Medical Negligence; Dr. V.N. Shrikhande Vs. Mrs. Anita Sena Fernandes [Supreme Court of India, 20-10-2010]

Consumer Protection Act, 1986 – Section 17 – Consumer Complaint on Medical Negligence – 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 doctor’s 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 his representative-complainant discovers the harm/injury caused due to such act or the date when the patient or his representative-complainant could have, by exercise of reasonable diligence discovered the act constituting negligence.


IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

G.S. Singhvi and Asok Kumar Ganguly, JJ.

October 20, 2010

CIVIL APPEAL NO. 8983 OF 2010

(Arising out of SLP(C) No.5479 of 2009)

Dr. V.N. Shrikhande …….. Appellant

Versus

Mrs. Anita Sena Fernandes …….. Respondent

J U D G M E N T

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 6×5, 6x3cms and weighs 50 gms. Several gauze pieces aggregating to 5.5×5.2cms are also received alongside andadherent 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 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 withthe 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