V N Shrikhande v. Anita Sena Fernandes

Citation: (2010) INSC 883. 

Facts

• In this cases Anita Sena, a nurse by profession underwent a stone removal surgery. 
• Anita Sena continued experiencing pain and a gauge was in her abdomen for 9 years.
• This required a second surgery, and sufferance for many years – therefore, charges for negligence and compensation of Rs.50 lakhs was demanded by the petitioner.
• This consumer case is decided by the Supreme Court of India on appeal from the orders of the National Consumer Disputes Redressal Commission. 

Issue 

Whether a petitioner can still approach the court for a deficiency in service after nine years and would it be barred by limitation?

Principles applied by the court

When can a court accept the consumer case – The court lists that the matter must satisfy certain essentials. The petitioner should fall within the definition of ‘consumer’ as defined in the act and there must be a ‘defect’ or ‘deficiency in service’, and the complaint should have been filed within the prescribed period of limitation, only then it can direct that the complaint may be proceeded with.

The Discovery Rule of limitation – Limitation is a legal concept that puts a restriction on one’s ability to approach the court after a period of delay. This has been introduced to keep a check on frivolous cases, and act as a disincentive for people have not been mindful of enforcing their rights. It also insulates defendants from defending very old claims. In medical cases, the court states the regular limitation period under the act must not apply. It refers to an American case, where a surgical sponge left behind in a patient’s body was discovered after ten long and painful years. It held that where a foreign object has negligently been left in the patient’s body, the limitation period will not begin to run until the patient could have reasonably discovered the malpractice.

Decision

The court rejected the case on limitation and evidentiary grounds. The Court while highlighting the Discovery Rule categorically says that it is not applicable in the present case due to the reason that she should have consulted the doctor after the surgery if she was experiencing pain and being a nurse she should been more cautious about it. The court further held that she cannot claim the compensation after a period of 9 years and the complaint was dismissed.

Analysis

Since the petitioner was a nurse working in a hospital, it was reasonably expected of her to have contacted the appellant and apprised him about her pain and agony and sought his advice. Neither did the petitioner contact her operating surgeon, nor any other doctor of the hospital she was employed in, in these nine years. During the discovery of gauze in her abdomen, the operating surgeon would have taken appropriate action for extracting the same without requiring the respondent to pay for it. Any person of ordinary prudence would have consulted the concerned surgeon or any other competent doctor and sought his advice but the petitioner-nurse did nothing except taking some pain killers. Thus, her long silence militates against the claim for compensation and hence, the complaint was dismissed.