Chandigarh:Holding a Ludhiana-based hospital and a urologist and transplant surgeon liable fornegligence, the State Consumer Disputes Redressal Commission, Punjab, recently upheld an order of the District Court, which earlier ordered Rs 5 lakhcompensationto the family of the patient. It was noted that just one day before the surgery, the complainant was informed that the transplantation could not be conducted as a stone was found in both kidneys of the donor. While considering the matter, the State Consumer Court noted that around 2 months before the surgery, test reports had indicated that the donor kidney had a problem of cysts and developing stones. The Commission observed that the doctor was negligent, as despite being a qualified practitioner in his field, he failed to take timely action based on the report. Case Background: The history of the case goes back to 2016 when the patient, who was suffering from a kidney problem, had approached the Ludhiana-based hospital for treatment, and the treating doctor, a urologist and transplant surgeon, after a check-up, had advisedkidney transplantation. For this, the complainant was asked to arrange for a person to donate his kidney to him. The patient's real brother agreed to donate his kidney, and after conducting all the necessary tests, the treating doctor informed that everything was fine regarding the kidney transplantation. Accordingly, the doctor issued Form-4 i.e. certification of medical fitness of living donor and all other formalities regarding kidney transplantation were completed by the treating hospital. Meanwhile, the patient got admitted to the hospital on 21.04.2016 and deposited Rs 2,65,000 as transplantation fee. However, on the day before the surgery, when the anaesthetist visited the patient to give an injection, on seeing the medical reports and the CT Scan, told that the operation could not be conducted under such circumstances as the stone was found in both kidneys of the donor. The Hospital had refunded the remaining amount of Rs. 2,44,170/-, out of the deposited amount i.e., after deducting the treatment expenses incurred. The complainant, who was shocked and confused over the doctor's refusal to conduct the transplantation, was discharged in the night of 25.04.2016 without conducting the transplantation surgery. It was argued by the patient's counsel that all the required tests of the donor had already been conducted on the recommendations of the treating doctor, and they included Ultrasound KUB, Renal Function Study, and other tests on 04.03.2016 and CT Scan, Culture Report tests on 15.03.2016. Allegedly, the treating doctor had issued the certification of medical fitness to the donor on 18.03.2016 after going through all the tests. Despite this, the doctor did not disclose the fact of any hindrance or danger in the kidney transplant and refused to conduct the transplantation due to stones in the kidneys of the donor. The patient alleged that the said act was not appropriate on the part of the hospital and doctor, and it amounted to an act of ‘negligence’, ‘deficiency in service’, and ‘unfair trade practice’ on their part. Therefore, filing the consumer complaint, the patient asked for compensation of Rs 15 lakh, a refund of the amount of Rs.72,609/- charged for treatment, along with interest and litigation expenses. On the other hand, the treating hospital and doctor submitted that the surgery was not conducted after noticing the stones in both the kidneys of the donor. So in that situation, due to the risky affair of transplantation to the life of both the Complainant and Donor, a decision was taken not to transplant the kidney of the donor having stones in the kidneys, to the Complainant. They argued that the decision not to conduct the transplantation was taken in the interest of the Complainant and the Donor's life. It was further submitted that in the right kidney of the Donor, multiple hyper-dense foci-suggestive of calculi was seen in the mid and lower calyx with the largest measuring approx. 1.7 x 0.7 cm in lower calyz. A stag-horn calculus measuring approx. 2.4 x 1.3 cm was seen, involving mid and lower calyx. There was a possibility of obstruction and steno-sis at level of lower calyces’s with associated parenchymal thinning. In the Donor’s left kidney, hyper dense focus-suggestive of calculus measuring approx. 6.0 mm was seen in lower calyx. Therefore, in these circumstances right kidney of the donor could not have been donated to the recipient. As there were stones in both the kidneys of the donor, in such circumstances, donating the kidney could have a risky affair for the Donor as well as transplanting to the Complainant. They pointed out that the doctor's decision was not found to be faulty by the Medical Board as well. Regarding the issuance of medical fitness certificate, the hospital and doctor argued that the said certificate to the donor had only reflected the fact that the donor was not mentally challenged and was capable of taking rational decision and medically fit to undergo surgery. The same was issued strictly as per the instructions issued by the Government. Moreover, initial Ultrasound Report of the Donor had no indication of any stones in any of the kidneys of the donor and the said Ultrasound examination was conducted on 04.03.2016 and the normal condition of the kidneys was further confirmed by Renal Function Study (DTPA Scan), which was conducted on 04.03.2016 and the application was signed showing normal kidneys as reported in the both the reports. After that the donor got his CT Scan done on 15.03.2016. The Complainant and his family very much knowing the presence of the stones through CT Scan Report but had concealed the said fact deliberately. It was pleaded that only on 25.04.2016 just before the date of surgery, the said CT Scan Reports were produced by the Complainant. On evaluating the said report, it was noticed that there were stones in both the kidneys, which were found in CT Scan Report of the donor. Accordingly, the Complainant was advised that the Donor was not in a fit condition to donate the kidney, they further submitted. Earlier, the District Consumer Court partly allowed the complaint and had directed the treating doctor and hospital to compensate the complainant by paying Rs 5 lakh compensation on account of mental tension, harassment, and agony suffered by the complainant. Further, it had directed them to pay Rs 15,000 as litigation expenses. Challenging this order, the doctor and the hospital appealed before the State Consumer Court. While considering the merits of the case, the SCDRC noted that the complainant had not levelled allegations regarding medical negligence on the part of the doctor and hospital, and had only prayed that due to carelessness/negligence in examining the Donor’s reports in time, not taking timely decision and informing the patient and his family about the opinion that the Donor was not fit for transplantation. After going through the medical records, the State Consumer Court observed that the treating doctor suggested kidney transplantation to the patient on 24.02.2016 and examined the donor on 01.03.2016 and suggested him USG-KUB. On the file, there were two different Reports dated 04.03.2016 and 15.03.2016 of the Donor, which were contrary to each other. However, both the tests were conducted in DMC, Ludhiana. On perusal of Ultrasound Report dated 04.03.2016, the Commission noted that the report showed multiple cysts of various sizes at all pole of bilateral kidneys. Few of them show wall calcification & Echogenic Debris within them and the impression given is "Bilateral Polycystic Kidney Disease". Moreover, at the end of the report, it was mentioned as “may please/to be correlated clinically”. At this outset, the Commission observed,"Therefore, it is clear that in the said report of ***, some problem was shown but the Doctor had not taken the same seriously and had proceed further. On examining the medical evidence, it is revealed that w.e.f. 01.03.2016 to 15.03.2016, many tests had been conducted upon the Donor *** and the Certificate regarding the fitness of the Donor was issued on 18.03.2016 by OP No.2 as well as OP No.1 Hospital, following the Government Instructions. Therefore, it was clear that during the period from 01.03.2016 till 25.04.2016, OP No.2 had examined the Donor *** time and again. One of such Certificate dated 18.03.2016 of Medical Fitness of living Donor i.e. Form No. 4 on page 231 is available wherein the said Doctor had specifically mentioned that the Donor was medically fit, subject to the procedure of organ or tissue removal." The Commission also took note of another CT Scan report dated 15.03.2016, where it was mentioned that stones were found in the kidneys of the Donor. The said test was only conducted on the recommendation of the doctor within a gap of 11 days from 04.03.2016, and the report was totally different from the earlier one. In this context, the Commission noted,"...in the report dated 04.03.2016, multiple cysts of various sizes were found and the impression was given as "Bilateral Polycystic Kidney Disease/to be correlated clinically”. Such problem of cysts and developing stones in the kidney of the donor within such a short period, was not expected, therefore, ignoring the same, amounts to a case of negligence. Therefore, being the Specialist Doctor in the field of Kidney Transplant, it was the duty of the OP No.2 to take immediate steps after seeing the report dated 04.03.2016 but he had not done the same. Moreover CT Scan was done on 15.03.2016 in the Hospital of OP No.1, as referred by OP No.2 Doctor. Then on 18.03.2016 issuing certificate of medical fitness i.e. Form No.4 to the Donor, the OP No.2- Doctor has not considered/demanded the reports of CT Scan already recommended by him." "Moreover, as per the stand of OP No.2-Doctor regarding the concealment of CT Scan report of the Donor by the Complainant till 25.04.2016 from the record, it is observed that CT Scan was got conducted on the recommendations of OP No.2-Doctor in the Hospital of OP No.1 then at the time of admission on 21.04.2016, OP No.2 again had failed to call and examine the CT Scan report of the Donor either from the Complainant or from the other Department of OP No.1- Hospital, which proves the negligence on the part of OP No. 2. The method to be applied for judging whether the Doctor was negligent or not, is to examine whether he had exercised timely action, after examining the patient,"it further observed. In this regard, the Commission referred to the definition of negligence as per Halsbury’s Laws of England and the Supreme Court order in the case of Kusum Sharma and others versus Batra Hospital & Medical Research Centre & Others. Dismissing the doctor's argument that he was unaware of the CT Scan report, the Commission observed, Accordingly, it upheld the District Commission's order and held, To view the order, click on the link below: https://.in/pdf_upload/punjab-scdrc-medical-negligence-307044.pdf Also Read: Anaesthetist allegedly posing as gynaecologist, medical negligence! HC refuses to quash criminal proceedings