By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite parties to pay Rs.1,25,000/- as treatment expenses and Rs.3,50,000/- as compensation for the deficiency of service of Opposite Parties.

2. Complaint in brief:- The complainant due to her uterus multiple fibroid got treatment from 2^nd Opposite Party's Hospital and the treating doctor was 1^st Opposite party. As per the advice of 1^st Opposite Party, the Complainant got admitted in the Hospital on 28.06.2013 for the purpose of removing the uterus and on 02.07.2013 surgery was conducted and uterus is removed. The Complainant was discharged on 09.07.2013. The total expenses for the treatment is Rs.50,000/-. After discharge, the Complainant got urine leakage at home and severe pain and the Complainant approached the 1^st Opposite party and informed the matter. Even after applying medicines on the advice of doctor, the leakage and pain not stopped. Then the doctor advised the Complainant to continue treatment at medical college hospital and gave refer letter to her. So the Complainant got treatment at urology department at medical college and undergone another surgery at Medical College on 15.10.2013 and cured the problem. The urine leakage happened to the Complainant is only due to the negligence of 1^st Opposite party. Therefore, there is deficiency of service from the part of Opposite party and aggrieved by this, the complaint is filed.

3. On receipt of complaint, notices were issued to Opposite parties and Opposite parties appeared before the Forum and filed version. In the version of 1^st Opposite party, the 1^st Opposite Party denied all the allegations in the complaint. The 1^st Opposite party stated that the Complainant was admitted in 2^nd Opposite party's Hospital on 26.06.2013 and found fit for surgery as per medical consultation and pre-operative conversant with pros and cons of proposed surgery and risk factors involved in a pelvic surgery and the Complainant voluntarily consented for surgical treatment and on 02.07.2013, the surgery was conducted. Clear urine was drained via catheter during post operative period as well and catheter was removed on the third post operative day and she was discharged on 09.07.2013 without any complaints. On 22.07.2013, when the Complainant came up for review, her general conditions was good. Per speculum examination revealed urinary leakage and based on examination findings, a provisional diagnosis of vesico vaginal fistula was made. The Complainant was referred to urologist for further management on the same day itself. Urinary leakage due to fistula is a medically accepted complication reported especially in patient with history of distorted anatomy posed by the disease condition like multiple fibroid. The Complainant developed urinary leakage due to fistula formation on 20^th post operative day which comply support the probability that it has developed due to factors non connected to surgical procedure for the obvious reason that otherwise it would have been manifested either intra operatively or in immediately post operative period. There is direct injury to urinary bladder during surgery and fistula formation was beyond the control of the 1^st Opposite party especially after 20 days of surgery. The 1^st Opposite Party had treated the Complainant with all reasonable degree of skill and care expected from a qualified and experienced gynecologist in an identical situation. There was no negligence in treatment and hence the complaint is liable to be dismissed. In the version of 2^nd Opposite party, 2^nd Opposite party stated the same contention as stated by 1^st Opposite party and there is no deficiency of service from the part of Opposite parties.

4. On perusal of complaint, versions and documents, the Forum raised the following points for consideration.

1. Whether there is deficiency of service from the part of Opposite parties?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A5. The 1^st Opposite party also filed proof affidavit and is examined as OPW1 and Ext.B1 series and confronted document is marked as Ext.A6. Opposite Party's witness is examined as OPW2. Admittedly the operation was conducted at Alfa Hospital by 1^st Opposite party doctor on 02.07.2013. The patient was discharged on 09.07.2013. As per Ext.A3 the Complainant developed urinary leakage after 2 weeks. As per Ext.A4, the treating doctor 1^st Opposite Party referred the patient to Medical College Hospital on 11.08.2013. And the Complainant had undergone fistula repair on 15.10.2013 at Medical College Hospital and it was done by OPW2 doctor Mr. Dr. Felix Cardoza. According to 1^st Opposite party, the Complainant voluntarily consented to operation after understanding the post operative complications. The urinary leakage due to fistula is a medically accepted complication and it is not at all a negligence in operation. The OPW2 is doctor who conducted VVF repair deposed in cross examination that there is chance to cause injury to urine bladder and urine tube at the time of surgery. It can be sustained due to the negligence of doctor also. The OPW2 also deposed that as per Ext.A4 it is seen that an injury is sustained to urine bladder but it is not serious. The 1^st opposite party could not manage it by herself and so the patient was referred to Medical College Hospital. On analysis, the Forum found that since there is an injury to urine bladder at the time of surgery it developed as an urine leakage. So the real reason for the urine leakage is the injury sustained to the urine bladder and subsequent development as a VVF. Here the urinary leakage happened due to the injury to urine bladder which is connected with surgical procedure and it developed gradually during post operative period. In this case, the problem of Fistula is not a sudden development consequent to post-operative complication, but it is due to the injury sustained to the urinary bladder during surgery and subsequent development in to fistula. This finding of the Forum is based on the opinion of specialist doctor ie OPW2. Here the 1^st Opposite party did not exercise the reasonable skill which she possess in the surgery. More over, in Opposite party's Hospital, no urologist is available at the time of surgery. If any complication arises in surgery to the urinary bladder, the presence of an urologist is necessary. So by analysing the entire evidences, the Forum come to a conclusion that there is negligence in conducting the surgery. Point No.1 is found accordingly.

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation. The Complainant produced Ext.A4 series and Ext.A5 series bills to prove the treatment expenses and it will come altogether Rs.61,838/-. The Complainant is entitled to get treatment expenses also. The 2^nd Opposite party is vicariously liable for the acts of 1^st Opposite party.

In the result, the complaint is partly allowed and the Opposite Parties are directed to pay Rs.61,838/- (Rupees Sixty One thousand Eight hundred and Thirty Eight) only being the treatment expenses incurred by the Complainant for which bills are produced and also the Opposite parties are directed to pay Rs.50,000/- (Rupees Fifty thousand) only as compensation for the deficiency of service of 1^st Opposite Party and Rs.10,000/- (Rupees Ten thousand) only as cost of the proceedings. The Opposite Parties shall comply the order within 30 days from the date of receipt of this order failing which the Complainant is entitled to get 12% interest for the whole sum thereafter.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 29^th day of September 2015.

Date of Filing:25.03.2014.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Mini Shaji Complainant.

Witness for the Opposite Parties:

OPW1. Santha Mohan. Gynecologist,

OPW2. Dr. Felix Cardoza. Professor & Head of Department of Urology,

MCH, Calicut.

Exhibits for the complainant:

A1. Dicharge Card.

A2(24 in Nos) Bills.

A3. Reference letter. dt:11.08.2013.

A4. Dicharge Summary.

A5(48 Nos.) Bills.

A6(2 Nos.) Cystoscopy.

Exhibits for the opposite Parties.

B1 series (59 in Nos.) Medical Records.