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--------------- Print Magazine --------------
 
  May 2016
 
  April 2016
 
 
 
 
CASE STUDY - by Anoop K. Kaushal

POST OPERATIVE COMPLICATION AND CAUSE OF ACTION

Shri Subhash Chand v. M.D. Jaipur Golden Hospital

Original Petition No. 203 of 2000; Decided on 25-8-2011 by the National Consumer Disputes Redressal Commission, New Delhi.

Facts : The 45-days-old son of the complainant had fallen ill due to abdominal distention for four days and one episode of general convulsion, was taken to the OP-1/ Jaipur Golden Hospital, Delhi (JGHD) on 14-3-1997 and admitted to the I.C.U., lumber puncture was performed on the child, which was very traumatic and the blood stained CSF (cerebro spinal fluid) came out. Three days after the lumber puncture, the child developed paraplegia, which is a condition of paralysis of lower limbs, accompanied by paralysis of bladder and rectum. MRI scan of the child was taken on 19-3-1997, was referred to the OPs who suggested an operation which was performed on 21-3-1997 at the JGHD and the extra dural collection (haematoma) was removed. The patient was discharged on 26-3-1997. But the child never recovered from paraplegia and the lower portion of his body became passive after the operation. Complainant took the child to Kalawati Sharan Children Hospital and was advised physiotherapy, which was continued till 1998, but the child did not recover. MRI report of 27-5-1997 showed post-operative changes under the lower dorsal spine. The one on spine, contained the following opinion- "MRI findings of the cervicodorsal spine are suggestive of a long segment of myelomalacia D 10 to the conus. Please correlate clinically". The MRI report of the brain said- "MRI findings of the brain are suggestive of venous angioma left cerebellum. Please correlate clinically." (In lay language, it can be called a tumour composed of the blood vessels.) Nearly two and a half years later, another MRI was done at Jaipur on 12-11-1999 that revealed that the spinal cord had abrupt termination at T9-10 level and the distal portion of the cord and conus region showed evidence of myelomalacia. The complainant claimed a compensation of ` 41.3 lakhs with interest at 24%.

Opposite parties, inter alia , raised the issue of Limitation under section 24A of the Consumer Protection Act, 1986 as the complaint had not been filed within the prescribed period of two years, that the complaint related to alleged medical negligence in the treatment of the child in March 1997, which was almost three years before the filing of the consumer complaint filed in April and admitted by the Hon'ble NCDR Commission on 19-12-2000.

Precedent Relied Upon : Explaining the Rule of Discovery in the context of the provision in section 24A, Hon'ble Supreme Court of India has observed in a recently decided Civil Appeal, V. N. Srikhande v. Anita Sena Fernandes, (2011) 1 SCC 53, that-

"Since the term "cause of action" has not been defined in the Act, the same has to be interpreted keeping in view the context in which it has been used in section 24A(1) and object of the legislation. In case of medical negligence, no straight jacket formula can be applied for determining as to when the cause of action has accrued to the consumer. Each case is to be decided on its own facts. If the effect of negligence on the doctor's part for any person associated with him is patent, the cause of action will be deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of negligence is latent, then the cause of action will arise on the date when the patient or his representative complainant discovers the harm/injury caused due to such act or the date when the patient or his representative complainant could have, by exercise of reasonable diligence discovered the act constituting negligence."

Observations : No application for condonation of the delay is filed. In order to determine the cause of action in a case, the bundle of facts as a whole are to be seen. The Apex Court has laid down that cause of action under the Consumer Protection Act, 1986 has to be interpreted keeping in view the context in which it has been used under section 24A of the Act and the object of the legislation. Section 24A (2) of the Act lays down that the consumer fora may entertain the complaint beyond two years from the date on which the cause of action had arisen, if the fora is satisfied that the complainant had sufficient cause for not filing the same within the time prescribed. It is now well settled that expression "sufficient cause" has to be liberally construed and it is particularly so in case of complaint under the Consumer Protection Act in view of the observations of the Apex Court stated above. Even though, there is no specific application for condonation, yet, if the complainant discloses facts which are sufficient to explain the conduct of the complainant due to which the complain was not filed in time, technical pleas must give way to substantial justice. It has been laid down by the Apex Court in a catena of judgments that procedural laws are hand made of justice and are meant for advancement of substantial justice. Applying the norms laid down in the above decisions to the facts of the case before us, it is noticed that the complainant remained in touch and consultation with the OP hospital for nearly six months after the surgery and discharge of his child. He cannot be accused of any negligence in pursuing treatment of his child even thereafter. The records of physiotherapy and consultations with other hospitals have been produced in evidence of the same. The complainant has explained that the treatment and investigation was done at various places including Kalawati Sharan Children Hospital, New Delhi, Sir Gangaram Hospital, New Delhi. The MRI report of 19-3-1997 showed nothing abnormal with the brain. But, MRI of 27-5-1997 revealed a venous angioma of left cerebellum (brain tumour) and myelomalacia of the spine. Finally, the MRI of 12-11-1999 brought out the discovery of abrupt termination of the spinal cord at D 9-10 level, very close to the point where laminectomy was performed in OP hospital. In between, as already pointed out above, through the entire period since discharge from OP hospital, the patient was undergoing treatment, at OP hospital till 19-9-1997 (as per medical records) and elsewhere, with no let up in the condition of paraplegia.

Held: We are, therefore, of the view that in the facts and circumstances of this case, it clearly comes out as a case in which the cause of action first arose with the Lumber Puncture performed on the child in March 1997 and is a continuing cause of action which culminated with the discovery in November 1999 that due to the laminectomy performed on 21-3-1997, the child had lost a part of his spinal cord itself which is discovery of latent negligence on the part of opposite party. Thereafter, the complainant promptly obtained the record of treatment from OP-1 and filed this complaint. Hence, the conduct of the complainant gets fully explained in terms of the requirement of section 24A of the Consumer Protection Act, 1986. The complaint is partially allowed. Compensation of ` 10.5 lakhs is awarded to be paid to the complainant by the OPs, jointly and severally. This amount shall carry interest of 6% from the date of the complaint filed in this Commission and shall be paid within three months. For the period of delay, if any, interest shall be payable at 10%. There are no orders as to costs.

 
 
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