Delhi Hospital absolved of Medical negligence but held guilty for unfair trade practice
New Delhi: Observing a case of ‘professional misconduct and grave unfair trade practice’, the National Consumer Disputes Redressal Commission, New Delhi has directed the Delhi- based Jaipur Golden Hospital to compensate Rs 5 lakh to a patient who filed a complaint of negligence against the hospital and the doctors.
The case relates to the patient, Mulch Raj who had come to the hospital in December 2006 to Dr Nautiyal at Jaipur Golden Hospital and was diagnosed with End Stage Renal Disease. The patient stated that he was informed that the hospital is a specialized centre for Renal/Kidney Transplant (RT) and it will be better for him to undergo RT, for comfortable future life and to reduce expenses towards frequent dialysis. The wife of the patient had agreed to donate her kidney and the transplant was performed on 25.12.2006.
The patient had alleged that Dr Nautiyal had given the final date of transplant operation after sending the samples of donor and recipient to Dr Lal’s Pathology Lab but before the receipt of the report. It was alleged that hospital/doctors had concealed the fact about the weak tissue cross-match between the patient and donor.
Moreover, the counsel hired by the complainant, the patient submitted to the court the following arguments :
• The Zenapax Injection used during RT surgery for the patient with the poor cross match of spouse/unrelated kidney donor. As, in the instant case Zenapax injection was not kept in the refrigerator, but it was placed beside the heater, which became very hot and therefore, Dr Saxena refused to administer it during RT.
• Dr Seth had concealed the weak tissue cross-match between donee and the donor. If had it been disclosed initially to the complainants, then the patient never agreed for the RT.
• On 29.12.2006, the USG and urine output reports prepared by the hospital were false and forged.
• There was the mismatch between intake and output, with respect to graft dysfunction.
• Till the discharge of the patient from hospital, the doctors have concealed the fact of early graft dysfunction. The doctors were aware that RT was failed,but the patient was discharged from hospital on 20.1.2007 with instruction to come for dialysis after 8 days. The doctors also have falsely assured that, the transplanted kidney will start functioning within 4 to 6 weeks. The condition of patient became worse, therefore in critical stage patient had approached the St Thomas Hospital at Chennai on 1.2.2007 and in the midnight his dead kidney was removed (nephrectomy)
“The counsel further submitted that on the date of operation the OP/hospital was not having a license for the RT under the Transplantation of Human Organs Act,1994.There was no full-time Nephrologist as the mandatory requirement for RT.”
The hospital and the doctors had filed their written version and denied entire allegations. During entire hospitalization period, care of patient was proper as per the standard norms. The patient was put on triple drug immune-suppression including injection Zenapax and the graft produced good amount of urine during day 0/1/2 post-operatively. They submitted that the patient’s Histopathology report revealed “ Acute Cortical Necrosis Renal allograft? diffuse? Patchy, necrosis. Thus, it was suggestive of graft dysfunction.
The respondents clarified, “The patient was not advised for urgent graft nephrectomy and he was maintained on the dialysis because an adequate amount of urine was being produced by the transplanted kidney and there was some hope that Patchy Cortical Necrosis may recover in few days.”
This case was presented before the Medical board of AIIMS, Delhi Medical Council and Medical Council of India. AIIMS Board, after taking into account even the reports of DMC and MCI found no negligence in the case,
“As per the records available, the work-up of the donor & recipient were done according to standard guidelines. The donor underwent cross-match (-ve) and also other investigations including Hemogram, blood chemistry, RFT, LFT, Chest X-ray ECG to assess the suitability for anesthesia & Surgery. Similarly the recipient was also worked up by relevant investigations and was optimized prior to rental transplant.
According to transplantation operation notes, done on 26.12.2006, the surgical procedures for both donor & recipient were uneventful.
Post-operatively, the patient was continued on immunosuppressive medicines as per standard protocols. Patient had early graft dysfunction as evidence, by rising blood urea & serum creatinine. Ultrasound and Colour doppler evaluation were done on 29.12.2006 which revealed normal flow in the main renal vessels and normal ultrasonic appearance of kidneys. Graft biopsy was attempted on 30.12.2006 which failed and subsequent biopsy was done on 03.01.2007 which revealed diffuse/patchy cortical necrosis. The patient was appropriately started on maintenance Hemodialysis after construction of AV fistula.
Hence, the medical board had come to the conclusion that no medical negligence was evident from the records of the patient.
The court upholding the decision of the respective medical boards found no negligence by the hospital and the doctors.
However, Adverting to the allegation of the complainant that, the court obsessed that the hospital was not holding valid license during the period when he underwent RT . There was no full time Nephrologist as mandatory requirement for RT. The DMC and MCI have made strong observations on this point. The recommendation of MCI Ethics Committee is reproduced as below;
“The Ethics Committee considered the matter with regard to appeal by Mr. Mulkh Raj Dhamija against order dated 02.01.2009 of Delhi Medical Council and found that these doctors – Dr. D. K. Baluja, Administrative Head, Jaipur Golden Hospital, New Delhi, Dr. R. K. Saxena, Urologist and Dr. Umesh C. D. Nautiyal, Nephrologist have performed the surgery in an institution where there was no valid license for contemplating surgery at that time. Hence, the Ethics Committee feels that this type of practice should be condemned strongly and recommends their names to be removed from the Indian Medical Register for a period of one month.”
The court observed that the hospital has violated the Transplantation of Human Organs Act, 1994. The DMC and MCI have categorically made strong observations on it.
It should be borne in mind that, patients put so much trust in their doctors and hospitals. The institutions and doctors shall not operate in a vacuum, but they are mandated to current regulatory norms and stay within the legal and professional framework and strictly adhere to its mandated rules and regulations. Further, such regulations ensure greater public good by reposing faith in the medical practitioner who is duly qualified, registered and updated as per current norms and regulations. By an institution purporting to having held a license in the past for certain medical procedures or interventions does not automatically bestow any privileges or an unrestricted license to continue doing such procedure/s once their license has expired or revoked or suspended or anything which has the same or similar effect. Would an airline company allow a pilot to fly its airline with several hundred passengers in absence of a pilot`s license or where a license has been revoked or suspended? The answer will be a resounding “No”.
Likewise a doctor , who, with the full knowledge that he is indeed working or surgically operating in such an institution which has its license to offer certain treatments specifically discontinued, and more particularly in sensitive areas of Organ donations and Transplantation, such doctors even if licensed under current medical regulations and on the state medical register cannot justify their acts or absolve themselves by taking recourse behind their claim of holding license to practice. They cannot feign innocence and ignorance of absence of license of the parent institution which they are an inextricable part and parcel of and hold a position of responsibility towards. This in my opinion amounts to negligence covert and contributory even if not overt.
Thus, lack of a license will raise a presumption that the care was negligent; it was professional misconduct and grave unfair trade practice; and in the larger public interest (patients) such institutions/doctors to be treated with heavy hand to curb such practices. In the instant case, license of OP-1 hospital for Renal Transplant under THOA, 1994 was expired on 3.8.2006, thus it was not in existence at the time when patient was treated. Even though, the doctors at OP-1 hospital were continued to perform renal transplants till 2009; it amounts to an unfair and unethical practice.
Ultimately, the bench concluded,
“Based on the foregoing discussion, though I do not find any medical negligence caused by the OPs, but keeping the view of Unethical and Unfair Trade Practices, the OP-1 hospital including the doctors OP 2 and 3 are held liable under Section 2 (1) (r) (1) (ii) of the Consumer Protection Act,1986. The complaint is partly allowed. It is ordered that, the hospital/OP-1 shall pay Rs.10 lakhs and the OP-2 and 3 shall pay Rs.5 lakhs jointly and severally to the Complainant No.1 within six weeks from today; failing which, respective OPs shall liable to pay interest at 9% p.a., till it’s realization.”