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PUNJAB STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, CHANDIGARH
Hon’ble Mr. Justice A.L. Bahri, President & Mr. Ram Lal Gupta, Member
DR. R.N. SETHI & ANR.—Appellants
versus
HARDIAL SINGH—Respondent
Appeal No. 568 of 1996—Decided on 5.8.1997
MEDICAL NEGLIGENCE - CONSUMER PROTECTION ACT, 1986 - SECTION 24A - LIMITATION - CAUSE OF ACTION - NEGLIGENT ACT - BURDEN OF PROOF - CONSENT - DEFICIENCY IN SERVICE - STANDARD OF CARE - EXPERT OPINION - MEDICAL RECORDS - DAMAGES.
Fact of the Case:
The complainant alleged that the appellants, doctors, performed an operation on his wife without obtaining consent and that she died due to their negligence. The District Forum held the appellants liable and directed them to pay compensation of Rs. 2 lacs to the complainant.
Finding of the Court:
The court held that the complaint was barred by limitation as it was filed more than three years after the alleged cause of action, which was the date of the operation. The court also held that the complainant failed to prove that the death of his wife was caused by the negligence of the appellants. The court noted that the operation was successful and that the re-occurrence of the cancerous growth was not the result of the operation.
Issues: 1. Whether the complaint was barred by limitation? 2. Whether the appellants were negligent in performing the operation? 3. Whether the complainant was entitled to compensation?
Ratio Decidendi: 1. The court held that the complaint was barred by limitation as it was filed more than three years after the alleged cause of action, which was the date of the operation. The court noted that Section 24A of the Consumer Protection Act, 1986, which provides a two-year limitation period for filing complaints, came into existence in 1993 and was not applicable to the present case. 2. The court held that the appellants were not negligent in performing the operation. The court noted that the operation was successful and that the re-occurrence of the cancerous growth was not the result of the operation. The court also noted that the complainant failed to produce any expert opinion or medical literature to support his claim of negligence. 3. The court held that the complainant was not entitled to compensation as he failed to prove that the death of his wife was caused by the negligence of the appellants.
Final Decision: The court allowed the appeal and set aside the order of the District Forum.
Mr. Justice A.L. Bahri, President—Doctor treats but God cures. It is only when in the matter of treatment that the doctor is found to be negligent that he is to be liable to compensate the patient and in case of his death, his legal heirs. The allegation of negligence against doctor can easily be made however, the complainant can only succeed if such allegations are proved by cogent evidence. The tendency on the part of scrupulous complainants to rope in doctors into litigation in order to extract money, cannot be ruled out when under the Consumer Protection Act, no Court fee or expenses are to be incurred by the complainant. The FORA established under the Act has to act with great caution and care in the matter of adjudication of such consumer disputes.
2. The present appeal has been filed by two of the doctors R.N. sethi and his wife Mrs. Veena Sethi against whom District Forum, Ludhiana passed order on August 14,1996 directing them to pay a sum of Rs. 2 lacs to the complainant, Hardial Singh whose wife was alleged to have died on account of negligent act of the appellants in performing operation.
3. Hardial Singh lodged a complaint before District Forum, Ludhiana on January 12, 1994 when the same was headed by District & Sessions Judge. Thus, no notice is taken of the fact that the complaint was addressed to Sessions Judge and not to the District Forum or its President as such. On December 10, 1990, Nirmal Kaur, wife of Hardial Singh and one Mohinder Kaur their neighbour approached the opposite parties for treatment as both the patients-were suffering from bleedings from private parts. On that very day, both of them were operated upon. Subsequently, on January 22,1993, Nirmal Kaur died. Allegation made in the complaint was only to the effect that the opposite parties performed operation without getting consent of the patient or their near ones. Generally prayer was made for taking action against the opposite parties. The opposite parties while contesting the complaint filed their version denying knowledge that two ladies had approached them with such ailment. The allegations were vague. Death could not be attributed to the alleged operation performed by the opposite parties. The complaint was alleged to be false and frivolous. The complaint was alleged to be barred by time. It was stated that such a major operation must have been performed after getting consent and after getting tests done. Since, full particulars of the alleged operation were not given in the complaint, the allegations were thus denied. Replication was filed by the complainant inter alia giving particulars and producing Discharge Slip issued by the opposite parties. The patient was discharged on December 22, 1990. It was further alleged that the death was due to the negligence and carelessness of the opposite parties at the time of performing the operation on December 10,1990. It is in this replication that the complainant claimed a sum of Rs. 2 lacs due to the negligent act of the opposite parties. The complainant Hardial Singh filed his own affidavits and he produced Annexure A-l, Discharge Slip issued by the opposite parties, Annexure A-2. Photocopy of Attendant Pass issued by Christian Medical College, Annexures A3 to A6, history of the treatment given to Nirmal Kaur by Christian Medical College starting from August 8,1991 to May 9,1992, the date of discharge, Ex. A7 was produced, which is entry of recording death of Nirmal Kaur. The death is alleged to have occurred on January 22, 1993. Another report (Ultra Sound Report) dated December 10,1990 was also produced, which is at page 35 of the District Forum record but not otherwise exhibited. On the other hand, Dr. R.N. Sethi and Dr. Veena Sethi filed their own affidavits. Mrs. Sethi has filed her additional affidavit also. An application was filed before the District Forum, Ludhiana for dismissal of the complaint on the ground of limitation and the same was ordered to be disposed of with the main cas
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