Case Study

Complications of Surgery & Continuing Cause of Action

Padmashree Hospital v. Chetan Chagan Singh Pardeshi, Revision Petition No. 641 OF 2017 decided by the National Consumer Disputes Redressal Commission, New Delhi on 16 May 2018

FACTS: The complainant filed a complaint under Section 12 of the Consumer Protection Act, 1986 for causing medical negligence to the complainant before the District Forum, Thane. The complaint was not filed within the period of limitation. The complainant had filed application for condonation of delay along with the complaint. The reasons for delay were also explained that, he was admitted in OP hospital on 14-08-2010 and remained there till 19-08-2010. Thereafter, in critical condition he was shifted to Jupiter Hospital and remained there till 28-08-2010. After discharge, he was taking treatment as outdoor patient (OPD) in Jupiter Hospital. He was declared fit to attend duties from 16-11-2010 and, accordingly, he joined the duty on 17-11-2010. Again, on 17 & 18-11-2010 he underwent few tests, and took medical leave from 19-11-2010 to 17-06-2011. While taking treatment he developed some urinary problems and, took further medical treatment.

According to the complainant, the cause of action had arisen on 14-08-2010, but he could not file the consumer complaint within two years. Thus, the delay of 382 days occurred, because of his illness and prayed for condonation of delay. The OPs resisted the application for condonation of delay and challenged the maintainability of the complaint, stating that the delay had not been properly explained by the complainant. As complainant was already declared fit, therefore, he joined his duty from 17-11-2010 and took OPD treatment. Therefore, the reasons cited for huge delay in filing the complaint after considerable time should not be accepted.     After hearing both the parties, the District Forum allowed the application for condonation of delay vide its order dated 13-02-2015 and condoned the delay of 382 days. Being aggrieved, the OP preferred a revision petition before the State Commission. The State Commission dismissed the revision petition and upheld the decision of the District Forum for allowing the application for condonation of delay.

OBSERVATIONS: The chronology of the events is as follows: from 14-08-2010 to 18-08-2010, the OP-petitioners treated the patient for suspected “abdominal tuberculosis” and, performed laparoscopic adheseolysis. Thereafter, the patient suffered acute abdominal compartment syndrome, for which he was again admitted with OPs from 19-08-2010 to 20-08-2010 and, thereafter, he was shifted to Jupiter Hospital in a critical/semiconscious state. He was treated in Jupiter Hospital for more than one month from 21-08-2010 to 28-09-2010 and, thereafter, he took treatment at Jupiter Hospital on OPD basis till 16-11-2011. After discharge, the patient was suffering from uncontrolled urination (incontinence) and took treatment from various doctors in Mumbai. The patient took treatment from Dr. Ajit Padke, an eminent urologist in Mumbai till August 2012, but due to demise of Dr. Ajit Phadke, he could not get the medical certificate. Therefore, Dr. Hema K., an assistant to Dr. Ajit Phadke who treated the patient from September 2012 issued a medical certificate also. Therefore, the cause of action was continuous till September 2012 and the complaint was filed before the District Forum on 05-09-2013, which was within the limitation period.

HELD: It is pertinent to note that, after the major surgery, there are more chances of post-surgical urinary incontinence, and, such patients need continuous treatment. Considering the facts, in our view, the cause of action for alleged medical negligence was a continuous one. We do not find any considerable delay in the instant case. We do not find any fault in the order of the fora below. The revision petition is devoid of any merit; hence, it is dismissed.

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