MANU/CF/0990/2015

Equivalent Citation: 2016(2)ALD10, I(2016)CPJ228(NC)

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
Original Petition No. 235 of 2002
Decided On: 05.10.2015
Appellants: Rashmi Taryon and Ors.
Vs.
Respondent: Noida Medicare Centre Ltd. and Ors.
Hon'ble Judges/Coram:
J.M. Malik, J. (Presiding Member) and Dr. S.M. Kantikar, Member
Counsels:
For Appellant/Petitioner/Plaintiff: Vineet Bhagat, Satya Priya and Radhika Gupta, Advocates
For Respondents/Defendant: Rachna Gupta, Advocate
ORDER
Dr. S.M. Kantikar, Member
Hepatitis C is one of the commonest chronic viral infections world-wide and has major
healthcare and health economic implications. Hepatitis C virus (HCV) infection is relatively
common among patients with end-stage renal (kidney) disease (ESRD) on dialysis and kidney
transplant recipients. HCV infection in hemodialysis patients is associated with an increased
mortality due to liver cirrhosis and hepatocellular carcinoma. The severity of hepatitis C-related
liver disease in kidney transplant candidates may predict patient and graft survival after
transplant. Liver biopsy remains the gold standard in the assessment of liver fibrosis in this
setting. Kidney transplantation, not haemodialysis, seems to be the best treatment for HCV+ve
patients with ESRD.
1. The complainant, Smt. Rashmi Taryon, filed this complaint in 2002 against OPs alleging
medical negligence, which caused death of her husband, Mr. Rajesh. The brief facts of the
complaint are that Mr. Rajesh Taryon, since deceased, (hereinafter referred to as 'the patient')
was suffering from chronic renal failure (CRF). He was on regular dialysis on OPD basis since
3.10.1999. The patient approached OP 1/Noida Medicare Centre, NOIDA, U.P, consulted the OP
3/Dr. Sanjay Wadhwa, Head of Department of Renal Transplant unit and OP 4/Dr. Harsh Jauhri,
a transplantation surgeon. Both doctors convinced the patient and complainant that, the Renal
Transplantation (hereinafter referred as 'RT') is the only cure for such condition. Prior to RT,
several medical check-ups revealed that the patient was suffering from hypothyroidism or
adrenal insufficiency. The OP totally ignored those conditions. During mid-December, 1999, the
OP 3 informed the complainant that, the patient was HCV negative, accordingly, the patient was
admitted in OP 1 hospital, on 6.1.2000 and the RT was scheduled for 11.1.2000. Then, again
OP 3 informed the complainant that, the pathologist Dr. Nalini K. Singh had wrongly informed
him on telephone that deceased was HCV negative, but the patient was HCV positive.
2. Despite knowing the HCV positive status, OP 3 persuaded the patient and complainant for
the need of RT, otherwise, treatment for HCV will consume at least 6 months by injections

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Interferon. The success rate of cure from HCV is only 20%. If at all any problem persists, it can
be treated after the RT. Hence, believing the words of OP 3 and other OPs, the complainants
agreed for the RT. Therefore, patient's wife the complainant No. 1, Smt. Rashmi Taryon,
donated her kidney and the RT was performed on 11.1.2000.
3. The complainant's 1st allegation was that there was no immediate need for RT in case of
HCV positive patient. The patient could have safely survived on dialysis, for a long time. Patient
was discharged on 17.1.2000, but the patient remained admitted in OP1 NMC, till 3.2.2000. The
2nd allegation was that, prior to RT, the OP should have properly investigated and followed the
condition of patient's liver by proper instigations, like liver biopsy or viral load test. The RT was
performed without informed consent; the doctors took patients signatures on blank pages. After
RT, the patient was put on strict regime of immunosuppressive drugs. The 3rd allegation was a
gross negligence on the part of hospital. The patient's 4 fingers of left hand got severely burnt
(thermal injury) during the operation, but the family members were informed that patient had
sustained minor burns and wound will heal shortly. OP put heavy bandage on the burnt fingers.
The patient was known to be highly diabetic; even then, OP gave high doses of insulin and
other medicines, which further increased the risk. Subsequently, patient developed dry
gangrene; hence his fingers were amputated on 30.6.2000. Subsequent to amputation, the
Bilirubin and TLC (total leukocyte count) levels started rising continuously. The liver enzymes
SGOT and SGPT were also on higher side.
4. The patient was admitted in OP1/Hospital from 19.12.2000 to 28.12.2000. The patient's
tests revealed that he was suffering from Tuberculosis (TB). Dr. A.K. Raina, Chest Specialist, OP
9, was consulted. He started Tab INH-300, injection Streptomycin and Tab Mycombutol-1000. It
was started in consultation with OPs 3, 4 and 5. These drugs affected the liver adversely, which
further worsened the condition of the patient, and he never recovered. The complainant
submitted a medical journal extract i.e. Ex. CW1/6 (collectively). In order to control Bilirubin,
the OP administered SNMG injections, with numerous antibiotics and immune suppressive
drugs, but there was no improvement in the patient's condition. The TLC never came within
normal limits. His blood sugar was never under control during his stay in the hospital. Blood
sugar was 420.6.
5. He was again admitted on 25.11.2001, for control of blood sugar. His blood sugar was 420.6
mg, Urea 71.8 mg and S. Creatinine 1.8 mg. SNMC injections were stopped. He was discharged
on 30.11.2000. Again, he was admitted on 7.12.2001 to 15.12.2001, and 18.12.2000 to
25.11.2001. The OP failed to diagnose, therefore, the condition of the patient deteriorated. He
was again admitted on 27.12.2001 for Hyponatremia (sodium deficiency), patient further
deteriorated. The level of blood urea and creatinine was abnormally high. The OP did not take
any steps to cure it by dialysis. Due to Neprofeed, the patient's sugar went up to 420 mg. The
patient developed fever. Thereafter, on 15.1.2002, the patient was shifted to ICCU. He was
given about 24 units of plasma/blood platelets from December, 2001 to January, 2002.
Ultimately, the patient expired on 27.1.2002.
6. That complainants submit that, the negligence of the OPs had resulted the death of the
patient, loss of kidney of patient's wife (C1), loss of left hand of the patient which, further
jeopardized the treatment, leading to untimely death. It caused mental agony, depression, loss
of income to the family of the patient, suffered huge expenses for medical treatment.
7. Therefore, the complainant filed a complaint before this Commission claiming compensation
to the tune of Rs. 42,52,000 along with costs. The cause of action arose on 11.1.2000 and it
was continuous cause, till the date of death.
Defence:

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8. The OPs filed written versions and respective affidavits. OP 4, Dr. Harsh Johari filed common
affidavit on behalf of OPs 1, 3 and 8. It is submitted that OP 1, Noida Medicare Centre Ltd. is
established since 1992, a specialty medical centre recognized by UP Govt. for Kidney
Transplant. There is a team of well qualified and reputed doctors for treatment of kidney
problems, hemodialysis and renal transplant (RT). The patient had wilfully suppressed the
medical history of past 10 years', including treatment for End Stage Renal Disease (ESRD) prior
to visiting OP 1. The patient was suffering from diabetes, hypertension, hypothyroidism. He
stopped taking insulin, since one year back. He was hypertensive for past 8 years and he
suffered CRF for about 1 1/2 year and dependent on hemodialysis in some other hospital since
February, 1998. He had stopped dialysis for approximately eight months, before admission in
the OP hospital. The patient initially came to OP 1, as OPD patient from 3.10.1999.
Hemodialysis was performed on 4.10.1999 and 10.10.1999. Dr. Ashok Kumar, Dr. Dileep Bhalla
and Dr. Sanjay Wadhawan (OP3) saw the patient on 5.10.1999 and 7.10.1999. At the time of
discharge, the patient was advised for regular hemodialysis and need for RT.
9. The renal transplant was decided after detailed discussion with the patient and his
attendants, including his wife. The kidney transplant was performed in January, 2000 and
patient survived for two years. The cause of kidney rejection was not HCV. The patient suffered
septicemia and multi-organ failure. The HCV-RNA of the patient was done on 17.12.1999, which
was shown to the then treating Nephrologist Dr. Ashok Kumar Gupta, and Dr. Dilip Bhalla, a
Transplant Physician, Dr. Sanjay Wadhawan and OP 4 himself. Thereafter, both the options
were discussed about immediate RT or in alternative, at least 6 months Interferon treatment
followed by renal transplant. Thus, OPs clearly explained the patient about HCV status and the
latest recommendation. The OPs gave sufficient time of about two weeks to the patient, to
decide whether, to undergo RT or not. There was sufficient time to decide or to take a second
opinion, from other doctors. It was also explained about the need of additional expenses of
about Rs. 2.5 to 3 lakh for HCV treatment. The patient came to OP 1 hospital with complaints of
severe breathlessness and weaknesses. He was transfused two units of blood and hemodialysis
was performed. Dr. Ajay Bhalla did endoscopy on 20.10.1999 as part of the testing process.
The patient was suffering from Chronic Renal Failure for about two years; the decision of RT
was taken after considering the various aspects, tests in consultation with specialist doctors in
their respective fields. RT was done, almost, after three months. The OP 4 submitted that he
has performed the renal transplant. The OPs 3, 5, 8 and 9 had no role in the operation theatre;
they were not present at the time of operation.
10. The OPs admitted about the thermal injury to the patients fingers. It was treated properly,
the patient was not charged for the expenses. Due to dry gangrene, the fingers were
amputated. The patient was given artificial limb prosthesis at the costs of OPs. Thus the OPs
took entire care to save the fingers. The OPs denied any negligence in the renal transplant
surgery. The patient was treated properly before and after renal transplant. There were several
causes of deterioration of patient due to drugs of TB, immunosuppressive therapy, and
uncontrolled diabetes, etc.
Arguments:
11. We have heard the learned Counsel for both the parties. The Counsel for complainant, Mr.
Vineet Bhagat argued the matter, produced relevant medical literature to support his case. The
Counsel reiterated the facts narrated in the complaint and affidavit. The argument was mainly
focused on act of omission by OPs. The OPs failed to perform proper investigations, before RT.
Despite knowing the HCV positive status the OPs failed to perform liver biopsy to know the
condition of liver. There was total lack of duty of care from OPs 1 to 4, even though, knowing
about HCV Positive status, which is a contraindication for RT. The OP misguided and persuaded
the patient for RT.

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12. Secondly, during RT patient suffered thermal injuries to four fingers of left hand which
subsequently were amputated. The OP concealed the thermal injury, as a minor one. Thirdly,
the informed consent was not obtained as the doctors failed to warn the inherent risk of
proposed RT, despite HCV Positive status, the survival rate if he continues to be on
hemodialysis and get treatment for HCV as well. It resulted in sacrifice of kidney of patient's
wife, who donated it. Due to incomplete and inaccurate information given by the OP, the patient
gave the consent. Thus, the patient was unable to exercise his right to determine with free will
and choice. Lastly, the breach of duty caused the death of patient. Counsel further submitted
that, the OPs did not provide entire medical document to the complainant's requests made on
16.2.2002 and 19.3.2002. There was apprehension that OP might have tampered with the
document
13. The learned Counsel for OPs, Ms. Rachna Gupta, vehemently argued that the patient was
suffering from CRF, who needs dialysis, for a long time, hence, RT will be more effective. The
patient and his relatives were informed about HCV positive status, informed consent was taken
prior to RT. Therefore, RT was performed after proper counselling; it was done in the interest of
patient's health. Therefore, there was no negligence on the part of OPs. The second limb of
argument was about the thermal burns to the patient's fingers of left hand. Counsel submitted
that the burns to the fingers in the operation theatre (OT), was accidental. The surgery was
carried in winters, extreme cold, the surgery lasted for more than six hours. The electric
blowers were kept at least 5 to 6 ft. away from the operating table and might be due to
malfunctioning of the heaters, it was not automatically switched of and since the patient was
under anaesthesia, he could not feel the heat and removed his hand. As the anaesthetist and
surgeon were concentrating on the patient, the fact was unrecognised. The Counsel further
submitted that, the best available artificial prosthesis was provided by OP1 to the patient's
fingers. The transplanted kidney functioned perfectly, for two years. The fingers developed dry
gangrene, partial amputation was performed; OPs took all necessary precautions for about 1
1/2 years. Therefore, the rising level of Billirubin (Total) and TLC is in no manner connected to
the amputation. On 7.7.2000, the patient was diagnosed to be having pulmonary CMV, TB and
HCV Hepatitis. The patient's condition improved by anti-tubercular treatment (ATT) and his liver
function tests remained stable.
14. The OP relied upon following judgments of Hon'ble Supreme Court in Martin F. D'Souza v.
Mohd. Ishfaq, MANU/SC/0225/2009 : II (2009) SLT 20 : I (2009) CPJ 32 (SC) : 157 (2009)
DLT 391 (SC) : AIR 2009 SC 2049 wherein the Hon'ble Apex Court, observed that:
"Simply because a patient has not favourably responded to a treatment given by a
doctor or a surgery has failed, the doctor cannot be held straightaway liable for
medical negligence by applying the doctrine of res ipsa loquitur. No sensible
professional would intentionally commit an act or omission which would result in
harm or injury to the patient since the professional reputation of the professional
would be at stake. A single failure may cost him dear in his lapse."
Further, it was also observed that:
When a patient dies or suffers some mishap, there is a tendency to blame the
doctor for this. Things have gone wrong and, therefore, somebody must be
punished for it. However, it is well known that even the best professionals, what to
say of the average professional, sometimes have failures. A lawyer cannot win
every case in his professional career but surely he cannot be penalized for losing a
case provided he appeared in it and made his submissions.
Counsel for OP further cited other authorities namely:

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C.P. Sreekumar (Dr.) MS (Ortho) v. S. Ramanujam, MANU/SC/0702/2009 : II

(2009) CPJ 48 (SC) : (2009) 7 SCC 130, Malay Kumar Ganguly v. Dr. Sukumar
Mukhereej and Ors., MANU/SC/1416/2009 : VI (2009) SLT 164 : III (2009) CPJ 17
(SC) : (2009) 9 SCC 221
Finding:
15. On perusal of medical record, we have noted that the patient was a known diabetic, for
more than a decade and was under treatment. He was suffering from CRF, which led to ESRD.
He was on regular haemodialysis, hence the OPs advised the patient for RT. The HCV positive
status was made known to the patient. The RT took place almost, after 3 months of counselling.
In our opinion, there was sufficient time for the patient and his relatives to arrive at a decision,
for RT. In this regard, the patient neither took second opinion from other doctors nor shown
any willingness to take treatment for HCV for 6 months and thereafter RT. In this context, it will
be relevant to peruse the consent given by the patient. It is reproduced as under:
"It has been brought to my notice by my doctor that I am HCV positive which may
result in some complications after renal transplant. The remedy for this before renal
transplant is to give Interferon injections for at least 6 months and the success rate
is only 20%. There is no surety that I will be completely cured after this treatment.
There may also arise some more complications after giving Interferon. It has also
been brought to my notice that many HCV positive patients have been successfully
operated upon and are doing well. After knowing all this I have taken the decision
that I shall go for renal transplant immediately."
16. It is an admitted fact that the patient was HCV Positive and the renal transplant was
performed by the OPs. The donor was the patient's wife. The sequence of events clearly go to
show that the patient underwent RT on 11.1.2000 and got discharged on 3.2.2000. The
amputation of four fingers of left hand was done on 9.6.2000. Thereafter, the patient was
admitted in OP1/Hospital on 26.11.2001 and 30.11.2001 for high blood sugar which was
controlled. Thereafter, on 9.12.2001 the patient was admitted for vomiting, nausea and fever.
Then on 2.1.2002 the patient was treated for various complications. He was admitted in ICU,
kept on ventilator, but unfortunately passed away on 27.1.2002, due to septicaemia and multi
organ failure.
17. Therefore, on a bare reading of the above paragraphs, it was an informed consent. We do
not think that the OP have performed RT in a great hurry. The patient was comfortable after
operation, remained well for six months. Thereafter, gradually became deteriorated from
December, 2000. His Bilirubin increased to 17.1 mg, he developed CMV infection as well as
pulmonary tuberculosis. Therefore, the patient was treated by OP9 with proper ATT regime. The
Bilirubin level was improved after injection SNMC 60 ml given on alternative days. At the point
of time patient developed hyponatremia (sodium depletion), it was also treated properly.
18. Life Expectancy: The medical literature on "the life expectancy of diabetic patients on
dialysis" revealed that a person on dialysis would have better quality of life by RT. The
treatment for ESRD is either dialysis or renal transplant. The average life of a patient on
haemodialysis is much lesser than RT, especially in diabetics.
19. As per the Textbook of Diabetes (4th edition 2010 page 602) the survival with ESRD is very
limited, 20-25% of individuals, with T2DM die in the 1st year of dialysis, and almost all are
dead, within 4-5 years. Handbook of Dialysis therapy (4th edition 2008 page 1062), revealed
that patients with ESRD and T2 DM annual mortality rate greater than 25%. The textbook of
Kidney Transplantation, Principles and Practice states about survival is better after

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transplantation.
20. HCV and RT: Regarding HCV positive patients, according to the literature, it is said that
HCV Positive patients can undergo successful RT. However, long term follow up is required. The
international literature also revealed the HCV Positive status is not a contraindication for RT. It
is recommended that HCV Positive patient with ESRD be allowed to make an informed choice
between dialysis and transplant. The outcome to the recipient/patient is the same as to the
uninfected patient.
Conclusion:
21. Therefore, considering the entirety, we are of the considered view that the OP performed
renal transplant after informed consent. The transplanted kidney functioned properly, for two
years after, RT and patient's left hand was also functioning properly, for more than 1 1/2 years,
after amputation. The other complications were treated properly by the specialist in the OP
hospital. Regarding TB, OP 9 had diagnosed it properly. OP analyzed about, the risk/benefits
that the patient's risk of dying of tuberculosis was probably very high, without full ATT,
accordingly, advised ATT. The jaundice was probably due to disseminated TB and also there
were chances of drugs induced hepatitis in addition to HCV hepatitis. Even several medical
literatures clarified the pathophysiology (disease process) of HCV- RT and the person on dialysis
would have better quality of life and chances of longer survival after renal transplant.
22. The team of doctors at NMC, are qualified specialists in the field of Nephrology and Renal
Transplant Surgery. They took the proper decision for RT, assessing the liver function tests.
Patient with HCV can undergo renal transplant. Thus, on account of renal transplant we do not
find any deficiency on the part of OPs, the treatment was, as per standard of practice, it was
not a deviation from standard of practice. Our this view dovetails with the case Dr. Laxman
Balkrishna Joshi v. Dr. Trimbak Bapu Godbole and Anr., MANU/SC/0362/1968 : 1968 (SLT Soft)
411: AIR 1969 SC 128. Hon'ble Supreme Court held that:
The duties which a doctor owes to his patient are clear. A person who holds himself
out ready to give medical advice and treatment impliedly undertakes that he is
possessed of skill and knowledge for the purpose. Such a person when consulted by
a patient owes him certain duties, viz., a duty of care in deciding whether to
undertake the case, a duty of care in deciding what treatment to give or a duty of
care in the administration of that treatment. A breach of any of those, duties gives
a right of action for negligence to, the patient. The practitioner must bring to his
task a reasonable degree of skill and knowledge and must exercise a reasonable
degree of care. Neither the very highest nor a very low degree of care and
competence judged in the light of the particular circumstances of each case is what
the law require: (cf. Halsbury's Laws of England 3rd ed. vol. 26 p. 17).
23. In the instant case, it is an admitted fact that the patient suffered thermal burns, which
were treated properly by the doctors at NMC (OP1). As per OP's contention, the patient was
completely satisfied because the patient's left hand was functioning properly, by the use of
prosthesis, after amputation. It should be borne in mind that, the patient was suffering from
various health ailments; his condition went on deteriorating because of infection, septicaemia
and multi-organ failure. In addition, he was on of multiple drugs therapy like
immunosuppressant, ATT, anti-diabetic, etc.
24. At any instance, we cannot ignore that, the patient lost his four fingers due to negligence of
hospital staff i.e. OT staff. It was a gross negligence and dereliction in the duty of care. Hence,
the doctrine of res ipsa loquitur is applicable. Hence, we hold the hospital liable for negligence

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to that extent. It was an additional trauma which patient suffered after renal transplant till his
survival. Therefore, lump sum compensation of Rs. 10,00,000 will be just and proper in this
case. On the basis of entire discussion, we partly allow this complaint and direct the OP/hospital
to pay lump sum compensation of Rs. 10,00,000 (Ten lacs) to the complainant within 2 months
from the receipt of this order, otherwise it will carry interest @ 9% till its realization.
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