Medical Negligence: Lex Assisto

Discovery Rule in Medical Negligence: Adaptation of the Principle from United States to India

Discovery Rule in Medical Negligence: Adaptation of the Principle from United States to India by Priya Chaudhary
Medical Negligence and its relevance to the Consumer Protection Act, 1986

Discovery Rule in Medical Negligence shows one of the reason why penalizing recklessness and ineptitude of medical professionals seeking the humble attention of the forefathers of our legal system has been this simple presumption that a person who holds himself out as ready to give medical services is impliedly undertaken of having the requisite skill and knowledge for the profession, to begin with. As far as the duty of care towards the patient is concerned, there are scores of people who die every day in hospitals, sometimes with no hope for survival. Holding surgeons or specialists responsible for each and every failure to save a life and approaching the court for it can be a Herculean task for the courts to handle, which are already strained with a plethora of pending cases to address to. This raises a thought-provoking question as to when a patient or his legal representatives can actually sue the person, whether he is a registered medical practitioner[1] or not.

Whether a person has been negligent in his medical profession or not would be adjudged on the basis of an ordinary competent person exercising ordinary skill in that profession and his awareness as an ordinarily competent practitioner would have of the deficiencies in his knowledge and the limitations on his skill. He must bring to any professional task he undertakes no less expertise, skill, and care than other ordinarily competent members of his profession would bring but need bring no more.[2]

The three-pointers of the rule of Medical Negligence which can be formulated are as follows:

  • that legal or disciplinary grounds for action should be founded on genuine, moral and scientific grounds;
  • that patient could have been treated better, or perhaps his life could have been saved if the real causes of harm were properly identified and appropriately acted upon; and
  • in cases where the incident involves contributory acts from more than one person, the tendency is to blame the last identifiable element in the chain of acts leading to the injury to the patient.

Given the imbalance between the doctor-patient relationship, the sheer expense of bringing an action and denial of legal aid to all but the poorest contributed to limited medical litigation in India. The enactment of the Consumer Protection Act, 1986 has paved the way for some aggrieved patients to file legal cases against doctors and claim compensation. In Indian Medical Association v V.P. Shantha and others, the Hon’ble Supreme Court had held that the services rendered by a medical professional fall within the ambit of ‘services’ under section 2(1)(o) of the Act, thus he cannot evade his liability.

Unfolding layers of Discovery Rule

Generally, every medical negligence case and nearly every other type of lawsuit is subject to a fixed period of time in which a plaintiff is permitted to file his or her lawsuit. In India, this aspect is governed by the Indian Limitation Act, 1963.

Where a foreign object is negligently left in a patient’s body by a surgeon and the patient is in ignorance of the fact, 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. This is the original concept of the discovery rule. The key to the discovery rule is that the patient did not know that he or she had a potential medical negligence case. Only patients who truly did not know of; and could not reasonably have been expected to figure out their health care provider’s medical negligence have the right to use the discovery rule exception to file a medical negligence lawsuit, if the applicable limitation period has passed.

In Pennsylvania, the Discovery Rule was adopted in Ayers v. Morgan’s case. 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 limitations did not begin to run until years later when the presence of the sponge in the patient’s body was discovered.

V.N. Shrikhande v. Anita Sena Fernandes: Application of Discovery rule in the Indian context

The case has been a landmark one in establishing the applicability of the Discovery Rule in India. The respondent was operated by the appellant for stones in her gall bladder. What followed after the surgery was nine years of unexplained abdominal pain, which the respondent tried to get cured through painkillers. When the condition worsened, she had to undergo surgery at Lilavati Hospital after a C.T. scan of her abdomen revealed a non-malignant tumor in her liver. This was after spending a substantial amount and the mental and physical stress her family had to endure. The appellant claimed that at the time of discharge, every patient was given instruction that in case of any problem, he/she should correspond with her telephonically or otherwise but the respondent never apprised him of her problem.

Having failed to elicit a favorable response from the appellant on the issue of compensation, the respondent filed a complaint under Section 17 of the Consumer Protection Act, 1986.

While dismissing the appeal, the court held that 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. On the other hand, if the effect of negligence is latent, then the cause of action will arise on the date when the victim or his representatives did or could have discovered, by the exercise of reasonable diligence the act constituting negligence. The respondent, being an experienced nurse was reasonably expected to have contacted the appellant, or any other qualified doctor for that matter to seek advice on her agony.  The principle most frequently relied upon by those courts rejecting the discovery rule is that statutes of limitation were established to protect individuals from long and bothersome waiting periods after which they would encounter the difficulty of defending time-barred claims.

[1]A person who has been registered in a State Medical Council after finishing the undergraduate medical course in a college recognized by a State Government and approved by the Indian Medical Council.


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