Patient dies after healthy kidney removed instead of diseased: NCDRC slaps Rs 2 crore compensation on surgeon

New Delhi: Holding a surgeon, who removed a healthy kidney of a patient, guilty of gross medical negligence, the National Consumer Disputes Redressal Commission has directed him to pay Rs 2 crore compensation.

The Apex Consumer Court bench of President AP Sahi and Member Bharatkumar Pandey awarded the patient's family compensation after noting that the treating surgeon removed the healthy left kidney instead of the diseased right kidney. This ultimately resulted in the woman's death.

"The removal of the left kidney was a medical disaster and a negligence of the highest order. Had the left kidney remained intact, the patient would have survived longer," observed the NCDRC bench.

Out of Rs 2 crore compensation amount, Rs 1.5 crore has to be paid as lump sum compensation for negligence, along with Rs 10 lakh compensation to each of the complainants for loss of love and affection, and Rs 1 lakh towards the costs of litigation.

"Accordingly, the aforesaid amounts shall be paid by the OP to the complainants within three months from today together with 6% interest from the date of death i.e. 20.02.2014 till the date of actual payment... In the event of default, the rate of interest shall stand enhanced to 9% till the date of actual payment," read the order.

Case History: 

The history of the case goes back to April 2012, when the patient had been diagnosed with severe hydronephrosis in her right kidney. Pre-operative ultrasound and imaging were done. The reports revealed that even though the right kidney of the patient was diseased, the left kidney was normal. 

Following this, the treating surgeon operated on the patient for the removal of the right kidney, and the patient was referred for dialysis to another hospital. The complainant submitted that the patient was advised to undertake dialysis as necessary after right-sided nephrectomy had been performed.

However, on account of her continued ailment, the patient visited City Hospital, where her radiological examination of the KUB region was conducted.  A CT scan was also conducted at an MRI & CT Scan Centre.

These two documents indicated that the right kidney was in normal position with indications that the same having marked hydronephrosis with decreased cortical thickness. However, surprisingly, both these reports indicated that the left kidney was not visible, noted the Commission.

It was alleged by the complainants that there was no improvement of the patient's medical condition and she was unable to pass urine as a rsult of which these tests were carried out that to their utter shock and dismay, it was discovered that instead of the right kidney infected with hydronephrosis that had to be removed, the normal and healthy left kidney of the patient had been removed by the treating surgeon.

Consequently, an FIR of criminal negligence was lodged at Police Station Kawarasi, Ramghat Road, Aligarh. The criminal prosecution had to be initiated after obtaining a medical report as a result of which, the Chief Medical Officer of the District constituted a medical board that tendered its report on 18.07.2012. 

The Committee comprised of Professor Dr. Trivedi of the Nephrology Department of Medical College, Meerut and Dr. Jain, Lecturer in the same Medical College in the Department of Surgery and Urology.

The report indicated that the dysfunctional kidney of the right side was still intact, and the left kidney had been removed. Based on this, a chargesheet was submitted in the criminal case. Assailing the chargesheet, a plea was filed and later dismissed by the Allahabad High Court.

Meanwhile, the matter was also reported to the Uttar Pradesh Medical Council regarding the conduct of the treating surgeon and an order was passed holding the treating surgeon to be negligent, not only for having removed the left normal kidney of the patient instead of the right kidney, but also for having submitted a forged case sheet in support of his defence. The doctor's medical registration was suspended for two years, and his name was to be struck off from the register of the UP Medical Council.

The patient was struggling with her ailing right kidney, and she was ultimately put on excessive dialysis and all the treatment she had to undertake, coupled with severe hyperkalemia and hypoglycemia on 20.02.2014. Consequently, a complaint was filed complaining of gross medical negligence and an unfair practice on the part of the treating surgeon. 

On the other hand, the doctor submitted a written statement and filed certain documents based on the averments. The Commission noted that one of the documents brought on record was the order passed by the erstwhile Medical Council of India on an appeal filed by the doctor. The MCI, in its order dated 24.10.2014 had confirmed the findings of the UP Medical Council.

Another document that the Commission took note of was the post-mortem report of the deceased patient. Referring to the report, the counsel for the treating surgeon pointed out the status of the lungs, indicating them to be congested, and the cause of death in the report was mentioned as shock and septicaemia.

The counsel for the doctor also relied on a report of the All India Institute of Medical Sciences dated 03.06.2015 in some other case, arguing that in a similar situation, the AIIMS found that the two kidneys were so grossly enlarged and were fused together, as such the removal of one of the kidneys did not amount to any negligence.

He, therefore, submitted that in this case also, a similar situation was present. Consequently, in view of the evidence led, the expert medical reports that the complainants relied on should be rejected. He also relied on Campbell's Urology Textbook to urge that the anatomy of the human body did not permit, or rather, it is impossible to carry out the surgery for removal of the left kidney with an incision on the right side.

Observations by NCDRC: 

After considering the submissions by both the parties, the Consumer Commission observed that

"we have no doubt in our mind that this is one of those gravest forms of negligence that is rarely witnessed for a judicial approximation before Courts and Tribunals."

NCDRC noted that there was no doubt that the surgery was conducted on 06.05.2012. "The defence taken by the OP is very peculiar to the effect that the OP had incised the right flank of the patient for extracting the right kidney and then goes on to say something which, in our opinion, is a clear admission of this negligence with a strange unpalatable defence...," observed the Consumer Court.

The Commission referred to submission made by the doctor stating that a right sided incision was made but the left kidney was removed. "However, no intent cannot be imputed to this action of the respondent in as much as if something is medically impossible, the state of mind of the doctor was bound to be such that no further checking of the kidney was required. Hence, at the time of removal, the Respondent could not have even imagined that this medical impossibility could have happened in this case or at his hands, and hence did not question the correctness of the kidney so removed," the doctor had submitted.

Referring to this, NCDRC noted, "A perusal of the said response by the OP leaves no room for doubt that the left kidney had been removed in spite of the fact that the entire diagnosis, prognosis, treatment and the subject matter of histopathology was the right kidney."

"This description was not only clearly recorded in the prescription of the OP, but it is also clear from the Radiological and Scan reports that have been extracted above confirming that both the kidneys at the pre-operative stage were clearly intact in their place, one on the left side and the other on the right side. The infected kidney was the right kidney for which the surgery was planned and it stands confirmed from the case sheet diagnosis that it was the right side hydronephrosis that was to be treated by surgery. While referring for dialysis on 07.05.2012, the prescription also states “right side nephrectomy”," it further observed.

The Commission noted that there was no explanation by the treating surgeon as to how the left kidney went missing when there was only one surgery performed and there was no evidence of any other sugery for the removal of the left kidney. 

"The preoperative test confirmed the existence of both the kidneys separately with no adverse symptoms in the left kidney. There was therefore no occasion for the OP at all to remove the left side kidney. Even though principles of res ipsa loquitur are not commonly attracted in medical matters, but this is one of those cases where it was only the OP who performed the surgery with a right incision that resulted in the removal of the left side kidney," it held.

NCDRC also referred to the enquiry report dated 18.07.2012, in which the panel made a very convincing observation on the expert opinion, and the argument of the OP about the impossibility of conducting left nephrectomy through a right-sided incision. The panel noted, "it is also necessary to mention that even after planned and elective surgery called Right Nephrectomy after right side incision, Right Hydronephrotic kidney is in its place and the left kidney has become absent."

Referring to the opinion of the Association of Surgeons, which was relied on by the doctor, the Commission noted, "We fail to understand the medical relevance of this sort of a typed opinion having any authentic value, that too even by an alleged company of Surgeons known as an Association of Surgeons at Aligarh, which bears no less than 19 signatures of doctors. We are surprised at such an opinion for which there is no supporting material except the argument of the learned senior counsel that given the human anatomy and the positioning of the kidneys, it is not possible to remove the left kidney from an incision of the right side. This argument is untenable in the absence of any cogent evidence. The certificate is not possessed of any probative evidentiary value as the same is not supported by any expert evidence. None of the doctors who have signed the certificate have filed their affidavit to support the same. We may reiterate that it was for the OP to explain as to how the left kidney vanished when it was very much in existence prior to surgery. In fact, it did not vanish and according to the own admission of the OP coupled with the explanation in his reply quoted above, the left side kidney was removed by the OP for which he seems to have no valid explanation."

The Commission also referred to the order of the UP Medical Council dated 12.03.2012 to note that "A perusal of the same would indicate that the OP was held to be fully aware of the patient’s kidneys being perfectly placed on both sides and that the right side kidney was not functional. The U.P. Medical Council has categorically recorded that the OP had no explanation as to how the left kidney was removed and that he never attempted to ascertain whether it was the left or the right kidney. This finding in itself, in our opinion, is a clear finding of gross negligence that a qualified doctor was unable to ascertain whether he was removing the right or the left kidney when he had clearly planned the removal of the right kidney only. The pre-operative tests were neither confusing nor was there any ambiguity in the location of the two kidneys. There was no overlapping or any fusion as was sought to be impressed upon by the learned senior counsel with the help of the report of AIIMS in some other case. We find that the said illustration is nowhere similar to the present case."

NCDRC further noted that the decision of UP Medical Council and its findings recorded went unrebutted and held that the said opinion of the Council is, therefore, of relevance and gets legal support with the observations made by the Apex Court in the case of Harnek Singh & Ors. Vs. Gurmit Singh & Ors.

It also noted that the treating surgeon did not produced any operative notes to confirm about his findings in this regard. "This is yet another negligence and to the contrary, the State Medical Council has found that a forged case sheet had been submitted in defence," held the Commission.

NCDRC observed that the order of the State Medical Council was taken up in appeal before the Medical Council of India by the doctor and the appeal failed. It also noted that the MCI order dated 24.10.2014 also indicated that some of the members who were deciding the said appeal were of the opinion that the punishment given to the doctor by the State Medical Council deserved enhancement.

Accordingly, the Apex Consumer Court held,

"With the aforesaid evidence on record, we find that the decisions relied on by the learned counsel for the OP regarding medical negligence in the case of Jacob Mathew, the Bolam test in the case of Arun Kumar Manglik and the other decisions relied upon do not in any way extend any aid to the OP. To the contrary, the tests laid down in the cases above on the other hand apply in favour of the complainants, in as much as, the manner in which the surgery has been conducted and as indicated in the reply of the OP himself, does not admit of any doubt or suspicion regarding negligence. The complainants have proved negligence at the hands of the OP who for reasons best known has removed the left kidney of the deceased patient instead of the right one."

"The consequence of this was that the right kidney which was a failed and dysfunctional kidney remained with the patient who had to be put on dialysis and suffered for almost two years before she finally expired, the cause of death being the kidney which ought to have been removed by the OP. The removal of the left kidney was a medical disaster and a negligence of the highest order. Had the left kidney remained intact, the patient would have survived longer," it further held.

While deciding the quantum of prayed, the Commission noted that the fact remained that had the left kidney remained intact and had not been removed by the treating surgeon, the same would have helped in the survival of the patient. However, with its removal and the right failed kidney, the the complainant had no hope for survival. 

"This act and negligence of the OP therefore deserves to be heavily compensated. 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," noted the Commission.

"...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 as she was only 56 years of age at the time of the incident. Her longevity of life could have been expected had the left kidney remained intact," it also observed.

Accordingly, the Commission directed the doctor to pay Rs 2 crore compensation to the family of the patient."We therefore find that given the nature of the losses, it would be appropriate to award Rs. 10 lakhs to each of the complainants for the loss of company, love and affection of the deceased, who departed at a premature early age. Apart from this, we find it appropriate to award a lumpsum amount of Rs. 1.5 crores to the complainants for the act of negligence of the OP whom we hold to be liable and responsible for the negligent surgery and removal of the left kidney instead of the right one for which there is no valid explanation, much less a plausible explanation. Accordingly, the complainants will be entitled to a total sum of Rs. 2 Crores as compensation from the OP," it ordered.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/2026/05/23/pdf

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