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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
CASE STUDY - By Anoop K. Kaushal
Post-operative Complications and Law of Limitation
Dr. V.N. Shrikhande
v.
Mrs. Anita Sena Fernandes

In Civil Appeal No. 8983 of 2010, the Hon'ble Supreme Court of India vide judgment dated 20-10-2010 dealt with the issue of complications showing up long after the operation/procedure, its impact on the cause of action and law of limitation for suing for negligence.

The respondent was employed as a Nurse in Government Hospital, Goa. In 1993, she complained of pain in abdomen. The doctors in Goa advised her to consult the appellant, who was having a hospital at Dadar, Mumbai. After examining the report of the pathologist, which revealed that the respondent had stones in her gall bladder, the appellant performed 'Open Cholecystectomy' on 26-11-1993. The respondent was discharged from the appellant's hospital on 30-11-1993. For the next about 9 years, the respondent neither contacted the appellant nor consulted any other doctor despite the fact that after the surgery she was having pain in the abdomen off and on, for which she was taking painkillers and she had to remain on leave at regular intervals. In September, 2002, the respondent was admitted in the hospital and a C.T. scan of her abdomen was done on 23-9-2002, which revealed "A well-defined rounded mass showing predominantly peripheral enhancement is seen in relation to the left lobe of liver as described above. This is more likely to be an exophytic neoplasm from the undersurface of left lobe of liver than a pancreatic lesion." Further evaluation of FNAC was suggested.

On being advised by the doctors in Goa, the respondent got herself admitted in Lilavati Hospital in Bombay and was operated by Dr. P. Jagannath on 25-10-2002. After receiving report of the Histopathology, the respondent wrote letters to the appellant and demanded compensation by alleging that due to his negligence gauze was left in her abdomen at the time of surgery done in November, 1993, for the removal of which she had to undergo surgery at Lilavati Hospital by spending substantial amount and she and her family had to undergo mental and physical stress. Having failed to elicit favourable response from the appellant on the issue of compensation, the respondent filed complaint and claimed compensation of Rs. 50 lakhs by alleging that due to negligence of the appellant, a mass of gauze was left in her abdomen at the time of first operation; that after discharge from the appellant's hospital, the pain in her abdomen persisted and on that account she remained restless at home and also at work place; that her sufferings were endless and she had to spend sleepless nights and mental stress for almost 9 years; that when the pain became unbearable, she had to be admitted in Government Hospital, Goa in September, 2002 and C.T. scan done on 23-9-2002 revealed existence of a mass in her abdomen,which was finally removed at Lilavati Hospital, Bombay. The respondent pleaded that she and her family had suffered mental and physical stress for 9 years and had to incur cost of Rs.1,28,522 for the second operation. The respondent further pleaded that if the appellant had acted with due care and caution, she would not have suffered for 9 years and may not have been required to undergo second surgery.

The appellant denied the allegation of negligence and averred that the respondent had never contacted him with the complaint of pain or discomfort, the complaint be dismissed as barred by limitation. The State Commission dismissed the complaint as barred by time on the ground that the cause of action for filing the complaint had accrued to the respondent on the date of her discharge from the appellant's hospital i.e. 30-11-1993 and the complaint could have been filed within next two years. The National Commission reversed that order and held that though the cause of action had arisen for the first time in November, 1993 when operation was performed on her gall bladder, it continued and subsisted throughout the period because she had constant pain in the abdomen and lastly it arose on 25-10-2002 when she was operated for the second time at Lilavati Hospital and gauze allegedly left by the appellant at the time of first surgery was found.

Held: The consumer forums do not have the jurisdiction to entertain a complaint if the same is not filed within two years from the date on which the cause of action has arisen. On being given an opportunity of hearing, the complainant can seek condonation of delay under section 24A(2) by showing that there was sufficient cause for not filing the complaint within the period prescribed under section 24A(1). If the complaint is per se barred by time and the complainant does not seek condonation of delay under section 24A(2), the consumer forums will have no option but to dismiss the same. Admission of the complaint filed under the Act should be the rule and dismissal thereof should be an exception. Of course, if the complaint is barred by time, the consumer forum is bound to dismiss the same unless the consumer makes out a case for condonation of delay under section 24A(2).

If the respondent had not suffered pain, restlessness or any other discomfort till September, 2002, it could reasonably be said that the cause of action accrued to her only on discovery of the pieces of gauze which were found embedded in the mass taken out of her abdomen as a result of surgery performed by Dr. P. Jagannath on 25-10-2002. In that case, the complaint filed by her on 19-10-2004 would have been within limitation. In the complaint filed by her, the respondent categorically averred that after discharge from the appellant's hospital, she suffered pain off and on and it was giving unrest to her at home and at work place; that her sufferings were endless and she had spent sleepless nights and mental strain for almost 9 years. The respondent was not an ordinary layperson. She was an experienced Nurse and was employed in the Government Hospital. Therefore, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. That would have been the natural conduct of any other patient. If the respondent had got in touch with the appellant, he would have definitely suggested measures for relieving her from pain and restlessness. If the respondent was not to get relief by medication, the appellant may have suggested her to go for an X-ray or C.T. scan. In the event of discovery of gauze in the respondent's abdomen, the appellant would have taken appropriate action for extracting the same without requiring the respondent to pay for it. If the measures suggested by the appellant were not to the satisfaction of the respondent and the pain in her abdomen persisted then she could have consulted any other doctor for relief.

However, the fact of the matter is that after the surgery, the respondent never informed the appellant that she was having pain in the abdomen, was restless and was having sleepless nights. At no point of time she contacted the appellant and sought his advice in the matter. Not only this, she did not consult any other doctor including those who were working in the Government Hospital where she was employed. Any person of ordinary prudence, who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other competent doctor and sought his advice but the respondent did nothing except taking some pain killers. If the respondent had been little diligent, she would have contacted the appellant and informed him about her sufferings. In that event, the appellant may have suggested appropriate medicines or advised her to go for X-ray or C.T. scan. If piece of gauze was found in the abdomen of the respondent, the appellant would have certainly taken remedial measures. The respondent has not explained as to why she kept quite for about 9 years despite pain and agony. The long silence on her part militates against the bona fides of the respondent's claim for compensation and the Discovery Rule cannot be invoked for recording a finding that the cause of action accrued to her in November, 2002. The National Commission, in our considered view, was clearly wrong when it held that cause of action lastly arose to the respondent on 25-10-2002 when the second surgery was performed at Lilavati Hospital and the complaint filed by her on 19-10-2004 was within limitation. In the result, the appeal is allowed. The impugned order is set aside and the complaint filed by the respondent is dismissed.

Anoop K. Kaushal, Advocate - kaushal@justice.com
 
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