National Consumer Disputes Redressal
Md. Abbas Ansari vs Dr.Rameshwar Pd. Agarwal on 18 January, 2007
NCDRC NATIONAL CONSUMER DISPUTES REDRESSAL COMISSION NEW DELHI REVISION PETITION NO. 1313 OF 1999 (From the order dated 11.05.1999 in Appeal No.542/1995 of the State Commission, Bihar) Md. Abbas Ansari Petitioner Versus Dr.Rameshwar Pd. Agarwal Respondent BEFORE : HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT MRS. RAJYALAKSHMI RAO, MEMBER For the Petitioner : Mr. Manoranjan Mishra, Advocate For the Respondent : Mr. Gaurav Agrawal, Advocate Dated : January 18, 2007 O R D E R
MRS. RAJYALAKSHMI RAO, MEMBER .
This Revision Petition is filed by petitioner/complainant, Md.Abbas Ansari against the order dated 11/5/1000 passed by the State Consumer Disputes Redressal Commission, Bihar at Patna in Appeal No.542/95 by which the order of the District Forum, Battiah has been set aside and the complaint was dismissed.
The brief facts of the case are :
The petitioners wife, Mrs.Khushbun Nisha visited the respondent/Dr. Rameshwar Pd. Agarwal for the first time on 22.1.1994 complaining that ever since her abortion in 1988, she has been having persisting pain in the abdomen and that she was suffering from pain during periods. According to the opposite party, these were the symptoms of Endometriosis. Endometriosis is a condition when a part of the uterus gets implanted somewhere else. The doctor advised x-ray of abdomen, ultrasonography, blood and urine tests. The patient underwent these tests. The ultrascan report suggested problem in uterus and adjoining areas. The opposite party who is a surgeon, has suggested Hysterectomy, i.e., removal of uterus on 25.1.1994. The operation was done on 30.1.1994 and during the operation, a lump was observed in the outer wall of the Urinary Bladder, which according to the opposite party could be one of the reasons for the pain in the abdomen and, hence, the same was removed. The wound on the wall of the Urinary Bladder was closed in layers.
In order to keep the Urinary Bladder dry and for the purposes of healing of the wound, an indwelling catheter was placed and the urine used to accumulate in a sack. The catheter from the Urinary Bladder was removed after 10 days and the patient was discharged. It is the case of the petitioner that the patient had the problem of frequent urination which kept continuing and the opposite party doctor was being consulted. The petitioner alleged that the opposite party doctor prescribed medicines and yet there was no improvement and the patient was firstly referred to Dr.Mira Choudhary, a Gynecologist. After doing an I.V.P. Test on the patient, Dr.Mira Choudhary opined that it was a case of V.V.F. (Vesico Vaginal Fistula). She referred the patient to Patna for repair of the Urinary Bladder. The respondent doctor also referred the patient to IGIMS, Patna.
The petitioner alleged that after his wife had a problem of incontinence (urine coming through vagina) after removal of the catheter of the patient, the opposite party did not take adequate care in referring her to an expert immediately. It is further alleged that the catheter tube from the Urinary Bladder should be removed after 20 days and not after 10 days only. Because the catheter tube was removed prematurely, the patient had to suffer the problem of incontinence. Whether V.V.F. occurred during removal of the uterus or it was pre-existing, is not known but since uterus and the Urinary Bladder are very close to each other in proximity, the petitioner contended that the hole in the Urinary Bladder must have occurred during the surgery of Hysterectomy.
The District Forum allowed the complaint and held that the respondent was negligent in the post-operative treatment of the patient. It came to the conclusion that the problem of incontinence was ignored for a few months and was not dealt with immediately by referring to a Gynecologist and awarded a sum of Rs.53,685/- as compensation and Rs.1000/- as costs. The State Commission allowed the Appeal of the respondent and set aside the order passed by the District Forum and held that there was no negligence or deficiency on the part of the respondent in performing the operation and treatment of the patient.
Aggrieved by this order, the petitioner contended that :
.(a). During the course of operation of the uterus of his wife, the injury to Urinary Bladder was caused which resulted in development of V.V.F.;
.(b). The indwelling catheter was removed by the respondent on the 10th day of the post-operation which resulted in development of V.V.F. disease and that it should have been removed later, i.e. after 20 days.
.(c). Expert opinion of a gynaecologist was not taken the correct diagnosis of the disease and that he caused injury to the uterus while operating the same, and, .(d). Lastly, the petitioner be compensated for the money spent, mental agony and harassment along with awarding of costs.
Learned Counsel for the Petitioner referred to the statement made in the deposition by Dr. Arun Kumar Singh, who was a witness of the opposite party, that if by mistake a hole is caused by the surgeon then it is the duty of the surgeon to repair it. Further he submitted that in Shaws Text Book of Operative Gynecology, wherein after treatment of fistula operation it is noted as under :
It is essential to keep the bladder empty so that no internal pressure disturbs the suture lines until the wound in the wall of the bladder has healed. The bladder must therefore be kept empty for at least ten days.
The Learned Counsel submitted that in the present case the opposite party should have continued keeping the catheter for few more days whereas it was hurriedly removed which is a deficiency in service. This carelessness had resulted in her re-operation and problem of incontinence aggravated.
Learned Counsel for the opposite party contended that Dr. Aggarwal discharged the duty with due care as a reasonable surgeon and on physical examination of the patient on the tenth day of the operation i.e. on 8.2.1994 he noticed (a) healing of the external wound, (b) no fever, (c) no blood in the urine, and (d) passing of the urine with force. It is averred that if there was any hole in the bladder, the urine would not come out with force. Considering other factors like extent of the injury, security of closure and other physiological factors like age etc, the opposite party took a decision to remove the catheter.
According to the opposite party, the reliance placed by the Petitioner on Shaws Text Book of Gynecology, is totally misplaced as the same deals with a Urinary fistula operation i.e. an operation which is done to cure VVF. In case of VVF more fibrosed tissues are cut which heal rather slowly requiring longer time to heal.
Learned Counsel for the Opposite Party contended that there was no complaint from the patient or the Petitioner during the period 8.2.1994 to 1.5.1994 about any incontinence. It is further contended that after the operation the patient visited the opposite party only on 4.3.1994 and no complaint of incontinence was made and medicines for endometriosis alone were prescribed. The next date of the patients visit was 1.5.1994 and the complaint of incontinence was made for the first time by the patient on 1.5.1994. It is stated that the prescriptions also show that the Petitioner visited the opposite party only on 4.3.1994 and thereafter on 1.5.1994. It is argued that if the patient had incontinence from day one they would not have waited for three months to visit the opposite party.
Learned Counsel for the opposite party further contended that various factors could result in VVF and that pre-mature removal of indwelling catheter is just one of many causes. Since the patient had endometriosis, it is probable that the same disease had resulted in VVF. The other causes of VVF are (a) Endometriosis itself, (b) chronic pelvic inflammatory disease, (c) malignant disease, (d) forceful coitus, and (e) ischaemia, i.e. lower supply of blood of bladder valve due to operative procedure.
It is further argued that in spite of an opportunity granted by this Commission to lead evidence, the Petitioner has not examined the doctor who operated upon the patient at Patna who could have thrown light on the cause of VVF in the present case. The Petitioner did not examine Dr. Meera Chaudhary also. It is argued that the alleged premature removal of indwelling catheter after the operation does not establish any connection between the operation, removal of catheter and the VVF as claimed by the Petitioner.
It is submitted that there is no such medical opinion which states that removal of the indwelling catheter on the tenth day of the operation is an unacceptable practice. In fact T. Lindes Operative Gynecology (6th edition Jaypee Brothers, New Delhi) at page 642 observes as follows :
An indwelling transurethral catheter should be left in place for 7 to 10 days postoperatively depending on the extent of the injury, the security of the closure, and the location of the injury in the bladder dome (extraperitoneal or transperitoneal).
Even in Shaws Text Book of Operative Gynecology, it has been observed by the learned authors that the fistula safely heals in usually 10 days. At page 90 of the same Text Book, while dealing with vaginal incontinence the learned authors has observed as follows:
Vaginal Incontinence: This is due to a urinary fistula, either vesical or ureteric. Vesical. Actual injury to the bladder may escape notice at the time of operation, when it would have been possible to make an adequate repair. An indwelling urethral catheter for 10 days and chemotherapeutic cover should suffice to ensure a satisfactory outcome.
Thus even in cases where the bladder injury is not repaired/detected during the operation, 10 days of indwelling catheter is sufficient. In the present case, the injury in the bladder was closed in layers and therefore, it would definitely require a period of less than 10 days.
We have heard both the parties and perused the record carefully. We find that there is no negligence and deficiency in service rendered by the opposite party. Even assuming VVF is due to the operation, the procedure followed by the opposite party was a fully accepted medical procedure and no liability can be imposed on the opposite party for the alleged failure, as there was no negligence in carrying out the operation and post-operative care. It is commonly accepted that VVF may develop after such an abdominal operation and simply because VVF had developed, it cannot be said that the opposite party is negligent. The very fact that VVF had developed nearly about three months after the operation clearly indicates that the said complication had not perhaps developed due to any negligence and act/omission on the part of the opposite party. The patient was absolutely fit and healthy at the time of discharge and there was no complaint of pain and incontinence at the time of discharge by the patient. Reference made by the Petitioner to the deposition of Dr. Arun Kumar has no relevance to this case because the opposite party himself had suggested that the patient met the Gynecologist Dr. Meera Choudhary and it was on her suggestion that the patient had gone to Patna for the second operation. This cannot be considered to be any negligence. The opposite party has rightly advised the Petitioner to consult a Gynocologist.
As for the text book references, in Shaws Text Book of Operative Gynaecology, it is reproduced as under:
An indwelling urethral catheter for 10 days and chemotherapeutic cover should suffice to ensure a satisfactory outcome.
An indwelling transurethral catheter should be left in place for 7 to 10 days postoperatively depending on the extent of the injury.
In view of the above text book references which also support the case of the opposite party also regarding removal of indwelling catheter in 10 days time, a long period of indwelling catheter in suture has its own hazards like infection/stone formation.
The Honble Supreme Court in its decision in Jacob Mathew Vs. State of Punjab (2005)6 SCC 1, while dealing with the tests to be kept in mind by the courts in dealing with cases of medical negligence, has observed as follows:
So long as it can be found that the procedure which was in fact adopted was one which was 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.
The allegation that the VVF was caused due to injury to the urinary bladder is not proved as there was no complaint of any urinary discharge for nearly three months after the operation by the patient.
The opposite party Doctor in the present case adopted the acceptable medical text treatment and discharged the patient without any complaints or complications. In our view, there is no medical negligence or deficiency in service on the part of the opposite party.
In view of the above discussion, we find that there is no infirmity or jurisdictional error in the well reasoned order of the State Commission. There is no substance in this revision petition. Hence, it is dismissed. There shall be no order as to costs.
..J (M.B. SHAH) PRESIDENT (RAJYALAKSHMI RAO) MEMBER S.H.Rao