Times of India
22 July 2010
By Jehangir b gai

Medical Negligence: Heir can Continue Fight
Subject: Medical negligence –Can the legal heirs of a deceased consumer continue a litigation on the death of the original complainant? Interpretation of law changes after amendment to the Consumer Protection Act.

Backdrop: In most cases, in the event of death of a party to a complaint–be it the complainant or the opponent–his legal heirs can be brought on record. But the law is tricky when it comes to a complaint for compensation filed by a victim of medical negligence.

In case a person dies to due medical negligence, his legal heirs are entitled to file a consumer complaint against the doctor and the hospital. The law on this aspect is well settled. But all cases of medical negligence do not result in death. There are times when the victim of medical negligence survives, but undergoes pain and agony due to negligence for which the patient wants to claim compensation. In such cases, the victim files a consumer complaint. The confusion arises as to what happens if the victim dies later on during the pendency of the complaint, and the alleged medical negligence has no bearing on the cause of death. In such cases, can the legal heirs of the complainant be brought on record?

In law, the Latin phrase “actio personalis moritur cum persona” means a legal action of claiming compensation for a personal injury comes to an end on the death of the person. Hence, until now, all consumer fora, including the National Commission, had consistently held that the right to sue under the law of torts (i.e. for compensation) is not an actionable claim or an inheritable right and so cannot be transferred. Therefore, legal heirs of a complainant have no right to continue with the litigation when the alleged medical negligence did not result in death.

The recent judgment of the National Commission has now changed this legal position. Case Study:

Jagdish Bharti, a journalist, had an eye problem, for which he consulted Dr Neeraj Awasthi in September 1992. He was given laser treatment, which resulted in his left eye getting totally burnt and also damage to his right eye. Other doctors were consulted who opined that he had lost his eyesight due to Dr Awasthi’s negligence.

Bharti filed a consumer complaint before the Agra District Forum in May 1995 which was dismissed. He appealed to the Uttar Pradesh State Commission in 1997, and during the pendency of the appeal, he expired in 2003. The State Commission allowed his legal heirs to be brought on record. It found the doctor guilty of negligence and directed him to pay Rs 2 lakh as compensation.

Dr Awasthi challenged this order before the National Commission, and relied on the earlier judgments that it was not permissible to bring the Bharti’s legal heirs on record and that the complaint would abate. The National Commission refused to go by these precedents in view of the amendment to the Consumer Protection Act, where Section 2 (i)(b)(v) defines complainant to include the legal heirs or representatives of a deceased consumer.

Also, such legal heirs would be considered to be beneficiaries in case a complaint succeeds. With this observation, it was held that the right to sue did not extinguish on Bharti’s death, and that his legal heirs had a right to proceed with the complaint for claiming compensation.The doctor’s petition was accordingly dismissed with further costs of Rs 10,000 to be paid by him to the Bharti’s legal heirs, in addition to the amount of Rs 2 lakh awarded by the State Commission.

[Judgment of the National Commission dated 2.2.2010 by the Bench of Justice B.N.P. Singh and Mr. S.K. Naik in Revision Petition No. 625 of 2006]

Impact: The inherent delays in our legal system and the attitude of many consumer fora to avoid taking up a medical case for hearing resulted in complaints of medical negligence abating on the death of the complainant, resulting in denial of justice. Now, the National Commission’s interpretation in the light of the amended Consumer Protection Act will hopefully ensure that justice, though delayed, may not be altogether denied.