Continuing Cause of Action

Health Care Comments Off

6. Section 24-A of the Consumer Protection Act reads as under : – 7. This reveals, therefore, that the complaint could be filed within a period of 2 years from the date when the cause of action had accrued. This period could also be extended by the Court by recording reasons.

Judgments
1. 8. In the present case, the respondent was operated by the petitioner on 1.11.2008. Inspite of that, the respondent had pain and suffering for which he went to the PGI on 21.1.2010 and he was operated in the PGI on 10.2.2010. Since the pain and suffering of the respondent continued after being operated by the petitioner on 1.11.2008, therefore, the respondent had continuous cause of action. Moreover, the alleged medical negligence of the petitioner was more revealed when the respondent needed another operation which was got conducted in the PGI on 10.2.2010. (Dr.(Major) Rajesh Gupta vs Kashmiri Lal on 12 July, 2011; STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.)

2. Hon’ble Supreme Court in the case of V.N. Shrikhande, has submitted that in a case of medical negligence no strait jacket formula can be applied as to when the cause of action arose. If the negligence is latent, then the cause of action occurs when it comes to the knowledge of the patient. (V.N. Shrikhande (Dr.) v. Anita Sena Fernandese (2011 CTJ 1 (SC) (CP)).

3. ” Moreover, this is the case of medical negligence and the cause of action remains continuous till the patient or the complainant comes to know about the real injury.” ( CONSUMER CASE NO. NCDRC 104 OF 2002)

4. I (2006) CPJ 16 (NC) (Dr. Shyam Kumar Vs. Ramesbhai Harmanbhai Kachhiya) wherein it has been held that the cause of action arose only when the respondent actually came to know about the failure of the operation.

5. 2012 (1) CPR 199 (NC) (Jai Prakash Gupta Vs. Dr. Devendra Lal Chandani) wherein it has been held that medical negligence may provide continuous causeof action.

In the instant case it is the allegation that even after the THR was done by the OP No.1 the sufferings of the patient continued and ultimately on getting the opinion of Dr. Sen Chaudhuri the complainant came to know that the THR was wrongly done by OP No.1. In view of the aforesaid decision and in view of the facts and circumstances of the case, we are of the considered view that the cause of action is continuing one and petition of complaint cannot be said to be barred by limitation.
(“State Consumer Disputes Redressal Commission: Smt. Sheuli Das vs Dr. Kanchan Bhattacharyya on 29 October, 2013)

Continuing Cause of Action