R.N. SETHI vs HARDIAL SINGH

DOCTOR treats but God cures. It is only when in the matter of treatment that the doctor is found to be negligent that he is to be liable to compensate the patient and in case of his death, his legal heirs. The allegation of negligence against doctor can easily be made however, the complainant can only succeed if such allegations are proved by cogent evidence. The tendency on the part of scrupulous complainants to rope in doctors into litigation in order to extract money, cannot be ruled out when under the Consumer Protection Act, no Court fee or expenses are to be incurred by the complainant. The FORA established under the Act has to act with great caution and care in the matter of adjudication of such consumer disputes.

THE present appeal has been filed by two of the doctors R.N. sethi and his wife Mrs. Veena Sethi against whom District Forum, Ludhiana passed order on August 14,1996 directing them to pay a sum of Rs. 2 lacs to the complainant, Hardial Singh whose wife was alleged to have died on account of negligent act of the appellants in performing operation. Hardial Singh lodged a complaint before District Forum, Ludhiana on January 12, 1994 when the same was headed by District & Sessions Judge. Thus, no notice is taken of the fact that the complaint was addressed to Sessions Judge and not to the District Forum or its President as such. On December 10, 1990, Nirmal Kaur, wife of Hardial Singh and one Mohinder Kaur their neighbour approached the opposite parties for treatment as both the patients-were suffering from bleedings from private parts. On that very day, both of them were operated upon. Subsequently, on January 22,1993, Nirmal Kaur died. Allegation made in the complaint was only to the effect that the opposite parties performed operation without getting consent of the patient or their near ones. Generally prayer was made for taking action against the opposite parties. The opposite parties while contesting the complaint filed their version denying knowledge that two ladies had approached them with such ailment. The allegations were vague. Death could not be attributed to the alleged operation performed by the opposite parties. The complaint was alleged to be false and frivolous. The complaint was alleged to be barred by time. It was stated that such a major operation must have been performed after getting consent and after getting tests done. Since, full particulars of the alleged operation were not given in the complaint, the allegations were thus denied. Replication was filed by the complainant inter alia giving particulars and producing Discharge Slip issued by the opposite parties. The patient was discharged on December 22, 1990. It was further alleged that the death was due to the negligence and carelessness of the opposite parties at the time of performing the operation on December 10,1990. It is in this replication that the complainant claimed a sum of Rs. 2 lacs due to the negligent act of the opposite parties. The complainant Hardial Singh filed his own affidavits and he produced Annexure A-l, Discharge Slip issued by the opposite parties, Annexure A-2. Photocopy of Attendant Pass issued by Christian Medical College, Annexures A3 to A6, history of the treatment given to Nirmal Kaur by Christian Medical College starting from August 8,1991 to May 9,1992, the date of discharge, Ex. A7 was produced, which is entry of recording death of Nirmal Kaur. The death is alleged to have occurred on January 22, 1993. Another report (Ultra Sound Report) dated December 10,1990 was also produced, which is at page 35 of the District Forum record but not otherwise exhibited. On the other hand, Dr. R.N. Sethi and Dr. Veena Sethi filed their own affidavits. Mrs. Sethi has filed her additional affidavit also. An application was filed before the District Forum, Ludhiana for dismissal of the complaint on the ground of limitation and the same was ordered to be disposed of with the main case. The District Forum as already stated gave a direction of making payment of compensation of Rs. 2 lacs holding negligence on the part of the opposite parties in performing the operation on the ground that the opposite parties had failed to produce relevant records, which were in their possession regarding treatment given to Nirmal Kaur. The complaint was held to be within time as having been filed within two years from the date of death. Hence this appeal.

It has been argued on behalf of the appellants that the complaint filed was clearly barred by time. The cause of action, if any occurred on December 10, 1990 when as per allegations, operation was performed by the appellants on Nirmal Kaur. No fresh cause of action occurred on the death of Nirmal Kaur i.e. January 22,1993. It is from the cause of action that occurred on the date of performance of the operation, the present complaint has to be held to be barred by time. This position otherwise is not disputed. The only question for consideration is as to whether in such like cases, cause of action would continue to occur that the period of limitation can start from the date of death. This question depends upon proof of the fact that the death occurred on account of the cause which had occurred on the day of performing operation. After hearing Counsel for the parties, we are of the opinion that the complainant had failed to prove that cause of death was the operation performed by the appellants. In detail reference would be made to the evidence produced. At this stage, suffice it to say that since in the complaint only allegation levelled was that operation was performed by the appellants without getting consent of the patient on December 10,1990, thus for all intends and purposes, cause of action accrued on that day and the complaint filed on January 12,1994 is obviously beyond three years and barred by time. Section 24 A of the Consumer Protection'' Act came into existence in 1993 providing two years period of limitation for filing the complaint. Since, in the present case, the alleged cause of action accrued much prior thereto, the period of three years limitation under the Limitation Act was to be taken into consideration. Even then the complaint was barred by time. It is so held.

ACCEPTING the evidence produced as such, the complainant had failed to prove that Nirmal Kaur died on account of any negligent act of the appellants. Oral evidence of the complainant, who is not expert in the line of medicine can hardly be accepted as expert opinion on the question of determination of cause of death. Ex. Al is the Discharge Card issued by the appellants indicating admission of Nirmal Kaur on December 19,1990 and discharged on December 22, 1990. The operation was stated to be a success. Stiches were removed and the wound had completely healed at the time of discharge. The operation was performed for removal of cancerous growth in the vagina, which is described as under: "WARTHEIM operation done under Spinal Bledder, Uroturine. Rectum were fine. There were no Lnode involvement visible." Exs. A3 to A5 are the treatment charts of C.M.C. about Nirmal Kaur''s admission there on August 8,1991 and discharged on May 9,1992. The diagnosis made as indicated in Ex. A3 is reoccurrence of the cancerous growth. It was so diagnosed "Diagonsed to have". This also makes reference to the operation performed about 8 months ago. It was observed that after operation, it had occurred. It is not necessary to refer to the subsequent treatment given in the Hospital Chymothropy etc. Suffice it to say that death has been proved by producing death entry, Ex. A7. It is from this history of the patient that it can be assumed at the most that she had died of cancer. However, no presumption can be drawn that either growth or re-growth of the cancerous nature was the result of negligently performing the operation of removal of cancerous growth much less in the absence of any medical expert opinion or any literature on the subject.

LEARNED Counsel for the appellants rightly argued that present is not a case of no evidence produced by the parties that any adverse inference could be drawn against the appellant for non production of the documentary evidence i.e. operation notes or treatment chart of Nirmal Kaur, patient. The approach of the District Forum does not appear to be correct in the facts of the present case. If no evidence at all had been produced with regard to the treatment given either by the appellants or subsequently by any other Hospital, the question of raising adverse inference would have arisen. But in the present case, evidence of treatment given in the CMC as well as the discharge card issued by the appellants has been produced. Taking into consideration the same, it leaves no manner of doubt that the operation performed by the appellants was a success as there was no complications on that account. The re-occurrence of the cancerous growth is not the result of unsuccessful operation. Such a growth is the outcome of working of the organism of the individual. Even in the case of cancerous growth at the initial stage, if detected, successfully, treatment could be given by its removal. The action of the appellants in performing the operation on December, 10 for removal of such growth thus cannot beheld to be per se negligent act. Allegation and contention of the complainant is that written consent of the patient or her relations was not taken. Even if it is so, in our view, that per se is not enough to hold the appellants were negligent in the act of performing operation. It was the Biopsy report, which showed that such growth was maligned and could reoccur. Even with the subsequent treatment given to Nirmal Kaur in C.M.C., life could not be saved. Viewed from another angle, if contention of learned Counsel for the complainant is accepted that at the stage when Nirmal Kaur approached the appellants, straightaway operation for removal of cancerous growth should not have been performed and this amounts to negligent, cannot be accepted. It is only when the cancerous growth is in the third stage that the doctors may choose not to operate it and prolong life of the patient by other methods. In the present case, inspite of the operation performed by the appellants, Nirmal Kaur lived for more than two years. In none of the record of the CMC, any opinion has been expressed that the operation performed by the appellants was negligent or the re-occurrence of the growth or continuance of the bleeding was on that account. The complainant had thus utterly failed to prove the negligence on the part of the appellants in the matter of performing operation. There was no deficiency in rendering servsice on the part of the doctors. For the reasons recorded above, this appeal is allowed. Order of the District Forum is set aside. However, there will be no order as to costs. Appeal allowed.