Case Study

Cause of action for medical malpractice (also) arises on (first) knowledge of the complication or injury (extending limitation for filing complaint)

Dr. Mahesh S. Bhatambre v. Nikhil Mahesh Rodge

Revision Petition No. 83 of 2017; Decided by the National Consumer Disputes Redressal Commission, New Delhi on

Facts: The complainant, Master Nikhil was treated by Dr. Mahesh S. Bhatambre for the complaint of fever on 27-6-2011.  He was admitted in OPs hospital from 27-6-2011 to 15-8-2011.  At the time of discharge, it was found that the vision of complainant was affected and the OP diagnosed it as Steven Johnson Syndrome.  Thereafter, the complainant was taken to Dr. L. V. Prasad, Eye Institute, Hyderabad and treated for a long period i.e. from 2011 to 2014.  Finally, on 25-2-2014, the doctors at Hyderabad concluded that Nikhil’s both eyes were affected and he could see up to one meter only. Therefore, the complainant filed a complaint for alleged medical negligence on 24-7-2014 before the District Consumer Disputes Redressal Forum, Latur. The OP filed the written statement and resisted the complaint on the ground that the complaint was filed beyond the stipulation time and limitation i.e. more than 11 months and 8 days.  The District Forum dismissed the complaint on the ground of limitation.  It has observed that the cause of action took place on 15-8-2011 and as per Section 24-A of the Consumer Protection Act, 1986, the complaint should have been filed within two years i.e. till 14-8-2013 but the complaint has been filed on 24-7-2014 i.e. after a delay of 11 months 8 days.  Aggrieved by the order of District Forum, the complainant preferred first appeal before the Maharashtra State Consumer Disputes Redressal Commission, Circuit Bench at Aurangabad.  The State Commission allowed the appeal with the observation that cause of action was continuous since
11-2-2011 wherein the complainant No.1, Master Nikhil was under treatment for a long time and was finally diagnosed in the year 2014.

Observations: The petitioner vehemently argued that the complaint was filed after huge delay.   It was not within limitation period as per Section 24-A of the Consumer Protection Act, 1986, therefore, it is to be dismissed.  There was no medical negligence during the treatment of the complainant.  Further, the complainant has not made the doctors as parties to the consumer complaint because the complainant took the treatment in several hospitals.

Held: It is pertinent to note that initially, the complainant was treated from 27-6-2011 till 15-8-2011 by the OP. Thereafter, he was under treatment and observation of Dr. L. V. Prasad Eye Institute, Hyderabad and there he came to know that his eyes got affected.  Thus, it was a cause of action continuously present till the knowledge of the complainant about alleged injury. The complaint was filed before the District Forum on 24-07-2014. Therefore, it was well within the prescribed time of limitation of two years. The revision petition is dismissed and the complaint is remanded back to the District Forum, Latur to decide the complaint on merit expeditiously within six months from the date of receipt of a copy of this order.

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