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

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 appellants 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 thed 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.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 reproducedcircumferential 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 Morrissons pouch Abdomen was closed inhad a smooth and uneventfulHistopathology report dated 8.11.2002 prepared by Lilavati Hospital and Research Centre contained the followingEXAMINATION: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 LIVERFOREIGN BODY REACTIONLYMPH NODES7. After receiving report of the Histopathology, the respondent wrote letters to the appellant and demanded compensation by alleging that due to his negligence gauze was left in her abdomen at the time of surgery done in November, 1993, for the removal of which she had to undergo surgery at Lilavati Hospital by spending substantial amount and she and her family had to undergo mental and physical stress. The appellant sympathysized with the respondent but denied the allegation of negligence. In his letter dated 31.1.2003, the appellant emphasized that he had performed thousands of operations in his long career of about 50 years and there was no cause of complaint from any patient. He claimed that at the time of discharge, every patient was given instruction that in case of any problem, he/she should meet him or write a letter or at least contact on phone but the respondent never apprised him of her problem, though, she was sending seasons greetings. The appellant also made a grievance that despite his request, the respondent had not made available papers relating to the investigation and treatment in Goa and Mumbai from November, 1993 to September 2002.8. Having failed to elicit favourable response from the appellant on the issue of compensation, the respondent filed complaint under Section 17 of the Consumer Protection Act, 1986 (for short, the Act), which came to be registered as Complaint Case No.116 of 2004 and claimed 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 appellants 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.9. In his reply, the appellant denied the allegation of negligence and averred that the respondent had never contacted him with the complaint of pain or discomfort. He reiterated the contents of letter dated 31.1.2003 and prayed that the complaint be dismissed as barred by limitation.10. By an order dated 17.3.2006, 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 appellants 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.

Reasoning:
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.