Case: V.N.Shrikhande Vs. Anita Sena Fernandes

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. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellants 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. This is clearly borne out from the averments contained in paragraph 8 of the complaint, the relevant portion of which is extracted below: ".............Even after discharging the complainant from the hospital the pain in the abdomen still persisted as on and off and it was giving unrest to the complainant again at home and at the place where she worked. The sufferings of the complainant were endless, had to spend sleepless nights and mental strain for almost nine years and as the pain became unbearable by the passage of time, the complainant had to be admitted in the Government Hospital in Goa in September, 2002................." A similar statement was made by her in the affidavit filed before the National Commission, paragraphs 2 and 3 (two paragraphs have been marked as 3) of which read as under: "2. I say that to arrest the pains, sufferings and mental strains during the period of nine years I was taking tablets and their names are as follows: Tablets CYCLOPAMBRUFEN -400mgCROCINDICLO FENAC3. As a nurse in the Government Hospital I know from my personal knowledge that the aforesaid tablets are taken as painkillers, to suppress the pain and to arrest the pain.3. I say that because of the pains, sufferings and mental strains. I had to often apply for leave at the place where I was posted. The number of days I was on leave and the leave that I have taken from 1.12.1993 to 17.06.2002 on account of pains, sufferings and mental strains is mentioned herein below:"From 22.11.93 to 23.12.93 - 32 days" 24.12.93 to 31.12.93 - 8 days (Sick leave-S.L.16 days)" 01.01.94 to 22.01.94 - 22 days (S.L. 44 days)" 27.07.94 to 7.08.94 - 12 days (S.L. 24 days)" 30.09.04 to - - - 1 days (S.L. 02 days)" 17.05.96 to 26.05.96 - 10 days" 15.07.96 to 21.07.96 - 7 days (S.L. 14 days)" 01.02.97 to 06.02.97 - 13 days" 19.03.99 to 26.03.99 - 8 days" 21.03.00 to 23.03.00 - 3 days (S.L. 6 days)" 17.03.01 to 22.03.01 - 6 days" 21.05.01 to 27.05.01 - 7 days" 21.06.01 to 23.06.01 - 3 days (S.L. 6 days)" 17.02.02 to 20.02.02 - 4 days (S.L. 8 days)" 13.03.02 to 22.03.02 - 10 days" 16.06.02 to 17.06.02 - 2 days (S.L. 4 days)" 21. The respondent was not an ordinary layperson. She was an experienced Nurse and was employed in the Government Hospital. It was the respondents case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. 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 respondents 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 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 bonafides of the respondents 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]15. We may hasten to add that the power conferred upon the consumer forums under Sections 12(3), 18 or 22 to reject the complaint at the stage of admission should not be exercised lightly because the Act has been enacted to provide for better protection of the interest of consumers and the speedy and inexpensive redressal mechanism enshrined therein is in addition to other remedies which may be available to the consumer under the ordinary law of land. Therefore, 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 Sectionperusal of order dated 17.3.2006 shows that after adverting to the report of Dr. P. Jagannath, in which there was no mention of any gauze having been found in the abdomen of the respondent, the State Commission held that this was sufficient for recording a negative finding on the issue of negligence on the part of the appellant while conducting operation on 26.11.1993. The State Commission then observed that the complainant had not produced any prescription for the treatment taken for 10 years prior to 25.10.2002 to show that she was suffering from unbearable pain, was having sleepless nights and was unable to perform her duties as Nurse in Government Hospital, Goa and held that in the absence of such evidence, the period of limitation commenced from the date of discharge i.e., 30.11.1993 and the complaint filed in 2004 was clearly barred by time. The National Commission too opined that the cause of action first accrued to the respondent in November, 1993 when she was operated by the appellant but proceeded to observe that the same continued throughout the period during which she had constant pain in the abdomen and lastly it arose on 25.10.2002 i.e. the date on which she was operated at Lilavati Hospital and a piece of gauze was found in her abdomen.In cases of medical negligence, no straitjacket 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 doctors part or 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 hisdiscovers the harm/injury caused due to such act or the date when the patient or hiscould have, by exercise of reasonable diligence discovered the act constituting negligence.19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patients body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patients body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later.In the light of the above, it is to be seen whether the cause of action accrued to the respondent on 26.11.1993 i.e. the date on which the appellant performed Open Cholecystectomy and the piece of gauze is said to have been left in her abdomen or in November, 2002 when she received Histopathology report from Lilavati Hospital. 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. However, the factual matrix of the case tells a different story. In the complaint filed by her, the respondent categorically averred that after discharge from the appellants 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. It was the respondents case before the State Commission and the National Commission that after the surgery in November, 1993, she was having pain in the abdomen off and on and, on that account, she was restless at home and also at work place and had to take leave including sick leave on various occasions. 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 anor C.T. scan. In the event of discovery of gauze in the respondents 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 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 foror 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 bonafides of the respondents 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.