Breach of duty in providing medical advice: Consumer Court Directs Nephrologist, Hospital to pay Rs 3 lakh compensation

Such a direction came from the State consumer court as it opined that the advice of the treating doctor for a kidney transplant was lacking in strength and as the patient was very vulnerable and indications that he was not a candidate for transplant surgery are not ruled out, such an advice of transplant was wrong.

"In the instant case, we find a conspicuous breach of this duty in providing the medical advice," opined the Commission.

The case concerned the complainant's son, who was diagnosed with kidney problem when he was only 14 years old. At that time the patient was taken to the Chief Nephrologist at a Lakdikapool-based hospital and since then he had been under the doctor's treatment.

After the doctor joined the hospital at Lakdikapool back in 2011, the complainants were advised bilateral nephroureterectomy and renal transplantation for their son. Initially, they were told that both of the kidneys of the patient would be removed during the keyhole laproscopic surgery, however, later only left kidney was removed as the patient had suffered from internal bleeding. The first surgery was performed back in August 2011 and the second nephrectomy for the right kidney was performed a few days later.

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

The complainants have submitted before the Commission that performing two separate surgeries had caused great stress and complications to their son and the treating doctor didn't assess the condition of the patient and the location of the kidneys before subjecting him to two separate procedures.

In fact, back in February 2012, the mother of the patient donated her kidney for her son and initially the doctors had informed that it was the removal of the left kidney of the complainant but later it was changed to the right kidney.

It has been alleged in the complaint that after the kidney transplantation, the doctors didn't secure all the bleeding points and this caused severe bleeding and poor circulation and lack of oxygen causing ATN. The complainants claimed that the surgeries were performed by specialists without due care and diligence and ultimately it resulted in the death of their son. Thus, filing a complaint against the carelessness and medical negligence on the part of the treating doctors, the complainants sought Rs 40 lakh as compensation, 25 lakhs as the expense spent in the treatment, and Rs 30 lakhs for the mental agony and pain that they had suffered.

The treating nephrologist, on the other hand, accepted the fact that he had been treating the patient for 15 years and submitted that the patient was diagnosed with Vesicoureteral Reflux Nephropathy, which over time leads towards end-stage kidney failure. He was put on follow up therapy as an outpatient and it was noticed that the patient had repeated bladder surgeries for reimplantation of the ureters. Besides, the patient had also suffered 'fulminant uresepsis' and needed Continuous Renal Replacement Therapy (CRRT). All these facts were suppressed by the complainants, submitted the doctor.

The doctor claimed that he had tried to make the complainants understand about the need for an early kidney transplantation and even before the transplant surgery the opinion and advise of an eminent Urologist was taken. He further claimed that all prompt and immediate care was given to the patient and the deceased had absence of urine output, which was opined to be as a result of acute renal failure.

It was further submitted by the doctor that even though the patient was continuing haemodialysis as an outpatient after surgery, he was irregular and his family didn't make any effort to ensure that his food intake was reasonable. Resultantly, the condition of the patient gradually deteriorated and he ultimately died due to pneumonia and its complications.

Further pointing out that the complainants didn't produce any evidence to suggest that the doctors hadn't given proper care to the patient, the doctor requested for the dismissal of the complainant.

The Specialist surgeon involved in the treatment of the patient also submitted that the treatment given to the patient was a team effort and the best possible treatment had been provided to the patient for saving his life.

After listening to the contentions of both the sides, the Commission also took note of the prescription, lab reports, medical report, discharge summary and other relevant documents.

Noting the discharge summary of 2012 March, the commission noted that it had mentioned that the patient was readmitted with severe complaints of breathlessness, fever and blood in stool, and clinical diagnosis suggested features of pneumonia, Sepsis with Leucopenia. Despite all efforts, the patient developed intermittent hypotension and arrhythmia and was declared dead in March 2012.

It had been submitted by the treating doctors as defence that the patient was not taken for Kidney transplantation all of a sudden and he was under peritoneal dialysis for last one and half years and later shifted to Haemodialysis.

Taking note of the fact that the patient was under treatment of the treating doctor for a long time, the Commission noted, "The fact that the opposite party no.2 Doctor was carefully monitoring the patient for many years is not in dispute. The fact that the patient was suffering from 'Vesicoureteral Reflux Nephropathy' is also not in dispute."

While going through the medical literature relevant to the complaint, the Commission noted that 'Vesicoureteral Reflux Nephropathy' occurs when urine in the bladder flows back into one or both ureters and often back into the kidneys. This disorder is usually diagnosed in infants and children and if left untreated it can lead to kidney damage. It is a relatively common disease which can be benign if appropriately treated but can have significant consequences if ignored.

The Commission also noted that even though the treating doctor claimed that video counseling was initiated on several occasions, but no evidence has been placed to impress the need for early renal transplantation for the patient.

Further referring to the expert opinion taken from the Urologist, the commission observed,

"The point that arises here is that the opinion was taken after the B/L nephrectomy and the patient nor the complainants were given any choice for the transplant surgery. The opinion would have played an important role had it been obtained prior to the patient undergoing native kidney nephrectomy."

After perusing the CD of the surgery, the Consumer Court noted that the CD "reiterates the submissions of the complainants. Obviously, the transplant surgery cannot be termed as successful by any stretch of imagination. When the opposite party no.2 Doctor was fully aware of the patient's medical history, convincing the complainants to agree to renal transplantation amounts to deficiency and negligence."

Further referring to the Doctor's contention that the patient was irregular for Haemodialysis, the Commission noted,

"A close perusal of the dates only proves that the deceased was in hospital for almost the entire duration and the question of being irregular in haemodialysis or non compliance to dietary advice cannot be construed as the cause of his death. For all purposes, the opposite party no.2 Doctor should have assessed his patient with more care and caution before impressing the need for renal transplant. He has needlessly placed complainant no.2 in a high risk bracket for a futile reason."

"That advice was certainly lacking in strength and has caused the complainants great suffering and for that they should be adequately compensated," noted the Commission.

"A live donor kidney transplant is considered the best option for people with kidney disease but transplant is not an option for everyone. Medical conditions affect the risk of transplant and in the instant case, the transplant candidate was already undergoing treatment for many years and was the patient of opposite party no.2 doctor for almost 15 years," further stated the Commission.

At this outset the Commission also referred to the conditions that preclude a patient from undergoing kindey transplant procedure. They include, active or chronic untreated infections, a urinary tract that isn't intact/functional and lacks a viable urine diversion etc.

"Active systemic infections are potential reasons of excluding transplant recipients," opined the Commission and noted, "In this case the patient underwent B/L nephrectomy 3 months prior to the transplant procedure. A nephrectomy simultaneous to kidney transplantation would have reduced the total number of procedures. The patient was very vulnerable and indications that he was not a candidate for transplant surgery are not ruled out."

Thus, "In the instant case, we find a conspicuous breach of this duty in providing the medical advice," opined the Commission.

Holding the doctor liable for the acts of omission and the hospital vicariously liable for the acts of negligence and deficiency committed by the doctor, the Consumer Court directed the nephrologist and the hospital to award a sum of Rs 3 lakhs as compensation with a view to provide modicum of comfort to the parents within six weeks.

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