HON’BLE MR. TARAPADA GANGOPADHYAY, MEMBER
This Complaint u/s 17 (1)(a)(i) of the Consumer Protection Act, 1986 is directed by the Complainant, for the death of his father resulted from administration of wrong medicine and resultant medical negligence as well on behalf of the OP Nos. 3 & 4, with prayer for awarding compensation of Rs. 48,80,000/- including cost of treatment and litigation cost being Rs. 1,00,000/-.
The brief facts of the case, as emanating from the materials on records, are that the father of the Complainant with complaint of “Right Cerebellar SOL with hydrocephalus” got admitted on 7.5.2007 to Neuro Science Division of Peerless Hospital & B.K.Roy Research Centre, Kolkata where “Right ventriculo-peritoneal shunt with median pressure Chhabra shunt was done under GA on 8.5.2007. Intra-operatively, CSF was clear ,,,,,, Right suboccipital craniectomy and removal of SOL was done on 12.05.07 under GA. Intra-operatively, the tumor was seen on the surface as a grayish colored lesion. Subtotal excision was done…..” . After such operation, biopsy of one specimen by the said Research Centre reported “ORGANISING HAEMATOMA” and the biopsy of another specimen as done by National Institute of Mental Health & Neuro Sciences (NIMHANS) reported “Non-Hodgkin’s lymphoma” but not “glioblastoma” as evident from the reports concerned available on records. After such report the patient concerned was taken on 12.6.2007 to Dr. S.H.Advani of Jaslok Hospital, Department of Medical & Pediatric Oncology, Mumbai, where after diagnosis of “Cerebral GBM”, as revealed from the concerned Clinical History of the said Research Centre, medicines and radiation therapy were advised for treating “gliobastoma”, and verbally referred the patient concerned to Dr. Ashis Mukherjee, being the OP No. 3, of Netaji Subhash Chandra Bose Cancer Research Institute, being the OP No. 4, for follow-up. After such reference, the OP No. 3 advised for six cycles of “CHOP Chemotherapy”, after five cycles of which the condition of the patient concerned deteriorated. After such deterioration of the condition of the patient concerned on 8.10.2007 the patient concerned was taken to Subodh Mitra Cancer Hospital & Research Centre, Kolkata where the patient concerned expired on 7.11.2007 due to “CARDIO-RESPIRATORY FAILURE IN A CASE OF CEREBELLAR NON-HODGKINS LYMPHOMA WITH RIGHT SIDED HEMIPARESIS” as evident from the Certificate of Death dated 7.11.2007 of the said Research Centre. It is alleged in the Petition of Complaint that the OP No. 3 did not adopt standard practice of treating Non-Hodgkin’s Lymphoma in brain and the OP No. 3 applied “CHOP” which no oncologist of ordinary skill would have applied and that such lack of reasonable care and caution on behalf of the OP No. 3 resulted in the expiry of the father of the Complainant. With the aforesaid factual background the Complainant has moved the instant Complaint Case before this Commission.
The Ld. Advocate for the Complainant, in the very beginning, submits that the instant case is not barred by limitation as the 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 this connection, the Ld. Advocate refers to a decision of the Hon’ble Supreme Court in V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes, reported in (2011) 1 Supreme Court Cases 53 at Paragraph-27.
The Ld. Advocate also submits that the OP No. 3-Doctor having no specialized medical degree for cancer treatment treated the cancer patient in question, which indicates deficiency in service on behalf of the OP No. 3.
The Ld. Advocate further submits that the OP No. 3 applied “CHOP” chemotherapy, which has ‘high toxicity’, although as per standard treatment protocol of Non-Hodgkin’s Lymphoma in brain CHOP or similar regimens have no role in the treatment of the said disease.
The Ld. Advocate also submits that the observation in the Opinion No. C/39-2013 dated NIL of West Bengal Medical Council, as available on records, to the effect that CHOP regimen treatment of the said patient is not recommended by any standard textbook or any institution and that by this act the doctor concerned was found of infamous conduct by recommending non-standard treatment to the patient, proves the deficiency in proper and reasonable service and resultant medical negligence on behalf of the OP No. 3-Doctor.
The Ld. Advocate continues that the OP No. 4-Research Institute is also vicariously liable for lapses of the OP No. 3-Doctor who is engaged with it for proper and reasonable care of treatment.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Complaint Case should be allowed and the reliefs prayed for be awarded.
On the other hand, the Ld. Advocates for the OP No. 3 and OP No. 4 submit that it is evident from the averment in the Petition of Complaint that the patient concerned died on 7.11.2007 for wrong treatment of the OP No. 3-Doctor and hence, the cause of action, which means the event for which the suit is brought, occurred on 7.11.2007, but the instant Complaint Case has been filed on 20.8.2014, which clearly indicates that the instant Complaint Case is barred by limitation as provided u/s 24A (1) of the Consumer Protection Act, 1986.
The Ld. Advocates continue that the ‘Discovery Rule’, as the Complainant has taken recourse to, cannot be invoked for recording a finding that cause of action occurred in February, 2013 as the Complainant has averred in the Petition of Complaint, and hence, the instant Complaint Case is barred by limitation. In this context, the Ld. Advocate refers to a decision under Consumer Protection Act, 1986 of the Hon’ble Supreme Court in V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes, reported in AIR 2011 Supreme Court 212.
The Ld. Advocates also submit that the OP No. 3-Doctor treated the patient concerned in the manner as the other medical professional would have treated and thus there is no negligence on behalf of the OP No. 3 and no vicarious liability on behalf of the OP No. 4-Research Centre.
The Ld. Advocates conclude that in view of the above submission the Complaint Case in question should be dismissed as the same is barred by limitation as specified u/s 24A (1) of the Consumer Protection Act, 1986.
Heard both the sides, considered their respective submission and perused the materials on records.
Before adverting to the other issues involved in the instant Complaint Case it is necessary to decide on the point of law as to whether or not the present Complaint Case is barred by limitation as prescribed u/s 24A(1) of the Consumer Protection Act, 1986.
The averment in the Petition of Complaint reveals that the patient concerned suffered pain and agony for application of wrong medicine, i.e. CHOP in Chemotherapy, and ultimately died on 7.11.2007 for administration of wrong chemotherapy. Such averment in the Petition of Complaint reveals that the cause of action, which means the action which gives occasion for and form the foundation of the suit, as held by the Hon’ble Supreme Court in State Bank of India Vs. B.B.Agricultural Industries, reported in 2009 (2) SC 1, arose within 7.11.2007 and finally on 7.11.2007. It is well-settled by the Hon’ble Supreme Court in V.N.Shrikhande (Dr.) Vs. Anita Sena Fernandes (Supra) 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 acts constituting the alleged negligence.
24A. Limitation period-
- The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
In a decision of State Bank of India Vs. B.B.Agricultural Industries (Supra) the Hon’ble Apex Court held “It would be seen from the aforesaid provision that it is peremptory in nature and requires Consumer Fora to see before it admits the Complaint that it has been filed within two years from the date of accrual of cause of action……the expression ‘shall not admit a complaint’ occurring in Section 24A(1) is a sort of Legislative command to the Consumer Fora to examine on its own whether the complaint has been filed within the period of limitation prescribed thereunder …”.
It is well-settled that Court cannot derive jurisdiction apart from the Statute. Law does not permit any court to usurp jurisdiction on any ground whatsoever.
It is also well-settled that point of law, as in the case on hand, can be raised and decided at any stage of proceeding including the execution stage. In this context, the decision of the Hon’ble National Commission in Raj Kumar Vs. M/s. M.G.Motors, reported in 2012 (3) CPR 352 (NC) is also relevant.
The foregoing facts, evidence on records, the provisions of Section 24A of the Consumer Protection Act, 1986 and the decision of the Hon’ble Supreme Court, as referred to above, lead to the conclusion that the instant Complaint Case is barred by limitation and hence, the instant Complaint Case is dismissed.
We refrain ourselves from expressing our opinion on other issues involved in the instant Complaint Case.
The instant Complaint Case is disposed of in the aforesaid manner.
