IMPORTANT POINT
In cases of medical negligence, no straitjacket formula can be applied for determining as to when cause of action has accrued to consumer.

Headnote:(A) Consumer Protection Act, 1986—Sections 12(1), (3), (4), 18, 22 and 24A—Complaint—Bar of limitation—District Forum, State Commission and National Commission are not bound to admit each and every complaint—Consumer forums do not have jurisdiction to entertain a complaint if same is not filed within 2 years from the date on which cause of action has arisen—If complaint is per se barred by time and complainant does not seek condonation of delay under Section 24A(2), consumer forum will have no option but to dismiss the same—However, power conferred upon consumer forum to reject complaint at the stage of admission should not be exercised lightly because C.P. Act has been enacted to provide for better protection of interest of consumers and speedy and inexpensive redressal mechanism enshrined therein is in addition to other remedies which may be available to consumer under ordinary law of land—Admission of complaint should be rule and dismissal thereof should be exception. (Paras 14 and 15)
       (B) Consumer Protection Act, 1986—Sections 2(1)(g) and 2(1)(o)—Medical services—Medical negligence—In cases of medical negligence, no straitjacket formula can be applied for determining as to when cause of action has accrued to consumer—Each case is to be decided on its own facts—If effect of negligence on doctor’s part or any person associated with him is patent, cause of action will be deemed to have arisen on the date when act of negligence was done—If, effect of negligence is latent, then cause of action will arise on the date when patient or his representative-complainant discovers harm/injury caused due to such act or the date when patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence. (Para 18)
       (C) Consumer Protection Act, 1986—Sections 2(1)(g) , 2(1)(o) , 23 and 24-A—Medical services—Medical negligence—Respondent categorically averred that after discharge from appellant’s hospital, she suffered pain off and on and it was giving unrest to her at home and at work place—It was reasonably expected of her to have contacted appellant and apprised him about her pain and agony and sought his advice—That would have been natural conduct of any other patient—If respondent had got in touch with appellant, he would have definitely suggested measures for relieving her from pain and restlessness—Respondent has not explained as to why she kept quiet for about 9 years despite pain and agony—Long silence on her part militates against bonafides of respondent’s claim for compensation and Discovery Rule cannot be invoked for recording a finding that cause of action accrued to her in November, 2002—Impugned order set aside and complaint dismissed. (Paras 20, 21 and 22)
       (D) Torts—Medical negligence—Discovery Rule—Period of limitation does not begin to run until claimant discovers, or in exercise of reasonable diligence should have discovered the act constituting alleged negligence—Where a foreign object has negligently been left in patient’s body, Statute of Limitations will not begin to run until patient could have reasonably discovered the malpractice. (Para 19)

JUDGMENT

G.S. Singhvi, J.—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 alleg

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SUPREME COURT OF INDIA G.S. Singhvi, J.Dr. V.N. Shrikhande —AppellantversusMrs. Anita Sena Fernandes —RespondentCivil Appeal No. 8983 of 2010 (Arising out of SLP (C) No. 5479 of 2009)Decided on 20.10.2010

IMPORTANT POINTIn cases of medical negligence, no straitjacket formula can be applied for determining as to when cause of action has accrued to consumer.

Cases Referred (4)

SUPREME COURT OF INDIA
G.S. Singhvi, J.
Dr. V.N. Shrikhande —Appellant
versus
Mrs. Anita Sena Fernandes —Respondent
Civil Appeal No. 8983 of 2010
(Arising out of SLP (C) No. 5479 of 2009)
Decided on 20.10.2010

IMPORTANT POINT
In cases of medical negligence, no straitjacket formula can be applied for determining as to when cause of action has accrued to consumer.