Woman dies 2 years after botched surgery removed left kidney instead of right, apex consumer body orders Rs 1.5 crore payout | Legal News

Justice A P Sahi (NCDRC president) and Bharatkumar Pandya (member) pronounced the order on May 18.

“The loss is irreparable, in as much as, the loss of a mother to her sons, a spouse to her husband and a housewife to a family, all combined together cannot be diluted, moreso with the nature of the negligence in the present case,” the consumer commission’s order on May 18 read, adding that  the “negligence of the OP therefore deserves to be heavily compensated.”

“…the fact remains that the patient lost her life in these peculiar circumstances where there is a loss of consortium, loss of love and affection to the children and of course her own contribution… Her longevity of life could have been expected had the left kidney remained intact,” it stated.

Surgical mix-up

• The woman complained of abdominal pain on April 17, 2012, and visited the doctor (opposite party or OP) at his nursing home. The doctor/surgeon diagnosed her with symptoms relating to her right kidney.
• Following relevant tests, the deceased was admitted for the removal of right kidney on prescription and advice from the doctor, the consumer court noted.
• The surgery was performed on May 6, 2012, and the patient was referred for dialysis.
• Despite being on dialysis, due to persistent issues, the woman visited another hospital where her radiological examination and CT scan were conducted.
• Perusal of these reports led to the discovery that the right kidney with the diagnosed condition was in the normal position, but instead the healthy left kidney had been extracted.
• A First Information Report (FIR) was lodged under Section 338 (causing grievous hurt by acting recklessly or negligently) of the Indian Penal Code (IPC).
• The criminal prosecution could be initiated only after obtaining a medical report as a result of which the chief medical officer of the district constituted a medical board and its report confirmed the negligence. A chargesheet was submitted.

• The doctor challenged the chargesheet before the Allahabad High Court via a writ petition, but it was dismissed, the consumer court noted.
• The matter was also reported to the Uttar Pradesh Medical Council which found the doctor to be negligent and his medical registration was suspended for two years and his name was to be struck off from the register of the UP Medical Council.
• This order of the state medical council was appealed before the Medical Council of India and it was upheld.
• The woman patient, after struggling for about two years, died of severe hyperkalemia (high blood potassium levels) coupled with hypoglycemia (low blood sugar).
• The present complaint was filed in 2014 alleging gross medical negligence and an unfair practice, in which notices were issued after admitting the complaint.
• The doctor was granted time to file a response, but he defaulted due to which the matter was taken before the Supreme Court where, with the consent of parties and on payment of Rs 75,000 as costs, the written statement was directed to be taken on record.

‘Performed job unethically’

Advocate Sudarshan Rajan, appearing on behalf of the complainants, urged before the consumer commission that it was an open and shut case showcasing that the doctor was not only negligent, but had performed the surgery unethically, the reasons for which remained unexplained.

It was also argued that the said act of negligence was admitted by the doctor in his reply itself and was supported with the medical report of the chief medical officer and the decisions of the UP Medical Council and the Medical Council of India. Hence there was no doubt about the negligent act of the doctor.

Advocates Sambhav Sharma and Ria Setiya also appeared on behalf of the complainants.

‘Diagnosis of right kidney was correct’

Senior Advocate V K Garg contended before the consumer commission that contrary to what was alleged by the complainant, there was no admission by the doctor in the written statement and the circumstances in which the surgery was performed did not amount to negligence.

It was also emphasised that the allegations about the extraction of the left kidney through a right incision on the patient’s flank were impossible.

The counsel further argued that the diagnosis made by the doctor regarding the right kidney was correct, hence he had not committed any act of negligence. In addition to the above, he also countered the submission on quantum of compensation and claims on account of disability, citing them to be imaginary.

Lastly, in addition to raising issues of limitation in filing the complaint, the counsel also submitted that the doctor “could not have imagined about having removed the left kidney and the allegation is therefore unfounded.”

Besides Garg, advocates Neeraj Kumar Sharma, K S Rekhi and Parv Garg appeared for the opposite party.

Commission’s findings: ‘Peculiar’ defence

Observing that the defence taken by the doctor as “very peculiar” and “unpalatable”, the consumer commission validated that there arose no occasion to remove the left side kidney as pre-operative test confirmed that there were no adverse symptoms in the left kidney.

The negligent act by the doctor was held to be duly proved by the consumer forum, which declared it to be a “medical disaster and a negligence of the highest order.”

Paying due attention to the fact that the deceased was only 56 years old at the time of the incident and that loss of a family member is irreparable, the consumer body deemed it fit that complainants “deserved to be heavily compensated”.

The apex consumer forum awarded Rs 10 lakh to each of the complainants for the loss of love, company and affection of the deceased, in addition to a lump sum amount of Rs 1.5 crore for the doctor’s negligence. Legal expenses to the tune of Rs 1 lakh were also awarded.