Karnataka

Mysore

CC/09/46

Smt. S.K. Nethravathi - Complainant(s)

Versus

Kamakshi Hospital & 3 others - Opp.Party(s)

K.R. Kumaraswamy

11 Aug 2009

ORDER


DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE
No.1542/F, Anikethana Road, C and D Block, J.C.S.T. Layout, Kuvempunagara, (Behind Jagadamba Petrol Bunk), Mysore-570009.
consumer case(CC) No. CC/09/46

Smt. S.K. Nethravathi
...........Appellant(s)

Vs.

Kamakshi Hospital & 3 others
Dr. Girish
Dr. Prakash Prabhu
...........Respondent(s)


BEFORE:
1. Smt.Y.V.Uma Shenoi 2. Sri A.T.Munnoli3. Sri. Shivakumar.J.

Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):




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ORDER

IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE PRESENT: 1. Shri.A.T.Munnoli B.A., L.L.B (Spl.) - President 2. Smt.Y.V.Uma Shenoi M.Sc., B.Ed., - Member 3. Shri. Shivakumar.J. B.A., L.L.B., - Member CC 46/09 DATED 11.08.2009 ORDER Complainant Smt.S.K.Nethravathi, W/o M.N.Prakash, No.156, 2nd Main Road, Sharadadevi Nagar, Mysore. (By Sri.K.P.Kumara Swamy, Advocate) Vs. Opposite Party 1. Administrative Officer, 2. Smt.Dr.A.V.Saroja, 3. Dr.Girish 4. Dr.Prakash Prabhu, Urologist, All opposite parties are working at Kamakshi Hospital, Kuvempunagar, Mysore-570009. and O.P.2 is R/at Dr.A.V.Saroja, W/o Dr.C.S.Krishnamurthy, D.No.954/7, Sheshadri Iyer Road, Lakshmipuram, Mysore. (By Sri.R.Ravi, Advocate for all opposite parties) Nature of complaint : Deficiency in service Date of filing of complaint : 09.02.2009 Date of appearance of O.P. : 23.03.2009 Date of order : 11.08.2009 Duration of Proceeding : 4 MONTHS 18 DAYS PRESIDENT MEMBER MEMBER Sri. A.T.Munnoli, President 1. Under Section 12 of the Consumer Protection Act, the complainant has filed a complaint against the opposite parties for medical negligence, seeking a direction to them to pay a sum of Rs.8,40,000/- together with interest at the rate of 18% p.a., cost and such other reliefs. 2. In the complaint, it is alleged that since there was vaginal bleeding from the past six months, the complainant admitted to the first opposite party hospital on 13.10.2007 upon the advice of the second opposite party. After examination, the records maintained by the first opposite party revealed that the complainant underwent L.S.C.S. twice previously and multiple fibroid uterus were noticed. Accordingly, Hysterectomy was thought by the second opposite party. During surgery, a tear in the posterior part of the bladder occurred upon the negligence of second opposite party. Thereafter, third opposite party who was working for J.S.S. Hospital, Mysore was called and he carried out bladder repair on 15.10.2008 and complainant was advised for continuous catheterization for 14 days. During surgery, bladder tear was noticed and accordingly suture was made by third opposite party, Ultrosonography was also carried out. From 18.10.2007 fourth opposite party – Urologist used to take care of the complainant for her urinary problems. Urine started leaking after a week from the date of Hysterectomy surgery and as such C.T. abdomen was done on 23.10.2007 on advice of fourth opposite party. In consequence of Hysterectomy surgery, which was performed in an utmost negligent by second opposite party, the complainant developed complications relating to Urethro Vesico Fistula (UVF) and Vesico Vaginal Fistula (VVF). When these complications could not be taken into control, the complainant was referred to M.S.Ramaiah Hospital, Bangalore by the doctors of first opposite party hospital, the complainant was discharged on 01.11.2007. 3. On 11.11.2007, complainant was admitted to Maiya Multi Speciality Hospital, Bangalore. On 12.11.2007 under general Anesthesia, repair was carried out. On that date also she was on catheter since the date of history of leakage of the urine. Since, bladder repair, which was carried out on 15.10.2007 by third opposite party was not proper, once again, bladder repair was done on 12.11.2007 and thereafter complainant was discharged from the hospital on 15.11.2007. 4. On account of similar problem arose for the complainant, she was to admit Maiya Multi Speciality Hospital, Bangalore on 22.01.2008 and once again vaginal repair was carried out under general anesthesia and was discharged on 23.01.2008. As on that date also she was on catheter. Complainant was advised to visit the Hospital frequently for treatment since problem, which was suffering by the complainant was not in the nature to be cured at one stretch. 5. The problem underwent by the complainant was still subsisting. Once again on 15.06.2008 she was admitted to Maiya Multi Speciality Hospital, Bangalore and Cystoscopy was carried out along with VVF repair under spinal anesthesia and discharged on 16.06.2008. 6. On account of negligent act on part of the second opposite party in causing damage to the bladder at the time of Hysterectomy; on the part of third opposite party in carrying out the bladder repair; on the part of fourth opposite party in treating the complainant properly and in harassing her like anything which a doctor of an ordinary prudence should not do, she is suffering unbearable mental and physical agony and harassment, which resulted inconvenience to the children of the complainant and also loss of leave and other benefits to the complainant and her husband. 7. Towards medical bills, towards conveyance, attendants charges, loss of leave salary of the complainant and her husband, mental agony, torture and inconvenience, physical pain and further medical treatment in all a sum of Rs.11,40,000/- is mentioned. However, only Rs.8,40,000/- is claimed. 8. The opposite parties have appeared through counsel and filed common version, denying all most all the material allegations made in the complaint. Said denials are not repeated here. It is contended that on the ground that there is no medical committee report or expert doctors report or opinion regarding the treatment given to the complainant to show that it was not within the medical parameters, as held by Hon’ble Supreme Court of India, complaint is not maintainable. 9. It is stated that first opposite party is one of the oldest reputed hospital in Mysore catering to the public health for all most 35 years. It is a 150 bedded multi speciality hospital having specialists and consultants. Second opposite party is one of the leading and specialist Gynecologist and consultant at first opposite party hospital. She is having qualification of M.B.B.S., D.G.O. and put in 38 years of experience and performed more than 1000 surgeries per year. Third opposite party is specialist Urologist attached to J.S.S. Hospital, Mysore having M.B.B.S., M.S., D.N.B. qualification and 5 years experience in Urological operations, and he has performed more than 600 operations per year. Fourth opposite party is one of the leading specialist Urologist and consultant at first opposite party hospital for all most 17 years having M.B.B.S., M.S., M.Ch and performed more than 400 surgeries per year. 10. It is mentioned that complainant was regular patient of the second opposite party and also known for several years. Complainant had a ceaserean section done by second opposite party for her second delivery who had undergone two ceaserean section prior to admission at first opposite party hospital with very bad health history, which fact was within the knowledge of the complainant. On 13.10.2007, the complainant has presented herself at first opposite party hospital with history of excessive p/v bleeding since 6 months having undergone 2 L.S.C.S. The second opposite party examined her and had a USG report dated 07.09.2007, which revealed that R.V. uterus fibroud multiple fundals. 11. The second opposite party based on her skill and experience having known the past health history of the complainant and being a well known family friend, advised abdominal hysterectomy, which was the only solution and medical treatment available to the complainant. The complications were explained in detail to the complainant and her husband and as per protocol of the hospital, consent was obtained after explaining in detail of the proposed abdominal hysterectomy. Thereafter, the complainant was posted for emergency abdominal hysterectomy. 12. It is contended that at the time of admission, complainant and her husband were explained in detail, the complications of the complainant’s health condition and they need to go for hysterectomy and also operative complications associated with it including the fact that bladder injury is always risk associated especially in the condition of the complainant, because of her previous L.S.C.S. and accordingly third opposite party and Dr.Shivakumar were part of the team to do hysterectomy on 15.10.2007. While doing hysterectomy opening the opposite parties found that complainant’s inherent condition was very difficult, because of the bladder being adherent, which fact clearly reflects in the operation notes. The bladder tear is an associated complication, which was repaired by third opposite party within the medical parameters and the team of doctors closed the procedure well within the medical parameters, skill and experience, which is mentioned in the case sheet. The complainant’s bladder condition was viewed cystoscopically and found normal and NO.20 F foley catheter was deployed and was advised continuous drainage for 14 days. 13. The complainant was advised appropriate medication for her condition from 15.10.2007. On the fourth post operative day, complainant was comfortable and had no problem. The post operative ultra sound scan showed right sided mild dilution of ureter. Hence, second opposite party did spiral C.T. KUB with IV Dye on 21.10.2007 for her condition. The said investigation showed right sided hydro-ureteronephiosis with inflammation mass on right side. Complainant was treated with antibiotic and anti-inflammatory drugs. 14. It is mentioned that post hysterectomy, the condition of the complainant was monitored well within the medical parameters by the opposite parties. As narrated supra, past history of the complainant, her ischaemic condition (lack of blood supply), the bladder gave up and there was urine leakage, which is a medical condition, which occurs very commonly in conditions as that on the complainant and the bladder giving up is not because of the medical treatment or hysterectomy. Further, it is stated that inherent condition of the complainant that sloughing (dead tissue) of tissue resulting in Fistula formation is a very common occurrence following such repairs, in fact, the most common cause for VVF is abdominal hysterectomy, which can occur in the absence of bladder injury during surgery. The cystoscopy done on 10th day showed sloughing along the suture line and URS showed slough in the ureter. In spite of complainant’s distorted pelvic anatomy proper bladder closure was done by the third opposite party. Complainant developed Fistula as a result of ischeamic condition at the nature of tissue, as a result of adhesions and this condition of the complainant cannot be termed or attributed as negligence. It is stated that both the ureter were normal and intact. Hence, no negligence or deficiency in serve could be attributed towards opposite parties. 15. It is stated that the second opposite party happens to be a relative of the complainant. During the period of hospitalization of the complainant, there was conference on Urology at Mysore. Dr. Nagaraj from M.S.Ramaiah Hospital, Bangalore and well known and specialist Urologist was briefed about the condition of the complainant. The complainant and her husband were made to interact with that Dr.Nagaraj. Complainant was required the intervention of a laparoscopic urologist for further management. The complainant and her husband agreed to get discharge for further management to M.S.Ramaiah Hospital, Bangalore since no laparoscopic urologist available at first opposite party hospital. 16. The complainant had not approached Dr.Nagaraj at Ramaiah Hospital, Bangalore as advised and followed the medical advice by the opposite parties. She approached Maiya Multi Specialist Hospital, Bangalore only on 11.11.2007 after her discharge from first opposite party hospital on 01.11.2007. Conduct of the complainant showed that she is careless and negligent in following the medical advice as a result she herself has to be blamed. Complainant has not whispered as to what she was doing from 01.11.2007 to 11.11.2007. What treatment was given to the complainant after she was discharged from the first opposite party hospital is not known to the opposite parties. They reserve the right to bring in appropriate evidence and medical literature to prove the treatment given to the complainant if any available treatment at appropriate stage. There is no negligence or deficiency in service on the part of the opposite parties. 17. On these grounds, it is prayed to dismiss the complaint with costs. 18. In lieu of her examination in chief, complainant had filed her affidavit and produced the documents shown in the lists. She has been cross-examined for the opposite parties. For opposite parties 1 to 4 in lieu of examination in chief, affidavits are filed. For the opposite parties, original medical case sheet pertaining to the complainant is produced. When the matter was posted for arguments, that is on 05.08.2009 the complainant as well as the advocate were absent. It was submitted to that on earlier three dates also the complainant and her advocate were absent. Hence, we heard the arguments of the learned counsel for the opposite parties and perused the material on record. 19. Now the points arises for consideration are as under:- 1. Whether the complainant has proved medical negligence or deficiency in service on the part of the opposite parties and that she is entitled to the amount of Rs.8,40,000/- or any amount from the opposite parties? 2. What order? 20. Our findings are as under:- Point no.1 : Negative Point no.2 : As per the order. REASONS 21. Point no. 1:- The facts alleged in the complaint by the complainant and the contentions of the opposite parties have been narrated in detail here before. In the respective affidavits, said allegations and contentions are stated. Without repeating, we may proceed further. 22. For better appreciation and consideration of the contentions of the parties, it is desirable to note the law of medical negligence, so that in the light of the same the facts, and the evidence can be appreciated in better manner. 23. The basic principle relating to the medical negligence is known as the Bolam rule. This was laid down in the judgement of Justice Mc Nair in Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582, as follows: “Where you get a situation which involves the use of some special skill or competence, then the test as to whether there has been negligence or not is not the test of the man on the top of a Clap ham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill …… A man need not possess the highest expert skill; it is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art.” Bolam’s test has been approved by the Supreme Court in Jacom Mathew’s case, 2005 ACJ 1840 (SC). 24. In the ruling reported in III (2005) CPJ 9 (SC), which has been relied upon by the learned counsel for the opposite parties, three Judges Bench has held that; “Three weighty considerations must be kept in mind by any Forum trying issue of medical negligence : negligence in context of medical profession necessarily calls for treatment with difference : difference between occupational negligence and professional negligence : standard to be applied to hold professional negligent : simple lack of care, error of judgement or accident is not proof of negligence on part of medical professional : failure to use special medical professional : failure to use special or extraordinary precautions which might have prevented particular happening cannot be standard for judging alleged negligence. 25. The leaned counsel for the opposite parties specifically pointed out paragraphs 19 to 27, 33 and 34 of the said ruling. Considering the facts and the circumstances and this submission made, we would like to quote the same. “19. In the law of negligence, professional 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 a 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 assure his client of the result. A lawyer does not tell 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. A 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 by 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 all what the person approaching the professional can expect. Judged by this standard, a professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess. 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 not necessary for every professional to possess the highest level of expertise in that branch which he practices. In Michael Hyde and Associates v. J.D.Williams and Co.Ltd., (2001) PNLR 233, CA, Sedley.L.J. said that where a profession embraces a range of views as to what is an acceptable standard of conduct, the competence of the defendant is to be judged by the lowest standard that would be regarded as acceptable (Charlesworth and Percy, ibid, Para 8.03). 21. The water of Bolam test has ever since flown and passed under several bridges, having been cited and dealt with in several judicial pronouncements, one after the other and has continued to be well received by every shore it has touched as neat, clean and well-condensed one. After a review of various authorities Bingham L.J. in his speech in Eckersly v. Binnie, (1988) 18 Con.L.R.1, 79 summarised the Bolam test in the following words: “From these general statements it follows that a professional man should command the corpus of knowledge which forms part of the professional equipment of the ordinary member of his profession. He should not lag behind other ordinary assiduous and intelligent members of his profession in knowledge of new advances, discoveries and developments in his field. He should have such an awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He should be alert to the hazards and risks in any professional task he undertakes to the extent that other ordinarily competent members of the profession would be alert. He must bring to any professional task he undertakes no less expertise, skill and care than other ordinarily competent members of his profession would bring, but need bring no more. The standard is that of the reasonable average. The law does not require of a professional man that he be a paragon combining the qualities of polymath and prophet.” 22. The degree of skill and care required by a medical practitioner is so stated in Halsbury’s Laws of England (Fourth Edition, Vol.30, Para 35): “The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence, judged in the light of the particular circumstances of each case, is what the law requires, and a person is not liable in negligence because someone else of greater skill and knowledge would have prescribed different treatment or operated in a different way; nor is he guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art, even though a body of adverse opinion also existed among medical men. Deviation from normal practice is not necessarily evidence of negligence. To shown (1) that there is usual and normal practice; (2) that the defendant has not adopted it; and (3) that the course in fact adopted is one no professional man of ordinary skill would have taken had he been acting with ordinary care”. Above said three tests have also been stated as determinative of negligence in professional practice by Charlesworth and Percy in their celebrated work on negligence (ibid, para 8.110). 23. In the opinion of Lord Denning, as expressed in Hucks v. Cole, (1968) 118 New LJ 469, a medical practitioner, was not to be held liable simply because things went wrong from mischance or misadventure or through an error of judgement in choosing one reasonable course of treatment in preference of another. A medical practitioner would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. 24. The decision of House of Lods in Maynard v. West Michards Regional Health Authority, (1985) 1 AIIER 635 (HL) by a Bench consisting of five Law Lords has been accepted as having settled the law on the point by holding that it is not enough to show that there is a body of competent professional opinion which considers that decision of the defendant professional was a wrong decision, if there also exists a body of professional opinion, equally competent, which supports the decision as reasonable in the circumstances. It is not enough to show that subsequent events show that the operation need never have been performed, if at the time the decision to operate was taken, it was reasonable, in the sense that a responsible body of medical opinion would have accepted it as proper. Lord Scarman who recorded the leading speech with which other four Lords agreed quoted the following words of Lord President (Clyde) in Hunter v. Hanley, 1955 SLT 213 at 217, observing that the words cannot be bettered – “in the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men…… The true test for establishing negligence in diagnosis or treatment on the part of a doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of if acting with ordinary care….”. Lord Scarman added …….” A doctor who professes to exercise a special skill must exercise the ordinary skill of his speciality. Differences of opinion and practice exist, and will always exist, in the medical as in other professions. There is seldom any one answer exclusive of all others to problems of professionals judgement. A Court may prefer one body of opinion to the other, but that is no basis for a conclusion of negligne.” His Lordship further added “ that a Judege’s preference for one body of distinguished professional opinion to another also professionally distinguished is no sufficient to establish negligence in a practitioner whose actions have received the seal of approval of those whose opinions, truthfully expressed, honestly held, were not preferred.” 25. The classical statement of law in Bolam’s case has been widely accepted as decisive of the standard of care required both of professional men generally and medical practitioners in particular. It has been invariably cited with approval before Courts in India and applied to as touchstone to test the pleas of medical negligence. In tort, it is enough for the defendant to show that the standard of care and the skill attained was that of the ordinary competent medical practitioner exercising an ordinary degree of professional skill. The fact that a defendant charged with negligence acted in accord with the general and approved practice is enough to clear him of the charge. Two things are pertinent to be noted. Firstly, the standard of care, when assessing the practice as adopted, is judged in the light of knowledge available at the time (of the incident), and not at the date of trial. Secondly, when the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that point of time on which it is suggested as should have been used. 26. A mere deviation from normal professional practice is not necessarily evidence of negligence. Let it also be noted that a mere accident is not evidence of negligence. So also an error of judgement on the part of a professional is not negligence per se. Higher the acuteness in emergency and higher the complication, more are the chances of error of judgement. At times, the professional is confronted with making a choice between the devil and the deep sea and he has to choose the lesser evil. The medical professional is often called upon to adopt a procedure which involves higher element of risk, but which he honestly believes as providing greater chances of success for the patient rather than a procedure involving lesser risk but higher chances of failure. Which course is more appropriate to follow, would depend on the facts and circumstances of a given case. The usual practice prevalent now-a-days is to obtain the consent of the patient or of the person incharge of the patient if the patient is not be in a position to give procedure. So long as it can be found that the procedure which was in fact adopted was one which acceptable to medical science as on that date, the medical practitioner cannot be held negligent merely because he chose to follow one procedure and not another and the result was a failure. 27. No sensible professional would intentionally commit an act or omission which would result in loss or injury to the patient as the professional reputation of the person is at stake. A single failure may cost him dear in his career. Even in civil jurisdiction, the rule of resipsa loquitur is not universal application and has to be applied with extreme care and caution to the cases of professional negligence and in particular that of the doctors. Else it would be counter productive. Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur. 33. At least three weighty considerations can be pointed out which any Forum trying the issue of medical negligence in any jurisdiction must keep in mind. These are (i) that legal and disciplinary proceedings should be properly founded on firm, moral and scientific grounds; (ii) that patients will be better served if the real causes of harm are properly identified and appropriately acted upon; and (iii) that many incidents involve a contribution from more than one person, and the tendency is to blame the last identifiable element in the chain of causation the person holding the ‘smoking gun’. 34. Accident during the course of medical or surgical treatment has a wider meaning. Ordinarily, an accident means an unintended and unforeseen injurious occurrence; something that does not occur in the usual course of events or that could not be reasonably anticipated (see, Black’s Law Dictionarry, 7th Edition). Care has to be taken to see that the result of an accident which is exculpatory may not persuade the human mind to confuse it with the consequence of negligence.” 26. Keeping in mind, the law referred to in the earlier paragraphs, we may proceed to analyze the facts, evidence and the contentions of the parties of the case on hand. As could be seen from the allegations made in the complaint, the first material negligence on the part of the opposite parties is that “during surgery a tear in the posterior part of the bladder occurred upon the negligence of second opposite party.” The second allegation is that “in consequence of hysterectomy surgery, which was performed in an utmost negligent by second opposite party, the complainant developed complications relating to urethra vesico fistula (UVF) and vesico vaginal fistula (VVF)”. In the version, the opposite parties have denied the said allegations. The opposite parties contend that the condition of the complainant was monitored well within the medical parameters and complainant had past history of ischaemic condition, that is lack of blood supply, the bladder gave up and there was urine leakage and on account of it complainant developed UVF and VVF etc., 27. In the chief-examination, the complainant has stated that she had vaginal bleeding from the past six months prior to admitting the first opposite party hospital and was admitted on the advice of second opposite party doctor. The fact alleged in the complaint and stated by the complainant herself in the chief-examination, the contention of the opposite parties of lack of blood supply, cannot be brushed aside. The complainant alleges that medical records of the first opposite party hospital reveals that she had underwent L.S.C.S. twice previously and multiple fibroid uterus. That does not mean that only the medical records maintained by the opposite parties disclose the said fact, but that must be well within the knowledge of the complainant much earlier of her admission in the first opposite party hospital. In the cross-examination, the complainant has admitted and stated that prior to her admission to the first opposite party hospital she had undergone two ceaserean operations. It is stated by her that one of the ceaserean was done by second opposite party and at that time, she did not suffer any inconvenience or injury. In the cross-examination, she has further stated that she has no knowledge of any complication arising out of hysterectomy. Further she says she had no knowledge that her uterus and bladder were adhesion and that was found during the operations. She admits that on the day of the operation, the urinary bladder was repaired. Even though, in the chief-examination, the complainant has narrated above facts and alleged that on account of performance of hysterectomy surgery by the opposite parties in an utmost negligent manner, she developed complications relating to UVF and VVF, in the cross-examination on the third page she has stated that she has no knowledge whether she was not suffered complication such as UVF and it was just a suspicion. Hence, to establish the fact alleged in the complaint and stated by her in the chief-examination, there is no specific and positive evidence and as stated by the complainant herself she has no knowledge as to whether it was only a suspicion. When that is the evidence for the complainant, we are of the considered opinion that the complainant has not proved the said fact alleged. 28. On the contrary, from the evidence of the opposite parties, it can be seen that during hysterectomy opening the doctors found that complainant’s inherent condition was very difficult, because of the bladder being adherent and it is stated the bladder gave up and there was urine leakage, which is a medical condition, which occurs very commonly in conditions as of the complainant. Also it is stated by the opposite parties in the evidence that Fistula formation is very common occurrence following such repairs and most common cause for UVF is abdominal hysterectomy. 29. In support of the contentions of the opposite parties and the evidence referred to above, learned advocate for the opposite parties has placed on record certain medical literatures. He has produced Xerox copy of certain books. With reference to Novaks Gynecology 13th Edition on page 775, it is pointed out “However, some operative injuries cannot be avoided by even the most skilled surgeons”. Hence, the allegation of the complainant that on account of negligence on the part of second opposite party during surgery a tear occurred, cannot be established in the absence of positive evidence or contrary medical literature. On page 777 in chapter relating to hysterectomy, it is stated that “Because of the close anatomic relationship of the bladder, uterus, and upper vagina, the bladder is the segment of the lower urinary tract that is most vulnerable to injury. Bladder injury may occur on opening the peritoneum or, more frequently, during the dissection of the bladder off the cervix and upper vagina.” 30. In the book Vesico Vaginal Fistula – Raza M.Khan, it is stated that “In developed countries the most common cause of VVF remains iatrogenic injury during Gynaecological surgery”. Further Campbell text book of Urology – Urinary Tract Fistula by Eric S.Rovner, MD on page 2323 it is stated “In the industrialized world, the most common cause of VVF is injury to the bladder at the time of gynecologic, urologic, or other pelvic surgery. Surgical injury to the lower urinary tract most commonly occurs in the setting of hysterectomy.” On page 2326 it is stated “Intraoperative injury to the urinary bladder clearly a primary risk factory for subsequent development of a post-operative VVF. Other risk factors for post-operative VVF formation include prior uterine surgery -------.” The said medical literature referred to by the learned advocate for the opposite parties support the contention of the opposite parties. 31. Learned advocate for the opposite parties relied on the ruling reported in II (2006) CPJ 80. The Hon’ble National Commission in this ruling has observed that “medical negligence alleged, documents issued by second opposite party are relied upon nothing is said to show adoption of procedure contrary to medical practice – no medical literature brought in support of allegations.” Similarly in the case on hand, even though the complainant has produced certain medical records issued by the opposite parties, nothing is pointed out to establish that the opposite parties adopted contrary procedure and further, no medical literature is placed on record. Hence, at the outset, it can be said that to prove the alleged negligence on the part of the opposite parties, there is no evidence worth to be believed and accepted. In the ruling reported in II (2003) CPJ page 90, it is stated that “when accepted procedure is followed by the doctors, no medical negligence on their part is proved.” In the case on hand, it is not the case of the complainant that opposite parties have not followed the accepted procedure or acted contrary to the procedure. Not only that is not the allegation, but also to prove it, there is no evidence for the complainant. 32. Relying on the ruling reported in II (2004) CPJ 102 it is submitted that negligence could be proved, cannot be presumed. Hence, he submits in the case on hand, merely because during surgery as alleged, there was a tear of bladder or that the complainant developed complications relating to UVF or VVF, negligence on the part of the opposite party cannot presumed and to prove the alleged negligence, absolutely there is no opinion of the experts or other doctors. 33. It is found from the evidence on record that by the opposite parties, complainant was directed to approach M.S.Ramaiah Hospital, Bangalore for further management after discharge from the first opposite party hospital as particular kind of treatment that was required by the complainant was not available there. Of course, the complainant is at liberty to take further treatment in any other hospitals and she may not approach the hospital as per the direction of the opposite parties. But, considering the entire facts, what treatment was given by the hospital, in which the complainant had approached, is not available on record. Also, it is relevant to note that after the complainant got to discharged from the first opposite party hospital she approached Maiya Multi Specialists Hospital, Bangalore after 10 days. What happened during this 10 days absolutely there is no evidence. 34. Thus, the contention of the opposite parties that because of the hysterectomy condition of the complainant, the bladder gave up, and as such there was urine leakage and that on account of sloughing of tissues resulted fistula formation as contended by the opposite parties, cannot be brushed aside. There is no positive or contrary evidence for the complainant. 35. Considering the facts, evidence and the discussion made here before, we are of the opinion that complainant has not proved medical negligence on the part of any of the opposite parties and as such she is not entitled to the amount claimed. Accordingly, finding on the point in negative. 36. Considering the discussion made above and conclusion arrived at, we pass the following order:- ORDER 1. The Complaint is dismissed. 2. No order as to costs. 3. Give a copy of this order to each party according to Rules. (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 11th August 2009) (A.T.Munnoli) President (Y.V.Uma Shenoi) Member (Shivakumar.J.) Member




......................Smt.Y.V.Uma Shenoi
......................Sri A.T.Munnoli
......................Sri. Shivakumar.J.