^st opposite party advised hysterectomy she was thus taken up for Histerectomy under spinal anesthesia on 31.08.2007. On doing laprotomy it was found that there wee severe adhesions between the bladder and uterus and surrounding peritoneum resulting in the urinary bladder being pulled up and morbidly adherent to the lower segment of the uterus. Such adhesion are quite common in any patient who had a history of pelvic infections and previous caesarean section operations During the procedure of hysterectomy the adhesions had to be separated, resulting in brisk bleeding from  several sites Hysterectomy completed and abdomen closed in layers with  Foley’s catheter for continuous bladder drainage. Catheter was removed at 6 PM next day 1.9.07. Patient passed urine on her own Retetion of urine developed next day 2.9.07. Bladder was again catheterized and 1200 ml of urine was drained out. Patient was having normal bowel movements. Catheter was again removed on 4.9.07 following which patient passed urine normally. But retetion   developed again at around 9.30. Opinion was sought from the urologist. Urologist D.Sathyendran Nambiar, opined that it was due to bladder disfunction and advised continuous bladder drainage for one week followed trial voiding. On 7.09.07 she was discharged with catheter. On 1.09.07 when she came for review she was admitted under the care of the urologist. Catheter was removed and trial voiding was attempted whereby patient passed urine spontaneously. She was discharged next day. A week later she came back with  complaints of urinary incontinence  suspecting it to be vesico- veginal fistula (VVF). Urologist did  cystoscopy and detected a vesico-vaginal. Patient was informed that such fistula usually heal spontaneously by continuous bladder drainage for four weeks. If it fails to do so, then the option left is a surgical repair. Finally she was referred to Dr.Moni, Urologist of Malabar Hospital, Calicut. The vesico vaginal fistula which the patient developed is a known complication of hysterectomy operation. It is not as result of negligence. A successful repair of VVF will not affect the life expectancy or quality of life – eg; day-today activities, normal work, sexual activities etc. This will not cause any hormonal imbalance as alleged. Opposite party have done all necessary investigations prior to the surgery. There is no negligence or act or omission on the part of opposite party. Hence to dismiss the complaint.

2^nd opposite party filed version separately. Patient had history of recurrent urinary tract infection for the last 5 years. After ultra sonography study it was revealed a fibroid of the uterus and thus referred to 1^st opposite party. Hysterectomy was conducted. 2^nd opposite party also explained all the events same as that of 1^st opposite party but not detailed here to avoid repetition. Anyhow vesico-vaginal Fistula by cystoscopy and finally due to urinary incontinence persisted he was advised repair and referred to Dr.Moni, urologist of Malabar Hospital, Calicut. 2^nd opposite party also contended that there is no negligence on their part. Both opposite parties have taken same contentions.

On the above pleadings the following issues have been taken for consideration.

1.     Whether there is any deficiency in service on the part of

               opposite   parties?

2.     Whether the complainant is entitled to get the relief as

       prayed in   the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of PWs.1 to 4, DW1 and Exts.A1 toA13, X1,X2,B1 to to B3.

Issue Nos.1 to 3

          Admittedly  complainant had undergone hysterectomy by 1^st opposite party from the Hospital of 2^nd opposite party on 31.8.2007. the allegation of the complainant is that after surgery complainant had developed urinary incontinence, fever and back ache. She has also alleged that on 7.9.2004 complainant was discharged with all the existing complaints with medicine and catheterization. But opposite party contended that on 1.9.07 Catheter was removed and she passed urine on her own.  But it has again stated that next day 2.9.07 she was developed retention of urine and bladder was again catheterized and 1200ml of urine was drained out. Opposite party further stated that on 04.09.2007 catheter was removed and passed urine normally but patient was again developed retention of urine. Then opening was sought from urologist Dr.Sathyendran, who advised continuous bladder drainage for one week and patient was thus discharged on 07.09.2007 after removing sutures but with catheter inside the bladder. Complainant alleged that after the discharge on 07.09.2007 her condition became worse and worse and on 11^th morning itself her abdomen became enlarged since uterine leaks to the abdominal cavity. Complainant was admitted again on 12.09.2007 and examined by Dr.Sathyendran Nambiar. She was discharged on 13.09.07. Opposite party’s version is that when complaint came for review on 12.09.07 she was admitted under the care of urologist. Catheteral was removed and patient passed urine spontaneously. After week later she came back with complaints of urine incontinence. After conducting cystoscopy detected vesico-vaginal Fistula. Complainant on the other hand alleged that at the time of discharge (13.09.07) without recovering fully.  She was suffering from vomiting fever and urinary incontinence. So on 02.10.2007 she was again consulted by opposite parties and 1^st opposite party administered some medicine and advised to come back after one week. On 8.10.07 cystoscopy was done and detected a vesico-vaginal fistula. So bladder catheterization was continued. Complainant also alleged that her condition was not improved and was again consulted with D.Sathyendran Nambiar on 15.10.2007. He advised to repair the same after 6 weeks. Complainant further alleged that when the same was informed to 2nd opposite party Doctor/1^st opposite party who was present there admitted that it was due to his default injury caused on the bladder while conducting hysterectomy. After that Sathyendran Nambair gave a letter to Dr.Moni. Complainant further stated that she was admitted on 19.11.2007 in Malabar Hospital and repair was carried out there from and discharged on 15.12.2007. Opposite party contended that patient was informed that such fistula usually heals spontaneously by continuous bladder drainage for four weeks and if it fails to do so, the option is surgical repair. Since the urinary in continuance persisted she was advised VVF repair. She was thus referred to Dr.Moni.

          Complainant adduced evidence by way of affidavit in tune with pleadings. It is stated that on 28.08.07 she was admitted the hospital of 2^nd opposite party and operation was conducted by 1^st opposite party on 31.08.07. There is no dispute regarding both these facts. Opposite party contended that complainant gave a history of undergoing two previous caesarean section operations same has been stated in the affidavit evidence of 1^st opposite party. In the cross examination PW1 also deposed that “Fsâ c­p {]khhpT kntkdnb³ Hm¸tdj\n IqSn Ip«nIsf FSp¯ImcyT  tUmIvtSmSp ]dªn«p­v.”. thus the previous caesarean section operation is  an admitted fact. Opposite party contended further that complainant had history of recurrent urinary tract infection for the last 5 years and the present systems started since one week. Complainant kept fully silent with respect to the allegation. In the affidavit evidence also opposite party stated that complainant had history of recurrent urinary tract infection for the last five years.

          Anyhow, it is an admitted fact that cystoscopy was done and detected a Vesico-Vainal Fistula which is an abnormal passage of communication between the urinary bladder and vegina. Opposite party contended that complainant was then informed that such formula usually heals spontaneously by continuous bladder drainage for four weeks and if it fails to do so, the option left is a surgical repair. Opposite party finally referred complainant to D.Moni.

          Complainant’s main case is that Visco vagina fistula developed the course of hysterectomy by 1^st opposite party. But opposite party contended that formation of such fistula is common complication of hysterectomy surgeries, hence VVF complaints developed was late complication of Hysterectomy operation. It is also contended that such fistula are a known complication of any pelvic surgery.

          1^st opposite party adduced evidence by way of chief affidavit in lieu of chief examination in tone with his pleadings. He had stated that patient had history of recurrent urinary tract infection for the last 5 years. He has also stated that complainant gave history of two previous caesarean section operations. On 31.08.07 she was taken up for hysterectomy and on doing laprotomy was found there were severe adhesion between the bladder and uterus. He has stated that such adhesions are quite common in any patient who had a history of previous caesarean operations. He further states that during procedure of hysterectomy the adhesions had to be separated, resulting in brisk bleeding from several sites. To ensure adequate haemostasis many ligatrures and electro-cautery had to be used.  He has further stated that Hysterectomy was completed as routine and abdomen closed in layers with catheter for continuous bladder drainage. Next day on 1.9.07 at 6 PM catheter was removed and patient passed urine on her own. On 2.9.07 patient developed retention of urine and bladder was again catheterized. Then patient was having normal bowl movements. On 4.9.07 catheter removed gain and passed urine normally. But patient again developed retention of urine. Openion was sought from urologist, Dr.Sathyendran Nambiar. He opined that it was due to bladder dysfunction and  advised continuous bladder drainage for one week following trial voiding. Complainant was discharged on 07.09.2007 with catheter inside the bladder. She came for review on 12.09.07 and was admitted. Catheter was removed and trial voiding was attempted whereby patient passed urine spontaneously. She was discharged next day 13.09.07. But she came back with the complaint of urinary incontinence. Cystoscopy was done and detected a vesico- vaginal fistula. Patient was informed that such fistulas usually heal spontaneously by continuous bladder drainage for four weeks. Surgical repair is the option if it fails. Urinary incontinence persisted even after following the said management. Then she was advised repair of VVF and thus referred to Dr.Moni, Urologist of Malabar Hospital, Calicut Dr.Moni successfully carried out VVF repair. Entire expense met by the hospital on humanitarian consideration and she is now under normal condition.

          Admittedly hysterectomy was done by 1^st opposite party on 31.08.07. She was discharged on 07.09.07 with catheter inside the bladder (Catheter in-situ). The main allegation of the complainant is that VVF was caused due to negligence of 1^st opposite party and the complainant is now suffering back pain, fatigue, abdominal pain, sexual disfunction, hormonal imbalance, urinary incontinence etc. due to the laches and negligence on the side of 1^st  opposite party. 1^st opposite party has not shown a reasonable degree of skill and knowledge while conducting surgery.

          Opposite parties has consistent case that the complainant has ‘history of recurrent urinary tract infection for the last 5 years. This contention taken by the opposite party has not been denied by complainant. Moreover, previous two deliveries by caesarean operation have also been admitted. Here the main question is whether the opposite party has acted in accordance with a practice accepted as proper by the medical practice exercising reasonable care and caution. Ext.X1(b) goes to show that operation was carried out with the informed consent of the complainant. From the very outset opposite party contended that in a case like this where there were previous caesarean operations severe adhesions are quite common in any patient. 1^st opposite party stated in his version as well as in affidavit evidence that on doing laprotomy it was found severe adhesion between the bladder and uterus. Similarly he has also adduce affidavit evidence as follows: that during procedure of hysterectomy the adhesion had to be separated resulting in brisk bleeding from several sites. To ensure adequate haemostsis many lagatures and electro-cautery had to be used.  Hysterectomy was completed as routine and abdomen closed in layers with poley’s catheter for continuous bladder drainage. Catheter was removed at 6 p.m the next day ie. 1.9.07 patient passed urine on her own. He has pleaded the same by his version also. Passing of urine on her own after removal of catheter at 6 p.m on 1.09.07 has not been denied by the complainant.  In cross  examination also no question put to  DW1 regarding this aspect. Complainant but has the case that at the time when  Dr.Sathyandran opined that the VVF was caused due to the  injury  during the hysterectomy and it has to be repaired within six weeks 1^st opposite party who was  present there admitted that it was happened due to his default. Moreover, she has also case that she came to release from Malabar Hospital that VVF is cause due to the negligence of 1^st opposite party in hysterectomy operation. Dr.T.K.Unnikrishnan from Laparoscopic surgeon and urologist from Malabar Hospitals and Urology centre, Calicut has been examined as PW4.  He was deposed that Ext.A8 is the discharge summary and the complainant Rajitha had been treated from Malabar Hospital from 19.11.07 to 05.12.07 and undergone a surgery on21.11.07.He was not working there at that time. He has deposed that X2(a) reference letter by Dr.Sathyendran Nambiar was to their chief Dr.Moni. As per the letter Rajitha was having VVF following abdominal hysterectomy. He has adduced evidence as follows: Suppose a patient is having caesarean operation previously surgeon should be more careful when doing hysterectomy to such patient. The patients having caesarean operation will have a tendency to have dense adhesion between bladder and the lower part of the uterus and upper part of vagina. In such cases the gynecologist need not necessarily have the assistance of urologist. When it is suggested that the complication like VVF can be avoided if it is done by an expert PW4/doctor specifically answered thus “Not correct. Even expert scan have complications”. He has also opined that VVF can be caused due to incision of surgical instruments but usually detect during surgery itself and do repair at the same time. While cross examination for the opposite party PW4 deposed that there is more chance for dense adhesion between the bladder and uterus in this case since patient had undergone two caesarean operations. He deposed further as follows: At the time of hysterectomy he has to separate the bladder from the uterus. When such separation being done there will be bleeding points. Surgeon should block the bleeding either by electro-cauterisation or legatures. Cauterisation is an accepted procedure for control of bleeding. In such cauterised places there will be less supply of blood and that we cannot assess at the time of surgery. When there is less blood supply there will be less supply of oxygen which will lead to tissue death in due course and there will be necrosis. Fistula develops in such places. He has also deposed that the VVF was diagnosed from Kannur itself. As per Ext.A8, the condition of the patient as written, is Fistula repaired. As per Ext.A8 the problem was rectified .Later on  26.12.07 it was written on Ext.A8 “No voiding difficulty.Subsequently on22.05.08, it was written on Ext.A8 as no voiding difficulty. After discharge till six months, she has no complaint of incontinency .Last visit is 24.05.08. On 22.05.08 there was a recording that “on examination there is no abnormality detected. As per Ext.A8 the patient is normal at that time. The development of VVF after hysterectomy is a known complication even in expert’s case. All text books show that there will be a complication of development of VVF after hysterectomy. As per the record Ext.A8 and Ext.X2 of Malabar Hospital shows that VVF of patient is successfully repaired. Usually there will be no difficulty for cohabitation of couple. There may be a chance of shortening the vagina. If there is any such shortening, it should be in the record. Generally hysterectomy is done by gynecologists. Even without injury there will be some blood stain in the bay and it is a part of surgery.

          PW4 is a doctor working as a laparoscopic surgeon and urologist in Malabar Hospital and urology centre, Calicut. He is an expert on the one hand and a witness that too an independent witness on the other hand. Hence there is much weight for the  evidence of PW4.

          Complainant was referred to opposite party 1 and on his examination it was found there was a suprapubic mass of 14 weeks pregnant uterus. She had  history of undergoing two previous caesarean section operations. 1^st opposite party advised hysterectomy at the earliest. After taking informed consent 1^st opposite party conducted hysterectomy. There was no complaint regarding pre-operative investigation on the part of opposite parties. 1^st opposite party adduced evidence by way of affidavit evidence that on opening up of the abdomen it was  found that there were severe adhesions between  the  bladder and uterus. PW4/the expert witness deposed inbox that the patients having caesarean operation will have a tendency to have dense adhesion between bladder and the lower part of the uterus. During the cross examination for opposite parties PW4 deposed there is more chance for dense adhesion between the bladder and uterus in this case since patient had undergone two caesarean operations. Thus the statement of 1^st opposite party that on opening up of the abdomen it was found sever adhesion between bladder and uterus need not be doubted. Hence it is evident that separation of bladder and uterus is inevitable for the hysterectomy operation 4^th opposite party also stated that at the time of hysterectomy Doctor has to separate the bladder from the uterus. His evidence also goes to show that surgeon should block the bleeding during operation  either by electro-cauterisation or legatures. He has further stated that cauterisation is an accepted procedure for controlling bleeding. 1^st opposite party has adduced evidence  by way of affidavit that during the procedure of hysterectomy  the adhesion had to be separated, resulting in risk bleeding from several sites. It is also stated that many legatures and electro-cautery had to be used to ensure haemostasis. The evidence of 4^th opposite party/expert/makes it clear that the evidence of 1^st opposite party cannot be discarded. 1^st opposite party deposed in cross examination that  “ ligaturesIm­pT electro –cauterisation sImWSpamWv bleeding \nÀ¯pI” operation kab¯v blood transfusion D­mbncp¶nÃ. Timely haemostasis achieves sN¿p¶XpsIm­mWv blood transfusion th­mXncp¶Xp”. Since there is expert evidence that  cauterisation is an accepted procedure 1^st opposite party cannot be blamed or it cannot be considered as an avoidable measure unless there is sufficient evidence to show that there are other procedures to stop bleeding during operation. Till then it can be taken for granted that 1^st opposite party has been followed only the accepted correct procedure.

          Complainant has the case that opposite party had conducted surgery without the help of a surgeon which is mandatory in the case of hysterectomy. In cross examination when the question was put to him that  he did not made available the service of a surgeon though it was a complicated surgery, his answer was that it was not necessary. The evidence of PW4 that under such cases the gynecologist need not necessarily have an assistance of urologist strenghtenes      the evidence of 1^st  opposite party doctor. It is also pertinent to note that there is no evidence to show that the presence of a surgeon is mandatory. In the absence of evidence to that effect and without any authority opposite party cannot be found guilty for not asking for the assistance of surgeon. Complaint did not establish that the help of surgeon is mandatory. It is not based on a scientific search. It seems to be quite imaginary without a scientific base. It is not confirmed by any expert witness or supported by standard text books.

          Learned counsel for the complainant argued that the  complication like VVF could have been avoided if it was done by an expert. When this question was put to PW4 he answered categorically that it is not correct with a supplementary answer that “ even experts can have complications”.

          In the land mark judgment in Jacob Mathews Vs. Sate of Punjab and Anr. III (2005)CPJ 9 (SC) while dealing with the case of negligence by professionals also give illustration of legal profession. The court observes as under:

“18 In the law of negligence, professionals such as lawyers, doctors, architects and others are included in the category of persons professing some special skill or skilled persons generally. Any task which is required to be performed with a special skill would generally be admitted or undertaken to be performed only if the person possesses the requisite skill for performing that task. Any reasonable man entering into  profession which requires a particular level of learning to be called a professional of that branch, impliedly assures the person dealing with him that the skill which he professes to possess shall be exercised and exercised with reasonable degree of care and caution. He does not offer his client that the client shall win the case in all circumstances. A physician would not assure the patient of full recovery in every case. Surgeon cannot and does not guarantee that the result of surgery would invariably be beneficial, much less to the extent of 100% for the person operated on.  The only assurance which such a professional can give or can be understood to have given any implication is that he is possessed of the requisite skill in that branch of profession which he is practicing and while undertaking the performance of the task entrusted to him he would be exercising his skill with reasonable competence. This is what the entire person approaching the professional can expect”.

          It is also important to note the observation in the same case(supra) Jacob Mathew & Sate of Punjab that “ A surgeon with  shaky hands under fear of legal action cannot perform a successful operation and a  quivering physician cannot administer the end  dose of medicine to his patient.

          According to the guidelines of the Hon’ble Supreme Court in Jacob Mathew case it is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. The standard to be  applied for judging, whether the person charged has been negligent or not, would be that  of an ordinary competent person exercising ordinary skill in that profession. It is pertinent to note that in the case in hand it is not proved that the doctor who had operated the complainant was not competent. Hence the argument that VVF complication would not have been developed if it was done by a more complaint expert has no much weight to be considered. The Supreme Court in famous case Indian Medical Association V.V.P Shantha & Ors.III (1995)CPJ I(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”.

          Learned counsel vehemently argues on the point of conducting cystoscopy. According to him complication could have been avoided if cystoscopy was done. The very same question was put to DW1/Doctor and his answer was “ cystoscopy gynecological surgerybv¡nSbnÂ, urinary tract injuries Ipd¡phm\pff Hcp preventive measure F¶ \nebn R§Ä follow sN¿p¶nÔ. That means opposite party did not follow cystoscopy as a preventive measure to reduce the urinary tract injuries. He further stated that operation kab¯v urinary bladder, uterus \n¶pT  lower part of vaginabn \n¶pT \¶mbn  separate sNbvXncp¶p. B kab¯v bladder injury D­mhmXncp¶Xp sIm­mWv intra operative cystography sN¿mXncp¶Xp”. He further explained that he was aware of the fact that there was possibility of injury during the time of removal of adhesion between bladder uterus. But cystoscopy was not helpful for that. At the time of operation the view of outside bladder will get and not inside view. Cystoscopy will make available the inside view which is not useful for operation. It is not correct to say that cystoscopy would have been helpful to foresee the development of VVF. The operating Doctor opposite party has a definite explanation to the question regarding for not doing cystoscopy. This is not proved wrong by rebuttal evidence. Though this question  was seriously put to DW1 the same question did not put to expert witness Dr. T.K.Unnikrishnan/ DW4 for better clarification and understanding. He was not so serious to establish his stand that development of VVF would not have taken place if cystoscopy was done. The inevitability or of its usefulness could have been established by an authoritative expert opinion if it was put to PW4. So nothing can be presumed with respect to the role of cystoscopy in connection with the development of VVP. The argument of learned counsel that VVF would not have developed if cystoscopy was done prior to the surgery, could not be established by the complainant.

          The learned counsel for the opposite party vehemently argued that there was negligence on the part of 1^st opposite party in conducting hysterectomy operation and thereby caused to develop VVF. But complainant is no able to establish what exactly the negligence is. Complainant has nowhere given the concrete instances of such negligence or deficiency of the opposite parties. The onus of proving deficiency in service on the part of the opposite party lies on the complainant. The case of opposite party is that the occurrence of VVF is a known complication after the hysterectomy operation. Dr.T.K.Unnikrishnan, Laparoscopic surgeon and urologist was examined as PW4 and the evidence adduced by him is the important expert evidence available in this case. His evidence supports the contention of 1^st  opposite party. PW4 deposed in cross examination that the development of VVF after hysterectomy operation is a known complication”. According to him all text books shows that there will be a complication of development of VVF after hysterectomy. Hon’ble National Commission in the case Mrs.Beena Garg Vs. Kailash Nursing Home & Ors. has quoted expert opinion of Dr.(Mrs) K.K.Sharan, a Senior  obstetrician and Gynecologist at Dr.B.L.Kapur Memorial Hospital, of S.K.Bhanderi of Sir Ganga Ram Hospital as given below:

          “The fistula can occur under the following circumstances:

A difficult vaginal delivery

         After caesarean section particularly after repeated

         caesarean section when the urinary bladder maybe densely adherent to the uterine scar. In these cases during separation of the bladder wall which can be repaired at the time of surgery However, sometime necrosis of the bladder wall takes place after few days leading to vesico uterine fistula”

In the case in hand admittedly there is history of two previous caesarean operations. Moreover, there is urinary tract infection for the last 5 years. It may therefore,  reasonable to assume that VVF occurred as a result of hysterectomy. It is important to see that in page 343 of Shaw’s Text Book of operative Gynecology it is stated “that majority of Fistula develop after gynecological operations such fistula result from injury to the bladder during hysterectomy. In many cases the damage is not recognized at the time of operation. The bladder may be injured during the operation of anterior colporrhaphy or vaginal hysterectomy with the development of VVF”.

The Lande’s Operative Gynecology Seventh Edition page 786 it is stated that “ Vesicovaginal fistula, as seen today result chiefly from obstetric injury; operative accidents, mostly those during total abdominal or vaginal hysterectomy; extension of carcinoma of the cervix or the radiation therapy for  treating this disease; and miscellaneous causes”. In the same page it is further stated that “ The uniform use of total rather than subtotal hysterectomy has resulted in an increase in post operative fistulas. There is very little risk of injury to the bladder when a subtotal hysterectomy is performed. In  the same text in page 787 stated thus: “Gynecology  surgery is the most common  etiology of vesico vaginal fistula in the United State and in many other developed countries in the world”. It is also important to see in page 497 of Text Book Third Edition management of common problems in  obstetrics and gynecology by Arich Bergman and Charles A Bullard that “ Accidental  lacerations are commonly associated either with an  anatomic distortion as a result of previous operations or tumors, or with adhesions as a result of surgery, infection or endometriosis”.

On going through the available evidence on record especially that of PW4 medical expert together with references of standard books it is reasonable to assume that VVF is a known complication which could not be detected by the opposite party at the time of hysterectomy. The available expert evidence would make the case of opposite parties believable and acceptable. As we have seen above the medical authorities on this subject would also show that VVF is a known and acceptable complication of hysterectomy. It is reasonable to conclude that the very development of VVF cannot be taken as a ground to hold that there was negligence in doing hysterectomy operation on the part of opposite party. The mere development of VVF and the resultant inconvenience or discomfort cannot be taken as aground to fasten liability of medical negligence on 1^st opposite party doctor who conducted the hysterectomy operation on he complainant. Thus the above complaint is liable to be dismissed and hence we do so answering the issues accordingly.

In the result, the complaint is dismissed.

                     Sd/-                  Sd/-                      SD/-

President              Member                Member

                           APPENDIX

Exhibits for the complainant

A1.   Copy of the lawyer notice sent to Ops

A2 & A3. Postal receipts and postal AD cards

A4.   Reply notice dt.6.3.08 sent by OP No.2

A5.   Reply notice dt.7.3.08 sent by OP No.1

A6 & A7. Discharge card issued from Specialty hospital

A8.   Discharge summary issued from Malabar hospital

A9.   Lab reports issued from Specialty Hospital

A10. Prescription from Specialty Hospital

A11. Lab report from Doctor’s lab

A12. Prescription given by Dr.Srinivas

A13. Medical bills

Exhibits for the opposite parties:

 B1. Copy of the receipt issued by Malabar Hospital to

 B2 & B3. Copy of the pass book maintained in NMG Bank, by Specialty

       Hospital Kannur

Exhibits for the witness

X1 & X2. Case record maintained by Specialty

        Hospital &  Malabar hospital

Witness examined for the complainant

PW1. Complainant

PW2. O.V.Narayanan

PW3. K.Pradeepan

PW4. Dr.T.K.Unnikrishnan

Witness examined for the opposite parties:

 DW1.Dr.P.Surendran

                    /forwarded by order/

          Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.