National Consumer Disputes Redressal Commission: A bench, comprising President A.P. Sahi J.* and Member Bharatkumar Pandya, was seized of a complaint preferred by the legal heirs of one Shanti Devi (aged 56 years, deceased). Upon contemplation, the Commission held Dr. Rajeev Lochan, Surgeon, (Opposite Party) liable for gross medical negligence and awarded a compensation of ₹2 crore to the family of the deceased upon finding that the operating surgeon had wrongfully excised the healthy left kidney in place of the diseased right kidney during a surgical procedure conducted in 2012, bench further classified the act as “one of those gravest forms of negligence”.
Factual Background
On 05.05.2012, the complainant along with patient (now deceased) visited the opposite party (Doctor) at his nursing home, whereupon the opposite party issued a fresh prescription and advised admission of the patient the following day for removal of the right kidney.
Surgery was performed on 06.05.2012, and the patient was subsequently referred for dialysis on 07.05.2012. The complainant submits that the said dialysis was necessitated as a post-operative consequence of the ‘right-sided nephrectomy’ performed by the opposite party. The kidney that was removed was sent for histopathological (i.e. analysis is the microscopic examination of tissue biopsies to study disease manifestations) and a clear impression was given that the kidney is benign.
However, on account of continued ailment, complainant visited City Hospital where patient’s radiological examination was conducted of the KUB region (i.e. anatomical area encompassing the Kidneys), on 05.06.2012. A perusal of diagnostic reports revealed that the right kidney was found to be in its normal anatomical position, exhibiting marked hydronephrosis; notably, reports indicated that the “left kidney was not visualised”.
The complainants alleged that there, 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 had been removed by the opposite party.
An FIR was registered on 16.06.2012 under Section 326 IPC, which was subsequently converted to one under Section 338 IPC. Initiation of criminal prosecution was contingent upon receipt of a medical opinion; accordingly, the Chief Medical Officer of the district concerned constituted a Medical Board, which rendered its report on 18.07.2012. Accordingly, with the submission of the said report indicating that the dysfunctional kidney of the right side was still intact and the left kidney had been removed, a chargesheet was submitted in the criminal case.
The matter was subsequently reported to the U. P. Medical Council regarding the conduct of the opposite party and an order was passed on 12.03.2013 holding the opposite party 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 was suspended of his medical registration 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 ultimately on account of the excessive dialysis and all the treatment patient had to undertake, she died of severe hyperkalemia coupled with hypoglycemia on 20.02.2014.
The present complaint was filed on 05.08.2014 complaining of gross medical negligence and an unfair practice on the part of the opposite party.
Analysis
The Commission after considering the submissions of both the parties concluded, that the defence taken by the opposite party is clear admission of negligence with strange unpalatable defence. The Commission opined that the written statement by the opposite party leaves no room for doubt that the healthy 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. The description was clearly recorded in the prescription of the opposite party, and 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 Commission held, that there is no explanation by the opposite party as to how did the left side kidney went missing when there was only one surgery performed and there is no evidence of any other surgery for removal of the left kidney. It was further observed, that the pre operative test confirmed the existence of both the kidneys separately with no adverse symptoms in the left kidney and there was no occasion to remove the left side kidney.
The Commission also referred to the opinion of the Association of Surgeons that was relied by the opposite party to urge that the left kidney cannot be operated from the right side neither here nor anywhere. The Commission held that “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”. The Commission found that the argument of the opposite party were untenable in absence of cogent evidence.
The Commission further observed, that decision of U.P. Medical Council holding opposite party guilty of negligence is unrebutted and relied on the decision of Harnek Singh v. Gurmit Singh, (2022) 7 SCC 685, where the Supreme Court relied on the observations made by the Medical Council and stated the relevancy of such report. It was observed that the report of U.P. Medical Council also stated that doctor has described the surgery as an accident and had no answer in respect of the anatomy of the region. It seems that a feeble contention was raised that both the kidneys were on the same side, but this was found to be untenable, and rightly so, in view of the pre-operative status of the radiological and the scanned reports.
The Commission finally concluded that the removal of the healthy left kidney was a medical disaster and a negligence of the highest order. Had the kidney remained intact, the patient would have survived longer. The Commission further awarded a sum of Rs. 10 lakhs each for the personal loss and sum of Rs. 1.5 crores for medical negligence.
[Veer Singh v. Dr. Rajeev Lochan, NC/CC/281/2014, decided on 18-05-2026]]
*Judgment Authored by: Justice A.P. Sahi
Advocates who appeared in this case :
For Complainants: Mr. Sudarshan Rajan, Mr. Sambhav Sharma, Ms. Ria Setiya, Advocates.
For the Opposite Party: Mr. V.K. Garg, Senior Advocate, Mr. Neeraj Kumar Sharma, Mr. K. S. Rekhi, Mr. Parv Garg, Advocates.
