O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> This complaint was filed by two complainants i.e. first complainant is the husband of second complainant, after the death of the first complainant in the course of enquiry into this complaint the second complainant that is his wife is prosecuting this complaint. The allegations of the complainant against the Ops in brief are, that the first complainant was a practicing advocate. That second complainant is his wife, that they approached the first Op for treatment of renal complications of first complainant. That the first complainant was admitted to first OP hospital for diagnosis and the Ops after considering the medical tests that the first complainant undergone diagnosed renal complications and advised them for renal allograft surgery. That they also found that the Kidney of the second complainant who is a donor they found the cross match was matching. Then Op No.2 and 3 suggested to the complainants to go for transplantation on payment of Rs.2,10,000/- as hospital expenditure. That the second complainant was admitted to the Ops hospital on 05/08/2008 thereafter kidney of the second complainant was removed and was transplanted to the first complainant on the same day through Op No.2 That the second Op with team of doctors when visited the ward the first complainant complained sever pain in and around the abdomen. The second Op advised them to take ultra sound scan. On 06/08/2008 as per his instruction, the first complainant underwent ultra sound scan and the second OP after scrutinizing the scan report, advised for second surgery because of blood clot near the kidney transplanted area. The second Op with the consent of the son of the first complainant conducted second operation to remove blood clot and after removing, the first complainant was sent to the ward. Then the second and third Ops after examining the complainant on the next day told them that the kidney is responding well. That after the second surgery Ops No.2 and 3 advised first complainant to continue the medicines as already prescribed. The Ops thereafter noticed urine flow was not correct, advised to take more water and the first complainant was discharged on 18/08/2008. Despite treatment and the follow up process, pain in the abdomen of the first complainant continued. The first complainant with the complaint of pain, approached the second Op on 25/08/2008 who got the first complainant admitted for better treatment. The Ops started giving antibiotics and cough syrup. That for a week after the surgery, kidney of the first complainant was functioning correctly and when the patient was still having abdomen pain, the Ops performed 3rd surgery on 05/09/2008 and that was done without their knowledge. The Ops also did not show the kidney removed from the first complainant. The Ops also did not inform them about the removal of kidney but they came to know the removal of the kidney from the hospital staff. After removal of transplanted kidney, the first complainant was told by the Ops that he has to rely on Hemo dialysis. Then both of them were bed ridden. It is further stated that removal of transplanted kidney was unwanted and waste. That Pistula, which was done in the CSI hospital some time ago to pull and infuse the blood at the time of dialysis, has been fully damaged. That the Ops fixed a right side IJ Catheter and removed two nerves from the first complainant’s neck and had advised to continue dialysis through the nerves temporarily and told them for a separate pistula operation which cost of Rs.20,000/-. Because of the negligence of the Ops, Pistual was damaged. As the result of negligence of Ops, they suffered and have questioned the cause of 3rd operation. The complainants therefore have prayed for order against the Ops to pay Rs.20.00 lakhs as compensation.<br /> <br /> Ops have appeared through their advocate and filed common version. The Ops have contended that the complaint is full of falsehood and to dismiss the complaint. It is further stated that because of the judgment of the Hon’ble Supreme Court rendered in Civil Appeal No.3541/02 which set out certain guide lines for dealing with regard to medical negligence cases and this complaint therefore cannot be maintained. Ops further contended that the first Op hospital is working with qualified, skilled and experienced doctors in the field of specialization is not deficient and the complaint being intentional one to be dismissed. Further, Ops have admitted that first complainant was treated by them for kidney problem and had advised for kidney transplantation surgery. The second complainant donated her kidney and transplantation was done to the first complainant on 05/08/2008. That the first complainant was a diabetic patient and was on dialysis and that is the cause for kidney failure of the first complainant. That he had other medical problems including high BP and admitted that transplantation was done on 05/08/2008, but on 07/08/2008 USG revealed large Haematoma. The patient was re-explored on 07/08/2008 due to drop in urine out put. This urine out put had increased after evacuation of haematoma and he was discharged on 18/08/2008 in a stable condition. That on 25/08/2008 with history of severe pain in the abdomen complainants approached Op No.2 who advised Ultra Sound Scanning of abdomen and calf on emergency basis and they found blood around 40/50 ml the patient responded well on medication. On 30/08/2008 there was more drainage of blood from drain tube and BP started to drop. He was taken to ICU and found drop in hemoglobin necessitated urgent multiple transfusions of blood. Replacement of blood was also done. There was severe bleeding which was getting collected in the drain bag with drop in blood pressure. That they noticed that there was massive bleeding from the transplanted area and that blood vessels necessitated removal of the kidney and kidney was removed on 30/08/2008. The first complainant was taken to ICU and he was put on ventilation and was discharged. They have further stated that there are no short comings on their part and have treated the first complainant by use of all parameters and denying all other allegations made by the complainants have stated that they have no knowledge about treatment given to the first complainant in CSI hospital and stated they had noticed clots and excessive bleeding from the site and they had no option but to insert right U Catheter for further dialysis. Therefore denying the allegations of deficiency have prayed for dismissal of the complaint. <br /> <br /> In the course of enquiry into this complaint, the second complainant has filed her affidavit evidence and on behalf of Ops one Dr. Nagendra Swamy has filed his affidavit evidence reiterating what they have narrated in the ir-respective complaint and version. The complainant along with complaint has produced copies of procedure Ops adopted in the treatment have also produced copies of bills to prove the expenditure they incurred. Ops have produced history sheet pertaining to the treatment given to first complainant. We have heard the counsel for both parties, perused written arguments filed by the complainant.<br /> <br /> On consideration of materials placed before us, following points for determination arise.<br /> <br /> 1. Whether the second complainant proves that the Ops have caused deficiency in their service of treating the first complainant for renal failure, transplantation of kidney donated by the complainant No.2 to the first complainant and as the result they suffered mentally and financially.<br /> 2. To what relief the second complainant is entitled to?<br /> <br /> Point No.1 : In the affirmative<br /> Point No.2 : To see the final order.<br /> <br /> Answer on point No.1: prior to take up the issue of alleged negligence of the Ops, we would like to state in brief certain admitted facts.<br /> <br /> When the first complainant was a known diabetic with ESRD ON MHD since October 2005 thrice weekly because of the need of transplantation of the kidney, the first complainant approached Op No.1 for treatment and the first complainant was under treatment even earlier with Op No.1 for his ailment. Then Ops finding the need of transplantation of kidney, they examined the donor who is complainant No.2 to know her kidney was matching to the first complainant. That on 05/08/2008 kidney of the second complainant was removed and transplanted to the first complainant on the same day by the second Op. That first complainant when he was still in the hospital complained severe pain in and around the abdomen. On 06/08/2008 when Ultra Sound Scan was done, the second Op found collection of blood around the surgery and that Op No.2 with consent of the son of the first complainant done the second surgery for removal of blood clot. Then the patient was given necessary medicines and was discharged on 18/08/2008 after dischargel on 18/08/2008 the first complainant continued the treatment but it did not subside. Therefore approached Op No.2 on 25/08/2008 he was admitted in the hospital on the instructions of Op No.2. On 30/08/2008 transplanted kidney was removed from the body of the first complainant. The complainants have given the date of removal of the kidney as 05/09/2008 which is not correct. Ops have stated that with regard to the fistula AV fistula cannulation was tried on 05/09/2008. There were clots and excessive bleeding from the site and they had inserted right U catheter for further dialysis. <br /> The complainants have contended that the second Op who claimed to had done the 3rd surgery did not inform them. They were not shown the kidney. The complainants have further contended that because of the negligence of the Ops, the first complainant suffered from severe pain and illness which has resulted in the death of the first complainant. That she find it very difficult to maintain herself having lost her husband and suffered by donating her kidney and she has explained the hard situation she has been put. With these assertions of the second complainant the learned counsel appearing for the complainant submitted that Op No.2 who did transplantation kidney did not discharge his function effectively and submitted that if Op No.2 had transplanted the kidney to deceased with required care and skill and if he had done with the minimum skill there was no chance for bleeding from the surgical area and to form clots. She further argued that because of that negligence of the Ops, the second complainant who donated her kidney lost it and it did not help to save the deceased. As the result, Ops have caused irreparable injury to her and her deceased husband and will fully destroyed the kidney by the Ops.<br /> <br /> Ops through their common version and affidavit evidence though narrated that they have not caused deficiency in their service as transplantation was done through the well established process. But they have not offered any reasons for profuse bleeding at surgery area through blood vessels. It is noticed that after transplantation on 05/08/2008 the patient on the next day itself complained of severe pain in abdomen. The Ops who on examination found that there was blood clot collection around the transplanted kidney and there was drop in urine out put did not take any step to find out the cause for bleeding. The Ops after confirmation of blood collection on 07/08/2008 stated that the patient was re-explored on 07/08/2008 due to drop in urine out put and following evacuation of haematoma urine out put was increased and the first complainant was discharged with normal condition. Here, we find that the Ops even after finding large quantity of blood clot did not take it seriously to know the cause for bleeding at the site leading to clots. It is contended by the Ops that when the patient was discharged his condition was stable but have not shown or brought to our notice whether the Ops took necessary steps to find out the cause for bleeding and procedure they had adopted to stop bleeding. Therefore, we find that prior to dischargel of the first complainant from the hospital, they did not explore from where the blood was leaking and to take steps to arrest bleeding. It is further found that the Ops who had found bleeding and blood clot did not manage to stop bleeding but he was discharged on 18/08/2008. Again when patient came with severe pain on 25/08/2008 admitted to hospital US scan was done on emergency basis and they found there was collection of blood around 40 to 50 ml. Here, again Ops though have stated that the patient was treated and proper medication was given but have not come out even at that stage to tell from where this bleeding was found and collected around the site. The Ops stated to had treated for the same through medication. The Ops without diagnosing the cause for leakage of blood and explored to stop it prescribed medicines without going to the route cause for bleeding. It is further seen that on 30/08/2008 there was more drainage of blood from the drain tube and the blood pressure started to drop. Then on shifting the patient to ICU they found drop in hemoglobin to 4.2g/dl necessitating urgent multiple transfusion of blood, replacement of blood was also done and the Ops then also found bleeding which was getting collected in drop bag and drop in Blood pressure necessitating exploration. We hold that from the second day of the surgery when they found the blood collection and pain they did not feel it right to take up exploration to identify bleeding spot and necessary steps required to stop bleeding. Ops are therefore found that when they took the first complainant to OT on 30/08/2008 also noticed there was massive bleeding from the transplanted area via blood vessels and have stated that they removed the kidney on 30/08/2008 in the interest of saving the life of the patient. It is further apparent from the procedure of Op No.2 that they since did not check the bleeding from the blood vessels the patient was made to suffer which took the patient to alarming stage of drop in hemoglobin and BP which necessitated multiple blood transfusion.<br /> <br /> The complainants have further alleged that the Ops did not inform them about removal of the kidney. That they were also not informed as to what did they do with the removed kidney and they were not even shown the kidney. The Ops neither in their version nor in their affidavit evidence have stated whether they had taken consent of the patient or his attendants or any relatives who were present then. The Ops even in the course of arguments did not meet this allegation of the complainants by giving the name of the person who had consented for the 3rd operation, as to why they removed the kidney and what happened to the removed kidney. Therefore, in the absence of reasons of the Ops or documents evidencing the consent taken for 3rd surgery and the course they had adopted after removal of the kidney and then what happened to it the allegations of complainants are to be accepted. The opponents in Para 12 of their affidavit have only stated that the patient was taken to OT and opened the sutures it was noticed that there was massive bleeding from the transplanted area via blood vessels which necessitated for removal of the kidney and they accordingly removed it. Of course, they have further stated that in the interest of saving the life of the patient it was done.<br /> <br /> Yet, again we find Ops were aware that there was massive bleeding from the transplanted area via blood vessels right from the second day of the surgery and the question that crop up is as to what did they do to stop it till 30/08/2008. They even insert catheter to drain out blood and had allowed bleeding to the extent of multiple blood transfusion and they chose to remove the kidney on 30/08/2008. The Ops have not come forward to answer the reasons for bleeding from blood vessels and have also not stated as to why they did not try to close or to stop bleeding from blood vessels. The Ops are therefore found to have failed in their duty in not closing the cut blood vessels. Further, the Ops have also not spoken as to why the kidney which was transplanted after all examination for suitability was removed. Of course Ops have contended that the diabetic situation of the patient is the cause for failure of transplantation but question is were they not aware of it. The allegation of the complainant that removed kidney was not shown to them stands proved in view of the silence of the Ops in not accounting for removed kidney. The Ops absolutely have not brought to our notice the action they took for success of transplantation. Ops have further stated that they are not aware that CSI hospital could not use fistula however Ops themselves have admitted that there were clots and excessive bleeding from the site and they inserted catheter.<br /> <br /> On perusal of the materials placed before us, we find that the Ops were negligent in kidney transplantation process. Counsel for the Ops in the arguments contended that complainants have not produced any experts opinion to prove that process adopted by the Ops in the course of transplantation was wrong or have not followed the method which is safest in the course of transplantation. It is true that the complainants have not examined any expert on the subject to point out the negligence of the Ops. But we can not lose sight of the procedure adopted by the Op No.2 and fact that the patient was having pain in the abdomen complained to Ops on the next day of surgery they found blood clots but did not do anything to find out the cause for bleeding and clots, prolonged then they chosed second surgery for draining out blood clot forgetting to got to the root case of checking the bleeding from the blood vessels and that complication led to removal of transplanted kidney and by not further telling about the fate of the removed kidney to any one of the patients attendants and the action they took to bring the patient to normally themselves speak of negligent and not adopting needed early procedure to improve situation. These facts speak for themselves and the Ops having failed to place before us regarding the complications they developed after first operation as such we find no need for the evidence of an expert to tell about whether the procedure adopted by the Ops were right or wrong. It is not in dispute that the first complainant who was beneficiary of the transplanted kidney died on 27/03/2009. Of course none of the parties including the complainants have brought to our knowledge or noticed the cause for the death of first complainant. It is the situation in this case that the second complainant, that is the wife of the first complainant is left with single kidney and that kidney removed from her since was not properly transplanted to the first complainant resulted in removal found that her donated kidney because of inapt handling of the patient became waste and she also lost her husband. It is not brought to our notice and Ops have nowhere stated as the condition of the kidney removed from the beneficiary could have been again re-transplanted to the second complainant or it could have been used for some other with the consent of the second complainant. With this act of these Ops, the second complainant suffered not only by losting her one kidney and compelled to leave only with the single kidney nor she could save her husband. It is for these reasons, we hold that Op No.1 which is the hospital, Op No.2 is the doctor working in Op No.1 hospital were negligent in the process of transplanting kidney to the complainant. We find no allegations against the third Op independently to hold him deficient. Ops No.4 and 5 found to be involved in the administration of Op No.1 are vigorously liable to the negligence or deficiency in the service of Op No.2.<br /> <br /> Counsel for the Ops during the course of arguments relied on decision of 2005 (4) CPJ page 466, 2009 (4) SCC page 705, 2009 (3) SCC1 and 2007 (3) CPJ page 89. The facts involved in these cases relied upon by counsel for Ops are not similar to the facts of this case and of course we do not dispute the established principles of proving the negligence of the doctor by adducing opinion of the experts. In case, where the negligence or the deficiency of the service of the doctor who treated the patient and acts or omissions of doctors are not apparent to prove that negligence of the doctor or hospital then we need opinion of the expert or experts to speak about the process adopted in treating the patient with a particular decease. We under the circumstances of the case find that Ops were deficient in their course of transplantation of kidney and post operative procedure and when that speaks of negligence one who need not see for experts opinion.<br /> <br /> The counsel representing the Ops relying upon a decision of the Hon’ble Supreme Court rendered in Civil Appeal No.3541/02 between Martin F. D’Souza V/s Mohd. Ishfaq submitted in view of the guidelines laid down by the Hon’ble Supreme Court this complaint for medical negligence can not be filed and entertained. True, the Hon’ble Supreme Court in the said decision has laid down certain guidelines to be followed in a complaint filed attributing negligence against a doctor but on perusal of the judgment of the Hon’ble Supreme Court it is found that whenever a complaint is filed against a doctor before issue of process against a doctor should send the relevant papers to the committee of the doctors for giving opinion whether there is professional negligence or not and after obtaining such opinion the matter has to be proceed with. But in this case, this forum is not of that stage. This complaint was filed prior to the decision of the Hon’ble Supreme Court and on filing the complaint, this forum had issued notices to other side and the complaint was in the stage of enquiry. As such, we are of the humble view that decision will not come the way of disposal of this complaint.<br /> <br /> The complainants have stated that they had spent Rs.8,50,000/- towards medical expenses and have produced the hospital bills charged by the first Ops. The Ops have not at all disputed the bills and the hospital expenditure that the complainants incurred. The complainants have prayed for awarding damages of Rs.20.00 lakhs against the Ops. The second complainant, the wife of the deceased first complainant has expressed her helpness in the situation where she lost her one kidney as it was not properly transplanted to the benefit of her husband and having lost her husband and having lost her one kidney because of the inapt managing and she is put to untold mental agony and fear in her mind always that she has to live with single kidney. It is not in dispute that the first complainant was an advocate was about 53 years when he died and that the second complainant has lost her safe and secured future. It is on consideration of these materials in totality we find that the second complainant is entitled to get back the entire expenditure of Rs.8,50,000/- undisputedly spent and for damages. We under these circumstances of the case, find it just and equitable if we award damages of Rs.5.00 lakhs. With this, we answer point No.1 in the affirmative and pass the following Order.<br /> <br /> O R D E R<br /> <br /> Complaint is allowed. Ops No.1 & 2 and 4 & 5 are therefore directed to refund the hospital expenditure of Rs.8,50,000/- jointly and severally to the second complainant and they shall also pay Rs.5.00 lakhs to the second complainant as damages for her sufferings, uncertainty and mental agony.<br /> <br /> The above Ops shall pay the above amounts to the second complainant within 60 days from the date of this order failing which they shall pay interest @ 9% p.a on both the amounts from the date of this order till the date of payment.<br /> <br /> Ops 1& 2 and 4 & 5 shall also pay cost of Rs.2,000/- to the second complainant. <br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 26th February 2010.<br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br />