Before,

State Consumer Disputes Redressal Commission, Bihar, Patna

Complaint Case No. 09 of 2008

Dr. Sanju Kumari @ Dr. Sanju Jain, Wife of Dr. Pashupati Kumar Jain, Resident of Mohalla- East Ashok Nagar, Opposite M.I.G-348, Kankarbagh Colony, Police Station- Kankarbagh, District- Patna

                                                                                   ............... Complainant

                                      Versus

1. M.G.M. Hospital & Research Centre Pvt. Ltd, Jagat Narain Lal Road, Kadamkuan, Police Station- Kadamkuan, District- Patna, Pin Code- 800003
2. Dr. P.P. Mishra, Managing Director, M.G.M. Hospital & Research Centre Pvt. Ltd, Jagat Narain Lal Road, Kadamkuan, Police Station- Kadamkuan, District- Patna, Pin Code- 800003
3. Dr. Manju Gita Mishra, Chief Consultant, M.G.M. Hospital & Research Centre Pvt. Ltd, Jagat Narain Lal Road, Kadamkuan, Police Station- Kadamkuan, District- Patna, Pin Code- 800003
4. Dr. P.C. Mishra, Director of  M.G.M. Hospital & Research Centre Pvt. Ltd, Jagat Narain Lal Road, Kadamkuan, Police Station- Kadamkuan, District- Patna, Pin Code- 800003
5. Dr. Pragya Mishra Choudhary, Director of M.G.M. Hospital & Research Centre Pvt. Ltd, Jagat Narain Lal Road, Kadamkuan, Police Station- Kadamkuan, District- Patna, Pin Code- 800003

                                                                                ........... Opposite Parties

Counsel for the Complainant- Mr. Prakash Kumar & Anil Kumar, Advocate

Counsel for the Opposite Parties  -  Mr. Satendra Kumar Dubey, Advocate

Present:

Miss Gita Verma (Judicial Member)

Mr. Raj Kuamr Pandey (Member)

Mr. Subodh Kumar Srivastava (Judicial Member)

Dated: 22.08.2022

Order

As per: Mr. Subodh Kumar Srivastava (Judicial Member)

1. As per complaint petition, in short, the case of the complainant is that complainant is a Doctor by profession, having degree of M.B.B.S. and D.G.O.. Her husband Dr. Pashupati Kumar Jain , M.B.B.S., M.S., F.R.C.S.(London), F.M.G.E.M.S. (USA) is also a surgeon. Complainant developed pain in right side abdomen and Polymenorrhoea ( excessive per vaginal bleeding and vaginal discharge) since 2007. She consulted Dr.(Mrs.) D. Singh. Dr (Mrs.) D. Singh advised ultrasound and prescribed a few medicines to be taken for two-three months. Ultrasound was done on 11.08.2007. According to report, there is 390 ml. volume Unilocular cystic Lesion seen above uterus and bladder. As per complainant, full bladder volume measures 350 ml. This means that structure and function of urinary bladder is normal. She, further, took medicines for 2-3 months on the advice of Dr. (Mrs.) Singh. Despite taking medicines there was hardly any relief, so, complainant’s husband and Dr.(Mrs.) Singh decided to consult Dr. Manju Gita Mishra of M.G.M. Hospital, Jagat Narain Lal Road, Kadamkuan, Patna.                

Complainant and her husband consulted Dr. Manju Gita Mishra on 03.10.2007. Complainant narrated her problem and showed Ultrasound Report. Dr. Mishra examined her and found – per abdominal examination that complainant had suprapublic lump – right side of vagina Uterus- normal size, and as per vaginal examination – right side of vagina normal size and Lump was felt anterior and left fornix separate from uterus. Dr. Mishra advised few routine blood investigations like – blood sugar and also advised surgery Laprotomy (TAH+BSO+APP.). TAH means Total Abdominal Hysterectomy. BSA stands for- Bilateral Salphingo Oopherectomy. APP. means- Appendicectomy. The purpose of BSO is to avoid any future malignancy in both side of Ovary. Therefore, both Ovaries are removed in course of BSO.

After routine blood examination the Complainant was admitted in MGM. Hospital & Research Centre Pvt. Ltd. on 09.10.2007 and she was operated upon the same day by Dr. Manju Gita Mishra and surgery of TAH+BSO+Appendicectomy was done. After surgery uterus, appendicx and cyst were removed and cyst was sent for Histopathological examination to rule out any possibility of malignancy. In Histopathological report cyst was found of serious cystadenoma variety.

According to complainant, Rs. 8000/- was demanded before surgery by MGM Hospital. Complainant gave Rs. 1000/- on 06.10.2007 as advance and rest Rs. 7000/- on the date of admission i.e. 09.10.2007. Before discharge on 11.10.2007, No Dues certificate was given by the MGM Hospital. Just after10^th day of surgery complainant started dribbling of urine per vagina continuously. Complaint had lost control over urination. Complainant being herself a Gynecologist suspected that vesico vaginal fistula has occurred because of negligence in Hysterectomy. She again consulted Dr. Manju Gita Mishra on 19.10.2007. During examination Dr Mishra spontaneously reacted that “ Anarth Ho Gaya,” and advised further Intravenous pyelography and urine culture. She also advised to consult some Urologist also.

Complainant along with her husband rushed to Hyderabad for treatment at “Global Hospital” there. After various examinations it was diagnosed “Vesico Veginal Fistula.” (VVF). In order to confirm the post operative problem i.e. VVF, the Cystoscopy was done in Rainbow Hospital on 23.102007 by Dr. Pranathi Reddy and Fistula of 1.5 cm. was found at the fundus of Bladder, surrounded by unhealthy granulation and finally she diagnosed and levelled it as post-hysterectomy VVF and advised to remove the catheter and gave some antibiotics and to review the situation after six weeks, because immediate surgery could not be done. It is pertinent to state that repair surgery in Vesico-Veginal Fistula can be done only after three months of Hysterectomy ( as explained in Shaw’s text book operative Gynaecology). Dr. K. Rama Raju, one of the top most Urologists of India, examined her on 16.01.2008 and performed ‘cystoscopy’and confirmed ‘vesico-veginal fistula and advised surgery. Complainant was admitted in Care Hospital on 17.01.2008 and Dr. Rama Raju performed surgery upon the complainant on 18.01.2008 and repaired the vesico-veginal fistula. In the discharge report it is categorically mentioned that the complainant suffered VVF due to hysterectomy. Complainant was discharged from the Care Hospital, Hyderabad on 25.01.2008. The first catheter was removed on 28.01.2008 and second was removed on 11.02.2008. Complainant suffered huge loss due to negligence in operation of ‘hysterectomy’ by Dr. Manju Gita Mishraand has sought reliefs as under:-

1. For the treatment of VVF in Hyderabad -                  Rs.   3,30,000/-
2. Loss of private practice of complainant (8 months)-  Rs.   2,40,000/-
3. Loss due to essential expenditure of complainant’s

       clinic like staff salary, clinic rent, electric & tel.bills-   Rs.   1,60,000/-

4. Loss of private practice of complainant’s husband-    Rs.   1,25,000/-
5. For mental and physical trauma for 8 months-            Rs. 15,00,000/-
6. For mental and physical trauma of family members-   Rs.   5,00,000/-
7. Cost of treatment of hysterectomy-                              Rs.     20,000/-
8. Cost of litigation-                                                       Rs.     35,000/-
9.  

                                                       Total-                        Rs. 29,10,000/-

2.    Opposite parties have filed written statement stating therein interalia that complaint is wholly misconceived groundless, false, frivolous, vexatious, scrupulous and unsustainable in the eye of law. This complaint has been filed just to harass, defame and extort money illegally, so the same is liable to be dismissed. The complainant has not produced any documentary evidence in support of her complaint to prove that opposite parties were negligent in any manner, complainant has suppressed the material facts. She was properly treated by the opposite parties and the complainant and her husband were fully agreed with the line of treatment followed and adopted by the opposite parties. They never lodged any complaint with the opposite parties before filing the complaint. They further stated that following the principle consent was taken before surgery. Earlier to surgery complainant was under the treatment of Dr. ( Mrs.) Devantala Singh who had prescribed some medicines for two three months but complainant did not get relief, so they consulted Dr. Manju Gita Mishra, who after examining the patient and considering the necessary lab reports had given some advice and complainant was fully agreed with the line of treatment. Complainant also admitted that the most common cause of vesico vaginal fistula in gynecology is hysterectomy of benign conditions. Abdominal hysterectomy is the procedure most commonly implicated with the risk of fistula formation quoted as 1 in 1300. The fistula is usually found in the vaginal vault (as in the complainant’s case). The risk of causing VVF is known to be increased by a variety of causes including anatomical distortion by fibroids or ovarian tumors, adhesions between bladder and cervix after previous surgery, cepsis, endometriosis or malignancy and previous radiotherapy. Abnormal bladder function in particular a poor voiding pattern, had been implicated as increasing the risk of fistula formation through post operative urinary retention, which is often not recognized early (Ref: British journal of urology International (2000), 86, 354-359).

       O.P has further stated in the W.S. that complainant had large ovarian cyst on the right side and two previous caesarean sections which could have put her at risk of VVF. With every caesarean section the bladder goes higher than its original position and also is more densely adherent to the cervix. In spite of the best precautions and all the steps followed at hysterectomy (as mentioned Shaw’s Textbook of Operative Gynecology and quoted by the complainant), this complication could not be averted. The operation/surgery was conducted according to the norms as prescribed in the medical science by the qualified doctors and surgeons. There was no negligency on the part of opposite parties. Complainant has admitted in her complaint that she approached Global Hospital for treatment. The doctor of Global Hospital never reported about the negligence of opposite party in any manner. The medical literature attached with the complaint never indicated that opposite parties were negligent. The operation was carried out on 09.10.2007 and the patient and also her husband being doctors opted for very early discharge on 11.10.2007 the very third day. Normally patient after a hysterectomy are discharged on the 8^th post operative day. Early discharge can lead to vault infection and some times sutures which are used to close the vault of the vagina can erode into the bladder and lead to a vesico vaginal fistula, resumption of intercourse early can lead to a traumatic VVF (Ref: Meeks, G, Roth, T, Glob.libr.women’s med., 2008; DOU+I10.3843/Glown10064). This cystoscopy which was carried out at Rainbow Hospital at Hydrabad mentions that a fistula of 1.5 cm was found at the fundus of the bladder, surrounded by unhealthy granulation tissue which means that the fistula could be of infective etiology. The categorical mention of a post hysterectomy VVF on the discharge sheet of Care Hospital Hydrabad does not mean that the VVF was due to the negligence of the surgeon Dr. Manju Gita Mishra. Shaw’s Textbook of Operative Gynaecology does not say that if injury to the bladder occurs at hysterectomy then it is gross negligence of the surgeon conducting the hysterectomy. Wherein the etiology of VVF, in the same Textbook, it has been categorically stated that majority of fistula develop after gynecological operations, such fistula develop as a result of injury to the bladder during hysterectomy which means that hysterectomy is an operation which possess the bladder at a risk of injury. O.P. has further stated that the complainant has also accused the opposite party of leaving the left ovary behind on the grounds that an ultrasound scan done on 7^th May, 2008 has shown that the left ovary was intact. In this context it is important to mention that an ultrasound scan done on 11^th August, 2007 (two months prior to the operation) at Chaudhary Digital Imaging  & Research Centre mentions that left ovary was separately visible measuring 3.8 cm and the right ovary measured 3.9 cm. There was a 390 ml volume unilocular cystic lesion seen above the uterous and bladder. On opening the abdomen the cyst was found to be arising from the right ovary. The histopathological examination of the cystic lesion after surgery also confirmed serous cystadenoma of the ovary which means that cyst was arising from the ovary. This highlights the fact that no ultrasound scan is 100% accurate. The ultrasound scan done on 8^th May, 2008 (seven month after the patient operation) mentions that the left ovary to be of the size of 2.6 cm which is much smaller than the size mentioned in the pre operative ultrasound which means that ultra sonographer had mistook one of the pedical stumps of hystractomy as the left ovary. The operation of TAH+BSO+ Appendisectomy was done in the best interest of the patient with meticulous care, hence the accusation of negligence and cheating against O.P. by the complainant is unjustified, thereby making the claim and compensation by the complainant is frivolous and having no ground. It is wrong to say that complainant approached the opposite party after discharge from the M.G.M Hospital. In view of the above facts and circumstances Opposite parties have prayed to dismiss the complaint petition.

3.    Complainant has attached several documents along with the complaint petition which have been marked Exhibits as under:

1. Exhibit-1 Series- Medical degrees of the Complainant.
2. Exhibit-2 Series- Medical degree of Complainant’s Husband
3. Exhibit-3- Photo copy of prescription of Dr. Mrs. D. Singh
4. Exhibit-4- Photo copy of report of Ultrasound of Chaudhary Digital
5. Exhibit-5 Series- Photo copies of prescriptions of M.G.M Hospital & Research Centre, Patna
6. Exhibit-6- Discharge ticket of M.G.M Hospital dated 11.10.2007
7. Exhibit-7- Photo copy of Hysto Patheological report of Maurya Lab, Patna
8. Exhibit-8- Photo copy of receipt of M.G.M Hospital
9. Exhibit-9- Photo copy of no dues from M.G.M. Hospital
10. Exhibit-10- Photo copy of IVF report of Global Hospital, Hydrabad
11. Exhibit-11- Photo copy of Cystoscopic report by Dr. P. Reddy
12. Exhibit-12- Photo copy of relevant extract of Shaw’s Textbook, page-129-137 & page- 343 & 346
13. Exhibit-13- Photo copy of out patient card by Dr. K. Ramaraju
14. Exhibit-14- Photo copy of discharge ticket of Care Hospital
15. Exhibit-15 Series- Photo copy of Air ticket from Patna- Kolkata- Hydrabad & Return tickets
16. Exbit-16 Series- Photo copies of the receipts
17. Exhibit-17- Photo copy of Nidan Ultrasound
18. Exhibit-18- Extract from Datta’s Textbook of Gynaecology, page-217
19. Exhibit-19- Photo copy of the relevant extract from book “Essential Surgical practice- 3^rd Edition- by A. Cushieri at page 1501- of Vesico Veginal Fistula
20. Exhibit-20 - Photo copies of Income Tax return for the year 2006-2007 of complainant.
21. Exhibit-21- Photo copy of Income Tax return, year 2006-2007 of Complainant’s husband  

Complainant has also sworn in an affidavit in support of his complaint petition.

On the basis of above pleadings filed on behalf of both parties, this Commission has to examine and to adjudicate:

1. Whether opposite parties were negligent during the operation procedure of hysterectomy ?  
2. Whether complainant is entitled to be compensated with the amount as prayed by her?

     Issue No.- 1

5.   We heard  learned counsels of both sides at length, learned counsel on behalf of complainant argued that on the tenth day of surgery conducted by the O.Ps. upon the complainant in respect of hysterectomy, complainant started dribbling of urine per vagina continuously. She had no control over urination and her clothes were wet due to urination all the time. Since, complainant is herself a gynaecologist so, she suspected that vesico vaginal fistula had occurred because of negligence in hysterectomy. So, she consulted Dr. Manju Gita Mishra O.P. no. 3 on 19.10.2007. During examination of complainant Dr. Mishra spontaneously reacted that “Anarth Ho Gaya”. She further advised intravenous pyelography and urine culture and instructed the complainant to consult some Urologist. Thereafter, complainant under mental trauma rushed to Hyderabad where after necessary examinations, it was diagnosed as post hysterectomy VVF and after required three months interval Dr. K. Ramaraju performed the surgery upon the complainant on 18.01.2008 and repaired the VVF. Thus, due to want of care by the opposite parties during hysterectomy, complainant had to suffer tremendous mental agony, physical harassment and great monetary loss which should be compensated in terms of compensation as sought by the complainant in her reliefs. Complainant has supported her case by filing the reference book of Shaw’s Textbook of Operative Gyaenacology.

6.          Whereas, learned counsel on behalf of O.Ps opposed the contention of the complainant and submitted that Dr. Manju Gita Mishra and her team took all the best of precautions and steps to be followed at hysterectomy as mentioned in Shaw’s textbook of Operative Gyaenacology. Operation was conducted by all qualified doctors and surgeons, there was no negligency on the part of the opposite parties. Operation was carried on 09.10.2007 and patient with the consent of the husband, both being doctors, opted for early discharge on 11.10.2007 on third day. Normally, patient after hysterectomy is discharged on the eighth post operative day. Early discharge can lead to vault infections and sometimes the sutures which are used to close the vault of the vagina can erode into the bladder and lead to a vesico vaginal fistula. So the early discharge of the patient might have developed VVF, which was due to fault of the patient herself. Learned Counsel referred a decision passed by the Hon’ble Supreme Court in Jackob Mathew Vs. State of Punjab & Another, (2005) 6 SCC-I. In view of the above facts and circumstances, learned counsel prayed to dismiss the complaint.

7.              We minutely perused and examined all the documents filed on behalf of both parties. Opposite party have produced only an affidavit sworn in by one M.G. Mishra, Director of M.G.M. Hospital who has reproduced the written statement in his affidavit. But, we find that M.G. Mishra aged 43 years has not given the parentage of himself. So, this affidavit does not fulfill the ingredient of legal affidavit. Opposite parties have not produced before the Commission the records of the operation conducted upon the complainant on 09.10.2007: like – Bed head ticket, the details of team involved in the operation etc.

8.              Complainant has attached several documents along with her complaint. Exhibit -12 is the extract of Shaw’s Textbook of Operative Gyaenocology. It is a reference book for the surgeons and gyaenocologist, which is also admitted by the opposite parties. This book describes the procedure of  Hysterectomy. According to this reference book there are nine steps of Hysterectomy technique which are as under (page-129 to 137):

Technique-1- The procedure of opening of abdomen.

Technique-2- The uterus is firmly pulled to the left side of patient by the assistant.

Technique-3- The next step is to divide the peritoneum of the uterovesical pouch

Technique-4- (Main course of operation)- The next step is to separate the bladder and the ureters from the cervix and upper part of the vagina, ............... The space between the bladder and vagina in the mid line in the region of the vesicocervical space is bloodless, but lateral to the upward prolongation of the bladder pillar lie the lateral vaginal plexuses of veins together with the venous plexuses of the parametrium. The more the bladder and ureters are mobilized latterly the more these veinus plexuses will be opened up, yet unless the ureter is kept well out of the operation area it may be wounded by the clamps placed over the vaginal plexuses of veins.

Technique-5- The next part of the operation consists of diving the parametrium lateral to the uterus, below the level at which uterine arteries reaches the lateral border of uterus...............

Technique-6- The vagina is now opened, and in uncomplicated cases it should be opened posteriorly by cutting through the uterosacral ligament of one side. The uterus is therefore, drawn upward and forwards by an assistant and the uterosecral ligament of the opposite side exposed ................ by continuous use of the scissors, the vagina is further opened posteriorly. This step is regarded as an important part of the technique, as the opening in the vagina is made well away from the bladder and ureters and there is no possibilities of either of these structures being injured.

Technique-7, 8 & 9- are further details of operation. This book cautions the surgeons that the operation is hazardous unless the bladder and the termination of the ureters are accurately defined and mobilized. If necessary the bladder can be retrected away from the vagina with a retrector. No attempts should ever be made to open the vagina until the bladder has been identified, mobilized and separated from the vagina (page-136). Vesical fistula result from injury to the bladder during hysterectomy (page-343).

9.             This textbook clearly indicates that vesico vaginal fistula results from injury to the bladder during hysterectomy.

10.               The word negligence of the doctor is described by Hon’ble N.C.D.R.C, as “ when a doctor does not do what a doctor of average knowledge, experience and capability would do, or he does what a large body of doctors would not do [Bombay Hospital & Medical Research Centre Vs. Krishna Behari M Agragawal, 2004, CTJ-468(N.C)] 

11.                       Hon’ble Supreme Court in Laxman Bala Krishna Joshi Vs. Triambak Bapu Godgole, A.I.R, 1969 S.C 128, has held, “ The Practitioner must bring to his task a reasonable degree of skill and knowledge and must exercised a reasonable degree of care.....”           

12.             Complainant has filed prescription and Discharge ticket, no dues certificate from M.G.M. Hospital along with Laboratory reports regarding examinations before Hysterectomy by opposite party. All these documents have been marked (Exhibit-3 to 9). Medical prescriptions of Dr. P. Reddy of Hyderabad, out patient card by Dr. Ramaraju discharge ticket of Care Hospital, Hyderabad have been marked Exhibit-10, 11, 13 & 14 respectively.

13.           Exhibit – 5 & 6- are the prescription and discharge ticket of complainant from M.G.M. Hospital, Patna which mention-  Disease / Diagnosis- under -TAH+BSO+Appendicectomy done on 09.10.2007. A big cyst present right side which was removed. Money receipt of Rs. 8000/- and No Dues certificate have been filed ( Exhibit-8 & 9), meaning thereby that consideration was fully paid to the MGM Hospital.

14.        TAH+BSO in medical terminology means “Total Abdominal Hysterectomy and Bilateral Salpingo- oophorectomy ( removal of the uterus, cervix and both fallopian tubes and overies ). Exhibit-6 mentions- TAH+BSO+Appedicectomy was done on 09.10.2007. But Ultrasound report dated 08.05.2008 (Ext.-17) shows the left ovary 2.6 cm x 1.7 cm. Normal in size. It clearly indicates that both fallopian tubes were not removed. It is glaring deficiency in service and negligence on the part of the opposite parties.

15.                Dr. Pranathi Reddy of Rainbow Hospital, Hyderabad, examined her on 21.10.2007 and diagnosed ‘likely vesico vaginal fistula’, (Ext. 10 & 11), which was finally diagnosed as Vesico Vaginal Fistula  and she was admitted in Care Hospital, Hyderabad, and underwent transvesical, transabdominal repair of VVF (Ext.- 14). It  also finds mention that “Mrs. Sanju Jain who developed urinary leak after hysterectomy was thoroughly investigated found to have VVF.”

16.            Problem to complainant began when from 10^th day of hysterectomy continuous dribbling of urine started wetting her clothes 24 hours. Complainant’s case is that she consulted Dr. Manju Gita Mishra, who, according to the complainant, spontaneously reacted “Anarth Ho Gaya”, and suggested to consult some Urologist. Then for better treatment and cure she had to go to Hyderabad, where VVF was repaired by famous Urologist Dr. K. Rama Raju of Care Hospital.

17.              Learned counsel of the opposite parties referring the decision of the Hon’ble Supreme Court in Jakob Mathew case submitted that Hon’ble Supreme Court has held that ”a private complaint may not be entertained unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor……… A doctor accused of rashness may not be arrested in the routine manner ……” Learned counsel further submitted that a report ought to have been called from medical board regarding alleged commission of negligence.

18.              In the instant case both the parties are doctors, Hysterectomy operation was conducted upon the complainant who is herself a gynecologist. Moreover, Hon’ble Supreme Court has passed this decision in Jakob Mathew case which was criminal case lodged against the doctor  under 304-A of Indian Penal Code against the doctor. So, the principle decided in this case is not applicable in the present case in hand. Moreover,  Hon’ble Supreme Court  in the same Jakob Mathew case has held that “ the jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mens rea must be shown to exist. For an act to amount to criminal negligence, the degree of negligence would be much higher i.e, gross or of a very high degree. Negligence, which is neither gross nor of a higher degree may provide ground for action in civil law but can not form the basis for prosecution”.

19.              The question whether expert medical evidence is necessary or not has been directly addressed by the Hon’ble Supreme Court in V. Kishan Rao Vs. Nikhil Super Speciality Hospital,  2010(5) SCC, 513. Hon’ble Court has held:

          “….. before forming an opinion that expert evidence is necessary, the Fora under the Act must come to a conclusion that the case is complicated enough to require the opinion of an expert or that the facts of the case are such that it can not be resolved by the members of the Fora without the assistance of expert opinion. This court makes it clear that in these matters no mechanical approach can be followed by these Fora . Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in that event the efficacy of the remedy provided under this act will be unnecessarily burdened and in many cases such evidence would be illusory”.

          On the examining facts of the case Hon’ble Court held that expert evidence is not necessary and the District Forum rightly did not ask the appellant to adduce expert evidence. Thus, this Commission in view of the Hon’ble Court principle decided in the above case finds that in present case in hand also there is no need of any expert opinion from another doctor.

20.             “The Textbook of Gynecology by Shaw” is the authority and reference book in the matter of Gynaecology as admitted by both parties. This textbook has cautioned the surgeons in the matter of hysterectomy, while conducting operation to take extra care as it is hazardous, unless the bladder and the termination of the ureters are accurately defined and mobilized. If necessary the bladder can be retracted from the vagina with a retractor. Injury to the bladder during hysterectomy should not occur, if the steps already outlined have been faultlessly obeyed.(page 136-137). Just after 9^th day continuous dribbling of urine is axiomatic that during operation required care was not observed and this is deficiency and gross negligence on the part of the doctor and her team during hysterectomy.

21.              Complainant has filed several documents and medical literature to prove her case vis a vis opposite parties have not produced a single document or medical literature to disprove the complainant’s version. Hon’ble Supreme Court has held in Municipal Corporation of Delhi vs. Subhagwanti (AIR 1996 SC 1750) :

         “The normal rule is that it is for the plaintiff to prove negligence. An exception to this rule applies where the circumstances surrounding the thing which causes the damage are, at the material time, exclusively under the control or management of the defendant or his servant and the happening is such as does not occur in the  ordinary course of things without negligence on the part of the defendant.”

22.          Further, in another case Nizam Institute of Medical sciences vs. Prasanth S. Dhananka and others, [2009 (2) CPJ 61 (SC)] Hon’ble Supreme Court has held:

 “Once the initial burden has been discharged by the complainant by making out a case of negligence on the part of the hospital or the doctor concerned, the onus then shifts to the hospital or to the attending doctor and it is for the hospital or attending doctor to satisfy the Court that there was no lack of care or diligence.”

23.        In the case in hand opposite parties i.e. MGM Hospital or attending doctor has not discharged the onus and has been failed to satisfy this Commission that there was no lack of care or diligence. Thus, complainant has proved her case that opposite partied did not take proper care during hysterectomy. Therefore, Issue no. 1 is decided in favour of the complainant.  

Issue No.-2        

24.        Complainant’s case is that due to utter negligence of O.P.-3 during hysterectomy the complainant, her husband and children underwent mental, physical, emotional trauma and financial loss. The complainant had to go for unnecessary second complicated surgery of VVF. From 10^th day of hysterectomy dribbling of urine started and kept uncontrolled urinating 24 hours for about four months wetting the clothes all the time during winter season, which kept her away from society even from children. Complainant is not employed anywhere, rather she is herself a doctor practicing privately, which is her only source of income for livelihood. Her practice completely stopped for eight months, but she had to pay the salary of her staff and clinic rent etc. She also spent huge amount in both the surgery i.e. at Patna and Hyderabad. She has demanded Rs. 29,10,000/- to meet her expenses including compensation.

25.           It is natural that complainant would not have been in position to carry on her normal activities during this period. She being herself a private practicing doctor, her practice stopped during this period. According to her, she could not practice for eight months. She has filed copy of Income Tax Return (Ext- 20) for the year 2006-2007 for  Rs. 3,30,235/-. Complainant’s husband is also a doctor and practice privately, Exhibit-21 is the IT return of Dr. Pashupati Kumar Jain in which he has shown his yearly income for the year 2006-2007 as Rs. 3,05,922/-. He had also to devote considerable time for the care of his wife at Patna and also gone to Hyderabad as an attendant to his wife. Naturally, the husband had to absent himself from his private practice, so, he suffered loss of earnings. Complainant has claimed expenses incurred by her for undergoing operation in the hospital of opposite parties , secondly the expenses born by her at Hyderabad in second operation for repairing VVF, Air fair from Patna to Hyderabad for herself along with her husband and also the expenses of ticket of two attendants who went to Hyderabad to take care of her. She has also claimed the compensation for mental agony, physical harassment of entire family including children who could not be properly taken care of in the absence of their parents affecting their study too.

26.      The complainant is no doubt entitled to get the money paid to the opposite parties towards  fee for operation and other expenses. Exhibit-8 is the receipt of  Rs. 8,000/-. In no dues certificate (Exhibit-9) there is no mention of any amount. At Hyderabad she had paid total amount nearly Rs. 63,475/-. She had spent in travelling nearly Rs. 55,000/- . They remained in Hyderabad for about 34 days. So, total expenditure at Hyderabad comes to nearly Rs. 2,35,000/-. Her private practice loss was nearly Rs. 1,35,000/- and her husband’s loss was nearly Rs. 87,000/-. For long duration of mental and physical trauma of entire family, she is entitled for compensation of  Rs. 10,00,000/- and also litigation cost Rs. 35,000/-. Thus, complainant is entitled for total relief of (Rs. 8,000+2,35,000+1,35,000+87,000+10,00,000+35,000/-)=Rs. 15,00,000/-. Although the complainant has not claimed any interest over the claimed amount but she is entitled to get simple interest of 6% per annum over the total relief amount. So, this issue is also decided in favour of complainant.

27.     In view of the above discussion, this Commission arrives at the conclusion that opposite parties were negligent during the Hysterectomy operation conducted by them upon the complainant, consequent thereupon complainant had to undergo second operation for the repair of Vesico Vaginal Fistula and she had to suffer mental, physical trauma and economical loss for which she is entitled to be compensated, therefore.

ORDER

Complaint petition is hereby allowed on contest. Opposite parties are ordered to make payment of Rs. 15,00,000/- (Fifteen lacs) with 6% interest per annum from the date of the filing of the complaint petition upto final payment, ( as detailed in paragraph-23 of this order) in favour of the complainant within forty five days from the date of the receipt of the order, failing which complainant will be entitled to recover the same through execution process.

                                                                                                                                                                       Gita Verma

                                                                                                                                                                  Judicial Member

                                                                                                                                                                 Raj Kumar Pandey

                                                                                                                                                                          Member

                                                                                                                                                            Subodh Kumar Srivastava

                                                                                                                                                                    Judicial Member