AI Structured Summary
Not yet generated for this judgment
Judgment
The alleged event of medical negligence is of 1999, we are in 2019.
The AR of the appellant - complainant and the learned counsels for respondents no. 1 & 2 - opposite parties were heard. The material on record was perused.
This is a case of alleged medical negligence wherein it is alleged that forceps were negligently left in the abdomen of the complainant during surgery.
The complainant has filed the following chronology of events and litigation:
04.08.1999 - The appellant gets admitted in serious condition.
An (Erect) of the appellant was taken on the advice of the O.P. which showed a forceps in the abdomen. The X-ray film was shown to the opposite party but he did not return it. The opposite party has admitted on page No. 37 of the written statement that the X-ray film taken on his advice dated 04.08.1999 showed not a forceps in the abdomen but it showed intestinal obstruction (multiple fluid level and distension of the small bowel).
05.08.1999: As the opposite party secreted and did not return the aforesaid X-ray film 04.08.1999: dated 04.08.1999 showing a forceps in the abdomen and as such two more X-ray films were taken on 05.08.1999 prior to the operation dated 05.08.1999 but without opposite party knowing it at X-ray Research and Institute of Dr. J. P. Sinha of Rajendra nagar Patna. These two X-ray films also show the shadow of a forceps in the abdomen.
05.08.1999: The appellant was operated by the O.P. but without written permission. Sri Bal Krishna Prasad, the O.P. no. 2 has admitted before this Hon'ble Commission that records were stolen.
05.08.1999 to 19.08.1999: the appellant remained hospitalised under the care of the respondents.
19.08.1999 to 03.09.1999: The appellant remained hospitalised at I.G.I.M.S- Patna.
15.09.1999 to 07.11.1999: The appellant remained hospitalised at the clinic of Dr. Rajeshwar Thakur where three operations were performed in which 5".10 cm and 2 ft of his gangrenous intestine were removed.
Thus the appellant remained hospitalised for total 132 days.
23.09.1999: The State Commission dismissed complaint case.
02.04.2009: The Hon'ble National - Commission remanded the Complaint case to state Commission.
08.08.2014: Dr. V. R. Sinha declared guilty of negligently leaving a forceps in the abdomen of the appellant by the Medical Council of India and his licence suspended for three months.
18.09.2014: Dr. V. R. Sinha obtains stay order of the Patna High Court.
08.04.2015: Complaint case dismissed for non-prosecution.
28.03.2018: The stay orders ends with the order of Hon'ble Supreme Court.
30.03.2018: Appellant prays to MCI to re-notify the suspension of Dr. V.R. Sinha.
16.08.2018: Appellant moves the Information Commission as 2nd Appeal but without any result so far.
The Act 1986 is to provide speedy and simple redressal to consumer disputes (Statement of Objects and Reasons). In this case, however, we note that after being remanded back by the National Commission in 2009, the complaint has till now not been adjudicated on merit in the forum of original jurisdiction.
We are of the considered view that this case of alleged medical negligence should be speedily decided on merit as per the law, with the affording of opportunity to both sides to adduce their evidence and to make their arguments.
The present appeal has been filed apropos the State Commission's Orders dated 08.04.2015 and 17.05.2018 whereby the case was dismissed for non prosecution and the miscellaneous application filed thereagainst was dismissed.
This first appeal has also been filed with delay.
The AR of the complainant submits that his advocate did not apprise him of the Order dated 08.04.2015 whereby his complaint before the State Commission was dismissed for lack of prosecution. Then he was misled, largely due to ignorance and lack of wherewithal, to file a miscellaneous application against the order of dismissal for lack of prosecution. All this caused delay in filing the instant first appeal also. He has been made to litigate on one issue or the other since he first instituted the complaint in 1999, but decision on merit is still eluding him.
Having regard to the facts and specificities of the case, and for the reasons stated in the memo of appeal, and in the overall interest of justice, the delay in filing this first appeal is condoned and the Order dated 08.04.2015 of the State Commission whereby the case was dismissed for lack of prosecution is set aside. The case is remanded back to the State Commission with the direction that it may be speedily decided on merit as per the law with the affording of opportunity to both the sides to adduce their evidence and to make their arguments. Both sides are sternly advice to be present before the State Commission in its hearing and to conduct their respective cases professionally.
We may mention that we have refrained from commenting on the merits of the case as we do not want to in any manner colour the vision of the State Commission, which has to adjudicate this case on merit.
Both sides may appear before the State Commission on 28.05.2019.