NEW DELHI: The Delhi State Consumer Disputes Redressal Commission has upheld a finding of medical negligence against a Delhi-based surgeon and hospital after a patient continued to suffer from a kidney stone despite undergoing two surgery.The commission dismissed the appeal filed by Dr Rajnish Sharma and K.K. Surgical and Maternity Hospital, affirming an earlier order directing them to pay Rs 1 lakh as compensation along with interest at 6 per cent per annum from the date of institution of the complaint, and Rs 15,000 towards litigation costs, to patient Mohd Sameer.The patient had initially been diagnosed in 2016 with a right-sided ureteric kidney stone and was advised to undergo open ureter lithotomy surgery at GTB Hospital. However, after being unable to obtain treatment there, he approached the private hospital where he allegedly paid Rs 32,000 for the treatment.The treating doctor performed an endoscopic procedure with DJ stenting instead of the originally advised open surgery and reportedly assured the patient that it was “a guaranteed method of stone removal.” A second procedure was subsequently performed, with the hospital informing the patient that the stone was slightly bigger and a second operation was necessary. Despite both procedures, the patient continued to suffer severe pain.An ultrasound conducted elsewhere on November 30, 2016, just 3.5 months after the surgery — revealed a stone measuring 17.2mm at the right UV junction in the same region.The commission had earlier referred the complete medical records to the Medical Superintendent, Lok Nayak Hospital, for an expert opinion.The expert committee, comprising doctors at the GTB Hospital, examined the records and submitted its report on July 1, 2019.The committee noted that the endoscopic procedure was appropriate — observing that it “is as good as an open procedure” and “is the de facto standard in managing lower ureteric stones.” However, the committee flagged that it “did not find discharge record or OT notes of the URSL describing the operative findings.”It further noted that the patient’s name on the X-ray report relied upon by the hospital is slightly different from the complainant’s actual name. Most critically, the committee opined that “it is unlikely that a 1.5cm stone will form in 3 months.”Whereas the hospital argued that residual fragments and stone recurrence are common complications in urological procedures, occurring in up to 38 per cent of cases, and that a failed outcome alone does not amount to negligence. It also relied on an X-ray report dated September 3, 2016 purportedly showing no stone, to argue the surgery had been successful and the stone had reoccurred.The commission rejected this defence. It noted that the hospital had failed to produce any corroborating evidence for the X-ray report — no accompanying X-ray film and no affidavit from the doctor who issued it.The complainant had alleged the document was fabricated, and this allegation was never rebutted.“Here, it is abysmally surprising to note that merely after 3.5 months from the date of surgery, a stone of greater dimension has grown in the same region. Though the Opposite Party has contended that the said stone has reoccurred, the Expert Opinion leaves no room for doubt that it is unlikely that a stone of such size can reoccur in a period of 3.5 months, therefore, in the absence of any proof to the contrary, we are constrained to reject the submissions of the Appellant as unworthy of reliance,” the commission said.The commission relied on the Supreme Court’s ruling in Martin F. D’Souza v. Mohd. Ishfaq, which had observed that “courts and Consumer Fora are not experts in medical science, and must not substitute their own views over that of specialists.” Applying this principle, the commission held that the expert opinion was central to its findings and that the hospital had failed to rebut it with any independent medical literature or expert evidence of its own.
