Called upon to examine the validity of the order of the National Consumer Disputes Redressal Commission which held that the consumer complaint filed by a Nurse alleging medical negligence on part of a doctor who had operated on her was in time, the Supreme Court in a recently reported decision [Dr. V.N. Shrikhande v. Mrs. Anita Sena Fernandes, AIR 2011 SC 212] took note of the Discovery Rule, as applicable in the United States, to hold that the cause of action in cases of medical negligence would arise when the patient first discovered the alleged negligence.
Holding that the complainant being an experienced Nurse and employed in the Government Hospital, "it was reasonably expected of her to have contacted" the doctor who performed the surgery on her. However her omission to do so and file a complaint after a significant lapse of time, was what factored in the judgment of the Court to hold the complaint being barred by time. In arriving at this conclusion, the Court examined the comparable position in other jurisdictions to declare the law applicable in India in the following terms;
18. 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.
19. The Discovery Rule to which reference has been made by the learned counsel for the respondent was evolved by the Courts in United States because it was found that the claim lodged by the complainants in cases involving acts of medical negligence were getting defeated by strict adherence to the statutes of limitation. In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan 397 Pa.282, 154A.2d 788. In that case a surgeon had left a sponge in the patient’s body when he performed an operation. It was held that the statute of limitation did not begin to run until years later when the presence of the sponge in the patient’s body was discovered. In West Virginia, the Discovery Rule was applied in Morgan v. Grace Hospital Inc. 149 W.Va.783, 144 S.E.2d 156. In that case a piece of sponge had been left in the wound during a surgical operation but its presence in the body did not come to light until 10 years later. The Court rejected the objection of limitation and observed:
“It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the hysterectomy.”
Again, the Court observed:
“We believe that the ‘discovery rule’ as stated and applied in cases cited above represents a distinct and marked trend in recent decisions of appellate courts throughout the nation.”
In Idaho, the Discovery Rule was invoked in Billings v. Sisters of Mercy of Idaho, 86 Idaho 485, 389 P.2d 224. The facts of that case were that the plaintiff underwent a surgical operation in 1946. A sponge was left in the wound when the incision was closed. The same was discovered in the patient’s body in 1961. During the intervening period the patient sustained considerable suffering, during which she consulted various physicians. After reviewing numerous authorities at great length, the Court cast aside the earlier doctrine, adopted the Discovery Rule and observed:
“In reality, the ‘general rule’ has little to recommend it. It is neither the position of a majority of the jurisdictions nor is it firmly based on considerations of reason or justice. We will, therefore, adhere to the following rule: where a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, and consequently of his right of action for malpractice, the cause of action does not accrue until the patient learns of, or in the exercise of reasonable care and diligence should have learned of the presence of such foreign object in his body.”
The facts in Quinton v. United States, 304 F.2d 234 were that the wife of the plaintiff was given blood transfusion in a Government hospital in 1956. In June, 1959, the plaintiff and his wife during the latter’s pregnancy discovered that wrong type of blood was given to her in 1956 and as a result she gave birth to a stillborn child. The Government sought dismissal of the action for damages on the ground of limitation. The Court of Appeals opined that when a claim accrues under the Federal Tort Claims Act, it is governed by Federal law and not by local State law. The Court then held that the period of limitation does not begin to run until the claimant discovers, or in the exercise of reasonable diligence should have discovered the act constituting the alleged negligence.
In Josephine Flanagan v. Mount Eden General Hospital LEXSEE 24 N.Y. 2d 427, the application of the rule of Discovery was considered in the background of fact that during the course of operation done on 14.7.1958, surgical clamps were inserted in the plaintiff’s body. In 1966, the plaintiff consulted a doctor because she experienced severe pain in the region of her abdomen. The doctor told her that surgical clamps were discovered by Xray analysis. Thereafter, another operation was performed to remove the clamps. The defendants sought dismissal of the complaint on the ground that the same was barred by time. The Court referred to the Discovery Rule and observed:
“The so-called discovery rule employed in foreign object medical malpractice cases is in compatible harmony with the purpose for which Statutes of Limitation were enacted and strikes a fair balance in the field of medical malpractice. The unsoundness of the traditional rule, as applied in the case where an object is discovered in the plaintiff’s body, is patent. “It simply places an undue strain upon common sense, reality, logic and simple justice to say that a cause of action had ‘accrued’ to the plaintiff until the X-ray examination disclosed a foreign object within her abdomen and until she had reasonable basis for believing or reasonable means of ascertaining that the foreign object was within her abdomen as a consequence of the negligent performance of the operation.”
In the case before us, the danger of belated, false or frivolous claims is eliminated. In addition, plaintiff’s claim does not raise questions as to credibility nor does it rest on professional diagnostic judgment or discretion. It rests solely on the presence of a foreign object within her abdomen. The policy of insulating defendants from the burden of defending stale claims brought by a party who, with reasonable diligence, could have instituted the action more expeditiously is not a convincing justification for the harsh consequences resulting from applying the same concept of accrual in foreign object cases as is applied in medical treatment cases. A clamp, though immersed within the patient’s body and undiscovered for a long period of time, retains its identity so that a defendant’s ability to defend a “stale” claim is not unduly impaired.
Therefore, where a foreign object has negligently been left in the patient’s body, the Statute of Limitations will not begin to run until the patient could have reasonably discovered the malpractice.”
The proposition laid down in Flaganan’s case was reiterated in John D. Adams and Jeanette S. Adams v. New Rochelle Hospital Medical Center, 919 F.Supp.711.
No comments:
Post a Comment