R G STONE CLINIC AND UROLOGICAL RESEARCH CENTRE vs KALI RAM RANA

-THESE two appeals arise from a common order passed by the State Commission holding M/s. R. G. Stone Clinic and Urological Research Centre (appellant in FA No. 469 of 2006) guilty of medical negligence and directing them to pay compensation of Rs. 25,000 and Rs. 5,000 as costs to the complainant, Mr. Kali Ram Rana (appellant in First Appeal No. 489 of 2006 ).

WHILE First Appeal No. 469 of 2006 is filed by M/s. R. G. Stone and Urological Research Centre and others, opposite parties before the State Commission, for setting aside the order passed by the State Commission, the complainant Kali Ram Rana has filed First Appeal No. 489 of 2006, for enhancement of compensation. Undisputed facts of the case are that the complainant Kali Ram Rana, who was suffering from pain of the left side of his abdomen, had got an x-ray done and the Doctors found: (i) left kidney Hydronephrosis; (ii) both kidneys functioning normal.

With this report, the complainant contacted the R. G. Stone Clinic and Urological Research Centre on 21. 12. 1991, where Doctors diagnosed the patient having left renal calculi C Grade II - III. The same day operation was done for removal of stones and the complainant was discharged on 22nd Dec. 1991. As per material on record, after several visits between 22. 12. 1991 and 8. 3. 1994 when the condition of the patient was not improving and he was having continuous problem with the left side kidney on 8. 3. 1994, complainant was advised IVP with the radio-isotope and Renal-Diuretic-scan. It was found that right kidney was functioning upto 85% and left kidney was found to be severally impaired / contracted and was said to be functional only upto 15%. Seeing this condition, the complainant did not go for follow-up with the R. G. Stone Clinic and Urological Research Centre and got himself admitted at Medical College, Rohtak. According to him the complainant''s left-kidney stopped functioning totally. It is in these circumstances, alleging medical negligence a complaint was filed before the State Commission, where matter was contested by the R. G. Stone Clinic and Urological Research Centre. State Commission held R. G. Stone Clinic and Urological Research Centre guilty of medical negligence on one count and that is that they carried out the operation on 21. 12. 1991 without satisfying that the patient was having normal kidneys and blindly relying upon the report dated 18. 12. 1991 of Harish X-ray Clinic at Karnal. Based on this medical negligence, the complaint was allowed and the complainant was awarded a compensation of Rs. 25,000 along with cost of Rs. 5,000. Aggrieved by this order both the parties have filed two separate appeals before us.

WE heard the learned Counsel for both the parties at some length. First Appeal No. 469 of 2006 This appeal has been filed by R. G. Stone Clinic and Urological Research Centre and others for setting aside the order passed by the State Commission.

IT is the case of the learned Counsel for the appellant that the appellant did not commit any default by not getting another IVP done on the complainant as it increased the risk of sudden kidney failure. In support of his contention, he has produced the medical literature, "a - Z Health Guide from Webmd : Medical Tests, Intravenous Pyelogram (IVP)". It is important to reproduce relevant extracts, hereunder: an IVP is done to-Evaluate the structure of the urinary tract. Determine the cause of blood in the urine. Evaluate ongoing determine the size and location of a tumour of the urinary tract. Determine the cause of recurring. Detect damage to the urinary tract after an injury. . . . . . . . . . . A before having an intravenous pyelogram (IVP), tell your doctor if-You are or might be pregnant. You have an (blank. . . . . . . . . .) in place. You are allergic to the iodine dye used as the contrast material for x-ray tests or to any other substance that contains iodine. You have ever had a serious (anaphylaxis) from any substance (such as the venom from a bee sting or from eating shellfish ). Within the past 4 days, you have had an x-ray test using barium contrast material (such as a ) or have taken a medication (such as Pepto-Bismol) that contains bismuth. You have a history of kidney problems or, especially if you take metformin (Glucophage) to control your diabetes. The contrast material used during an IVP can cause kidney damage in people who have poor kidney function. If you have a history of kidney problems, blood tests (creatinline, blood urea nitrogen) may be done before the test to confirm that your kidneys are functioning properly. . . . . . . . . . . . . . . . .

B an intravenous pyelogram (IVP) is usually done by a radiology technologist. The IVP pictures are interpreted by a doctor who specializes in interpreting imaging tests ( ). . . . . . . . . . . . . . . . .

C there is always a slight risk of damage to cells or tissue from being exposed to any radiation, including the low levels of radiation used for this test. However, the risk of damage from the x-rays is usually very low compared with the potential benefits of the test. There are precautions you can take to of radiation exposure from x-rays. . . . . . .

D people with certain conditions (such as diabetes, chronic kidney disease, have an increased risk of developing sudden kidney failure from IVP. . . . . . . . . . . .

E an intravenous pyelogram (TVP) is not usually done for a pregnant woman because the x-rays could damage the developing foetus. If a view of a pregnant woman''s kidney is needed, a test may be done instead. . . . . . . . . . .

F for people with known kidney problems, diabetes, or dehydration, steps may be taken to prevent kidney damage. Less contrast material may be used and additional fluids may be provided before, during, and after the test. If you have a history of kidney problems, blood tests for creatinine and blood urea nitrogen may be done before the test to confirm that your kidneys are functioning properly. For more information, see the medical tests and. . . . . . . . . .

G (Emphasis supplied)

First of all, it needs to be pointed out, that operation was done way back in 1992 and this material is related to August 2006. Be that as it may, it is settled proposition that there cannot be any dispute as to why IVP is done as per medical literature produced above. (Portion A) It is also not in dispute that the complainant was having any problem as indicated in ''b'' above.

AS far as ''d'' is concerned, it is very clear that risk of damage from X-ray is very low compared with the potential benefits of the test. There is also no dispute that as far as ''e'' is concerned, in the case of patient having diabetes, they have an increased risk of developing from IVP. We are afraid that this cannot be acceptable as, in our view, this has to be read along with the observation mentioned in D above that "damage from X-ray is usually very low, compared with the potential benefits of the test. " This also to be read along with what has been produced in ''g'' above. It is made clear in this literature, relied upon by the appellant, that people who have kidney problems or diabetes. . . . . . to prevent kidney damage, less contrast material may be used and additional fluids may be provided before, during and after the test.

OTHER medical literature relied upon by the appellant, M/s. R. G. Stone Clinic and Urological Research Centre is titled, "radiography - Intravenous Pyelogram", perhaps evolved/developed by Radiological Society of North America in 2006. Under the head what are the benefits vs. risks? benefits: ivp images provide valuable, detailed information to assist physicians in diagnosing and treating urinary tract conditions from stone to cancer. Imaging of the urinary tract with IVP is minimally invasive procedure with rare complications. An IVP can often provide enough information about stones and obstructions to direct treatment with medication and avoid more invasive surgical procedures. The imaging process is fast, painless and less expensive than alternatives such as Computed tomography (CT) and magnetic reasoning imaging (MRI ). Risks: contrast materials used in IVP studies can cause adverse reactions in some people. Women should always inform their doctor or X-ray technologist if there is any possibility that they are pregnant. See the Safety page for more information about pregnancy and X-rays. The effective radiation dose from this procedure is about 1. 6 MSv, which is about the same as the average person receives from background radiation in six months. See the safety page for more information about radiation dose. X radiation risks are further minimized by: the use of high-speed x-ray film that dues not require much radiation to produce an optimal image. Technique standards esta-blished by national and international guidelines that they have been designed and are continually reviewed by national and international radiology protection councils. Modern, state-of-the-art x-ray systems that have very tightly controlled x-ray beams with significant filtration and x-ray dose control methods. Thus, scatter or stray radiation is minimised and those parts of a patient''s body not being imaged receive minimal exposure. Y Learned Counsel for the appellant Clinic wishes to emphasise the risk ''contrast material used in IVP studies can cause adverse reactions in some people'' but when we see the other medical literature reproduced earlier, firstly, this risk can be neutralised by using less contrast material, etc. and secondly, we see that nowhere in the material produced before us, the risk, if any, was explained to the complainant and the decision of the appellant not to expose the complainant, to another IVP, was relatable to this plea. Hospital record nowhere mentions this. In fact the ''consent'' form has also not been produced before us.

In view of this, we are unable to accept the contention of the appellant that on account of high risk involved in IVP in the case of complainant, on account of his being diabetic, and that is why second IVP was not done, does not stand our scrutiny after going through the medical literature, relied upon and produced by the appellant.

WE are further strengthened in our view, by the evidence brought on record of Dr. Varshney, who states in para 11 of his affidavit as under: "further quality of reporting on the x-ray is grossly inapropriate. In the absence of details of report of x-ray taken on different intervals, exact functional status of the kidney cannot be commented upon. The report of x-ray is silent as to after how much time did the contrast appear and ''how long it took to evacuate completely from pelvivaleal system of left kidney which might have thrown some light on functional status. Not only this, no comment is there on films taken at 10 minutes, 20 minutes, 30 minutes, 40 minutes and post micturition. By mere stating both the kidneys functioning normal does not authenticate the same. If the complainant was so conscious about the evaluation of the functioning of his kidney, before and after the treatment be ought to have got Renal Dynamic scan done even before start of treatment. " (Emphasis supplied) This deposition of Dr. Varshney further goes on to show the negligence on the part of the appellant that if the quality of reporting on the x-ray was grossly inappropriate, then it is all the more reason that the appellants should have carried out an independent x-ray / IVP examination to satisfy themselves about the status of the kidneys of the complainant, more so, when the x-ray has been taken at Karnal about 3 days before the operation. This deposition is like becoming wise after the event. The latter part of the deposition, reproduced by us, also shows that if they were not satisfied with the report of the Harish x-ray Clinic, Karnal, taken on 18. 12. 1991, then they should have carried out an independent examination and not relied upon the report of the Harish X-ray Clinic dated 18. 12. 1991. The appellants are not permitted to blow hot and cold in the same breath. They cannot be permitted to say that they carried out the operation, based on the report dated 18. 12. 1991 and yet go on to depose, by way of evidence, that the quality of reporting on the x-ray is grossly inappropriate as also other lacuna observed in the IVP report dated 18. 12. 1991, brought out in the deposition of Dr. Varshney, reproduced earlier.

WE also see that as per hospital record, after discharge from the clinic of the appellant on 22. 12. 1991, the complainant came again on 4. 1. 1992, 10. 1. 1992, 2. 4. 1992 and on several dates thereafter. We also see on record that on 2. 4. 1992, while advising the complainant to report on 6. 7. 1992 for Urine/cs, i. e. , Urine Culture Sensitivity test, yet outcome of the same is not reported in any of subsequent dates of visit of the complainant to the clinic, except on 28. 1. 1993 when there is an entry ''c/s - no growth''. Except this lone entry, there is no reference whatever, whether c/s test was done/not done and the reaction of the treating Doctor on this point. In other words, there is no effort on the part of the appellants to ascertain the real position or status of the kidney of the complainant. It is only on 8. 3. 1994, i. e. , after almost 2 years and 3 months that IVP is suggested as also a radio-isotope ''renal-diuretic-scan'' was advised and report showed right kidney 85% and left kidney severally impaired contracted (illegible) 15%. We are unable to appreciate as to why IVP was not done for whole period of two years during almost fourteen visits after the operation on 21. 1. 1992, during which the complainant''s case was reviewed by the appellant. Neither ensuring any culture sensitivity test despite having been advised this, except on 28. 1. 1993, nor IVP test during the whole period is a clear case of negligence on the part of the clinic. We are also unable to appreciate that in view of the deposition of the appellant, that earlier IVP examination was not upto the mark, then what prevented them from getting another IVP done? Waiting for almost 2 years for advising the same has not been explained at all. In view of above, the appellant has failed to carry out the duty of care expected from a Doctor as a result of which the kidneys especially the left kidney was adversely affected. Had the critical low functioning of left kidney been noticed earlier, a timely action would have saved it from further deterioration in the stage which it had reached by March, 1994. It is also pertinent to note that Dr. Bhatia, who carried out the operation in the clinic, has not been examined. We are unable to accept the plea of the appellant that he has left and his whereabouts are not known. He was their employee and it was for them to procure his deposition as also to produce him for cross-examination, if required. Their failure to do so is again clear case of deficiency on their part. It is also the case of the appellant that at the time of discharge x-ray films which were seen by them had been returned to the complainant. There is no such reference in the Hospital record produced before us by the appellant and if this was so then there is something wrong in the deposition of Dr. Anil Varshney when half of his deposition is based on the x-ray reports. It was also argued by the learned Counsel for the appellant that whatever has been written in the discharge memo dated 22. 12. 1991 is based on the film and when we ask for the film it is their case that they are returned to the complainant. Complainant, who is present in person, along with Counsel was specifically asked to comment on this issue, and according to him, they were with the appellant.

IF it is the case of the appellant that in view of the fact that the report dated 18. 12. 1991, it is mentioned that left kidney Hydronephrosis, which, as per the deposition of Dr. Varshney, means that kidney was not functioning properly. We are unable to appreciate as to what was done by the appellants to ascertain the correct status of the kidney before undertaking operation for removal of stone. On the one hand, it is the case of the appellant that the report cannot be relied upon for the reasons mentioned earlier and yet go on to operate upon the complainant relying upon the same. This, in our view, is totally unacceptable proposition of expected medical care or medical ethics. In view of above, State Commission, in our view, was quite right in holding the appellants guilty of medical negligence, in view of which we find no merit in this appeal, hence dismissed. First Appeal No. 489 of 2006

THIS appeal has been filed by the complainant for enhancement of the compensation awarded by the State Commission. It is their prayer that they are entitled to the following compensation: (i)Rs. 24,000 given to the respondents in cash against receipts duly issued by the respondents. (ii)Rs. 16,000 spent on transportation and other miscellaneous purposes. (iii)Rs. 2,60,000 towards Mental tension and agony of the complainant. (iv)Rs. 2,00,000 towards the physical pain to be suffered for the whole of the life of the complainant. (v)Rs. 3,300 towards the charges for issuance of notice to the respondents. Learned Counsel appearing on behalf of M/s. R. G. Stone and Clinic Urological Research Centre and others did not deny receipt of Rs. 24,000 and it cannot be said that the complainant would not have undergone mental agony for almost 2 years, period between the time the operation was done on him and till the time they came to know about the lower functioning of the kidneys.

While it is difficult to quantify the mental agony and physical pain which the complainant and his family members underwent on account of negligence on the part of the M/s. R. G. Stone Clinic and Urological Research Centre, in our view, the complainant shall be entitled to compensation of Rs. 1,00,000 along with Rs. 24,000 paid by him to the M/s. R. G. Stone Clinic and Urological Research Centre, along with costs of Rs. 5,000 already granted by the State Commission. Thus, in all the appellant/complainant shall be entitled to Rs. 1,29,000 along with interest @ 6% p. a. from the date of filing the complaint till the date of payment.

A sum of Rs. 25,000 deposited by M/s. R. G. Stone Clinic and Urological Research Centre, has already been paid to the complainant vide order dated 6. 3. 2007, the balance amount, i. e. , Rs. 1,04,000 (Rs. 1,29,000 - Rs. 25,000) shall be paid to the complainant within a period of 6 weeks from the date of receipt of this order, failing which the complainant shall be free to proceed under Sections 25/27 of the Consumer Protection Act, 1986. In the result, First Appeal No. 469 of 2006 filed by M/s. R. G. Stone Clinic and Urological Research Centre and others is dismissed and the First Appeal No. 489 of 2006, filed by the complainant is allowed in above terms. Ordered accordingly.