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IN THE SUPREME COURT OF INDIA
G.S. Singhvi & Asok Kumar Ganguly, JJ.
Dr. V.N. Shrikhande-Appellant
Versus
Mrs. Anita Sena Fernandes-Respondent
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.8983 OF 2010
(Arising out of SLP(C) No.5479 of 2009)
Decided on : October 20, 2010.
(2009) 5 SCC 121; (2009) 7 SCC 768 – Relied upon
(b) Legal interpretation – Terms used but not defined in an Act – Term `cause of action’ not defined in Consumer Protection Act – Has to be interpreted keeping in view the context in which it has been used in Section 24A(1); and object of the Act – Cause of action in case of medical negligence – If effect of negligence is patent, cause of action deemed to arise on the date when the act of negligence was done – If effect is latent, cause of action will arise on the date when the harm/injury caused is discovered. (Para 17, 18)
(1987) 1 SCC 424; 397 Pa.282: 154A.2d 788; 86 Idaho 485: 389 P.2d 224; 304 F.2d 234; LEXSEE 24 N.Y. 2d 427; 919 F.Supp.711 – Relied upon
© Consumer Protection Act, 1986 – Section 24A(1) – Respondent a nurse – Having pain after first operation – Suffering for 9 years without making any complaint – Effect of medical negligence – Harm/injury discovered soon after first operation – Cause of action arose on date of first operation – Complaint filed after 9 years, after second operation – Rightly rejected by State Commission as barred by limitation. (Para 21)
AIR 1924 Bombay 290; AIR 1959 SC 798 – Referred
Facts of the case:
The respondent filed complaint under Section 17 of the Consumer Protection Act, 1986 claiming 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 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 2 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.
Finding of the Court:
State Commission rightly held that the complaint was barred by limitation.
Result:
Appeal allowed.
JUDGMENT
G.S. Singhvi, J.
1. Leave granted.
2. This appeal is directed against the order of the National Consumer Disputes Redressal Commission (for short, `the National Commission') whereby the order passed by the Maharashtra State Consumer Disputes Redressal Commission (for short, `the State Commission') dismissing the complaint filed by the respondent as barred by limitation was reversed and the case was remitted for disposal of the complaint on merits.
3. 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.
4. 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 C.T. scan of her abdomen was done on 23.9.2002, which revealed the following:
"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 is suggested."
5. On being advised by the doctors in Goa, the respondent got herself admitted in Lilavati Hospital at Bombay and was operated by Dr. P. Jagannath on 25.10.2002. The relevant extracts of the report of Dr. P. Jagannath are reproduced below:
"Findings E/o circumferential mass in lesser sac involving under surface of left lobe (Segment 3) of liver and along lesser curve of stomach extending posteriorly to involve the anterior surface of Pancreatic head. Mass freed of the pancreas by division of adhesions and from the lesser curve of stomach by successive ligation and division of vessels and mass was freed of lesser curve with No.55 linear butter to divide lesser curve of stomach. Round ligament was divided. Wedge of liver, Segment 3, was excised with CUSA Haemostasis checked Drain kept in Morrisson's pouch Abdomen was closed in layers Post-operative: She had a smooth and uneventful recovery"
6. Histopathology report dated 8.11.2002 prepared by Lilavati Hospital and Research Centre contained the following observations:
"GROSS EXAMINATION: A shaggy surfaced firm brownish partly opened mass measures 6x5, 6x3cms and weighs 50 gms. Several gauze pieces aggregating to 5.5x5.2cms are also received alongside and adherent gauze pieces are also present embedded within the mass. The cut surface of the tissue is brownish yellow and shaggy. Four small lymph nodes measuring 3mm each are also observed.
CROSCOPIC EXAMINATION: Walled within fibrous tissue, overlying the liver are sheets and clumps of foamy histiocytes with scattered foreign body type giant cells admixed linear strands of foreign body material. Areas of necrosis and haemmorrhage are seen in areas the foreign body material has produced a sieve like pattern surrounded by histiocytes, foreign body giant cells and fibrain. Several cholesterol clefts are seen. The lymph nodes show sinus histiocytes and occasional reactive follicles. The adherent liver shows focal congestion and haemmorrhage towards the surface but is otherwise unremarkable. There is no evidence of tuberculosis or malignancy.
DIAGNOSIS: GAUZE PIECES WITHIN A MASS IN EPIGASTRIC REGION ADHERENT TO LIVER - FOREIGN BODY REACTION LYMPH NODES - REACTIVE SINUS HISTIOCYTOSIS."
7. After receiving report of the Histopathology, the respondent wrote letters to the appellant and demanded compensation by all
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