State Consumer Disputes Redressal Commission
Swaran Bedi vs All India Institute Of Medical Sciences on 25 May, 2007
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 25.05.2007 Complaint Case No. C-191/1997 Smt. Swaran Bedi .. Complainant M-93, Saket, New Delhi. Versus All India Institute of Medical Sciences, .. Opposite Party Ansari Nagar, New Delhi 110 023. CORAM : Justice J.D. Kapoor - President Ms. Rumnita Mittal - Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
JUSTICE J.D. KAPOOR, PRESIDENT
1. The complainant has alleged negligence and deficiency in service on the part of OP in her treatment and claimed compensation of Rs.5,45,490/- on account of treatment expenses in another hospital and mental agony and harassment.
2. Facts in brief are that the complainant had come from Chandigarh. On 30th May, 1996 while the complainant and her other daughter Ms. Ginni Bedi were sleeping they were attacked by about six to seven intruders. They were attacked on their head with axes, blunt rods and chair-arm etc. The complainant and her daughters were shifted to OP-AIIMS for the treatment and were admitted in casualty ward. Both of them were unconscious and were profusely bleeding from head. The wounds were cleaned and stitched. The complainant and her daughter had developed blood clots in the brain due to head injury. The OP did not keep the complainant under proper observation and causally attended to the injuries of the complainant. The daughter of the complainant was operated upon for removing the blood clots. Complainant was discharged for the reason that the bed was not available. The complainant on her way back from Hospital became unconscious and her relatives immediately shifted her to Aashlok Hospital where she was attended by Dr. V.S. Madan and Dr. Raman Dhawan. She was immediately advised head surgery and she underwent operation and had to incur an expense of Rs.95,490/-. The OP failed to exercise due care in deciding to watch the condition of the complainant and give proper treatment as per medical jurisprudence. The OP had denied the services knowing fully well that the complainant was not in a position even to move about due to grave and deep injuries.
3. OP has resisted the complaint. Its version in brief is that :
The complainant was examined in Emergency Department and on examination, a clean laceration wound of skull was present. However there was no history of loss of consciousness or vomiting. He was treated with conservative manner and procedure and was given necessary injections and suturing of laceration wound. He was also examined by ENT Department when right ear laceration wound was found, which was treated by suturing the laceration. Anti biotic was administered as required. The complainant was also examined by Dental Surgeon who found no loss of consciousness, vomiting or bleeding. On thorough examination by the relevant doctors of the relevant departments at different times, there was no loss of consciousness or vomiting to the patient and no active intervention was required. The patient remained stable throughout the period.
4. Further that it does not charge anything for services rendered by the doctors and research professionals but charges only for disposable/consumable, medicines etc., which cannot be termed as service charges and therefore the complainant is not a consumer.
5. The question whether the charges charged by AIIMS can be deemed as consideration for the actual treatment involving element of medical service i.e. treatment as any free service confining to the treatment part does not fall within service against consideration. In order to bring AIIMS within the net of Consumer Protection Act, 1986 the essential requirement is that it should come within the ambit of service as defined under Section 2 (1) (o) of the Act and definition of Consumer as defined by section 2(1)(d) of the Act. Section 2(1)(o) defines the service as under:-
(o) service means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing insurance, transport, processing supply of electrical or other energy, board or lodging or both, [housing construction], entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
6. Section 2(1)(d) defines the consumer as under:-
(i) Any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration and paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for release or for any commercial purpose; or
(ii)Any person who [hires or avails of] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]
7. A question arose before the Supreme Court for consideration in Indian Medical Association Vs. V.P. Shantha and Ors III (1995) CPJ 1 (SC) whether the services rendered at a Government hospital, health centre, dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of expression service as defined under section 2 (1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Supreme Court laid down the following criteria for determining as to the applicability of provisions of Consumer Protection Act, 1986 vis--vis Government hospitals, health centres, dispensaries as well as private nursing homes.
(1)Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medical and surgical, would all within the ambit of service as defined in Section 2(1) (o) of the Act.
(Emphasis supplied) (2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act.
(3)A contract of personal service has to be distinguished from a contract from personal services. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a contract of personal service.
Such service is service rendered under a contract of personal services and is not covered by exclusionary clause of the definition of service contained in Section 2 (1) (o) of the Act.
(4)The expression contract of personal service in Section 2(1)(o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of service as defined in Section 2(1)(o) of the Act.
(5)Service rendered free of charge by a medical practitioner attached to a hospital/nursing home or a medical officer employed in a hospital/nursing home where such services are rendered free of charge to everybody, would not be service as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6)Service rendered at a non-Government hospital/nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service is outside the purview of the expression service as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(7)Service rendered at a non-Government hospital/nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression service as defined in Section 2(1)(o) of the Act.
(8)Service rendered at a non-government hospital/nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression service as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be service and the recipient a consumer under the Act.
(9)Service rendered at a Government hospital/health centre/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service is outside the purview of the expression service as defined in Section 2(1)(o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(Emphasis supplied) (10) Service rendered at a Government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression service as defined in Section 2(1)(o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be service and the recipient a consumer under the Act.
(Emphasis supplied) (11) Service rendered by a medical practitioner or hospital/nursing cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of service as defined in Section 2(1)(o) of the Act.
(12)Similarly, where as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service under Section 2(1)(o) of the Act.
8. Aforesaid observations show that it is immaterial whether AIIMS has not charged fees of the Doctors who operated upon the deceased but the fact remains that the deceased was treated by the OP/AIIMS against consideration. Once consideration except token charges as registration or administrative fee is received by a Govt. Hospital, health Centre or dispensary from any section of the society, rich or poor such a consideration is towards the service known as medical service and therefore brings the hospital within the embrace of Consumer Protection Act, 1986. To distinguish such charges from the charges of the Doctors or team of Doctors treating or operating the patient is not permissible. Such a distinction may be available in respect of private nursing homes, medical Centres etc. It is the service as a whole which forms component of service envisaged by Section 2 (1) (o) of the Consumer Protection Act and not service in parts i.e. service for consumables, service charges, charges for wards or administrative expenses.
9. So far as the private nursing homes, hospitals and medical practitioners are concerned, there is no dispute that those who receive consideration from the patient for providing administrative service as well as treatment including the private medical practitioner who charges consideration for providing medical treatment are liable to compensate the consumer if they are found guilty for medical negligence.
10. So far as the case of Government hospitals, health centres and dispensaries is concerned, where the doctors do not charge fees nor do they receive consideration for providing treatment in the form of operation or in other form like private practitioners, nursing homes and medical centres, the doctors providing treatment even if found to be guilty for negligence cannot be held liable either individually or jointly or severally. The reason is simple. Doctors at the Government hospitals, dispensaries and health centres are employed on monthly salary basis and not on case to case basis nor do they receive the consideration by way of their fees for operation or for providing any treatment from individual patient. Thus the relationship of a patient qua these Doctors is not that of a consumer and service provider. They provide these services on behalf of the Govt. hospital, health centres and dispensaries and if there is any negligence on their part the consumer/patient is entitled to compensation only from the Govt. hospital or health centre or dispensary and not from the individual Doctor who was guilty for negligence.
Thus for their negligence, their employer alone is liable.
11. Why? Because these doctors attend to large numbers of patients in a day but are paid monthly salary and not as per individual patients charges. On the contrary private medical practitioner charges fees/consideration from individual patient by way of contract of personal service.
12. If we hold the Doctors of Government hospitals, health centres and dispensaries liable for compensation to every patient arising out of their negligence then the Doctor who is receiving salary of Rs. 20,000/-
or Rs. 30,000/- or Rs. 50,000/-has to shell out lakhs of rupees to large number of patients and the Government hospitals, dispensaries and health centres would be left with no doctors and present a deserted look.
13. Doctors of the Government hospitals who receive Rs.20,000/- or Rs. 40,000/- per month as salary to treat or operate upon hundreds of patients and attend to large number of outdoor patients in a single day therefore cannot be held jointly or severally liable, because such a service does not come within the contract of personal service. Such a contract if any is anything but not a contract of personal service and therefore relationship of a patient qua doctors of Government hospitals, dispensaries etc. is not that of a consumer and a provider of medical service. Such a relationship exists between the patient and the Govt. Hospital/Dispensary or Health Centre. Sometimes what a Government doctor gets for giving treatment to hundreds of patients, a private medical practitioner gets many times more for treatment/operation of one patient. Thus both categories of doctors cannot be placed on the same pedestal.
14. Question of ascertaining medical negligence has been cropping up time and again. Guidelines and criteria for ascertaining the medical negligence laid down in Bolams case reported in (1957) 2 AII ER 118, 121 D-F still hold the field. This test, in popular parlance is known as Bolam Test after the name of the petitioner. In short the test is as under:-
[Where you get a situation which involves the use of some special skill or competence then the test as to whether there has been negligence or not is to the test of the man on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the ordinary skilled man exercising and professing to have that special skill. A man need not possess the highest expert skill. It is well established law that it is sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art (Charles worth and Percy, ibid., para 8.02)
15. Bolam test was accepted with approval in the following judgments:-
(I) Sidway V. Bethlem Royal Hospital Governors and Others 643 All England Law Reprots (1985) 1 All ER.
(II) Maynard V. West Midlands Regional Health Authority 635 All England Law Reports (1985) 1 All ER.
(III) Whitehouse V. Jordan and Another 650 All England Law Reports (1980) 1 All ER.
16. Presumably because of persuasive value of Bolams case that our own Supreme Court has in case after case and particularly in Indian Medical Association Vs. V.P. Shantha and Others (1995) 6 SCC 651 wherein Bolams case was also discussed has adopted this test as guidelines for the courts to adjudicate the medical negligence. Latest judgment of Supreme Court on this aspect is Jacob Matthew Vs. State of Punjab and Another (2005) SCC (Crl.) 1369. Observations of Supreme Court are as under:-
(3) A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, which reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices. A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence.(4)
The test for determining medical negligence as laid down in Bolams case, WLR at p. 586 holds good in its applicability in India.
17. While dealing with the concept of criminal medical negligence as well as the medical negligence the broad principles laid down by the Supreme Court are -
(i) That the guilty doctor should be shown to have done something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do.
(ii) Hazard or the risk taken by the doctor should be of such a nature that injury which resulted was most likely imminent.
18. Although, there is a distinction between the medical negligence of a criminal nature and simplicitor medical negligence but consumer is entitled for compensation on account of both kinds of negligence. The test for holding the medical professional liable for criminal negligence should be such which should manifestly demonstrate utter act of rashness and negligence whereas ordinarily the medical negligence or deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service (Section 2(1)(g)).
19. To ascertain the medical negligence, cumulative conclusions drawn from various decisions can be summed up in the form of following queries?
Decision will depend upon the answers:-
(i) Whether the treating doctor had the ordinary skill and not the skill of the highest degree that he professed and exercised as everybody is not supposed to possess the highest or perfect level of expertise or skills in the branch he practices?
(ii) Whether the guilty doctor had done something or failed to do something which in the given facts and circumstances no medical professional would do when in ordinary senses and prudence?
(iii) Whether the risk involved in the procedure or line of treatment was such that injury or death was imminent or risk involved was upto the percentage of failures?
(iv) Whether there was error of judgment in adopting a particular line of treatment? If so what was the level of error? Was it so overboard that result could have been fatal or near fatal or at lowest mortality rate?
(v) Whether the negligence was so manifest and demonstrative that no professional or skilled person in his ordinary senses and prudence could have indulged in?
(vi) Everything being in place, what was the main cause of injury or death.
Whether the cause was the direct result of the deficiency in the treatment and medication?
(vii) Whether the injury or death was the result of administrative deficiency or post-operative or condition environment-oriented deficiency?
20. As is apparent the negligence being alleged against the OP is that inspite of the complainants having same type of injuries as his daughter had he was not operated upon and rather given some first aid and on the same day he want to Aashlok Hospital, where he was operated upon on the next day. Though the OP has denied the allegation that the complainant was not admitted for operation due to non-availability of the bed but the circumstance of the complainant having been operated upon for the head injury on the next day at different hospital fortify the allegation of non-availability of bed.
21. Thus in our view at the most if at all there was any deficiency it was administrative deficiency that due to non-availability of the bed the complainant was given emergency treatment. Had it been not so the daughter of the complainant would not have been admitted for operation if there was so much urgency for the operation of the complainant, no doctor would have left the patient in such a condition who on his way back may succumb. Had the proper and emergency treatment not been provided as pointed out above by the OP the complainant would have suffered much worse? May be had he gone to Aashlok Hospital for some further checkup and it was on the next day that urgency for operation was felt.
22. As we have observed in cases of negligence on the part of the hospital and nursing home, the deficiency can be of several and varied kind. In common parlance the medical negligence is known as negligence on the part of the doctor while treating the patient as to the line of treatment being not proper or during operation something was done, which was not required to be done or something was not done which was required to be done. But nowadays deficiency on the part of the nursing homes, government hospitals as well as private hospitals is that the patient suffered due to non-availability of the bed or non-availability of the doctor who are competent to treat the patient or non-availability of the oxygen or some other equipment, which are needed urgently. These are administrative deficiency and not deficiency arising out of the treatment being given by a medical professional, howsoever skilled and qualified he may be.
23. Thus in our view if the patient dies or suffers injuries due to the negligence of the doctor at the Government hospitals, health centres and dispensaries the Government hospital, Health Centre or Dispensary alone is liable for compensating the patient or his legal heirs.
24. For the aforesaid limited deficiency on the part of the OP in not making arrangement of the bed but at the same time having attended the patient in emergency and providing him emergency treatment, we deem that token compensation of Rs.25,000/- would meet the ends of justice.
25. Payment shall be made within one month from the date of receipt of this order.
26. Complaint is disposed of in aforesaid terms.
27. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri