NCDRC relief to doctors accused of removing kidney without patient's consent,

New Delhi: Upholding the order of the State Commission, the National Consumer Disputes Redressal Commission (NCDRC) recently exonerated the treating doctors, who had been accused of removing the right kidney of the patient without informing the patient about it.

The NCDRC bench exonerated the doctors while relying on the report by the Medical Board of PGI Chandigarh, which had opined, "In view of findings on cystoscopy, retrograde ureteropyelography and CT Pyelography, the Committee concluded that the right kidney of Mr. Satish Kumar was not removed. However, it is shrunken and severely atrophic.”

It was alleged by the complainant that his right kidney had been removed while he was undergoing an operation on 13.09.2000 for the disease Chyluria Hamaturia. He submitted that he was given general anesthesia and was unaware of what had happened to him.

His condition allegedly did not improve after the operation and he continued suffering abdominal pain and other problems. Later, in 2003, he consulted a doctor as he was suffering from fluctuating blood sugar and weakness of right leg with mild paralysed. The treating doctor suggested USG of the whole abdomen and the complainant was shocked to see in the report dated 20.07.2003 stating that his right kidney was absent.

This report was again confirmed by Mahavir Cancer Sansthan in their report dated 27.07.2003. The complainant submitted that he had not underwent any other operation after the operation on 13.09.2000 and he had never donated or sold his kidney to anyone. Therefore, he alleged deficiency in the service providing by the doctors who attended him in 2000 and claimed compensation.

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He also filed a complaint against Dr. Chaudhuri who had conducted the ultrasound of his abdomen after the operation in 2000. In the report, Dr. Chaudhuri had mentioned that the right kidney was very much visible and he had also given its dimensions. Referring to this, the complainant alleged that the said report by Dr. Chaudhuri was in connivance with the treating doctors.

On the other hand, the doctors submitted that the complaint had been filed on the basis of false allegations as the right kidney of the complainant was not taken out. The doctors further pointed out that the complainant had not produced the ultrasound film report dated 30.09.2000 which would have established that the right kidney of the complainant was intact after the operation. 

Further, the doctors contended that after the discharge, the complainant had never contacted them for any discomfort at any time till the filing of the complaint. They also submitted that the patient had contacted Dr. Hai as he was suffering from Right side Chyluria Hamaturia. The surgery was done with due care and caution as per the line of treatment required for such diseases. It was also submitted that the complainant had not suffered any post operative complications. 

Since the patient was diabetic, he was taken under care of Dr Kumar. further, it was submitted that the ultrasound report dated 21.07.2023 by Dr. Rao does not suggest that the right kidney had been taken out but it only suggested that the right kidney was not visible. In a subsequent report, Dr. Rao had further clarified that non visualization of kidney during ultra sound could be due to many reasons and ascertained only by advance test, submitted the treating doctors.

When the matter came to be considered before the State Commission, the doctors submitted an application for constitution of medical board seeking expert opinion in the matter. Accordingly, the State Commission directed the medical board to ascertain the existence or non-existence of the right kidney. AIIMS as well as PGI Chandigarh were requested to constitute the medical board to ascertain the said fact. Subsequently, AIIMS showed its inability to constitute the Medical Board and the Commission vide its letter dated 21.03.2014 requested Sanjay Gandhi Institute of Medical Sciences, Lucknow (SGIMS) to constitute the Board.

Following this, the complainant appeared before PGI Chandigarh Medical Board on various dates and underwent several tests. The report by PGI Chandigarh was submitted before the State Commission. Meanwhile, SGIMS, Lucknow submitted that they could not examine the complainant since he did not appear on the scheduled date for his examination before the Board.

After considering the evidences produced before the State Commission and taking note of the arguments of both the parties, the State Consumer Court dismissed the complaint while relying on the expert medical opinion obtained from PGI Chandigarh. PGI Medical Board certified that the right kidney of the complainant had not been removed rather it was shrunken and severely atrophic.

Challenging the State Commission's order, the complainant approached the NCDRC and filed an appeal. It was contended that the State Commission had erred in relying on the report of the PGI Medical Board, as PGI had also stated that kidney was not visible. Further, the complainant submitted that he was ready to undertake fresh medical examination by a Medical Board at its own expenses.

On the other hand, the doctors submitted that the report of PGI Chandigarh established that the right kidney was not removed. It was further argued that the argument of the appellant that PGI Chandigarh has given its findings that right kidney was not visible is misplaced argument because after the non-visibility of the right kidney, further tests were suggested and on the basis of those advanced tests, it was concluded that right kidney was not removed.

While considering the matter, the NCDRC bench noted that the whole case of the complainant was based on the two documents which indicated that the right kidney was not visible. However, the bench noted that during the course of arguments, the counsel for the complainant failed to point out any evidence on record that would suggest even by preponderance that report of Dr. Ranjan had been given in connivance with the treating doctors.

The top consumer court further noted that despite the directions to produce the plates of the ultrasound conducted by Dr. Ranjan, the complainant failed to produce the plates of ultrasound and had made a statement that he was not in possession of such plates.

Referring to the report by Dr. Ranjan, the Commission noted,

"It is, therefore, clear that opinion given by Dr. Ranjan is based on his examination of the ultra sound record of the appellant. Since there is no contradictory testimony on record to prove that this report of Dr. Chaudhuri is false, same cannot be rejected on the premise that after three years, when the complainant got his ultrasound of abdomen done, his right kidney was not visible in the ultrasound. The appellant has even by preponderance of evidences on record failed to prove that the report of Dr. Ranjan was false and given in connivance of other respondents. This fact conclusively proves that kidney had not been removed during the operation done by the respondents. Rather it was very much intact."

The Commission further referred to the reports in 2003 and noted,

"The note below the report of Dr.  Rao in its report dated 21.07.2003 also shows that he suggested IVP to ascertain the functioning of right kidney. Neither of the report shows that right kidney had been removed. It only suggests that right kidney was visible / seen. It is also apparent that as per the advise of Dr. R Rao in its report dated 21.07.2003, the complainant / appellant did not get the IVP done in order to ascertain whether right kidney was functioning or not. The very fact that Dr.R.R.Rao had suggested the IVP to ascertain the functioning of right kidney suggest that he had not ascertained in his report that kidney had been removed. He wanted to give final report of absence of kidney only after conducting further tests."

"Subsequently, he had clarified that simply because right kidney was not seen by him did not mean that right kidney had been removed. Also he has explained that word ‘operated’ means that there is presence of an operation mark over skin surface. He has also stated that non visualization of kidney during ultrasound examination may be due to many reasons and the cause of non visualization can be ascertained by advanced tests, if so required. . It, therefore, is clear that document on which the complainant has relied to prove that his kidney had been removed during the operation does not in any way conclude that kidney had been removed from his body during operation. The report only suggest non visibility of right kidney," the Commission further noted in the order.

The Commission also noted that the Complainant lied about being unaware of the date of appearance for medical examination at SGIPMS and he refused to face the medical board of IGIMS Patna.

It was noted by the Commission,

"The conduct of the complainant clearly shows that he had been avoiding to appear before the Medical Boards constituted by the State Commission as discussed above as well as under the direction of the Patna High Court and he had done so willfully."

Taking note of the fact that the only evidence to ascertain whether kidney had been removed or not removed is report of PGI Chandigarh dated 16.03.2016, the NCDRC bench observed that the PGI Chandigarh report stated,

"In view of findings on cystoscopy, retrograde ureteropyelography and CT Pyelography, the Committee concluded that the right kidney of Mr. Satish Kumar was not removed. However, it is shrunken and severely atrophic.”

Dismissing the complaint, the top consumer court further mentioned in the order,

"The State Commission has rightly relied upon the report of the Medical Board for reaching to the conclusion that complainant had not been able to establish that his right kidney had been removed by the respondents during the operation on 13.09.2000. We found no illegality or perversity in the impugned order as the impugned order is based on the evidences on record."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/ncdrc-order-209035.pdf

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