New Delhi, May 4: In a significant verdict which may have wider ramifications, the Supreme Court on Monday held that under the law, the legal heir of a doctor, who is facing any medical negligence case, can be proceeded against after the doctor’s death.
A bench of Justices JK Maheshwari and AS Chandurkar answered a question of law in a more than three-decade-old case, where a doctor, now deceased, had operated on the wife of the complainant (also now deceased) after which she lost her vision.
The top court, which termed the matter as an “exceptional case”, where it has to dredge out older statutory provisions to address the issue, said it was only answering the question on interpretation of the applicable law and not expounding on the normative requirement as to whether the policy adopted by the law applicable is correct or there is a need to change.
The bench said in the context of Rule 4 of Order XXII of CPC, one has to understand and see whether the right to sue against such alleged medically negligent doctor survives or not upon his death.
It said the ‘right to sue’ means the right to seek relief through legal proceedings and such proceedings, in a general sense, are instituted against the opposite party/defendant(s), who possess a corresponding right to defend, as opposed to the claimant’s right to prosecute.
“The right to defend is intrinsically linked to, and arises from, the right to prosecute, and vice versa. Therefore, for the continuation of proceedings, it is essential that both rights co-exist.
“Nonetheless, in view of the preceding discussion and the statutory framework provided in the 1986 Consumer Protection Act as well as the 2019 Consumer Protection Act, we conclude that upon the death of the alleged medically negligent doctor, his/her legal heirs can be impleaded and brought on record.
“Consequently, the extent of liability will be determined based on the pleadings and evidence presented. The question is answered accordingly,” it held.
The top court, which examined several laws, statutes and English law provisions, said the legal question assumes importance as the implication of the holdings in this case would also apply to numerous types of tortious claims, including personal injuries that do not amount to death, including motor vehicle accidents and other industrial accidents.
“In this context, we only state the principle of law as applicable, without considering any additional policy consideration which may be relevant to be considered elsewhere under different enactments,” it said, adding that in posterity, this case may be a lesson to the students and stakeholders to have a strong emphasis on legal history and jurisprudence.
The top court said the law seems to have been lost to the pages of history due to less tort actions being litigated in India.
“We may note that this court herein is only answering the question on interpretation of the applicable law and not expounding on the normative requirement as to whether the policy adopted by the applicable law is correct or there is a need to change. English law appears to have gone further to preserve tortious liabilities of the deceased defendant.
The bench said that even several judgments and the Haryana Law Commission have also taken a view to recommend amendments.
“We feel that it is appropriate to engage policy experts to debate the need and necessity of expanding the scope of Section 306 of the 1925 Indian Succession Act which deals with demands and rights of action of or against deceased survivors to and against the executor or administrator.
“The policy consideration is best left to the Law Commission to see whether there is a need to have a re-look at these provisions for future,” it said.
The complainant initially moved to the district consumer forum, Munger in Bihar, saying that he consulted Dr P B Lall (now deceased) at his private clinic on February 10, 1990, after his wife complained of severe pain in her right eye.
On examination, Dr Lall advised immediate operation, which was done on February 11, 1990, but the pain reoccurred on March 16, 1990, and she was taken back to Dr Lall.
Despite further treatment, there was no relief, and the complainant consulted other doctors at Bhagalpur and Aligarh. As there was no respite, he consulted a doctor at Shankar Netralaya, Madras.
“As alleged, he informed that his wife had already lost vision in the right eye due to wrong treatment and operation, which can further affect the vision in her left eye.
“On the advice of surgery of his wife’s left eye, she was operated on May 5, 1994. Consequently, the complainant had to visit Madras multiple times, and the treatment of his wife with a local doctor continued till August 5, 1997,” the top court noted.
He filed a consumer complaint under the Consumer Protection Act, 1986, on August 13, 1997, against Dr Lall for alleged deficiency in service, claiming compensation of Rs 4.5 lakh for his expenses and agony.
During the pendency of the complaint in NCDRC, Dr Lall passed away on August 4, 2009, and the original complainant also died on January 16, 2014.
