State Consumer Disputes Redressal Commission
Esi Hospital vs Amresh Kumar on 15 March, 2007
IN THE STATE COMMISSION:DELHI IN THE STATE COMMISSION: DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 15-03-2007 Appeal No. 2241/2001 ((Arising out of Order dated 18-08-2001 passed by the District Forum (East) in Complaint Case No.246/1999) ESI Hospital, Through Medical Superintendent, Basai Darapur, Ring Road, New Delhi 110015. . . . Appellant Through Mr. A.P. Gupta, Advocate Versus Shri Amresh Kumar, A-4/172, New Kondli, Delhi 110096. . . . Respondent Through Ms. Sujata Rao, Advocate Appeal No. 2312/2001 ((Arising out of Order dated 18-08-2001 passed by the District Forum (East) in Complaint Case No.246/1999) ESIC Dispensary, Mayur Vihar Phase-I, Delhi. . . . Appellant Versus 1. Shri Amresh Kumar, A-4/172, New Kondli, Delhi 110096. . . . Respondent No.1 Through Ms. Sujata Rao, Advocate 2. ESI Hospital, Basai Darapur, New Delhi. . . . Respondent No.2 Through Mr. A.P. Gupta, Advocate 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 (Oral)
1. Aforesaid two appeals have been filed against Order dated 18-08-2001 passed by the District Forum whereby the appellants have been directed to pay Rs. 1 Lac as compensation on account of death of an infant due to the negligence of the appellants, and Rs. 1,000/- as cost of proceedings. Since the appellant Dispensary at Mayur Vihar is being run by the Appellant ESI Hospital, the main respondent is ESI Hospital who is responsible and liable for the acts of omission or commission of deficiency in service on the part of the doctors of the dispensary.
2. The facts of the case in brief are that the wife of the respondent, who is a member of the ESI, was under treatments of the appellants at Mayur Vihar, Phase-I, used to be sent to the Dispensary at Noida where the respondent was employed. The medicines prescribed by the Noida dispensary used to be given by Mayur Vihar Dispensary. On 7th September, 1999 at about 9-00 PM the respondent had taken his wife to the appellant hospital at Noida. After examination, the doctor told her to go back home as the likely time of delivery was after 18 hours. However, on reaching home at about 1.30 PM the wife of the respondent gave birth to a male child. After three days the condition of the child deteriorated. He was taken to the ESI Hospital Noida, where the doctor told that this hospital has no Nursery division and advised him to take the child to ESI Hospital at Basai Darapur. On 10-09-1999 the child was taken to ESI Hospital, Basai Darapur, where the child was admitted but due to lack of treatment as no doctor had attended to the child properly the child died on the next morning.
The respondent filed the instant complaint before the District Forum seeking compensation on account of medical negligence of the appellant.
3. The impugned order has been assailed by the appellant mainly on the ground that the notice of the complaint was not served upon the appellant ESI Hospital and, therefore, it was not given an opportunity to put up its version and, secondly, the hospital is being run by ESI Corporation, which is a statutory body and, therefore, the complaint either against the dispensary or the hospital is not maintainable.
4. On merits, the appellant has contended that the respondent was not a consumer. It is further contended that the ESI Hospital does not charge any fees or consideration from its members directly or indirectly.
Under Section-73 of the ESI Act, contribution is payable by the principal employer in regard to the employees of the factory or establishment covered under the Act. That contribution is in the form of a tax and has no nexus with the benefits which are provided under the ESI Act, like medical benefit, maternity benefit, coverage of employment injury etc. under Sec. 51 to 55 of the Act. Since it is a tax, therefore, only the insured persons are given the benefits under the Act in these hospitals and dispensaries and no outsider is allowed. Therefore, the tax, i.e. the contribution which is paid by the principal employer can not be construed as a consideration for providing benefits under the ESI Act. ESI Act also provides payments during maternity, pregnancy and other medical benefits like disablement benefits etc. In view of these provisions of law, the persons coming to the hospital is not a consumer who has availed or hired services for consideration and hence no complaint is maintainable.
5. In support of the aforesaid contentions, the Ld. counsel for the appellant has placed reliance on the following judgments:-
i) 1954 SC 282 This judgment explains what tax is and what is fees and the difference between them.
ii) 1981 Labour Industrial Cases 1409 wherein it has been held that the contribution payable by the employer or employee under the Act is in the nature of a tax and not fee.
iii) Another judgment delivered by a Division Bench of Madras High Court in a Labour Industrial Case Wherein contribution has been held to be a tax and not fee. It has also been held that there was no nexus between the imports and the benefits that the employees might derive from whom contribution has been collected.
6. On merits, the Ld. Counsel for the appellant has further contended that medical treatment was given and in this regard the record of the ESI Hospital has been placed on record. The child was born at the residence of the respondent-complainant and when brought to the hospital the child was in a very precarious condition and medicines were administered to the child but could not survive. In the complaint, there is no allegation against the dispensary.
7. 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 holds 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 & Percy, ibid., para
8.02)
8. 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.
9. 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 & 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.
10. 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.
11. 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)).
12. 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?
13. On testing the allegations of respondent and the version of the appellant hospital / dispensary on the anvil of aforesaid criterion, we do find the appellant deficient in service first in returning the wife of the respondent who was pregnant with directions to come later on by estimating the expected time of delivery as after 18 hours and secondly for not providing Nursery facilities which was necessary to save the child.
14. For every patient, life is important. Any amount of negligence particularly administrative negligence holds the service provider liable to compensate the consumer as it amounts to deficiency in service which 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.
15. Having held the appellant hospital/dispensary guilty for negligence in the nature of both medical and administrative negligence, we now revert to the preliminary objection raised by appellant that there is no relationship of consumer and the provider of medical service between the respondent and the appellant Hospital/Dispensary as no consideration was received or paid towards the treatment and other benefits provided under the ESI Act.
16. In order to bring the appellant ESI Hospital/Dispensary 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;
17. 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]
18. A question arose before the Supreme Court for consideration in Indian Medical Association Vs. V.P. Shantha & 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.
19. Since in the instant case, as a part of the conditions of service, the employer bears the expenses of medical treatment provided by the appellant Hospital/Dispensary to an employee and his family members dependent on him, by way of contribution paid by the employer, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home/dispensary would not be free of charge and would constitute service under Section 2(1)(o) of the Act, and these charges were, inter alia, for the purpose of providing medical treatment to the ailing employee or his family members. It is immaterial whether the appellant has not charged fees of the Doctors who treated the wife of the respondent or his child but the fact remains that the deceased child was treated by the appellant Hospital/Dispensary against consideration.
20. 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.
21. 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 not 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.
22. 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.
23. If we hold the Doctors of Government hospitals, health centers 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.
24. 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 and 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.
25. 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.
26. In this regard conclusions can be summed up as under:-
(i) Only those Government Hospitals/Health Centre/Dispensary fall outside the purview of Consumer Protection Act, 1986 where no charge is made from any person rich or poor availing the medical services.
Nominal or token amount of registration or on any such count does not amount to consideration for service as envisaged by section 2(1)(d) of the Act.
(ii) Where services are provided against charges including the charges for consumables, charges for ward, service charges etc. by the Government Hospitals/Health Centres/ Dispensaries, these services fall within the ambit of service for the purpose of Section 2(1)(o) of the Act and the patient availing such service falls within the definition of consumer as defined by section 2(1)(d) of the Act. It is immaterial whether these charges are not charged from poor sections.
If such charges are charged from any other patient, poor patients can avail the benefit as a consumer.
(i) Since consideration for a contract of personal service is essence of relationship of consumer and service provider and since such a consideration is received by the Government Hospital/Health Centre/Dispensary and not by a treating doctor or team of treating/attending doctors, patient paying such charges is a consumer qua the Government Hospital/Health Centre and not the treating Doctor/Doctors.
(ii) Since Doctors at Government Hospital /Dispensary/Health Centre do not receive either from the patient or from the Hospital consideration for treatment of individual patient as private medical practitioners charge per patient and since Government Doctors receive monthly salary for treating thousands of patients and not patient-wise consideration which even otherwise is pea-nut as compared to private medical practitioners, there is no contract for personal service between the patient and these doctors.
(iii) In case of Government Hospitals/Health Centres/Dispensaries, treating doctors cannot be held liable either individually or jointly or severally for medical negligence for the purpose of compensating the patient/consumer. For every kind of deficiency administrative as well as medical, Government Hospital/Health Centre/ Dispensary alone is liable being the service provider qua the consumer.
(iv) In case of private Nursing homes/medical centres/practitioners, where charges for medical treatment are received by them and or paid to the individual doctors per patient, both Nursing home/Medical Centres and treating Doctors are jointly and severally liable.
27. On the anvil of aforesaid criterion as to the liability and as to the medical negligence, we hold the appellant Hospital/Dispensary who runs hospitals for the treatment of patients alone guilty for limited medical negligence that the respondents wife should have been provided timely medical aid when she approached the appellant Dispensary with labour pains and was returned by the doctors with the directions to return the next day and also when they failed to provide timely and adequate medical help to the deceased child who should have been provided the Nursery facility and should have been put on heart and lung device or ventilator so as to save the child.
28. The hospital at Basai Darapur and Dispensary being run at different places are being run by the ESI Corporation under a system where the employees different private organization contribute towards the ESI under the Act and therefore, this contribution has to be held as a consideration for hiring services for which this contribution is received.