Res judicata: NCDRC junks complaint filed 15 years after Operation, absolves doctors of medical negligence

The commission noted that for the case, the patient had approached various fora including, State Human Rights commission in 2015 which was dismissed, a case of medical malpractice with the Maharashtra Medical council which was dismissed, an appeal against MMC order with the MCI which was dismissed, an SLP with the supreme court which was dismissed, and consumer cases with Maharashtra state commission as well as previously with NCDRC all of which were dismised

New Delhi: Noting the principals of limitation and Res judicata, National Consumer Disputes Redressal Commission (NCDRC) recently dismissed a petition filed by a 41-year-old patient who alleged medical negligence against doctors of Wadia Hospital 15 years after the operation had taken place

Res judicata means that No Court shall try any suit or issue in which the matter directly or substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.

The case relates to a patient born with congenital malformation viz Spina Bifida and Meningo-myelocele (MMC). During the year 1983 to 1988, he took treatment from various hospitals in Mumbai. At the age of about 25 years, for getting treatment to reduce his disability, in the month of September 2002 he visited the Wadia hospital. After certain check-ups and clinical tests, the patient was informed by the doctor that Bladder Augmentation with appendicovesicostomy operation would be beneficial to get relief from urinary incontinence problem.

Accordingly, the patient got admitted in the hospital and the operation was conducted under local epidural anaesthesia as well as under general anaesthesia. However, following the surgery, the patient felt numbness in his both the legs and thereafter developed loss of sensation below the knee in his both the legs. He was unable to move legs at all.

On repeated inquiry, the patient came to know that he was examined by the child neurologist, orthopeadician and anaesthetist. Moreover, only Bladder Augmentation Operation was performed and the remaining part of the surgery i.e. appendicovesicostomy was not done at all. He alleged that the doctor allegedly told him that the bladder was deep-seated, therefore he could not complete the said operation and left the operation midway. Subsequently, the patient was left with lifelong use/insertion of the suprapubic catheter to drain the urine in the bag.

Thereafter, in May 2016 patient underwent another operation for removal of large bladder stones at Kohinoor Hospital by Dr Ansari. This was where he came to know about the alleged medical negligence(that occurred in 2002) after getting opinions from Dr Ansari, Dr Patil and Dr Mirajkar.

Consequently, the patient moved various forums alleging medical negligence and omission on the part of the doctors and the hospital. He raised four main issues including loss of sensation below knee, right leg amputation, filariasis of the left leg below knee, a huge urinary bladder stone of the size 5.5. cm and 3.5 cm was operated in 2016 before the fora.

In his complaint, the patient alleged;

• The MRI of the spine prior to surgery was must to avoid damage while giving epidural analgesia/anaesthesia in spina bifida cases as per the literature. However, no MRI or EMG/MCV was performed in his case;


• Negligence in administering epidural anaesthesia in a diagnoses case of spina bifida that allegedly lead to the loss of sensation below the knee in both legs;


• The doctors did not screen the spine to assess the condition of the spine nor performed the pre-operative sonography.


• The promised surgery was not performed, neither was the patient apprised about the type of anaesthesia and the limited operation that he would perform before obtaining the consent.


• It was further alleged that the hospital was at fault in providing permission for the surgery when investigating facilities for adults was not available. Thus, it has vicarious liability.

However, despite approaching various fora, the patient failed to establish medical negligence either against the doctor or the hospital as his petition was dismissed every time.

In the instant case moved with the NCDRC, the hospital and the doctor denied all the allegations. The respondents stated that the present suffering of the patient was neither due to the initial operation performed in the year 2002 by the doctors nor due to any negligence of the anesthetist. They relied upon the doctrine of waiver, the doctrine of estoppels and submitted that the discovery rule is not applicable in the instant case.

The commission noted that for the case, the patient had approached various fora including, State Human Rights commission in 2015 which was dismissed, a case of medical malpractice with the Maharashtra Medical council which was dismissed, an appeal against MMC order with the MCI which was dismissed, an SLP with the supreme court which was dismissed, and consumer cases with Maharashtra state commission as well as previously with NCDRC all of which were dismised

"Thus, on bare perusal of above stated history, it is clear that complainant approached various fora but failed to establish medical negligence either against the doctor or the hospital," stated the forum.

The forum noted that this time the complainant had once again filed complaint against the same doctors, making the anesthetist the first party. The main grouse of complainant that during his first surgery (2002), he was not aware of anesthetist negligence, therefore he has not made the anesthetist as an opposite party in the complaint filed before the State Commission in year 2005

Upon perusal of the entire medical record including informed consent, the orders passed by various fora and the medical literature, the NCDRC observed that as per the medical record, the clinical history revealed that the patient prior to the surgery had a loss of sensation in both legs (up to ankle).

Moreover, it noted that the effects of Epidural analgesia are transient and do not last for more than 24-48 hours, thus it cannot last for 14 years after the procedure. The patient had developed trophic ulcers and got infected which necessitated for amputation of the right leg. Therefore, we do not find any relation to the anaesthesia given 14 years ago and the present amputation of the patient’s right leg. Similarly, urinary bladder stones are in no way related to anaesthesia given 14 years ago, the court added.

The commission also examined all three opinions from Dr Aftab Ansari, Dr Ajay Patil and Dr M.R. Mirajkar and found no relevance to the expert opinion on behalf of the complainant and was not convinced.

"The medical history is evident that the patient was born with an anomaly - spina bifida with MMC, which is a progressive disorder with bladder bowel involvement and neurological deficits in lower limbs. The patient was already suffering from the loss of sensation below the ankle prior to 2002 and also developed non-healing trophic ulcers in the right foot. In the year 2013 amputation of his right leg performed has nothing to do with anaesthesia given in 2002, " the court noted.

Subsequently, the court dismissed the plea while noting;

"We do not find any wrong about the surgery performed in the hospital....The doctors had planned to perform an Augmentation and appendicovesicostomy (Mitrofanoff surgery) using the appendix - but the location of the appendix and pelvis was such that the appendicovesicostomy could not be performed at that time. It would be hazardous if undertaken and could have led to grave and life-threatening complications, thus appendicovesicostomy was deferred... In the instant case, the patient was asked to follow up further to plan and prepare for further additional surgeries to get rid of the SP catheter if he was finding it cumbersome. But he chose to not follow up with the concerned doctors after the first postoperative visit. There was no negligence on the part of anaesthetist either during the administration of anaesthesia or post-operative follow-up. Because of the patient’s inherent spinal deformity (MMC) the sensory loss in the leg and the tropic ulcers were aggravated. It led to the amputation of the right leg. Filarisis is a parasitic infestation which by any stretch of imagination related with the treatment given by OPs in 2002. We do not think as it was the case of res ipsa loquiter . Thus, in totality we do not agree that the present suffering of the patient has any relation with the operation took place in year 2002."

The court also noted that the various fora dismissing the complaint of the complaint

All the above authorities dismissed the complaint. None held the OPs liable for negligence or deficiency in their services. Complainant once again now wants to agitate the matter before this commission on same cause of action. Based on the principles laid down by the doctrine of ‘ Res Judicata’ this complaint deserves to be dismissed as it already attained the finality. Thus as per law the relevant provisions of Order 2 Rule 2, CPC are squarely applicable in the instant case.

In its verdict, the court further added;

"Base on forgoing discussion, we are of the view that the complainant filed this complaint on the same cause of action and after a decade. It is will be the travesty of justice to entertain such complaint again after 14 years which clearly indicates the ill intentions of the complainant to harass the medical professionals ad infinitum. We feel it is the duty of the tribunals or courts to protect the bonafide doctors dragged in such frivolous litigation. Though we, taking note of Section 26 of the Act,1986 think that some cost would have been imposed upon the complainant, but we sympathetically are deferring it on considering the present health status of the complainant. We find no merit in the instant consumer complaint and as well it’s ‘res judicata’ and barred by limitation."