Appeared at the time of arguments For the Complainant : Ms. Ruchi Munjal, Advocate For the Opp. Parties : Dr. Lalit Bhasin, Advocate & Mr. Vijayant Sharma, Advocate for OP-1 Ms. Nandini Sen, Advocate for OP-2 Mr. K.G. Sharma, Advocate for OP-3 Pronounced on: 29th March 2023 ORDER 1. 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 experts of AIIMS Committee examined the patient (child), noted an operative scar on the right lower abdomen whereas there was no scar on the left side. Even it was not an Endoscopic surgery which necessarily precludes any chance of removal of left kidney. The experts of AIIMS ruled out the remote possibility of any remnant of left renal artery which could have ligated before removing the left kidney. Thus only one possibility of Left sided Renal Agenesis would remain. 8. I have heard the arguments. The learned Counsel for both the sides reiterated their pleadings and evidence. I have perused the material on record, inter alia, the treatment details and gave our thoughtful consideration. 9. It is evident that at OP-1, on 28.03.2009, on obtaining written informed consent, the OP-2 performed resection of Meckels diverticulum with ileo-illeal anastomosis of the child. Post-operative period was uneventful. The details were mentioned in the discharge summary. The patient did not come for follow-up, but he came to the OP-1 with a mob of 50 persons with arms and created violence which was controlled by police. 10. The dispute arose because of controversial USG reports done at Kalra Child Centre and Apollo Hospital, which showed both Kidneys were normal. However, after lapse of a year, on 28.07.2010 the USG done at Kalra Child Care Centre showed missing left Kidney, it was confirmed by and Digital IVP done at Beam Imaging Faridabad on 10.08.2010. 11. A criminal complaint was lodged accusing the OPs stolen the left kidney from the body of the child. On reference from police, the expert committee at AIIMS reviewed the case and the reported that in the absence of definitive Kidney images, on pre-operative USG, its impossible to comment with certainty about the left nephrectomy. It suspected Multicystic Dysplastic Kidney, which is common in males on left side and associated with GI malformations. The developing fetal kidney can be replaced by cysts which involute spontaneously in 50% cases by 2 years of age where neither the kidney nor its artery will be visible on Doppler examination. 12. It is pertinent to note that the complaint was barred by limitation. The alleged caused of action arose lastly on 18.09.2010 when the complainant's father got done a fresh USG of child from Asian Institute, at Faridabad. It was confirmed that the left kidney of the child was missing. The instant complaint is filed on 25.06.2013. It was well beyond the period of the 2 years from the date of cause of action. The OP-3 neither performed the operation nor in any way associated with OP-2. Thus in my view OP-3 was not liable for the act or omission for the alleged loss of kidney of the child. 13. Let us examine the AIIMS report, it reveals as follows:- "……..The father of Master Hari Om Sharma in the presence of I.O. provided two films of an ultrasonogram done at Apollo Hospital on 28.03.2009 from 10.11.am to 10.21 am. Neither of the kidneys is seen in any of the image frames in these films provided. Based on this ultrasonogram it is not possible to opine whether kidneys were actually evaluated at that time “…….In view of the above a medical board has reached the following opinion; The possibilities are 1. Left renal agenesis (congenital absence of a kidney) 2. Left nephrectomy……." Thus, the experts, in spite of numerous test conducted by them, could not give any definite finding on the issue whether the child had two normal kidneys before the surgery at Apollo Hospital. The Experts have clinically examined the child and found a scar on right lower abdomen, but absence of any scar on the left side. The scar present on the right side was used to correct bowel (intussusception) / Mickel’s. The anesthesia record of the OP-1 hospital confirmed that it was not endoscopic surgery which necessarily precludes any chance of removal of left kidney. However the committee remained silent on the fact that a right sided, appendectomy incision was cause for removal of left kidney. 14. In my view, the entire controversy arose was due to the casual approach of the Ultrasonologist at Kalra Child Care Centre & Apollo Hospital. At both places, USG was performed before surgery which reported the presence of normal both kidneys. It is pertinent to note that first USG was done on 27.03.2009 at Kalra Child Care Centre by Dr. Kulween reported as “KIDNEYS are normal in size, shape and position”. The patient was referred to Apollo Hospital for intussusception, wherein second USG was performed by Dr. Reeti Sahni on 28.03.2009 and it was reported as “both kidneys are normal in position, outline and echogenicity”. 15. Thereafter the gap of 15 months of the surgery for intussusception performed by OP-2, the third USG was done on 28.07.2010. In that report, left kidney was not seen. It was re- confirmed by IVP done at Beam Imaging and the USG performed at Asian Institute. Thus, it was a clear case of failure of duty of care and casual approach of the Ultrasonologist at Kalra Hospital and Apollo Hospital. It was a common mistake always committed by sinologist while reporting. 16. 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. In my view, it was not an error of judgment, but it was a casual approach, while reporting the USG. Moreover it was not a bonafide mistake also. In the Jacob Mathew Vs. State of Punjab & Anr.[1], it was held that a simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of medical professional. 17. However, I am not holding the 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. 18. Based on the foregoing discussion, I find the 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. The Complaint is partly allowed. There shall be no Order as to costs. | 
