NAVEENA BHARATHI Vs. K.C. GURUDEV

JUDGEMENT

(1.) This Revision Petition, under Sec. 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), by the Complainants, calls in question the correctness and legality of the order dated 22.11.2010, passed by the Karnataka State Consumer Disputes Redressal Commission at Bangalore (for short "the State Commission") in Appeal No. 1255 of 2010. By the impugned order, the State Commission has dismissed the Appeal, preferred by the Complainants against the order dated 18.2.2010, passed by the District Consumer Disputes Redressal Forum at Mysore (for short "the District Forum") in Complaint Case No. 346 of 2009. By the said order, while holding that the Complainants had failed to prove medical negligence or deficiency in service on the part of the Respondent herein, the sole Opposite Party in the Complaint, the District Forum had dismissed the Complaint.

(2.) Succinctly put, the facts, occasioning the filing of the Complaint, are that: one Doreswamy (for short "the Patient"), the husband of the first Complainant and father of the remaining two Complainants, a Professor in Geology at Cauvery College was suffering from Diabetes Mellitus. Some time in the year 2006, he suffered abdominal pain, for which he consulted the Respondent, a Nephrologist, at B.M. Hospital, Mysore. Certain diagnostic procedures, like Ultrasound KUB Region and Renal Doppler revealed that he was suffering from "Diabetes Nephropathy HTN, ESRD" and "Acute pulmonary edema on CAPD" [diseases affecting the kidneys]. Respondent informed the Patient that since the said disease was of Grade-I, dialysis was not required at that stage. On 24.2006, on a reference by one Dr. Y.S. Ravi Kumar his KUB Region ultrasound, conducted at one Kannan Diagnostic Centre, revealed that he was suffering from "Bilateral Renal Parenchymal Disease Grade-I Nephropathy". On 24.4.2006, another impression in the same centre, on a reference by the Respondent, revealed "Mild increase in Cortical Echoes of Both Kidneys Grade-I Nephropathy". Sometime in Feb., 2007, he felt some itching/weakness in the body and accordingly, again consulted the Respondent. He was admitted in the aforesaid Hospital on 6.2007 and after treatment, was discharged on 14.2007. During the said treatment, after conducting Mini-Laparotomy, CAPD Catherter was placed on the body of the Patient and he was advised to undergo Dialysis every week. Subsequently on two occasions, i.e. 23.2007 and 21.4.2007, when the Patient felt severe breathlessness, he was admitted in the said Hospital, where he remained admitted for four days, and on each occasion was on Dialysis. According to the Complainants since the Patient was undergoing Dialysis twice a week, they were advised to search for a donor and go in for Kidney transplant of the Patient. Having accepted the said advice, the Complainants started searching for a donor and for which purpose, the Respondent issued a certificate, stating that the blood group of the Patient was 'A+'. After an extensive exercise, ultimately, one Kum. Latha, stated to be a well-wisher of the Complainants' family, volunteered to donate kidney to the Patient. Her blood group was also "A+". Accordingly, on 20.6.2007, the blood samples of the Patient and the Donor were sent to one Anand Diagnostic Laboratory at Bangalore for Lymphocyte cross-match. The Laboratory opined "'cross match negative'. Donor specific antibodies are not present". In the light of the Report, on 8.8.2007, proposal for approval for the transplant was referred to the Authorization Committee for Transplantation of Human Organs, Bangalore. However, subsequently, the Respondent expressed his inability to conduct the surgery stating that the Donor, Ms. Latha was not a relative of the recipient. He accordingly, advised the Complainants to continue with the dialysis, which was continued. However, as the condition of the Patient was deteriorating from day-to-day, he was taken to Apollo BGS Hospital, Mysore, where he required blood transfusion. On 1.2008, when the blood test was conducted for the said purpose, it was found that the Patient's blood group was "AB+" and not "A+", as recorded by the Respondent in the aforesaid certificate issued by him and thus, being a universal recipient, compatible with any other blood group, any member of his family could donate kidney to the Patient. Accordingly, on 26.2008, the first Complainant donated her kidney to the Patient - her husband and the Renal transplant was done. Unfortunately, the Patient passed away on 13.7.2008. Having failed to get proper response to their letters dated 11.2009 and 27.1.2009, demanding the entire medical record pertaining to treatment of the Patient, and to the query whether or not the blood grouping of the Patient was done in the B.M. Hospital, alleging negligence and deficiency in service on the part of the Respondent, in not taking due care in ascertaining the blood group of the Patient and resultant delay in kidney transplant, leading to the death of the Patient, the Complaint was filed before the District Forum. Though in the Complaint it was stated that the Complainants had suffered a loss of Rs. 30,25,000 on different counts, but the total claim was restricted to a sum of Rs. 19,50,000, together with interest @ 18% p.a. from the date of the Complaint till payment.

(3.) The Respondent contested the Complaint. In his Written Version, it was pleaded that initially the Patient had consulted Dr. Manjunatha Shetty at Vikram Hospital on 22.4.2006, who had diagnosed that the Patient was a case of diabetic nephrology, chronic renal failure and smaller sized kidneys and was advised dietary restrictions and medications, coupled with few more diagnostic tests. The Patient was examined by him only on 24.4.2006 and was advised examination by a Gastroenterologist as his symptoms were disproportionate to the degree of renal impairment. On 25.4.2006, the Patient was examined by one Dr. R.P. Wadhwa and on 26.4.2006 he conducted endoscopy and colonoscopy and Patient was discharged. On 29.8.2006, when the Patient again consulted him, with the complaint of loss of appetite, he was advised conservative treatment, as his renal impairment at that time did not warrant any interventional treatment; it was only on 30.1.2007 when the Patient again consulted him with complaint of vomiting and loss of appetite, he was diagnosed to have Uremia, and was advised renal replacement therapy. At that time, advantages and disadvantages of dialysis vis-a-vis transplantation of kidney were discussed with the Patient and his family members, and were advised to get the blood grouping done; the Complainants had informed him that Patient's blood group was "A+" their blood group did not match with that of the Patient, and they would enquire about the blood groups of their near relatives so as to facilitate transplant of the kidney; since a donor could not be identified, the Patient was admitted as an Indoor-patient at B.M. Hospital for undergoing CABD catherization, which was performed by one Dr. K.M. Madappa; in order to prepare the Patient for the procedure and since he had uremic symptoms, he was subjected to hemodialysis; the Patient was discharged on 12.2.2007 with the advice to undergo hemodialysis. As regards the controversy relating to the Patient's blood group as "A Positive", it was pleaded that he was not a competent person to declare the blood group of an individual and had to depend on the report of a Pathologist; the Patient had already secured the Blood test report, revealing his blood group to be "A Positive", while admitting that one Ms. Latha, stated to be a family friend of the Complainant's family, was willing to donate her kidney to the Patient, it was stated that as during the course of his conversation with her, he found that she was not a close relative and had offered to donate kidney for monetary benefits, he had suggested to the Patient and the Complainants to get a donor from amongst the family and till then continue with the dialysis, and for the same reason Dr. K.M. Madappa at B.M., Hospital and Dr. M.S. Ranganath at Vikram Hospital had also refused to conduct the surgery. Till 28.11.2007 the Patient underwent Hemodialysis at B.M. Hospital, and since he had refused for transplantation from an unrelated donor Ms. Latha, the Patient approached Apollo BGS Hospital, where the transplant procedure was conducted. It was thus, pleaded that there was no deficiency in service insofar as the treatment provided by him to the Patient was concerned and the loss caused to the Complainants, due to the unfortunate demise of the Patient, could not be attributed to him, as he had discharged his duties in good faith and to the best of his abilities, as per normal practise of medical practitioners.