Medical Negligence | Kidney instead of Kidney Stones removed: Whether hospital will be vicariously liable for its employee’s negligent act? Read to know

Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad: Noting the fact that a patients Kidney was removed instead of the stones in the Kidney, Dr J.G. Mecwan (Presiding Member) expressing its’ opinion on medical negligence and hospital’s vicarious liability expressed that,

Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

Facts in Nutshell

Complainant stated that the present appellant was a hospital run by a charitable trust and Dr Shivubhai Patel was working as a Medical Officer/surgeon at the KMG General Hospital.

Complainant’s case was that the husband of the complainant approached the opponent with the complaint of back pain and difficulty in urination in the K.G.M Hospital and thereafter the Surgeon examined him and advised for USG. In the USG report it was revealed that the deceased’s left kidney was maltreated and therefore he was advised to go to some higher center for operation but as the complainant was unable to go there due to his financial condition, necessary medicines were prescribed by the opponent Doctor.

Complainant visited the opponent hospital with unbearable pain and therefore, a special investigation was done and the report was suggestive of 14mm stone with obstruction at P.U.J in left kidney and the right kidney was normal.

It is further submitted by the complainant that the operation was performed for removal of the stone from the kidney but instead of stone, the Kidney was removed by Dr Patel without any consent of her husband.

After the above incident, patient’s condition worsened, and he eventually died and therefore the complainant filed a consumer complaint against the opponent for gross medical negligence and deficiency in service before the District Commission.

District Commission partly allowed the complaint of the complainant.

Being aggrieved by the impugned order of the District Commission, Nadiad the original opponent 02 has filed the present appeal against the original complainant before this Commission.

Main Consideration:

Opponent Doctor removed the Kidney instead of removing the stone from the kidney.

Opponent 3 – Insurance Company contended that Opponent 2 Hospital had taken an insurance policy for the legal liability and therefore OP-3 was not at all liable for the payment of the medical negligence for the opponent Doctor i.e. employee of the opponent 2 Hospital.

Commission noted that that the policy was taken for legal liability for the indoor patients and outdoor patients of the hospital and therefore in the opinion of this Commission when policy was taken for the legal liability of the indoor and outdoor patients and not taken for professional Indemnity then medical negligence for the opponent 01 doctor i.e. employee of the opponent 02 – Hospital, Insurance Company cannot be held liable to make payment.

Hospital’s Liability

Coram expressed that Hospital was liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondent superior’ meaning ‘let the master answer’.

Concluding the matter, the Commission held that when Doctor is liable for the act of medical negligence then the Hospital is also vicariously liable for the act of Doctor and therefore District Commission Order was not just and proper, hence was modified as under:

“Opponent No. 02 – K.M.G. General Hospital is hereby ordered to pay Rs. 11,23,000/-(Rupees Eleven Lac Twenty Three Thousand Only), to the complainant with interest at the rate of 7.5% from the date of filing of the compliant till its realization and also ordered to pay Rs. 5000/- (Rupees Five Thousand Only) towards mental agony and cost of the complaint.”

[KMG General Hospital v. Devendrabhai K. Raval, Appeal No. 1457 of 2013, decided on 7-10-2021]

Advocates before the Commission:

Mr M.K. Joshi, L.A. for the appellants,

Mr V.K. Bhatt, L.A. for respondent no. 01, Mr M.K. Joshi, L.A. for respondent no. 02,

Mr. V.P. Nanavaty, L.A. for the respondent no. 03.