Smt. Sheela alias Sheela Devi aged 44 years wife of Kewal Singh, r/o village Saloh, tehsil and District Hoshiarpur.

Versus


1. Gulati Surgical Hospital, Islamabad-Chandigarh road, Hoshiarpur, through its proprietor Dr. G.S. Gulati, MBBS Surgical specialist.

2. The New India Assurance Company Limited Divisional, Office-II G.T.B. Nagar, Jalandhar, through its Divisional Manager.


Smt. Sheela (hereinafter called as complainants), has filed this complaint against Gulati Surgical Hospital “Islamabad- Chandigarh road, Hoshiarpur, through its proprietor Dr. G.S. Gulati MBBS Surgical specialist and “The New India Assurance Company” Limited Divisional , Office-II G.T.B. Nagar, Jalandhar , through its Divisional Manager, (hereinafter called as Ops no.1 and 2, respectively) for issuance of a direction to the Ops to pay a sum of Rs 7,00,000/- to the complainant as compensation on account of the expenses incurred upon treatment, tests, diagnose, admission, Operation, attendants, transportation, medicines and damages.

2 Admitted facts of this complaint are that the complainant on 16-12-2006 had approached Op no.1 “for uterus repair/removal”. She was admitted in the hospital and after undergoing relevant investigation, she was operated upon on 07-03-2006. She remained admitted in the hospital till 11.03.2006. It is alleged that due to the negligence of the Op No.1 during operation, the complainant suffered injury to her urine bladder leading to non-control of urine/bleeding and ‘pus’.

The trouble was reported by the complainant to Op no.1 who did not care. The complainant remained readmitted in the hospital from 20-03-2006 to 22-03-2006 but she was not cured. She was again admitted in the hospital by Op no.1 on 27-03-2006 and discharged on 07-04-2006 but there was no improvement in the pain and non-control of urine etc. She remained admitted in the hospital of Op no.1 again from 19-04-2006 to 26-04-2006 also but of no consequence and was advised an Operation after treatment of 3 months. During this period of admission of the complainant, the Op no.1 was alleged to have left for a foreign country leaving the complainant in critical stage. During entire treatment, she alleged to have suffered harassment, mental agony and expenditure to the tune of Rs 60,000/- as medical expenses transportation and tests during admission in the hospital.

3 It is further averred that the complainant had approached Civil Hospital ‘Una’ where Dr. Angra Gynecologist attended her and revealed that due to unsuccessful operation, as well as negligence on the part of the Op no.1, there was a bladder injury and the complainant was advised to approach Nehru Hospital, CMC, DMC or PGI at Chandigarh for further operation. The complainant then claims to have gone to “Nehru Hospital Shimla” and consulted Dr. Premi who advised her to undergo operation (VVF). She was operated upon there on 10-08-2006 but still she was not recovered completely and was advised to undergo further operation after four months. She was told that still there was no assurance that her problem will be cured. The complainant then approached the PGI Chandigarh where also she was advised to undergo another operation. But despite all the preparation she was not operated upon.

4 It is also alleged that the complainant had further approached Dr. P.N. Gupta, Urologist Sector 40 Chandigarh as she was having severe pain and non-control of urine. She had undergone VVF Operation on 17-01-2007 and remained admitted for 15 days leading to an expenditure Rs 80,000/- on tests, diagnose, medicines and transportation etc. and the complainant was still not completely cured.

5 Due to the negligence of Op no.1 during operation on 07-03-2006, the complainant alleges to have suffered mental harassment and mental agony for running from one hospital to another and had incurred expenditure of more than Rs 4,00,000/- on transportation , tests, treatment and keeping attendants etc. Hence this complaint.

6 In the written version filed by the Op No. 1, maintainability of the complaint was challenged on the ground that complicated questions of fact are involved which required complete and vast trial, which can not be decided in the summary procedure. On merits admission of the complainant in the hospital as well as performance of the operation and subsequent treatment was not disputed. It was however denied that there was any negligence or deficiency in the service provided by this Op. It was clarified as under:-

“That the complainant was suffering from early uterine proplapse with chronic cervical Erosion. She was anemic and given preparative blood transfusion on 04-03-2006. Complainant underwent all relevant investigations including ultra sonography. Complainant also underwent preoperative preparation.

On 07-03-2006 complainant underwent planned vaginal hysterectomy with repair cysto enterocoel (repair of urinary bladder and prolapsed intestines). As per hospital record surgery went smoothly. There was no difficulty or complication during surgery. Early postoperative period was uneventful. Complainant was given I/V fluids, one unit of blood transfusion, antibiotics and analgesics.

Complainant passed 2800 units of urine in first 24 hours. As per daily progress chart on first postoperative day, complainant’s abdomen was soft and she was advised liquid diet. Complainant passed flatus after 48 hours and semi solid diet started. Complainant passed motion after 72 hours and was taking routine diet. Urethral catheter was removed on 11-03-2006 and complainant passed urine normally and she was discharged in satisfactory condition. Complainant was passing urine by herself. There was no vaginal discharge in any form ( blood, pus or urine) She was instructed to come for follow up after five days i.e. on 16-03-2006. On follow up on 16-03-2006 complainant was examined and there was mild vaginal discharge which was cleaned and complainant was instructed for further follow up after four days i.e. on 20-03-2006. Complainant reported on 20-03-2006, 24-03-2006 and 27-03-2006 as an OPD patient.

On 27-03-2006 complainant reported as an OPD patient vide OPD No. 15786. Complainant developed secondary bleeding due to post Operative infection. Complainant was put on heavy antibiotics. Vaginal packing was done and urethral catheter was put in. Complainant was dressed regularly on 28-03-2006, 29-03-2006, 31-03-2006, 01-04-2006 and 03-04-2006. During the period one of the stitch on urinary bladder ‘sloughed’ and urine leakage started and a small interior low lying vesico vaginal fistula developed. Stitching was done twice with fine vicry 1sutures (3,0) which used to ‘slough’ in 4/5 days due to vaginal and bladder wall oedema . Opposite party assured complainant and here husband number of times that Op will take proper repair after a gap of approximately 3 months and problem will be solved and same advice was given to the complainant at PGI Chandigarh and IGMC Shimla. VVF is well known and well acknowledged complication of vaginal hysterectomy with urinary bladder repair. Op assured them that this is not a life threatening condition, of course complainant’s discomfort is there.

Op is competent to undertake repair of VVF if needed, he would have taken the help of their visiting Urologist Dr. Atul Mittal Mch Urology. PGI Chandigarh at present consultant Urologist at Lajwanti Hospital Jalandhar, but the husband of the complainant insisted to shift the complainant to PGI Chandigarh and demanded total case summary from Op no.1. OP gave him total patient summary. After a gap of some weeks the husband of the complainant informed Op that PGI authorities are not giving proper care to the complainant. Again Op told the husband of the complainant to bring the complainant back, so that Op shall take care of the complainant. At every step Op has been careful and giving sympathetic attention to the complainant and her husband. Op had never neglected the complainant. Complainant herself alleged that her operation which was undertaken after a gap of 5 months at Govt. Medical College Shimla (IGMC) was a total failure.

This indicates that surgical techniques have their own flaws which does not mean negligence. Doctor is much more mentally disturbed whenever any complication occurs ……... but complications are part and parcel of every surgical procedure……. Only thing needed is to diagnose then and handle properly which have been done in her case. It is a matter of great regret that patients and attendants confuse complications with negligence…. no doctor want complication to occur because it is a mental trauma both for the patients and the doctor. But many things are not in doctors hands… natural course of disease is variable with each patient. Every surgical procedure is a new challenge for surgical fraternity… hence Op face challenges every day…like patients, doctor also requires mental and moral support in the event of complications … instead of harassing him or herself unnecessarily… doctors are also human beings like others performing tasks and helping the mankind as via media between the patient and God Almighty … hence doctors are answerable to both the patients and the God Almighty, how can doctors shirk there responsibilities bestowed upon them. Thus there is no fault on the part of the Op in any way before the surgery during the surgery or after the surgery, nor the Op was deficient in any way in providing the medical services to the complainant. The complainant has manipulated a false story to get the compensation from the Op. It is further clarified that the Op has been conducting this type of surgery (as performed on the complainant) on an average of 200/300 operations per year since 1984 till today. The Op passed M.B.B.S. in the year 1975 and MS (General Surgery) in the year 1983 from Govt. Medical College Amritsar. Thereafter, the Op remained in Govt. job from 1978 to July 1989 and since July 1989 till date Op is running his own nursing home.

7 In view of the aforesaid facts, it was contended that there was no negligence on the part of the Op and as such the complaint is false frivolous, vexatious and deserved to be dismissed with special cost to tune of Rs 10,000/- payable to this Op.

8 It was added that if the alleged negligence is proved, then Op no. 2 with whom Op no. 1 is insured is liable to pay compensation.

9 Op no.2 in its written statement also challenged the maintainability of the complaint against this Op, as it involved intricate questions of law and facts which required lengthy, full skill trial and recording of evidence. The allegations of the complainant about the negligence on the part of the Op no. 1 were categorically denied and in the alternative it was contended that if it is proved that facts done by the Op no.1 were wrong, then the same having done for unlawful game as per terms and conditions of the insurance policy, the complaint is not maintainable against this Op. A prayer for dismissal of the complaint was accordingly made.

10 The complainant in her evidence had tendered her affidavit Ex C-2 along with documents Ex C-1 to Ex C-160 relating to her admission as well as treatment. She had also examined Dr. Hari Krishan Premi, Professor and Head, department of Gynecology Rohil Khand, Medical College, Barelli (U.P) as CW-1, who deposed as under:-

“The complainant was having an opening which is called as VVF in the urinary bladder because of post vaginal hysterectomy Operation. Usually, such Operations of repair of VVF are undertaken by Senior doctors, preferably in a medical college set-up. General Surgeons are not trained in their under-graduate (MBBS) and in their post graduate training (M.S.) to do operation like vaginal hysterectomy with pelvic floor repair (P.F.R). In my Opinion, there was no emergency to operate the complainant, as the patient of prolapse of uterus is never an emergency and nobody with prolapse of uterus is bound to die.

The complication of VVF when it occurs after surgery should not be stitched in emergency within 2-7 days, but preferably, after about 2-4 months, the reason being the scarring which will occur within this time, the tissue will involute and the patient’s general condition will be better to withstand the next extensive surgery. The stitches which are put during 2-3 days of the development of the fistula is entirely a useless exercise and instead of giving benefit to the patient, to control her dribbling of urine, will in fact further damage the tissues, and therefore, the repair of this fistula, which has to be undertaken after about 3-4 months, may not produce the desired results.

Since I was staying at Una, and the complainant approached me for examination, then I made a request to one of my doctor colleagues as Una and therefore. I examined the complainant in his clinic today. On examination, I found that there is a still very fine Opening through which the urine is still dribbling”

11 Op No.1 in order to rebut the allegations of the complainant had tendered in evidence Ex Op1 affidavit of Dr. Alka Sehgal, Ex-R1 affidavit of Dr. Gurjit Singh, Ex R-2 affidavit of Dr. Gurbachan Singh, Ex OW4/A affidavit of Dr. Rajinder Kumar Sharma and his own affidavit Ex OW5/A, in addition to the documents Ex R3 to R22 tendered by him.

12 We have considered the written arguments placed on record by both the sides and also heard their respective learned counsel.

13 From the perusal of the complaint, it is very much clear that the complainant was operated upon on 07-03-2006 and discharged from the hospital on 11-03-2006. The allegation of the complainant is that during the operation due to the negligence of the op, an injury on her urine bladder occurred which led to non-control of urine, bleeding and pus etc and this fact was brought to the notice of the Op no. 1 on 16-03-2006 for which date she was advised for follow up treatment. Further according to her the trouble was reported to the Op 1 on number of times but he did not care. She remained admitted in the hospital of the Op 1 from 20-03-2006 to 22-03-2006. The problem still was not cured and she was again admitted to the hospital by the Op1 from 27-03-2006 to 07-04-2006 as well as 19-04-2006 to 26-04-2006, when she was advised operation after a period of three months of treatment.

It is also alleged in the complaint that during her admission in the hospital of the Op 1, he left for foreign country leaving the complainant in critical stage. Thereafter, the complainant approached the Civil Hospital, Una, where Dr. Angra Gynecologist attended her and revealed that due to unsuccessful operation as a result of the negligence of the Op, there was an injury to the bladder and he advised the complainant to approach Nehru Hospital, CMC, DMC or PGI at Chandigarh. The complainant then went to Nehru Hospital, Shimla where she was operated upon by Dr. Premi (VVF) on 10-08-2006.

14 The learned counsel for the complainant has vehemently argued that the entire suffering to the complainant was on account of the fact that the Op, though was having a degree of masters in surgery yet he was not competent to operate upon the complainant. with regard to the “Vaginal Hysterectomy” with repair cysto enterocoel ( repair of urinary bladder and prolapsed intestine.) He has referred to the International Code of Medical ethics which casts certain duties upon doctors, in general as well as the duties of the sick. According to him Section 5 which describes public duties of a registered medical practitioner required that the doctor must continue to treat a patient whom he has accepted with reasonable care and reasonable skill. It also requires that he should not under take any procedure beyond his skill as he is not free from legal obligations as regards these requirements, even when he was rendering a voluntarily service without any fees. The learned counsel has referred to the statement of Dr. Hari Krishan Premi CW1 who is Professor and Head, department of Gynecology, Rohilkhand Medical College, Bareilli (U.P.). The witness has clearly deposed that general surgeons are not trained in their under graduate ( M.B.B.S) and in their and post graduate training ( MS) to do operations like ‘Vaginal Hysterectomy’ with pelvic floor repair ( P.F.R.).

He further opined that there was no emergency to Operate the complainant as the patient of prolapse of uterus is never an emergency and nobody with prolapse of uterus, is bound to die. Thus the learned counsel for the complainant has challenged the competence as well as skill of the Op1 to undertake the surgery upon the complainant for Hysterectomy with repair cystro entroceol. By undertaking the surgery upon the complainant, the Op 1 was alleged to have not only violated the duties cast upon a doctor by the International code of medical ethics, rather he had acted beyond his skill which amounts to negligence as well as deficiency in service towards the complainant.

15 In our considered opinion from the testimony of Dr. Hari Krishan Premi alone it will be unjust to conclude that a doctor holding post graduate training (MS) was not competent to do operations like ‘Vaginal Hysterectomy’ with pelvic floor repair (P.F.R). The cross examination of Dr. Premi is as under:-

Ques: Are you aware of any statue, rules regulations, or Act prohibiting M.S. General Surgeon from performing Hysterectomy of VVF repair?

Ans: All the Operations of Gynae in today’s practice are done by qualified obstt. And Gynecologist until and unless, there is dire emergency to save the patient’s life, then a general surgeon may also operate.

The Act, Rules and regulations and Statue are not known to me.



Ques: Is it correct that it means, what you have stated is only your personal Opinion?

Ans: It is not my personal opinion. It is the opinion of the medical profession and the sub-divisions of the specialties thereafter.

Ques: Have you got any such extracts of opinion as you have answered in question above-stated?

Ans: The competency comes by training and a general surgeon is not trained in Gynecology. I have got no extract regarding the said opinion of the doctors.

Ques: Do you agree that many times, even Gynecologist call general surgeons in cases of complicacy because of their experience in all fields?

Ans: Inter-faculty discussion and consultations is a routine in medical profession and all these consultations are on either side and are for the welfare of the patient.

Ques: Is it correct that MBBS, MS Gen. Surgery and after getting experience of Gynae surgery, can a doctor perform the surgery in question of VVF repair?

Ans: V.V.F. is not a surgery, in-fact it is a complication and usually doctors with aforesaid degrees do not perform such gynecological surgery. Such doctors are not competent to perform such surgery.

Ques: Can you support your above-said version with any evidence?

Ans: This is part of the undergraduate and post-graduate teaching and training in the medical profession under the Medical Council of India.

Ques: Are you aware of curriculum of M.S. Gen. surgery?

Ans: Yes, I am aware about it.

Ques: Whether curriculum of M.S. Gen. Surgery includes Gynae and obstt.?

Ans: No it does not.



The witness has been shown “ Tenth Edition of Main Gots” Abdominal Operations ) Volume-IV), Chapter-XVI, which deals with Gynecologist Pelvic Procedures only one chapter.



Ans: The book shown is some old Edition of Gen. Surgery operative part. The year of Edition is not mentioned and I have already stated also that the Gynae surgery in the present day practice is performed by the trained Gynecologist. The said book says that “ earlier in the 20 th century, the majority of gynecologist surgery was performed by genl. Surgeons who had a special interest in the disease processes of the Female Reproductive organs. However, the compartmentalization of surgical sub-specialties has become much more elaborate.

The said chapter in the Gen. surgery operative text book is just a reference to the gynecologist surgery. The full training of gynecology requires three-year postgraduate degree with standard operative text books in obstt. & Gynae.

It is wrong to suggest that Dr. Gulati who is MBBS and MS in Genl. Surgery was competent to perform the hysterectomy as well as he was competent to deal with complications of VVF.

Ques: Whether the surgery performed by Dr. Gulati was not as per prescribed norms of medical science i.e. ethics of medical profession?

Ans: Yes, it was against the prescribed norms.

16. Dr. Premi has been contradicted by Dr. Alka Sehgal, MD,DNB present working as Reader in Department of Gynecology and Obstetrics in GMCH Chandigarh in her affidavit Ex Op-1, wherein she deposed that as per her experience and knowledge of the procedure hysterectomy is being routinely performed both by surgeons and gynecologists in practice. However according to her in government institution and large corporate institutions the distinction is more clear but overlap of specialties does occur even in institutes. Her cross-examination is as under:-

Ques: Experience and knowledge only comes in the field, for which specialization training is obtained?

Ans: The doctors are trained in the specialty, in which they are doing post-graduation along with the exposure in the related fields.

Ques: Vaginal hysterectomy with pelvic floor repair (PFR) and later-on development of vasico vaginal fistula (VVF) is the job of gynecology and obstt.?

Ans: It is mainly the job of obstetrician and Gynecologist but as stated, there is a lot of overlap of the surgery done by surgeons, gynecologist and Urologists.

Ques: General Surgeon is not trained in Gynae & Obstt. and he is not competent to undertake the PFR and VVF?

Ans: If the surgeon has done post-graduation from an Institution where this kind of surgery is being performed in the surgery Deptt. the doctors have the exposure to it and there is nothing to debar them from performing the same.

Ques: Which are those institutions which gave a certificate or diploma to undertake the above said operations?

Ans: Basic degree of MBBS also permits us the practice medicines, surgery and obstt. and Gynae and other fields.

Ques: Can a general surgeon undertake the I.O. Neuro, ortho?

Ans: There are many fields in specialty of medicine which have overlapping specialties and there are no clear cut lines deprecating the work to be done by one or the other. However, a general surgeon is not competent to undertake eye operation, some doctors can undertake the ortho operations and neuro surgery depending upon their exposure.

Ques: Who are those doctors who can undertake Neuro and ortho surgery?

Ans: The doctors who undergo exposure training, with surgeons and other colleagues who undertake this type of surgery.

Ques: Op No.1 is not competent to undertake the operations of Gynae and obstt. Neuro and Ortho?

Ans: OP No.1 as per my opinion, has been given exposure related to Gynae during his postgraduate in the instt. from where he did post graduation, but I cannot say whether Op No.1 is competent to undertake the surgery, Neuro and Ortho.

Ques: All the operations in Gynae, in today’s practice are done by qualified gynecologists and obstt. until and unless there is dire emergency to operate by the general surgeon?

Ans: No, it is incorrect. In practice, even elective planned surgeries are being performed by all specialists i.e. Gynecologists, urologist and surgeon.

17. Dr. Gurjit Singh who is MBBS, MS (General Surgery) retired professor of surgery of Govt. Medical College, Amritsar and Guru Ram Dass Institute of Medical Sciences having teaching experience over 20 years also in his affidavit Ex OP-2 deposed that he had been performing during his professional career the conventional General surgery, Cancer Surgery, Urosurgery, Cancer Surgery, LaparoscOpic Surgery and various Gynecological procedure like routine hysterectomy (Abdominal, Vaginal and Lap assisted vaginal), Radical hysterectomies, removal of ovarian tumors and repair of VVF and RVF (Vesico Vaginal & rectovaginal fistulae) his cross-examination is as under:-



Ques: You have also worked with Gynecologist and obstt. urologists? Such type of operations are undertaken by those specialists?

Ans: It is incorrect, as we as gen. surgeons have been performing these Operations and I have been teaching theoretically and practically to undergraduate and postgraduate students of surgery for more than 20 years.



18 Dr. Gurbachan Singh OW-3 who is MBBS, MS general surgery and is posted as Senior Medical Officer in Civil Hospital, Hoshiarpur deposed in his affidavit Ex R2. that he has been performing general surgeries as well as planned abdominal & vaginal hysterectomies. His cross-examination is as under:-

Ques: Can you tell what is the field of Gynae?

Ans: Field of Gynae is the female genetaria, especially uterus, cervices, vagina, ovaries, tubes and the structure related to it.

It is wrong to suggest that Gen. surgeons are not competent to perform the functions of Gynecologist and obstt. Urologist. It is wrong to suggest that I have sworn false affidavit Ex R-2.

Ques: Competency and eligibility only come by training and general surgeon are not trained in all the fields including the above said specialization?

Ans: It is wrong to suggest. The general surgeon as I have already stated has the vast field and can deal with such branches.

19 Similar is testimonies of Dr. Rajinder Kumar Sharma OW-4 who tendered his affidavit Ex OW4/A. In his cross examination he denied the suggestion that surgery in question can only be performed by obstt. and Gynecologist and the general surgeons are not competent to perform the surgery as they are not trained in these fields.

20 From the testimonies of Dr. Premi, as well as Dr. Alka Sehgal, Dr. Gurjit Singh, Dr. Gurbachan Singh and Dr. R.K. Sharma, one thing is clear that the under graduate (MBBS) as well as a master in surgery (MS) definitely during their training in medical profession, are taught the subject of obstt. and Gynecologist, though to a limited extent, where as an obstt. and Gynecologist undergoes a specialization training in addition to the knowledge of general surgery. Dr. Premi has not been able to show any act, rule, regulation or statute or any extract of opinion that a general surgeon was debarred to undertake the hysterectomy with VVF repair. Even in the text “ Tenth Edition Main Gots” (Abdominal Operations)Volume IV, Chapter-XVI dealing with Gynecologist Pelvic Procedure, one thing was clear that earlier in 20th century, the majority of gynecological surgeries were performed by general surgeons who had a special interest in the disease processes of the female reproductive organs. At the same time it says that the compartmentalization of surgical sub-specialties has become much more elaborate.

Thus it is abundantly clear that a general surgeon has the capability of performing gynecologist surgery also, if he has the requisite exposure to it. At the same time we can not ignore the fact that even obstt. or Gynecologist who may not be having sufficient exposure may not attain perfection in his subject. Dr. Gurjit Singh OW-3 who was also a general surgeon (MS) claimed that he is a visiting surgeon to Mokha Hospital, Madaan Hospital, Amardeep Hospital, Dr. Hardas Singh Hospital and K.D. Hospital and had been performing during his career the conventional general surgery, Uro-surgery, Cancer surgery, LaproscOpic surgery and various Gynecological procedures like routine hysterectomies, Radical Hysterectomies, removal of ovarian tumors and repair of VVF as well as RVF. Similar is the testimony of Dr. Gurbachan Singh OW-3 who was posted as Senior Medical Officer in Civil Hospital, Hoshiarpur and claimed that he had been performing all types of general surgeries as well as planned, abdominal and vaginal hysterectomies. Dr. Rajinder Kumar Sharma OW-4 during his service in ESI Hospital as surgical specialist had also been performing such surgeries and was even visiting various nursing home to do obstetrical and gynecological surgeries. Had there been any legal or professional bar for a general surgeon in performing genealogical surgery, these witnesses would not have done so. Thus, the only conclusion that can be derived from the testimony of these witnesses, as well as the existing professional ethics is that not only qualified obstetrician or gynecologist can perform gynecological surgery including abdominal hysterectomy with VVF repair, rather general surgeons who have sufficient exposure in the field and have sufficient experience in gynecological surgery, are also competent to perform such surgery.

21 In the present case Op no.1 in his affidavit Ex OW5/A has deposed that after passing MBBS in 1975 he did one year rotatory internship in all clinical subjects in 1976. In 1977 he had undergone 6 months house job in Medicine and 6 months job in surgery. After joining PCMS in 1978 he was posted as Registrar, surgery, in Government Medical College, Amritsar for a period of 3 months.

During MS course teaching and training session were claimed to be held in various allied departments and hysterectomies were performed in department of surgery as a part of Abdomino-perineal resection and pelvic evisceration. According to him pelvic floor repair is part of Abdomino-perineal resection. Hysterectomies were claimed to be routinely done in department of surgery at government medical college in Amritsar and Patiala. After completion of MS course in 1983 he claimed to have rotatory extra training in the departments of plastic surgery, orthOpedic, pediatric surgery and Gynae. While posted at Civil Hospital, Hoshiarpur in September 1984 he claimed to have worked with Dr. K.K. Sharma a senior surgeon who used to perform hysterectomies. In 1985 while posted at Subsidiary Health Centre, Chabbewal, he claimed to have performed general surgical and routine gynecological procedures. During his private practice since July 1989. He alleged to have performed gynecological procedures in routine and even produced photo stat copies of the relevant record Ex R-20 consisting of 666 pages.

22 From the un-controverted sworn testimony of Op no.1, it can be safely inferred that the Op no. 1 during his service after completion of MS course as well as during his private practice in his own nursing home had been performing gynecological surgeries including hysterectomies with VVF. There is nothing on record to show that competence of Op no. 1 undertake such surgeries was ever under cloud or any other patient had suffered on account of any deficiency in service on the part of Op no.1 on account of incompetence. Arguments advanced by the learned counsel for the complainant that Op no.1 being a general surgeon only, was not competent to operate upon the complainant, stands duly repelled.

23 From the documentary evidence on record, it can not be ignored that the complainant after undergoing the vaginal hysterectomy with repair of cysto entrocoel, had developed a complication and had to undergo further surgeries for VVF. In order to burden Op no.1 with the liability regarding the mental as well as physical agony or monetary loss suffered by the complainant, it is essential to establish that the post operative complication i.e. VVF was direct consequence of the negligence or deficiency in service by Op no.1 while performing surgery upon the complainant. In the complaint it has been alleged by the complainant that after operation she suffered non-control of urine/bleeding and pus, as there was an injury on the urine bladder due to the negligence of the Op no.1.

It is also alleged that when Op no.1 was unable to treat her despite follow up visit as well as admission in the hospital of Op no.1, she approached Civil Hospital, Una, where Dr. Angra attended her and revealed that due to unsuccessful operation and due to the negligence of the Op no.1 there was a bladder injury and on his advice the complainant went to Nehru Hospital, Shimla, where Dr. Premi performed surgery for repair of VVF. Surprisingly Dr. Angra has not been examined by the complainant to substantiate the allegation. Dr. Premi had only deposed that he had examined the complainant. In his cross-examination he stated he had examined the complainant in the clinic of Dr. J.S. Kanwar, and found that the complainant was having an Opening which is called a VVF in the urinary bladder because of the post Vaginal Hysterectomy operation. From his testimony it can not be inferred that the VVF observed by him in the urinary bladder of the complainant was on account of any injury to the bladder or deficiency in service on the part of the Op no.1. In his cross-examination he admitted that VVF is not a surgery and infect it is a complication. It was even suggested to Dr. Gurjit Singh, in cross-examination that VVF is a complication and not a surgery. The doctor had agreed to the suggestion and even clarified that VVF means ‘Vasico Vaginal Fistula’ and is not a surgical procedure.

Therefore, it is clear that VVF in case of the complainant was not on account of the negligence of Op no.1 or deficiency in service on his part. Rather, it was a post operative complication. In gynecological pelvic procedures mentioned in MainGots” (Abdominal Operations) Tenth Edition 1997 causes and incident of vaginal fistulas are explained. It mentions that presently approximately 80% of vesicovaginal fistula occur after a gynecologic surgery following an abdominal hysterectomy , in 75 % of patients and a vaginal hysterectomy in the majority of the remaining instances. Thus there remains no scope of doubt that VVF developed in the case of the complainant was a common post Operative complication and not the result of any injury to the bladder allegedly caused on account of negligence on the part of the Op no.1. In the written version as well as in his affidavit Op no.1 has stated that on 27-03-2006 the complainant had reported as OPD, patient as she developed secondary bleeding due to post operative infection. She was put on heavy antibiotics, vaginal packing was done and urethral catheter was put in.

She was dressed regularly from 28-03-2006 to 03-04-2006. According to him during this period one of the stitch on urinary bladder ‘sloughed’ and urine leakage started and a small anterior low lying Vesico Vaginal fistula developed. He added that stitching was done twice with fine ‘vicry 1 sutures’ (3,0) ( to stop bleeding-life saving) which use to slough in 4-5 days due to vaginal wall oedema. He further stated that the complainant and her husband were assured that proper repair will be carried out after a gap of approximately 3 months and the problem will be solved. The contention of Op no.1 goes unrebutted. The learned counsel for the complainant had laid much stress on the argument that after the development of VVF, the repair shall not be undertaken before the expiry of at least a period of 3 months, as the muscles after hysterectomy got weekend and repair of VVF will be a futile exercise. According to him Op no.1 with full knowledge of the same, had tried to repair the same by applying the stitches which fact was admitted by him. The situation was complicated by him and despite subsequent surgeries undertaken by the complainant she was still not cured.

The explanation given by Op no.1 in this regard is that as the complainant had developed secondary bleeding due to post operative operation she was put to heavy antibiotics in addition to providing of vaginal packing and insertion of urethral catheter. According to him during the dressing period one of the stitch of urinary bladder sloughed and urine leakage started with development of small anterior low lying vasico vaginal fistula. He did not dispute the stitching done by him twice. However, it was to stop bleeding and for life saving. It is not the case that he had carried out repair of VVF. In her cross-examination Dr. Alka Sehgal had stated that in general, cases of operation of PFR if VVF develops stitches are not allowed for 3 months minimum. However according to her as there was bleeding in this case per vagina, the surgeon was the best judge to feel whether a stitch was required or not to control the bleeding at that time. She also stated that giving of suture for control of bleeding is a life saving procedure. Similar is the testimony of Dr. Gurbachan Singh ow-3 who stated that after development of VVF one has to wait for sufficient time for scaring to develop but if there be any life danger complication, like bleeding etc, first priority of the doctor is, saving the life of the patient and the surgeon is the best judge at that time, whether to do stitching or not. He did not deny the suggestion that a VVF is not life threatening but at the same time he stated that a surgeon is best judge to decide where the stitches are to be applied or not.

24 From the aforesaid facts, it will not be just to hold that the stitches applied by Op no.1to the complainant were not required in the given situation as the complainant herself admits the bleeding. The complainant has also not denied the fact that Op no. 1 had advised operation after a period of 3 months which clearly indicates that the providing of stitches by Op no.1 to the complainant could not be for repairing the VVF and rather may be necessary to minimize the suffering of the complainant. We can not loose the sight of the fact that the subsequent surgeries undergone by the complainant have also not given her the desired relief and the evidence is lacking that these surgeries failed on account of the stitches provided by Op no.1.

25 We have utmost sympathies with the complainant regarding the mental as well as physical agony and the monetary loss suffered by her on account of the post operative complication but at the same time, we are constrained to hold that the post operative complication in this case was not on account of any negligence on the part of the Op no.1 in the surgery conducted by him or due to any deficiency in service on his part towards the complainant.

26 As a consequence of the foregoing analysis, we are constrained to hold that the complaint merits dismissal and as such the same is dismissed.