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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Dr. S.M. Kantikar, Presiding Member
Master Hari Om Sharma
(Minor) and Anr. – Complainants
versus
Indraprastha Apollo Hospital and Ors. – Opp. Parties
Consumer Case No.381 of 2013
Decided on 29.3.2023
Counsel for the Parties:
For the Complainant:Ms. Ruchi Munjal, Advocate
For the Opp. Party:Dr. Lalit Bhasin, Advocate and
Mr. Vijayant Sharma, Advocate for OP-1
For the Opp. Party:Ms. Nandini Sen, Advocate for
OP-2
For the Opp. Party:Mr. K.G. Sharma, Advocate for
OP-3
IMPORTANT POINT
Careless Act - Careless act certainly creates anxiety and agony to the child’s parents; they have suffered pain and mental agony.
Headnote:
Consumer Protection Act, 1986 – S.21[Consumer Protection Act, 2019 – S.58] - Services – Medical Negligence – Congenital defect – Casual approach – Vicarious Liability - The child was operated at the age of 5 years for intussusception & Meckel’s diverticulum. It is impossible, by any stretch of imagination, to remove left kidney from the incision at right iliac fossa. It is to be concluded from the report of AIIMS Expert Medical Board and the literatures on the subject, that it was a case of agenesis of left kidney i.e. congenital defect. It was just overlooked by the Sonologist during routine USG study – On facts, it was a casual approach, while reporting the USG – Therefore, OPs liable for medical negligence, but both the Ultrasonologists are liable for their casual approach while reporting the USG findings. Such careless act certainly creates anxiety and agony to the child’s parents; they have suffered pain and mental agony. Therefore, they deserve just and reasonable compensation - OPs-1 and 3 vicariously liable for the act of their Ultrasonologist and in the ends of justice, the OPs-1 and 3 are directed to pay a total sum of Rs. 5 lakh in equal proportion to the Complainant within four weeks from today, failing which, the sum will carry interest at 10% per annum till its realization – Complaints partly allowed. [Paras 14 to 18].
Result: Complaint partly allowed.
ORDER
The Present Complaint has been filed under Section 21 of the Consumer Protection Act, 1986 (for short “the Act, 1986”) by Master Hari Om Sharma (Minor) through his father Manoj Kumar Sharma. (hereinafter referred to as the ‘Complainants’) against Indraprastha Apollo Hospital & its 2 Doctors (hereinafter referred to as the ‘Opposite Parties’) seeking compensation of Rs. 1.55/- crore towards the negligent act of removing kidney of the minor without the consent of the Complainant’s parents.
2. On 25.03.2009, Master Hari Om Sharma, aged 5 years, (hereinafter referred to be as the ‘patient’) was taken to Dr. Rajan Kalra (OP-3) at Kalra Child Centre in Faridabad for the complaints of large volume of blood in the stools. The child was admitted and after examination and investigations blood tests, Ultrasound (USG) of the whole abdomen the OP-3 diagnosed it as ‘Intussusception’ and advised for surgery. The USG showed both the kidneys were normal. On 28.03.2009, the child was shifted to Indraprastha Apollo Hospital (OP-1) for treatment from Dr. Sujit Kumar Choudhary (OP-2) the Pediatric Surgeon & Urologist.
3. On the evening of the same day, the child was operated by OP-2 and his team and after 6 days, shifted to KaIra Child Care Centre at Faridabad for observation. Finally, on 08.04.2009, the OP-3 discharged the child. The child’s father alleged that after the surgery, the child never remained healthy and remained under continuous treatment of OP-3. On 28.07.2010, the child, for severe abdominal pain, was taken to OP-3. The USG was also done, but OP-3 misguided the child’s father & told that the USG was normal. However, the Radiologist-Dr. Kuvleen Wadhwa, while performing USG hinted about something wrong with child that his left kidney was not visualized. The patient’s father got suspicious and on 10.08.2010, he got done the Intra venous pyelography (I.V.P.) test of his child from Beam Imaging Centre. In the IVP, surprisingly the left kidney was not visualized. On 18.09.2010, again for 2nd opinion, fresh USG was done at Asian Institute of Medical Sciences (Asian Institute), Faridabad, which confirmed missing of left kidney. Therefore, on 01.10.2010 the father of child approached police but to no avail till date. Thereafter, the FIR bearing no. 158/2012 dated 18/05/2012 had been registered against all the Opposite Parties and Criminal Complaint before Metropolitan Magistrate, Saket, New Delhi was filed.
4. It was alleged that the OP-2 initially tried to convince them that kidney might have got dissolved in the body of the child. Being aggrieved the child and his father have filed the instant Consumer Complaint before this commission and prayed compensation of Rs.1.55 Crore from the Opposite Parties.
5. The Opposite Parties filed their Written Versions and denied the allegations of medical negligence. They submitted that the Complaint was barred by limitation, as the cause of action of alleged negligence arose in March, 2009 and the Complaint was filed in June, 2013 after more than four years.
6. The OPs further submitted that the child was brought to OP-1 hospital from the Kalra Child Care with history fever for 2 days and black colour stools of since 4-5 days, with persistent bilious appearance. The child was extremely crying and irritable. The treating Pediatric Surgeon - Dr. Sujit Kumar Choudhary (OP-2) examined the child, advised plain X-ray and USG abdomen. It was diagnosed as a case of Intestinal obstruction with lower gastrointestinal bleeding and Meckel’s diverticulum, which had no relation with the patient’s left kidney. The OP-2 performed emergency surgery for intestine obstruction on 28.03.2009 and at the request of parent; he was discharged and shifted to Kalra Child Care on 03.04.2009 in a stable condition. Thereafter, patient never came to the OP-1 for treatment of his intestinal aliment.
7. The OPs further submitted that even remotely, it was not possible to remove the left kidney during surgery at OP-1 Hospital. The exper
