Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 (1) CPR 132
UTTAR PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, LUCKNOW
Roop Singh and Vinod Shanker Chaubey, Members
Smt. Jasbiri—Appellant
versus
Dr. Nutan Jain & Anr.—Respondents
Appeal No. 2810/SC/1999
Decided on 15-11-2006

Advocates:
Counsel for the Parties:
For the Appellant:Sri S.K. Sharma, Advocate.
For the Respondents:Sri B.C. Agarwal, Advocate.

IMPORTANT POINT
Where doctor carried out hysterectomy operation and patient suffered from vasico-vaginal fistula, in absence of evidence for such injury, rupture in urinary bladder must be taken to have occurred during operation.

Headnote:Consumer Protection Act, 1986—Sections 12 and 17—Medical Negligence—Complainant-appellant diagnosed as “Dysuria prolaps uterus and dysmanorrhoea” was operated by respondent-opp. party—Uterus was removed and left side ovary was left behind—Doctor while doing surgery was alleged to be careless and ruptured urinary bladder which turned out to be a vasico-vaginal fistula and urine started passing through vagina—Complainant was treated then in other hospital and started recovering—Claim for compensation—Dist. Forum accepted opp. party contention that due to sexual intercourse there was pain and dysmanorrhoea and doctor was not liable and dismissed complaint—Appeal—Issue was whether during surgery urinary bladder or some organ was ruptured or it was ruptured afterwards and due to fault or negligence of patient itself—Defence contention was that after discharge from Nursing Home, husband of complainant had sexual intercourse and that was the reason for damage or rupture—Doctor failed to prove date of discharge which was an important circumstance by failing to produce discharge papers—Theory of sexual intercourse was not believable and medical literature did not support case of doctor—Literature to show that if a skilled operation with proper care could be done then there was no question of post-operative fistula resulting from damage or rupture of urinary bladder—Most of the fistula resulted from injury to bladder during operation—When there was no evidence that there was sexual intercourse or forceful coitus, only one conclusion could be that rupture in urinary bladder was during operation or hysterectomy—Doctor did not give any pre-operative or post-operative advise—Complainant held entitled to compensation of Rs. 50,000/-.
(Paras 11, 16, 18, 23 and 25 to 28)
Result: Appeal allowed.

JUDGMENT

Vinod Shanker Chaubey, Member—This is an appeal filed by Smt. Jasbiri, wife of Sansaar Singh, resident of Besera,

District Muzaffar Nagar against the respondent Dr. (Smt) Nutan Jain of Vardhman Nursing Home and Oriental Insurance Company through its General Manager, Muzaffar Nagar. The District Forum, Muzffar Nagar had dismissed the complaint of the complainant finding that the complainant has concealed and circumvented the facts.

2. The facts of the case in brief are that the complainant along with her husband visited the opposite party/respondent on 24.6.1994 for treatment of obstructed flowing of urine. The opposite party diagnosed the disease as “Dysuria prolaps uterus and dysmanorrhoea”. The opposite party doctor advised for immediate operation and remova1 of uterus. The opposite party also advised that if the uterus was not removed, there are danger of uterus cancer. Since the couple is a villager, alarmed by the doctor’s advise, the complainant got admitted in the Hospital on 25th of June 2004. The Pathological report was submitted by Dr Pradeep Sharma. Dr Ahlawat, the Cardiologist, also examined her and EKG showed that patient was weak and anaemic. The complainant was having the history of irregular menstruation. The opposite party/doctor did not advise the complainant for haemoglobin test and Dr Rakesh Kumar Ahlawat, Cardiologist gave a wrong report that complainant is a fit case for anaesthesia and for surgery. On 26.6.1994 the operation was conducted. The uterus of the complainant was removed and left side ovary is left behind. The complainant alleged that the doctor was in a hurry for the major surgery to earn much more benefits from the complainant. She also alleged that the leaving left side ovary without uterus is prone to infection. The main allegation of the complainant is that on 26.6.94 during operation the opposite party doctor while doing the surgery carelessly ruptured the urinary bladder which itself indicate the negligence of opposite party. This rupture turned out to be a vasico-vaginal fistula which is prone to infection. Urine started passing through vagina and it created infection. It is alleged that the complainant remained under the treatment of opposite party upto 20.9.1994. The complainant became seriously ill. The continuous flow of urine and pus through vagina was there. The complainant became severe anaemic. The opposite party/doctor advised the complainant to go to Agra for further operation to Dr Asopa on 20.9.1994. The complainant’s husband and she were also advised by the Surgeons of the town and according to their advise she went to Dr AM Nagar in Prakash Nursing Home, Meerut and there she received treatment upto 13.10.1994 and she is improving well and Dr. Nagar’s treatment is going on. She has also alleged the payment to opposite party Dr. Nutan Jain for the treatment, operation and stay in the hospital and also payment to Prakash Nursing Home and for the purchase of medicine etc.

3. The allegation of the complainant has been denied by Dr Nutan Jain. The crux of her case is that there was tumour in uterus and though it was benign its removal was necessary to save the patient from any infection in future. The operation was conducted and uterus of the complainant was removed and she was discharged satisfactorily on 29.6.94 and again came back on 9.7.94 for follow up. The patient was examined and it was found that there is leakage of urine per vaginum. The doctor alleged that the patient was duly explained regarding this complication and was enquired regarding any sexual activity, and the patient admitted having a contact after which she had pain and finally leakage of urine. The Forum appears to believe the contention of opposite party that the complainant admitted orally to the Doctor that due to sexual intercourse there was pain and dysmanorrhoea and the opposite party doctor is not liable. The Forum also concluded that the development of VVF was concealed by the patie

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2007 (1) CPR 132UTTAR PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, LUCKNOWRoop Singh and Vinod Shanker Chaubey, MembersSmt. Jasbiri—AppellantversusDr. Nutan Jain & Anr.—RespondentsAppeal No. 2810/SC/1999Decided on 15-11-2006

IMPORTANT POINTWhere doctor carried out hysterectomy operation and patient suffered from vasico-vaginal fistula, in absence of evidence for such injury, rupture in urinary bladder must be taken to have occurred during operation.

Cases Referred (3)

2007 (1) CPR 132
UTTAR PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, LUCKNOW
Roop Singh and Vinod Shanker Chaubey, Members
Smt. Jasbiri—Appellant
versus
Dr. Nutan Jain & Anr.—Respondents
Appeal No. 2810/SC/1999
Decided on 15-11-2006

IMPORTANT POINT
Where doctor carried out hysterectomy operation and patient suffered from vasico-vaginal fistula, in absence of evidence for such injury, rupture in urinary bladder must be taken to have occurred during operation.