AT HYDERABAD.

F.A. 809/2007 against C.C.  303/2006, Dist. Forum-II, Hyderabad.

Between:

Smt. B. Jyothi, W/o. Dr. B. Lakshman

Age: 43 years, Staff Nurse

R/o. 2-8-173,  C.V.R. N.Road

Karimnagar.                                                ***                         Appellant/

                                                                                                Complainant. 

                                                                   And

1. Geetha Maternity Nursing Home

West Maredpally, Secunderabad

Rep. by its Director

Dr. Rama Chandra Reddy

2. Dr. Mrs. Shanta  Krishnan, MBBS, DGO, DNB

Consultant, Geetha Maternity Nursing Home

West Maredpally, Secunderabad.               ***                         Respondents/     

                                                                                                Opposite Parties

Counsel for the Appellant:                          M/s. V. Gourisankara Rao.

Counsel for the Resps:                               M/s.  Deepak Bhattacharjee (R2)

CORAM:

                         HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT     

                                                             &

  SMT. M. SHREESHA, MEMBER

MONDAY, THIS THE FIFTH DAY OF JULY  TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Appellant is unsuccessful complainant. 

2)                The case of the complainant in brief  is that  when she had problem with  fibroid uterus  she approached the  respondents for  Hysterectomy,   she being herself a trained nurse  and her husband an orthopedic surgeon.    The operation was conducted and uterus was removed.   However she found  blood stain in urine.  When she complained  they opined that there was cut  injury in the urinary bladder which she received  at the time of surgery.     An urologist was summoned  who examined her and opined that it was due to venal  bleeding or bladder injury,  and could be managed by catheterization.     However, without informing to her or her husband  they took her to operation theatre.  They have taken the assistance of  Dr. N. Satyanarayana, an Anesthetist  working in  Gandhi Hospital, Secunderabad.    At night time  Dr.  Mohan Raju, Urologist conducted  cystoscopy.  However nothing could be visible  except some  blood clots.    Again at 9.00 p.m.  the abdomen was re-opened.  It was found  that not only the bladder but also the  left  urethra  was cut.    On 10.4.2001  when sutures were removed they found wound gaping.    On  6.5.2001 re-suturing was done  in the room itself  by giving local anesthesia without her consent.    Due to this she developed  deep-seated infection  in the abdomen.  It was there for more than 2-1/2 months.    The respondents did  not give proper treatment.    She was constrained to shift to  Sathya Kidney  Centre, Hyderabad where second operation was conducted on  11.5.2001.  About 2 liters of puss was drained.   They found a big cavity developed in the lower abdomen.    All this could have been avoided but for the negligence  of the respondents.   Catheter was  removed on 13^th day.    However, it was found  Vasico Vaginal Fistula (VVF)  a post-hysterectomy complication.   Complications of this nature mostly occur in uterus cancer patients and not in ordinary cases.   On  25.5.2001  she was discharged from  Sathya Kidney Centre. Daily dressing was done  for   1-1/2 months.   Stent was removed by  cystoscopy  under general anesthesia  by Dr.  Mallikarjuna.    On 3.7.2001 Dr.  Rama Raju, Chief Urologist, Osmania  General Hospital  examined her and conducted  cystoscopy and speculum examination in  Osmania Hospital for all this.    She suffered mental  trauma  and took treatment from a Psychiatrist.  Due to negligence  in performing  hysterectomy, post-hysterectomy VVF  was developed.  As a result of which  she suffered from dribbling of urine for about five months.   She had developed a number of complications like B.P,  eye sight, loss of marital life etc.    She gave legal notice  claiming Rs. 10 lakhs  for which  R2 gave tentative reply  denying that such injury was not uncommon.   Therefore she claimed  Rs. 10 lakhs together with interest @ 18% p.a., and costs.

3)                 R1 resisted the case.   There is neither negligence nor deficiency in service on its part.   R2 is a leading gynecologist practicing for the last 18 years.   The complainant was admitted  for elective  abdominal hysterectomy, and an  operation was conducted on  19.4.2001 after conducting  all the tests and taking consent.    When it was found that  urine became high coloured  Dr. Mohan Raj,    Urologist conducted cystoscopy  and later  laparatomy was also made.  VVF   is a common occurrence.    The allegation that  uterus was cut post-hysterectomy was false.    The medical authorities confirm  that such development is common.   Catheters were removed by specialists.   Despite daily dressing  when it was  observed that  there was   superficial wound quipping  was done in one stitch.    She was shifted to  Satya Kidney Centre  at their advise.    In fact R2  waived the fee as she belonged to their fraternity.   On her own accord she got the VVF repaired through   Dr. Rama Raju of Osmania General Hospital.    Till she was recovered R2 was in continuous contact with her.   There was no negligence  on their part.   The dispute does not attract the provisions of the Consumer Protection Act.   Therefore it prayed for dismissal of the complaint with costs. 

4)                R2 a   gynecologist  who conducted the surgery  equally resisted the case.  She has repeated what all R1 mentioned in its counter.  While admitting that  when it was  diagnosed  that  she  was having  fibroid uterus    she decided to conduct  elective abdominal  hysterectomy.  The patient’s husband is  no other than an orthopedician,   who knew complications in the operation.   Accordingly  she operated on her on 19. 4. 2001  after conducting  required  pathological and other tests  assisted by  an anesthetist,    when blood  stains were noticed  in the urine, which is not uncommon  in abdominal   hysterectomy,   she was shifted to her room when Dr.  Mohan Raj, urologist  found that high  coloured urine, though other parameters  viz, B.P.  pulse rate  etc.  were normal.   Dr. Mohan Raj,  Urologist conducted  cystoscopy  and having found that there was injury  to the bladder  laparatomy was conducted and  injury was immediately repaired, and the left uterer was  re-implanted  with stenting.    On the 10^th day of  post-operation  sutures were removed. They were  healed well.   The existence of  (VVF)  a sequel  of bladder injury  in the  course of surgical operation of  uterus  could occur  even  in the best hands of experts.    The medical literature on the subject clarifies  that as  bladder  is very closely related developmentally to the uterus, cervix and vagina  which is vulnerable  to injury  when a total  hysterectomy  is done.     Injury to the bladder is  more common  with hysterectomy.    She had taken all precautions  and that there was no negligence on her part.    Later she was shifted to Satya Kidney Centre  where Dr.  Mallikarjun a reputed urologist  advised the patient for  reconstruction of surgery for  VVF.    In fact  she had provided monetary assistance  since her husband is a professional colleague. Dr.  Rama Raju, Surgeon of Osmania General Hospital conducted  surgery on  8.8.2001   After hysterectomy, fistula  (VVF) can develop.  She  could not be blamed for development of VVF which is not uncommon.     There is no negligence  or deficiency in service on her part and therefore prayed for dismissal of the complaint with costs. 

5)                 The complainant in proof of her case examined herself as PW1 and got Exs. A1 to A40  marked, while   R1 examined himself as  RW6 and R2 as  RW1,  Dr.  A. K. Chary, General Surgeon as  RW2,  Dr. V. Mohan Raj,  Urologist as  RW3,  Dr. Mukteswara Rao as  RW4 anesthetist,  and  Dr. Balamba  Puranam, a reputed gynecologist as RW5 and got Exs. B1 to  B13 marked.    

6)                 The Dist. Forum after considering the evidence placed on record opined that there was no negligence on the part of respondents and dismissed the complaint  with costs of Rs. 5,000/-.

7)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate  facts or law  in correct perspective.  It ought to have seen that due to negligence in conducting the operation there was injury to the right urethra  and thereafter VVF was developed  and therefore she was entitled to compensation. 

8)                 The points that arise for consideration are:

                   i.            Whether R2 was negligent  in conducting the hysterectomy operation?

                 ii.            Whether injury to the urinary bladder and  development of VVF were due to negligence of respondents?  

              iii.            Whether the complainant is entitled to any compensation?

                iv.            If so, to what amount?  To what relief?

9)                It is an undisputed fact  that the complainant  is the wife of an Orthopedic surgeon, and she had fibroid uterus diagnosed by one  Dr.  P. Ramesh.  She was admitted  in R1  hospital  on  16.4.2001.  RW4  administered  spinal anesthesia  while  R2 conducted the  elective abdominal hysterectomy operation on 19.4.2001.   When she was brought to the room they  had observed that colour of  urine was changed, and on that RW3 urologist  examined and opined that  it may be due to bladder injury.   Though he tried to manage by way of catheterization  he could not contain.   He conducted cystoscopy  and found that there was cut  in the bladder.  RW3  called R2  and advised her to re-open the abdomen  and when it was opened she  found a  bladder cut and  cut in  the left urethra.   Bladder was repaired along with left urethra.  Implant stent was put in the uterus.    On 10.4.2001  sutures were removed.   When they found  that there was wound gaping  re-suturing was done on 6.5.2001.   Since she was refusing  further treatment on the advise of R1  she was shifted to  Satya  Kidney Centre  where Dr.  Mallikarjun removed the catheter  he found that VVF was developed.     The complainant alleges that all this was due to complication in post hysterectomy.   Since according to her she had developed high B.P, cardiac problem etc.  they were imputed  to faulty operation conducted by R2. 

10)               PW1 complainant except reeling out the  facts   mentioned in the complaint could not expatiate  as to how she could state  that there was negligence  on the part of  R2.  Learned counsel for the  complainant contended that  principles of   re sips loqutur   would apply  in cases of this nature and that there is no need for examination of any expert as was held by the  Supreme Court  recently in V. Kishan Rao Vs. Nkhil  Super Speciality Hospital  Civil Appeal No. 2641/2010.   As against this  RW2  a gynaecologist  who conducted the operation  swore on  oath and reiterated that “injury to the base of the bladder is more common with total abdominal hysterectomy than with vaginal hysterectomy.    The bladder is very closely related to the uterus, cervix  and vagina and is vulnerable  to injury when total hysterectomy  is done.    The base of the bladder rests on the anterior  lower uterine  isthmus  and the cervix.    She also referred to number of medical authorities  mentioning that  operative injury likely to produce VVF. 

11)              To substantiate her contention, she examined  RW2 Dr.  A. K. Chary,  a reputed general surgeon aged  about 77 years.  After perusing the case  sheet and the procedure followed  while conducting the surgery he opined that  “blood stained  urine was  noted on the catheter was not unusual in abdominal hysterectomy.    He further stated that  hysterectomy  for fibroid  uterus with previous caesarean injury can occur to the bladder and the uteri  as they lie in close proximity  to uterus.   Even in the most experienced  hands such  complications can occur  and some times these  are discovered on the operation table itself and some times not.   If the injury is discovered  on the operating table itself and the same will be  repaired by  suturing, still one cannot rule out the development of fistula.    In case the injury  is not recognized  on the operating table due to post  caesarean  adhesions  of uterus with  bladder, the same can be found  out by observing  the colour of  urine  through catheter.      In the instant case  the same could not be  identified  on the operating table  and the patient was put on  observation, when high  coloured urine was observed in the catheter.    

Dr.  Mohan Raj, Consultant  Urologist opined that  there was no need for immediate surgery and therefore  repair to the bladder and stenting of left  urethra   which was close to the  injury was done  within 12 hours of the first surgery  and that it indicates that  proper attention was given to the patient. He further observed that failure of repair to the bladder and consequent  development of fistula  is a known complication in such cases and  the same can be effectively  handled only after the healing of the wounds of the primary surgery  and they have to wait for 6 to 8 weeks for the same.   At 9.30 p.m.  on the very same day cystectomy was conducted by  him and the injury was repaired.    He  finally concluded by stating that  R2 had taken all  steps  perfectly   in accordance with the text book description of management of  any such complications  that could occur  in course of hysterectomy.    He also opined that  occurrence of fistula  in a hysterectomy  surgery is nothing  unusual and that VVF repair is  possible only after  6 to 8 weeks  of the primary surgery  and is a known factor.   In the interest of patient  R2  and Dr. Mallikarjun,  an expert urologist  under whose care she was shifted for expert care and guidance.    The allegation that she had  accumulated 2 litres of pus  in the abdomen is false. If  any patient accumulates  2 litres of pus  in the abdomen he/she would die of paralytic  ileus  and septicaemia  or burst of abdomen.   There was no negligence  or deficiency in treatment.   

12)              Equally so with  RW4  Dr. Mukeh, Anaesthetist who was present at the time of operation.  He reiterated  the evidence of  RWs 2 & 3.     RW5 Dr.  Balamba, a professor  and Head of the Department of  Obstetric and   Gynaecology as well as  Additional Director of  Medical Education of A.P  deposed that “ It is respectfully submitted that  in hysterectomy for fibroid  uterus with  previous caesarean section injury can occur to the bladder  and the ureter  as they lie in close  proximity  to uterus, as the same injury to bladder  and ureter  can occur even without  prior surgery.   Even in the most experienced  hands such complication  can occur and some times these are discovered  on the operating table itself some times not.”  

 She repeated what all  PW2  surgeon had stated  and observed finally  that  complications were not uncommon  and  no negligence  cannot be imputed to R2 .    Finally  RW6  Dr. Ramachandra Reddy, director of the hospital  reiterated by stating that there was no fault  in conducting the operation. 

13)              The Dist. Forum by  formulating the table  which we excerpt  for better appreciation  mentioned  each of the allegations made by the complainant  which could not be proved  referring not only to documents but also observations.   This obviates lengthy unnecessary  repetition of facts, vis-à-vis  documents and oral evidence.  

14)              The learned counsel for the complainant contended that  the Dist. Forum did not consider the  admissions made by  RWs 2 &  3 besides that of RW5.  We may state herein  that picking up a sentence here and  picking up a sentence out of there  out of context  would not be an answer.   A holistic reading  has to  be made  lest it would do injustice to  their evidence given on oath.    It is not  in dispute that general consent was taken  and no separate consent was taken  for laporatomy.    We may state that on the very same day, the case sheet mentions that  there was injury to the bladder and therefore cystoscopy was conducted  immediately when  they found that there was injury.    It cannot be said  as  separate operation where consent needs to be taken.   When the patient had fibroid fistula  there might have been fusion of tissues  and in the process  there might have been cut in the bladder.  A lot of literature was filed  to show that this injury was not uncommon.

           The American   College of Surgeons in their  pamphlet “Pre-operative Protocol for patients planning to undergo hysterectomy mentions  under the   heading  “Risk and complications”   as under :

          “The uterus is located between the ureters (small tubes which transport urine from the kidneys to the bladder on each side, the bladder in the front and the  rectum behind.  All of these structures are subject to injury, especially if the operation is difficult as can occur in the case of  large fibroids, endometriosis or cancer.  Bleeding and infection can also occur, but most infections are now avoided by using antibiotics.   Blood clots in legs (DVT- Deep Vein Thromboses) sometimes can occur post operatively and can break off and travel to lungs sometimes causing fatal  pulmonary embolism.”

          In Telind’s Operative Gynaecology chapter 41 all the details are noted as to  Vesicovasinal  and Urethrovasinal  Fistulas (by John  D. Thompson).  It reads :

          “The uniform use of total rather than sub-total hysterectomy  has resulted in an increase in post operative fistulas.  There is little  risk of injury  to the bladder when  a subtotal hysterectomy  is performed.  It is the removal of  cervix that increases the risk of injury to the bladder during the performance of  total hysterectomy …..

It was further observed under head note ‘Prevention’  :

          “Gynaecologic  surgery is the  most common  cause of visicovaginal  fistulas  in the United States in many other developed countries  in the world and the bladder is  the mot common site of urinary  tract injury  during Gynaecologic  surgery.  The bladder is rarely injured  during sub-total  abdominal  hysterectomy.  Among 75 post-hysterectomy   vesicovaginal  fistulas  reported by Miller and George,  none followed subtotal hysterectomy, 54 followed total abdominal hysterectomy, 18 followed vaginal hysterectomy and 3 followed  radical abdominal hysterectomy.  Since the advent of the total abdominal hysterectomy, the incidence of injury to the bladder base has increased, it occurs in about 0.5% to 1% of the patients undergoing a total abdominal hysterectomy. 

The bladder is very closely related developmentally to the uterus.  Cervix and vagina and is especially vulnerable to injury when a total hysterectomy is done.  The base of the bladder rests on the anterior lower uterine isthmus and the cervix.

          Injury to the bases of the bladder is more common with total abdominal  hysterectomy than with vaginal hysterectomy”

          In The Text Book of Gynaecology in Chapter 24, Genital Fistula, at page 386  reads as follows :

          “Gynaecological, operative injury  likely to produce fistila  includes operations like anterior colporrhapy, abdominal hysterectomy for benign  or malignant  lesions  or removal of garners cyst.

          Injury to the ureter during Gynaecological surgery : - page 391.

“Because of close anatomical association between ureter and genital organs, ureteric  injury is not uncommon during  Genealogical surgery.  Over all incidence is 0.5%  of all pelvic operations.  About 75%  of them occur following abdominal gynaecological procedures. 

Gynaecologic  and Obstetric Urology, Herbert J. Buchsbaum, M.D., and Joseph D. Schmidt, M.D., in Vasicovaginal and Urethrovaginal Fistulas – page 271  reads as follows :

“Timing of surgery :   The timing of the surgery is most important and must be determined on an individual basis.  It may take from 3 to 6 months for the oedema  and inflammatory charges to subside and timing is best determined  by periodic  pelvic examinations.  In recent years we have been doing  the repair 3 to 4 months following the initial surgery.”

          In Gynaecologic  Surgery by  John. H. Ridely at chapter 11 – Gynaecological  Errors and Medical Practices observed that :

“ A hysterectomy   performing with  a technique  equal to or greater than  the stands of skill of gynaecologists in the community may  still cause  a perforation or bruising of the bladder leading to a vasicovaginal  fistula.   Such a result is a common and accepted risk of surgery  and does not reflect  adversely on the skill or care of the surgeon.”  

It was further observed at page No. 366 that “Therefore the  physicians conduct will not be subjected to examination  in relation to the standards of non-medical  healers  or limiter practioners, or to what may be higher standards  of practitioners  from a different, perhaps more  sophisticated area of the country. 

15)              Learned counsel for the complainant contended that  the Dist. Forum  ought to have seen that   RW5 Dr. Balamba  in her cross-examination stated that  “In my experience I might have  conducted more than 5,000 cases  of hysterectomy  out of them may be 5 to 6 cases injuries  might have occurred either to the urinary bladder or ureter  or bowl.   Which means  the injuries may be 0.1%.”  This cannot be taken as admission ore negligence.   We may state that  there is lot of difference  between the ordinary hysterectomy  to that of hysterectomy  where the patient had  fibroid uterus.    Various  medical texts mentioned  that injury to the base of the bladder is more common with total abdominal hysterectomy  than with vaginal hysterectomy. 

”As per Shaw’s Textbook of Gynecology Eleventh Edition (page 191) on Fistulae — Majority of Urinary Fistulae in India are the result of pressure necrosis following a long and difficult labour. The head is delayed in its descent through the pelvis and compresses the anterior vaginal wall of the un-dilated cervix against the back of the symplysis pubis. As the result of prolonged pressure the tissues undergo necrosis and slough about the fifth to seventh day of the puerperium, which leads to a fistulous communications between the bladder and vagina .... Caesarean section can cause either bladder or urateric injury which may lead to fistula formation.

                                                                                (Emphasis supplied)

She also extracted passages  after passages from various text books  pertaining to  gynaecology and obstetrics which we do not want to  multiply.

16)              The question of  applying principle of re sips loqutur  will not arise when experts were examined on behalf of the  respondents all of them in one voice confirmed that there was no negligence on the part of R2 while conducting the operation, and at the same time they observed that these injuries are inevitable  being close proximity  to the organs attached to  the part where the operation was conducted.     We have considered the evidence in detail and we are of the opinion that  there was no negligence on the part of R2 either in treatment or  in conducting operation.  We are in agreement with the findings of the Dist. Forum in this regard.  We do not see any merits in the appeal.

17)               In the result the appeal is dismissed.  No costs.    

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  05. 07.  2010.

*pnr

“UP LOAD – O.K.”