PARTIES OF THE CASE –
- PETITIONER: V.N. Shrikhande
- RESPONDENT: Anita Sena Fernandes
CITATION: (2011) 1 SCC 53
BENCH: J. G.S. Singhvi, J. Asok Kumar Ganguly
The appellant performed ‘Open Cholecystectomy’ on the respondent in 1993. After 9 years of intermittent pain, the respondent was admitted to a hospital in September 2002 and after a C.T scan of her abdomen, it was revealed that there was a well-defined rounded mass in the left lobe of the liver and an evaluation of FNAC was suggested.
After a successful operation, a Histopathology report revealed that several gauze pieces were found in her abdomen. After receiving the report of Histopathology, the respondent wrote letters to the appellant and demanded compensation on the grounds that due to his negligence, the gauze was left in her abdomen at the time of surgery in 1993, which she had to undergo by paying significant sums. It was also claimed that the negligence had caused her and her family, mental and physical stress.
The appellant claimed that every patient was told at the time of discharge, that he/she would meet him or write a letter or at least contact him, in case of any problem but the respondent never apprised him about her problem.
The respondent filed a complaint under Consumer Protection Act, 1986, and claimed compensation of Rs.50 Lakh by alleging that mass gauze had been left in her abdomen at the time of the operation due to the appellant’s negligence.
The appellant denied the allegation of negligence in his reply and averted that the respondent had never contacted him, complaining of any pain or discomfort. The State Commission dismissed the complaint on the ground that the same should have filed within the next 2 years after the operation was done, i.e. in 2006 but instead of 2 years, the complaint was filed after 9 years. The National Commission reversed the order. Hence, the appeal for the present case was made.
- Whether the complaint filed by the respondent falls within the period of limitation and did the State Commission committed an error by dismissing the same on the ground of it being time-barred?
The appeal was allowed. The impugned order was set aside and the complaint filed by the respondent was dismissed.
It was held by the Court that, 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. It was opined that any person of ordinary prudence who may have suffered pain and discomfort after surgery would have consulted the concerned surgeon or any other doctor and sought his advice but the respondent did nothing like this. There had been no reasoning on part of the respondent as to why she kept quiet for about 9 years despite the pain and agony. The long silence on her part militates against the bona fide intentions of the respondent’s claim for compensation. Hence, according to the Court, if the respondent would have simply contacted the appellant, the problem would have been discovered.