Kidney Removed instead of Stone: Consumer Court holds hospital vicariously liable for medical negligence, directs Rs 11.23 lakh compensation

As the treating doctor had died during the hearing of the complaint, he was abated from the liabilities and the State Commission held the Hospital equally guilty noting that "Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees. An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of 'respondent superior' meaning 'let the master answer'."

Following an USG, the patient was diagnosed with a 14 mm stone in his left kidney in May 2011. Even after being advised to go to a better hospital for the treatments, he chose to continue with his kidney stone removal surgery in the same hospital.

Later an Intravenous Pyelography revealed that there was a 14 mm stone with obstruction at Pyelo-ureteric Junction in Left Kidney, which required an operation. However, the attendants of the patient were surprised when following the surgery, they got to know that even though the operation was performed for removal of the stone from the kidney, the treating doctor had removed the Kidney instead of the stone, and that too without any consent.

Following this, the patient was eventually shifted to a kidney hospital in Nadiad after he began to face more difficulties in passing urine. When his condition worsened, he was finally admitted to another hospital in Ahmedabad where he passed away due to renal complications on January 8, 2012.

After his death, the wife of the patient approached the Consumer Dispute Redressal Commission at Nadiad, which passed an order in 2012, directing the doctor, the hospital, and the United India Insurance Co Ltd to pay Rs 11.23 lakh as compensation to his wife on account of medical negligence.

However, the district commission's order led to a dispute between the hospital and the insurance company over who should be considered liable for paying the compensation. The dispute was being heard in the Gujarat State Commission.

Meanwhile, the treating doctor had died back in 2014 and therefore the State Commission had abated the late doctor from the liability of compensation.

The counsel for the appellant hospital argued that the treating doctor had performed the operation with informed consent and chose to conduct Nephrectomy instead of Pyelolithotomy as in the given circumstances it was in the best interest of the patient and as the surgeon had adopted the standard of reasonable medical care, therefore there was no question of negligence at all.

He further argued that as per the principle of law, without any expert evidence, the negligence of the doctor cannot be proved and it cannot be termed that the treating doctor was guilty of medical negligence without obtaining any expert opinion.

On the other hand, the counsel appearing for the complainant in the first case contended that the consent was taken just for removing the stone from the kidney but there was not any consent for removing the whole kidney from the body of the patient.

Meanwhile, the counsel appearing for the Insurance company argued that the hospital had taken policy for only legal liability and in the said policy, insurance was covered only for indoor and outdoor patients. He further argued that legal liability of insurance is only liable whenever any legal liability arises by any accident occurred to the third party in the hospital but professional indemnity policy was not taken and therefore when complainant has filed compliant for medical negligence against the treating doctor of the said hospital, then opponent Insurance Company cannot be held liable for the payment under the said insurance policy.

After listening to the contentions of all the parties, the State Commission also perused the policy schedule, where it had been mentioned that the insurance policy was taken for legal legal liability for the indoor patients and outdoor patients of the hospital.

Taking note of this fact, the Commission observed,

"When policy was taken for the legal liability of the indoor and outdoor patients and not taken for professional Indemnity then medical negligence for the opponent no. 01 doctor i.e. employee of the opponent no. 02 – Hospital, Insurance Company cannot be held liable to make payment."

While considering the liability of the Hospital regarding the matter, the Commission noted

"Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees."

"An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of 'respondent superior' meaning 'let the master answer'. A hospital can be held vicariously liable on numerous grounds on different occasions," further noted the Commission.

At this outset, the Commission referred to several High Court judgments including the Kerala High Court order in case of Joseph @ Pappachan v. Dr. George Moonjerly, Madras HC order in case of Aparna Dutta v. Apollo Hospitals Enterprises Ltd., and National Commission order in the case of Smt. Rekha Gupta v. Bombay Hospital Trust &Anr.

Referring to all these judgments, the Commission held,

"When opponent no. 01 – Doctor is liable for the act of the medical negligence then opponent no. 02 - Hospital is also vicariously liable for the act of opponent no. 01 – Doctor and therefore in the opinion of this Commission the order passed by the learned District Commission is not just and proper and it is required to be modified and hence following final order is passed."

Modifying the District Commission order, the State Consumer Court of Gujarat directed the treating hospital to pay Rs. 11,23,000/-to the complainant with interest at the rate of 7.5% from the date of filing of the compliant till its realization and also ordered to pay Rs. 5000/- towards mental agony and cost of the complaint.

To read the case order, click on the link below.