NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION NO. 90 OF 2002 Pravat Kumar Mukherjee Complainant Vs.` Ruby General Hsopital & Ors. Opposite Parties BEFORE: HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT DR. P.D.SHENOY, MEMBER. For the Complainant : Ms. Maninder Acharya, Advocate (Amicu Curiae) For the Opposite Parties : Mr. Ashok Desai & Mr. A.N. Haksar, Senior Advocates with Mr. Raja Chatterjee, Ms. Deepa Somasekhar, Mr. Sachin Das,Mr. Narain, Advocates. Dated 25th April, 2005 O R D E R
M.B.SHAH,
J. PRESIDENT
Can
Doctors insist and wait for money (fees) when death is knocking the doors of
the patient? Obvious answer is recovery of fee can wait – but not the death
nor the treatment for trying to save the life.
The
case involves unfortunate death of a young boy, Shri Sumanta Mukherjee, a student of
second year B.Tech., Electrical Engineering, at Netaji Subhash Chandra Bose
Engineering College, on 14.1.2001 who was injured in an accident at about 8.00
a.m. in which a bus of the Calcutta Tramway Corporation dashed with the motor
cycle driven by the deceased. The
deceased was brought to the Ruby General Hospital, Kolkata,
which was close to the place of accident.
The sole question that arises for
our consideration is whether the doctors
in the hospital were deficient in
discharge of their duties in not continuing with the treatment after having started giving some treatment to
the deceased. It is contended that
treatment was not continued because of
failure on the part of the persons who brought him to the hospital to deposit Rs.15,000/-. This resulted in denial of treatment and consequential death of the young boy.
Brief
Facts:
Complainants
are the parents of the deceased boy.
They approached this Commission for compensation and adequate
relief. It is stated that because of the
death of their son, it has changed their lives in irreversible manner,
i.e. the mother of the deceased is under constant psychiatric
treatment, while the father who is a doctor doing research in medicine has abandoned his medical
research in which he was actively involved before the death of his son and has
suffered immense blow to his profession.
In
brief it is their say that their son Sumanta Mukherjee, aged 20, a
student of 2nd Year Electrical Engineering met with an accident on 14th
January, 2001 at 8.10 a.m. while he was going to attend his tuition on Motor Cycle.
He was knocked down from behind
by a Bus of Calcutta Tram Company of Route No.14/1 (bearing No.WB 04 A 0106).
Before hitting Sumanta, the bus had already
hit one cyclist Vishwajeet Sardar
and Sumanta was the second victim of the bus. Since the said cyclist was from the humble
background, he was taken to National
Calcutta Medical College & Hospital which is a Government Hospital.
Sumanta who was conscious after the accident was taken to
the respondent No.1 Hospital, which was around
1 km. from the site of accident
by a crowd of people which had gathered there after the accident, one of
them being Mr. Sunil Saha, P.W.3 in the present
case. The deceased was insured under
the Mediclaim policy issued by the New India
Assurance Company Ltd. for a sum of Rs.65,000/-. At the time of reaching the Hospital,
deceased was conscious and showed the mediclaim
certificate which he was carrying in his wallet to respondent No.3 to 5. He promised them that the charges for the
treatment would be paid and that they
should start the treatment. Acting on
the promise the respondents Hospital started the treatment in its Emergency
Room by giving moist oxygen, starting suction and by administering injection deryphyllime,
injection lycotin and tetnus
toxoid. The respondent No.3 to 5
however after starting the treatment
began to insist upon the immediate payment of Rs.15,000/- and threatened to
discontinue the same if it was not immediately deposited. Mr. Sunil Saha,
(P.W. 3) various other persons present in the crowd as well as Mr. Bhabatosh Roy
(P.W. 4) requested the respondent Nos.3 to 5 to continue treating Sumanta and assured them that the payment would be made as
soon as they were able to get in touch
with the parents of Sumanta. The crowd present there also offered to pay
Rs.2,000/- and to hand over the motorcycle to the respondent No.3 to 5. The mediclaim
certificate issued by the Insurance Company was also showed again and again to
the respondents by the members of the crowd and Mr. Sunil Saha. The respondents, however remained adamant
about the immediate deposit of Rs.15,000/- and showing the gross deficiency in
service in utter violation of medical
ethics. They discontinued the treatment after continuing
it for around 45 minutes. Mr. Sunil Saha and other persons from the crowd present there were
then forced to take late Sumanta to National Calcutta
Medical College and Hospital which is about 7 to 8 Kms.
from the
Ruby General Hospital. Sumanta, however,
died on the way and was declared brought dead at the said hospital at
9.10 a.m.
The
complaint, therefore, has been filed against the respondents i.e. Respondent
No.1 Hospital, Respondent No.2, Sr. Manager (Administration), Respondent No.3
Front Office Assistant of the Hospital, Respondent No.4 Emergency Medical
Officer, i.e. Doctor and Respondent No.5 Emergency Medical Assistant (para
medical staff) claiming compensation of Rs.1,34,60,000/- for the damages caused
to the complainants due to deficiency in service on behalf of the respondents
No.1 to 5.
Submissions by Respondents:
On
behalf of the Respondent it is submitted that though it is a commercial
hospital it also has charitable beds in the Mother Teresa Ward where beds are
available for admitting patients at nominal charges of Rs.150/- per bed. The
prices have not been increased from 1996 till date. However, bed charges for
other categories have nearly doubled in the last nine years. The Hospital also
does benevolent activities to the
community at large by conducting free medical camps. At the interiors of Suderbans, free medical camp was organised where 40
specialist doctors were taken, patients were treated and free medicines were
distributed. The Central Coordinate Committee of Gold Green also expressed
their gratefulness to Ruby Hospital for organizing free medical checkup camp over there. Padmapurkar
Nagrik Committee also expressed their gratefulness to
Ruby Hospital for conducting free medical checkup
camps, where over 500 patients were treated by Specialist Doctors.
On
merits, it is submitted by the Respondents that the impact of the accident was
fatal in its effect. The patient was brought to the emergency department of the
hospital by a non-Bengali passer-by and immediate first aid medical treatment
was started at the emergency department by the medical officer on duty without
any question of consideration.
It
is the case of the Hospital and the other Respondents that the persons
accompanying the patient had declined to sign the usual admission form and had
taken the patient away for treatment to a Government Hospital within 4 to 5
minutes of starting of treatment which was started without the procedural
formalities for admission.
.A. In
background of this bare facts preliminary contention raised is – whether the
father of the deceased or the deceased can be regarded as a consumer?
It
is contended by the learned Senior Counsel Mr. Ashok
Desai that under the Consumer Protection Act, 1986, there is no concept of
imposing a consumer on a service provider. There is no law which makes the
person injured a consumer of the hospital itself within the meaning of the
Consumer Protection Act, 1986. A person
can be a consumer only by hiring or availing of services for consideration as
set out in Section 2(1)(d)(ii) of the Act. He therefore, contended that
admittedly, in the present case, no consideration was fixed and no amount was received from the
Complainant, and, therefore, there is no relationship between the deceased and
or the Complainant with the hospital or doctors and therefore the deceased or
his father is not a consumer covered under the Consumer Protection Act, 1986.
Hence, this complaint is not maintainable.
At
first blush the contention is much more attractive having force but has no
substance in the context of the law and the duties of the Doctors. No doubt, in
a society where there is cent per cent commercialisation
of each and every walk of the life this submission is cent per cent valid. But,
fortunately, we have not reached the stage of 100% commercialisation. We still believe in the ethics of noble
profession, duties to the society, living animals (Art.51-A of the Constitution
of India) and the law on the subject is
also settled.
For
appreciating this preliminary contention we would first refer to
Sec.2(1)(d)(ii).
2(1)(d)
Consumer means 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.
(a) This section has come up for
interpretation in numerous cases.
Important case is in the case of Indian Medical Association Vs. V.P.Shantha & Ors.(1995) 6 SCC 651, wherein the Indian
Medical Association raised the contention that services rendered by the medical
practitioner would not be covered by the provisions of the Consumer Protection
Act, 1986. In that case by judgment in
Cosmopolitan Hospitals v. Vasantha P. Nair,
the National Commission held that the activity of providing medical assistance
for payment carried on by hospitals and members of the medical profession falls
within the scope of the expression service as defined in Section 2(1)(o) of
the Act and that in the event of any deficiency in the performance of such
service, the aggrieved party can invoke the remedies provided under the Act by
filing a complaint before the Consumer Forum having jurisdiction. It was also
held that the legal representatives of the deceased patients who were undergoing
treatment in the hospital are consumers under the Act and are competent to
maintain the complaint. Against the said judgment, civil
appeals were filed before the Apex Court. It
was contended that medical practitioners are not covered by the provisions of
the Consumer Protection Act, 1986. The
Court negatived the said contention and relevant discussion in that is as
under:
27. Shri
Harish Salve, appearing for the Indian Medical
Association, has urged that having regard to the expression which is made
available to potential users contained in Section 2(1)(o) of the Act,
medical practitioners are not contemplated by Parliament to be covered within
the provisions of the Act. He has urged that the said expression is
indicative of the kind of service the law contemplates, namely, service of an
institutional type which is really a commercial enterprise and open and
available to all who seek to avail thereof. In this context, reliance has
also been placed on the word hires in sub-clause (ii) of the
definition of consumer contained in Section 2(1)(d) of the Act. We are
unable to uphold this contention. The word hires in Section 2(1)(d)(ii)
has been used in the same sense as avails of as would be evident from the
words when such services are availed of in the latter part of Section 2(1)(d)(ii).
By inserting the words or avails of after the word hires in Section 2(1)(d)(ii)
by the Amendment Act of 1993, Parliament has clearly indicated that the word
hires has been used in the same sense as avails of. The said amendment only
clarifies what was implicit earlier. The word use also means to avail
oneself of. (See: Blacks Law Dictionary, 6th Edn.,
at p.1541.) The word user in the expression which is made available to
potential users in the definition of service in Section 2(1)(o) has
to be construed having regard to the definition of consumer in Section
2(1)(d)(ii) and, if so construed, it means availing of
services. From the use of the words potential users it cannot, therefore,
be inferred that the services rendered by medical practitioners are not
contemplated by Parliament to be covered within the expression service as
contained in Section 2(1)(o).
In the
said case the Court has specified in which set of circumstance services
rendered by the medical practitioner
would not be considered to be covered by the provisions contained in Section
2(1)(o) of the Act; the payment of token amount for registration purposes only
would not alter the provision in respect of such doctors and hospitals. For the second category, there could not be
any dispute and it was held that it would clearly fall within the ambit of
Section 2(1)(o) of the Act. For the third category, the Court observed thus:
The
third category of doctors and hospitals do provide free service to some of the
patients belonging to the poor class but
the bulk of the service is rendered to the patients on payment basis. The
expenses incurred for providing free service are met out of the income from the
service rendered to the paying patients. The service rendered by such doctors
and hospitals to paying patients undoubtedly falls within the ambit of Section
2(1)(o) of the Act.
Thereafter,
the Court pertinently held thus:
All persons who avail of the services by
doctors and hospitals in category (iii) are required to be treated on the same
footing irrespective of the fact that some of them pay for the service and
others avail of the same free of charge. Most of the doctors and hospitals work
on commercial lines and the expenses incurred for providing services free of
charge to patients who are not in a
position to bear the charges are met out of the income earned by such doctors
and hospitals from services rendered to paying patients. The government
hospitals may not be commercial in that sense but on the over all consideration
of the objectives and the scheme of the Act, it would not be possible to treat
the government hospitals differently. We are of the view that in such a
situation, the persons belonging to poor class who are provided services free of charge are the beneficiaries
of the service which is hired or availed of by the paying class. We are,
therefore, of the opinion that service rendered by the doctors and hospitals
falling in the category (iii) irrespective of the fact that part of the service is rendered free of
charge, would nevertheless fall within the ambit of the expression service as
defined in Section 2(1)(o) of the Act. We are further of the view that persons
who are rendered free service are the beneficiaries and as such come within
the definition of consumer under Section 2(1)(d) of the Act.
In our
view status of emergency or critically
ill patient would be same as persons
belonging to Poor Class. Both are not
in a position to pay may be for separate reasons.
The relevant conclusions (para
55) are as under:
(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 of 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.
Keeping the aforesaid principles and the facts of the present case
in mind, admittedly, apart from
registration fee, Respondent institute charges various amounts such as Hospital
charges, Diagnostic charges etc. from some patients and to some patients free
of charge treatment is given. Hence, in case where service is rendered free of
cost to some patients, it would be service within the ambit of expression
service as defined in Sec. 2(1)(o) of the Act. This would be irrespective of
the fact that service rendered free of charge to persons who do not pay for
such services. Free services would
also be services and the recipient would be a consumer under the Act.
Emergency or critically ill persons,
are the beneficiaries of the service which is hired or availed by
the paying class.
In the present case, admittedly, the
deceased availed for the services of the hospital and the Doctors. Doctors
started giving treatment to the deceased because of emergency. That itself is
availing of the services may be free of cost or promised deferred payment.
The reasons for giving the treatment
could be (a) on the promise of deferred payment, or (b) on the assumption of the
duty as a member of noble profession to discharge such duties in such emergency
cases.
(b) The
duty of the noble profession is crystallised by various judgments.
We would refer to the
decision rendered by the Apex Court in Pt. Parmanand Katara Vs. Union of India & Ors. AIR 1989 SC 2039. In that case also it was
alleged that a scooterist was knocked down by a
speeding car. Seeing the profusely bleeding scooterist,
a person who was on the road picked up the injured and took him to the nearest
hospital. The doctors refused to attend on the injured and told the man that he
should take the patient to a named different hospital located some 20 kilometers away authorised to handle medico legal cases.
The Samaritan carried the victim. But, before he reached the hospital the
patient succumbed to his injuries. In that set of circumstances in a petition
under Article 32 the Court pertinently observed that preservation of human life
is of paramount importance. That is so on account of the fact that once life is
lost, the status quo ante cannot be restored as resurrection is beyond the
capacity of man. Therefore, injured citizen brought for medical treatment,
should be instantaneously given medical aid to preserve life. For this purpose,
reference was made to Clauses 10 and 13 of the Code of Medical Ethics drawn up
with the approval of the Central Government under Section 33 of the Medical
Council Act which are as under:
10. Obligations to the sick:
Though a physician is not bound to treat each and every one asking his
services except in emergencies for the sake of humanity and the noble
traditions of the profession, he should not only be ever ready to respond to
the calls of the sick and the injured, but should be mindful of the high
character of his mission and the responsibility he incurs in the discharge of
his ministrations, he should never forget that the health and the lives of
those entrusted to his care depend on his skill and attention. A physician
should endeavour to add to the comfort of the sick by
making his visits at the hour indicated to the patients.
13. The patient must not be neglected: A physician is free to
choose whom he will serve. He should, however, respond to any request for
his assistance in an emergency or whenever temperate public opinion expects the
service. Once having undertaken a case, the physician should not neglect the
patient, nor should he withdraw from the case without giving notice to the
patient, his relatives or his responsible friends sufficiently long in
advance of his withdrawal to allow them to secure another medical attendant. No
provisionally or fully registered medical practitioner shall wilfully commit an act of negligence that may deprive his
patient or patients from necessary medical care.
In the concurring judgment, Ojha, J. has observed in pr.14 as under:
14. It could not be forgotten that seeing an injured man in a miserable
condition the human instinct of every citizen moves him to rush for help and do
all that can be done to save the life. It could not be disputed that in spite
of development economical, political and cultural still citizens are human
beings and all the more when a man in such a miserable state hanging between
life and death reaches the medical practitioner either in a hospital (run or
managed by the State) public authority or a private person or a medical
professional doing only private practice he is always called upon to rush to
help such an injured person and to do all that is within his power to save
life. So far as this duty of a medical professional is concerned its duty
coupled with human instinct, it needs no decision nor any code of ethics nor
any rule or law.
This
aspect is also highlighted by Kerala High Court (K.S.Paripoornan and K.T.Thomas,
JJ.) in Dr. T.T.Thomas Vs. Smt.
Elisa & Ors. AIR 1987 Ker. 52, in the following terms:
Devaluation of standards in professional
ethics is a dangerous trend. Its
proliferation in medical professional is more calamitous than in other
professional or occupational areas.
There can be few, it any, professional other than that of medicine
about which it is possible to fashion a television series entitled Your
Life in Their Hands- (Mason and McCall Smith Law and Medical
Ethics). Failure to make a proper
diagnosis sometimes may be the consequence of human error. But when diagnosis is correctly made, the
imperative duty of the medical man to take adequate and prompt curative steps
need not be over-emphasised, for, any inertia on his side is at his risk as
to all costs and consequence. If the
allegations in this case are true, this would fall within the amplitude of the
above proposition.
On evidence, in para
5, the Court observed thus:
In the
written statement, the appellant admitted that he examined the patient on the
11th itself and diagnosed his disease as perforated appendix with
peritonitis and that he advised immediate operation. But the main contention of the appellant, in
his written statement is that no surgery was done on the patient on 11-3-1974
because of the reluctance of the patient to undergo a surgery saying that he
had similar attacks before and he used to get relief with injections and other
medicine. So, according to the
appellant, other measure were taken to ameliorate the condition of the patient
which grew worse on the next, day when he was not in a operable condition,
though the patient was then willing to be operated upon. The appellant denied, having received any
amount from the plaintiffs. He also
denied that he was absent in the hospital and that he went to the General
Hospital only after the death of the patient on 13-3-1974. He emphatically denied the allegation that
the death of the patient was due to his negligence.
With regard to consent by the parties, in
paras 11, 12 and 13 the Court held thus:
11. The
appellant has advanced a case the he could not perform the operation on
11-3-1974 as the patient did not gave consent to it. About this consent aspect, an understanding
about its requirement is of help in this case.
Why should a doctor insist on consent from his patient for the course of
treatment to be adopted by him? Consent
from the patient is evidently not for the safety of the patient, but for the
projection of the physician or the surgeon, as the case may be, every
surgery, whether minor or major, is fraught with some degree of hazard or risk
which varies in accordance with the seriousness of the disease. If a patient collapses during the course of a
surgery or during the course of a treatment, law gives protection to the
medical man, provided, he establishes that the risky step was adopted
with the consent, express of implied, from the patient. In fact it is a defence available to the
doctor as envisaged in S.88 of the Penal Code.
The consent factor may be important very often in cases of selective
operations which may not be imminently necessary to save the patients
life. But there can be instances
where a surgeon is not expected to say that.
I did not operate him because, I did not get his consent. Such cases very often include emergency
operations where a doctor cannot wait for the consent of his patient or where
the patient is not to give a conscious answer regarding consent. Even if he is in a fit state of mind to give
a voluntary answer, the surgeon has a duty to inform him of the dangers ahead
or the risks involved by going without an operation at the earliest. In this
context, we find it advantageous to refer to a passage from Law and Medical
Ethics by Mason and McCall Smith (page 113 of the 1983 edition) under the
sub-title is consent always necessary?
The relevant passage is quoted below:
As a
general rule, medical treatment, even of a minor nature, should not proceed
unless the doctor has first obtained the patients consent. This consent may be expressed or it may by
implied, as it is when the patient present himself to the doctor for
examination and acquiesces in the suggested routine. The principle of requiring consent applies in
the overwhelming majority of cases, but there are certain circumstance in which
a doctor may be entitled to proceed without this consent- firstly, when the
patients balance of mind is disturbed, secondly. When the patient is incapable of giving
consent by reason of unconsciousness; and, finally when the patient is a
minor.
(P)12. Very often, poor and illiterate patients, and
some times even the educated and the so-called sophisticated members of the
society are averse to surgery, but most of them would agree to it when they are
told about the grave consequences otherwise.
(P)13. When a surgeon or medical man advances a plea
that the patient did not give his consent for the surgery or the course of
treatment advised by him, the burden is on him prove that the
non-administration of the treatment was on account of the refusal of the
patient to give consent thereto. This is
especially so in a case where the patient is not alive to give evidence. Consent is implicit in the case of a patient
who submits to the doctor and the absence of consent must be made out by the
person alleging it. In most instances,
the consent of a patient is implied. (Maynes Criminal Law of India by S.Swaminathan 4th Edn. at page 198). A surgeon who failed to perform an emergency
operation must prove with satisfactory evidence that the patient refused to
undergo the operation, not only at the initial stage, but even after the
patient was informed about the dangerous consequences of not undergoing the
operation.
Similarly
in a case where, plaintiff, a women,
aged 36, suffering from serious mental
disability, had been, a voluntary in-patient
at a mental hospital controlled by the health authority in England, she had
formed a sexual relationship with a male patient. There was medical evidence that, from a
psychiatric point of view, it would be
disastrous for her to become
pregnant and the medical staff incharge of
the hospital decided that the best course was
for her to be sterilised. In that circumstances her mother sought a declaration that the
absence of her consent would not make
sterilisation unlawful act. In that
context in F v. West Berkshire HA – [1989] 2 All ER 545 House of Lords in
Appeal observed:
The issues canvassed in argument before
your Lordships revealed the paucity of clearly defined principles in the common
law which may be applied to determine the
lawfulness of medical or surgical
treatment given to a patient who for any reason, temporary or permanent, lacks
the capacity to give or to communicate consent to that treatment. It seems to me to be axiomatic that treatment which is
necessary to preserve the life, health or well-being of the patient may
lawfully be given without consent. But,
if a rigid criterion of necessity were to be applied to determine what is and what is not lawful in the
treatment of the unconscious and the incompetent, many of those unfortunate enough to be
deprived of the capacity to make or communicate rational decisions by accident,
illness or unsoundness of mind might be deprived of treatment which it would be
entirely beneficial for them to receive.
Moreover, it seems to me of first importance that the common law
should be readily intelligible to and applicable by all those who undertake the care of
persons lacking the capacity to consent to treatment. It
would be intolerable for members of the medical, nursing and other
profession devoted to the care of the sick that, in caring for those lacking
the capacity to consent to treatment, they should
be put in the dilemma that, if they administer the treatment which they believe
to be in the patients best interests, acting with due skill and care, they run
the risk of being held guilty of trespass to the person, but, if they withhold
that treatment, they may be in breach of a duty of care owed to the patient.
Considering
the aforesaid law, it is apparent that:
emergency
treatment was required to be given to the deceased who was brought in a
seriously injured condition;
there
was no question of waiting for the consent of the patient or a passer by who
brought the patient to the hospital, and was not necessary to wait for consent
to be given for treatment;
There is
nothing on record to suggest that the Doctor has informed the patient or the
relatives or the person who has brought him to the hospital with regard to
dangers ahead or the risk involved by going without the operation/treatment at
the earliest.
Consent
is implicit in such cases when patient is brought to the hospital for
treatment, and a surgeon who fails to perform an emergency operation must prove that the patient refused to undergo the
operation not only at the initial stage but even after the patient was informed
about the dangerous consequences of not undergoing the operation.
This
is not there in the present case.
Hence, deficiency in service on the part of the
respondents is apparent. Respondents have admitted that the hospital has
charitable beds in Mother Theresa Charitable Ward and that the hospital does
benevolent activities to the community
at large or conducting free medical camps. The other charitable activities are
mentioned in the submissions and for that documentary evidence is produced on record. If that was so, there
was no necessity of withdrawing the medical aid which was started by the
doctors. It cannot be disputed that there was emergency. It was for the doctors
to try to save the life of a young boy.
Instantaneous medical help might have preserved the life. May be that in
an ordinary course Physician or a surgeon is not bound to treat each and every
patient, requiring his service. But, in a critical case where the close
relative of the patient is not available it becomes the duty of such physician
or surgeon to be mindful of the high character of his mission and the
responsibility in the discharge of his duties. As held above, so far this as
duty of medical profession is concerned, it is coupled with human instinct
and needs no decision nor any code of
ethics nor any rule of law. In such
cases the life is in the hands of a Doctor. Waiting for consent of the patient
or a passer-by who brought the patient in the hospital is nothing but absurd and is apparent failure
of duty on the part of the doctors who were discharging their duties at the
said time. In such cases consent is not inevitable.
Further,
this obligation to the society and the duty is admitted by Opposite Party which
would be clear from the letter dated 4.6.2002 written by the Managing Director
of the Ruby General Hospital
to the Principal Secretary, Health and
Family Welfare Department for renewal of licence to run the hospital. Nodoubt, this was
in connection with the departmental inquiry held against the Complainant which
we would refer to hereafter. In the said
letter the it is stated that:
According to your above communication
conveyed in memo No.HAD/6R/16/A3293 dated 30th May, 2002 there has
been a complaint against Ruby General Hospital that one critically ill patient
brought to Ruby General Hospitals Emergency Department was allegedly refused
admission on monetary consideration.
In the complaint referred to in your
memo under reference, we had stated our position through written communications
to the Health Department and subsequently met the Honble Minister In-Charge
(Health & Family Welfare) today in this regard.
I wish to reiterate that patients who
are brought to our emergency department are
immediately rendered all possible medical treatment and thereafter, if
necessary, promptly admitted in our hospital. I also wish to emphasise that
lack of advance monetary deposit has never been and will never be a factor for
refusal of admission to critically ill patients.
I undertake
to assure you that Ruby will continue to adhere to this policy of attending to
and admitting critically ill patients when they are brought to the hospitals
emergency department, irrespective of whether or not any advance monetary
deposit is paid.
In view of the above, I would request
you to please renew the above mentioned Licences for one year with immediate
effect.
In
addition to the above, in the written version filed by the Respondents while
dealing with the allegations with regard to treatment to the deceased, it has
been stated as under:
an unknown patient (now discovered to be
the late Sumanta Mukherjee)
was brought to the Hospital of the Respondent No.1 by one non-Bengali pedestrian on January 14,
2001 at approximately 8.00 a.m.;
the late Sumanta
Mukherjee was semi-conscious
and was bleeding from his mouth and nose. He was disoriented and could not
speak anything;
features of head injury were present on
late Sumanta Mukherjee;
in the above circumstances, myself and
my assistant, Santanu Bhattacherjee,
immediately leaving everything else aside made ourselves available for
treatment of the late Sumanta Mukherjee;
both oral and nasal bleeding of the late
Sumanta Mukherjee were
sucked through sucker machine, and moist oxygen inhalation for the late Sumanta Mukherjee was resorted
to. Injection Driphylline, injection Lycortin and injection Teteanus
Toxoid were administered to the late Sumanta Mukherjee and I advised that
the patient be admitted immediately in the Intensive Therapy Unit under the
Neuro Surgery Department of the hospital;
following my advise, the non-Bengali
pedestrian, who had brought the late Sumanta Mukherjee went to the reception/front office of the Hospital
for complying with admission procedures but
forthwith returned therefrom and informed us that he
would not permit the late Sumanta Mukherjee
to be treated in the hospital of the Respondent No.1 but that he would admit
him in any Government Hospital for better treatment;
the late Sumanta
Mukherjee was immediately thereafter put on to a taxi
and removed from the hospital;
the whole incident took place within a
span of approximately 4 minutes and even before transfusion of intravenous
fluid, the late Sumanta Mukherjee
was taken away, from the hospital; and
none of the staff of the hospital, who
were present including myself and my assistant could make any ticket or entry
in the records relating to such matter within such a short span of time and as
every moment was vital for the benefit of late Sumanta
Mukherjee, the late Sumanta
Mukherjee left the hospital without any obstruction.
In the aforesaid written
version there are admissions to the effect that when the deceased was brought
in the hospital he was semi-conscious; he was given medical treatment through
succour machine moist oxygen inhlation, injections
were administered, and, thereafter, advice was given that patient be admitted
immediately in the intensive therapy unit; non-Bengali pedestrian who had
brought the deceased went to reception/Front Office for complying with the
admission procedure.
This
leaves no doubt that the hospital and the doctors started emergency treatment
to the deceased in discharge of their duties, may be on the promised deferred
consideration by semi-conscious deceased
or others. In any case, the
deceased availed of the services from a hospital
where consideration is taken from some patients and free of cost treatment is
given to others.
Further, for deficiency of
service the concept of duty for medical practitioner is required to be
reiterated. Duty may arise because the person is a member of the noble
profession In this context, it is worthwhile to refer the observations of the
Apex Court, in Poonam Verma
Vs. Ashwin Patel & Ors., (1996) 4 SCC 332, in the
following terms:
14. Negligence as a tort is the breach of a duty caused by omission to do
something which a reasonable man would do, or doing something which a prudent
and reasonable man would not do. (See: Blyth
v. Birmingham Waterworks Co. 2; Bridges v. Directors
of North London Rly. 3; Governor General in Council v. Saliman 4; Winfield and Jolowicz on Tort.)
15. The definition involves the following constituents:
(1) a legal duty to exercise due care;
(2) breach of the duty; and
consequential damages.
16. The breach of duty may be occasioned either by not doing something which
a reasonable man, under a given set of circumstances would do, or, by doing
some act which a reasonable prudent man would not do.
17. So far as persons engaged in the medical profession are concerned, it
may be stated that every person who enters into the profession, undertakes to
bring to the exercise of it, a reasonable degree of care and skill. It is true
that a doctor or a surgeon does not undertake that he will positively cure a
patient nor does he undertake to use the highest possible degree of skill, as
there may be persons more learned and skilled than himself, but he definitely
undertakes to use a fair, reasonable and competent degree of skill.
The Court also referred to an
earlier decision in the case of Pt. Parmanand
Katara (Supra) Vs. Union of India & Ors. and it was observed that in the said case the
Court has emphasised the need for rendering immediate medical aid to injured
persons to preserve life and the obligation of the State as well as Doctors in
that regard. From the aforesaid set
of circumstances, it can be held that doctors on duty failed to do what a
prudent and reasonable doctor is
expected to do. Hence, there was a duty and thereby deficiency in
service.
B. Whether
the M.A.C.T. case would bar complaint under the C.P. Act?
The
other preliminary objection raised by learned Senior Counsel, Mr. Ashok Desai and Mr. HHaHaksar is with regard to maintainability
of this complaint on the ground that Complainant had already approached a
tribunal under the Motor Vehicles Act, 1988. It is also pointed out that in the M.A.C.T the Complainant has
received the amount of compensation and without disclosing the said fact he has
approached this Commission under the Consumer Protection Act, 1986. Therefore,
the complaint is not maintainable.
In
our view, this submission also requires to be rejected because the two causes are different and are
required to be decided by separate Tribunals/Forums having limited
jurisdictions.
the cause of action before the MACT was,
with regard to rash and negligent driving by the Driver of the other vehicle by
which accident was caused; and
the cause of action against the Doctors
or the hospital is for deficiency in rendering
service Emergency treatment by
the hospital and the doctors.
Both causes are separate and distinct.
Further,
it was not possible for the Complainant to maintain the complaint for the
deficiency in service by the doctors before the Motor Accident Claims
Tribunal. Similarly, before the Consumer
Forum, the grievance with regard to the accident and drivers liability or the
vehicle owners liability cannot be dealt with or decided.
Merits:
Apart
from the aforesaid preliminary submissions learned Senior Counsel Mr.Desai and Mr.Haskar for the
Respondents submitted that the evidence produced on behalf of the of the
Respondents is not reliable. The Complainant was not present at the relevant
time in the hospital. It is their
contention that at the time when the
deceased was brought to the hospital he was unconscious and there was no
question of showing any mediclaim policy or promise
by him for payment of fees. Payment of
fees was not insisted by the Doctors but
the passer-by who brought the deceased stated that the deceased was required to
be removed to Government Hospital. They further submitted that after the
inquiry, which was held by the Government of West Bengal, the Government has finally renewed the
licence, and therefore, that inquiry
cannot be the basis for drawing any
adverse inference against the hospital or the Doctors. They have also contended
that the evidence of Dr.Amalendu
Chatterjee, Ex-Professor and Head of Department of
Medicines of ID & BJ Hospital, Beliagphata, Kolkata, was not reliable.
As against this, learned
Counsel for the Complainant strenuously pointed out all the relevant evidence and submitted
that there is no reason to disbelieve
the evidence of independent witness.
(i). For appreciating the contentions,
firstly we would refer to the evidence of Dr.Amalendu
Chatterjee (PW.5, Vol.9), wherein he has inter alia,
stated as under:
.If a fatally injured patient having
internal bleeding is put on oxygen and treatment by suction started and the same continues for sometime
and thereafter if it is suddenly discontinued by removing the oxygen and taking
the patient off suction, it can hasten his death.
That it is even worse than not starting the
treatment at all and permitting the patient to be shifted taken to another
Hospital immediately. If without starting the treatment a critically injured
patient suffering from internal injury is immediately taken to the Hospital
where the treatment is to be continued it does not only save the precious time
required to transport him to the proper place of treatment but may also
increase his chance of survival.
From
the aforesaid evidence of an expert doctor it has been pointed out that by discontinuing treatment the Respondents
have hastened the death of the patient. If the hospital was not prepared to
give the treatment to the patient for want of
money, it ought not to have started the treatment.
However, learned Counsel
for the Respondent submitted that the aforesaid opinion is without examining
the post-mortem report or the nature of the injuries suffered by the deceased,
and the opinion does not state as to what is meant by fatal injury, nor this
can be the basis for holding that discontinuance of any treatment by the Ruby
was the cause of death of Samanta.
In our view, we are not
holding that the cause of death of Samanta is
discontinuance of the treatment. But, at the same time, discontinuance of
treatment in such critical cases affects adversely and that itself is
deficiency in service.
Departmental
Inquiry Reports:
(ii). Next
important evidence is the report of the inquiry held against the
hospital by the State of West Bengal for the lapses in not giving treatment to
the deceased.
The
first inquiry was held on 12.4.2001 on
the basis of the complaint lodged by Shri Roopchand Pal, M.P. against the Ruby General Hospital
regarding refusal of admission and treatment of accidental patient Shri Sumanta Mukhopadhyay
on 14.1.2001 at 8.10 a.m. The inquiry was conducted by a committee of three
eminent Doctors of the West Bengal wherein the statements of Doctors who were
present during the incident in the Ruby General Hospital were recorded. After referring to the statement of Kanti Kumar Datta, Front Office
Assistant, in the report it was observed
as under:
As per
this statement the patient was given preliminary treatment in the emergency and
the party accompanying the patient was asked to make necessary arrangements for
admission of the patient in the ITU.
Subsequently, the patient party refused admission and the patient was
shifted elsewhere by the party. The
whole incident occurred within 5/6 minutes.
Observation:
The name of the patient was not entered
into the register;
The management of Ruby General Hospital
could have admitted the patient taking into consideration the seriousness of
the nature of accidents;
It is clear from the views of front
office assistant that the official procedures and the initial charges for
admission prevented the party accompanying the patient to admit the patient in
Ruby General Hospital.
Only the statements of personnel of Ruby
General Hospital was noted. The persons
who accompanied the patient was not enquired.
Comments:
In view of the above Government must enter
into agreement with all private institutions having emergency facilities that
such type of patients requiring emergency intensive therapy should not be
denied admission.
That some relaxation of official procedure
should be made by the management of such serious cases.
All patients attending emergency should be
noted in the register and the ultimate status whether they were released,
referred or denied admission by the patient party should be noted. In case of refusal of admission by the party,
partys signature should be taken to avoid future complication.
From
this Report it can be concluded that the name of the patient was
not entered into the register and the Front Office Assistant has stated that
the official procedure and the initial charges for admission prevented the
party accompanying the patient to admit the patient in Ruby General Hospital.
On
the basis of the said Enquiry Committee report a notice dated 27th
August, 2001, was issued by the Joint
Director of Health Services, Government
of West Bengal wherein it was observed that there was serious negligence and
laxity on the part of the hospital by refusing admission and treatment
facilities to the youth who was almost in dying condition. As no reply was
received, second show cause notice was
sent on 3.1.2002. Thereafter, again the third show cause notice dated 30.1.2002
was issued. It would be worthwhile to reproduce the contents of the notice which
clearly reveal that the contention of the Opposite Party that the
persons who accompanied the deceased wanted to take away was baseless. The
relevant portion is as under:
It has been stated that first aid was
administered to the patient. But, the inspection report submitted by the
Enquiry Team reveals that nothing has been recorded in any register of your
institution, in this regard.
It may be mentioned here categorically that
any kind of treatment or catering any medical assistance to any patient ought
to have been recorded in the register of the clinical set up.
It is not understandable whether proper
measure was taken on your behalf, in the instant case since no documentary
evidence of treatment is made available.
Again, the question of taking away of the
patient by the companion stands baseless as any such transfer should have
been done in the form of DORB/or written undertaking.
After
the three show cause notices, a detailed inquiry was held on 30.4.02 and the report was finally
submitted. Statements of various persons
were recorded including that of Chief Manager, Receptionist, Medical Assistant,
Ward boy and ors.
We
would reproduce what has been stated in the said inquiry by Shri Kumar Kanti Dutta, the Front Office Assistant . The relevant
portion is as under:
4th person Sri Kumar Kanti Dutta, the Front Office
Assistant worked for last 34 years, gave his written statement, on the day
of 14th he was on duty from 7.00 a.m. to 3.00 p.m. It is his duty to
do the ticket for admission of the patient including receiving of money after
maintaining the rules of the
organisation. On 14th at about 8.00 a.m. Sri Asis
Mallick came with a person and reported for admission
of a patient who was lying at the emergency in a critical stage. The patient was the case of an emergency and
needed for admission in ITU. As per rules and regulation and conventionally he
requested them to submit Rs.15,000/-.
As the party failed to deposit the money on that moment the party
hurriedly left the place without giving any scope to something for him.
Since the incident from entrance to exit of the patient was of very short time
he had no scope to appraise the hospital authority to give any treatment to the
patient. He has nothing to say further.
The Chief Manager has stated thus:
. the said hospital belongs to a
commercial health organisation so as per norms the staff engaged for settlement
for admission applied the norms to the patient party for deposition of advance
money, which was a conventional thing. But, as per his statement he tried to
prove that none of the patient left without having any treatment having no
money at all.
After
considering the statements, the Inquiry Officer, inter alia, observed as under:
Not only that as per his statement the
accompanying person repeatedly requested to give admission and he will pay
later on. But rejecting all the
appeals hospital authority rejected to
admit. Mr.Mukherjee
and also confessed that the hospital authority had given a primary treatment at
emergency. But due to want of money accompanying person shifted the patient to
CNMC Government Hospital.
Finally,
the Inquiry Officer came to the conclusion, inter alia, thus:
After following through the total enquiry
I being the enquiry officer come to the following conclusions:
(i). Primarily due to fatal bus accident Sumanta Mukherjee the deceased person
sustained serious and grievous injuries which may be the ultimate cause of
death;
(ii). Decision
of prompt and adequate management for the treatment of deceased Sumanta Mukherjee from the part
of the emergency Medical Officer who is being the leader of the emergency may
be the cause of enhancement of death;
(iii). Misjudgment of shifting the patient to the other place is
the last phase of enhancement of death;
(iv). Overall
the hospital authority is not above the defective administration as because they
have not accustomed to maintain records upto date;
(v). The
hospital authority have engaged the staff in the emergency and its front line
services are not enough experienced and qualified. They are not capable to judge the seriousness
of a case as and why the allegation of carelessness of duty has been sustained;
(vi). Regarding
allegation about submission of instant payment as demanded by hospital on that
moment for which the accompanying person shifted the patient, has no probable
ground to prove it. Only we are to depend upon the patient party. The hospital
authority has furnished several proofs against such allegation, which has some
strong background. The hospital
authority supplied papers in regard to proofs where no advance payment was made at the time
of admission and relaxation of payment also at the time of discharge was shown
(copy enclosed). So the shifting of patient without receiving any treatment due
to non-deposition of money may not be the fact.
As a whole, it is observed that the administration
of the hospital is somewhat relaxed and no attitude to extend cooperation and
help to the needbased sufferer rather the staff are
trained up to collect the fees as per hospital norms. Not only that they have
no idea to tackle the serious accidental case promptly and ethically.
Thereafter,
by order dated 30th May, 2002,
on the analysis of the inquiry reports the Joint Director held that
there are gross negligences in providing
treatment of the acutely ill and injured patient defying all the Medical Ethics
and there was gross violation of the Clinical Establishment Rules, and Act of
1950, as amended in 1998. It is a
surprise as to how a moribund patient was denied life saving treatment for want
of advance payment on the spot? How a
patient who was advised admission at ITU
of the hospital was allowed to leave the hospital for treatment
elsewhere without signing any document and Risk Bond etc? Though the patient was eventually advised for
admission at ITU, and given First-Aid and allowed to leave hospital, yet those
are not recorded anywhere in any of the registers of the hospital. These are gross violations of Clinical
Establishment Rules.
In
our view, these reports establish that there was deficiency in service by the
hospital. The question of taking away of
the patient by the passerby was found to be baseless. As such transfer ought to
have been done in the form of DORB/or written undertaking. The evidence of the
Front Office Assistant, Shri Kumar Kanti Dutta also reveals that as per the rules and regulations
conventionally the person who brought the patient was required to deposit
Rs.15,000/-. As the party failed to deposit on that moment the passerby hurriedly left the place without giving any scope
to do something for him.
Even the Chief Manager
of the hospital has admitted that the hospital authority had given preliminary
treatment at emergency, but due to want
of money, the accompanying person shifted the patient to Government Hospital.
This inquiry was held
after giving various opportunities to the hospital. The lapse or deficiency is
writ large. Therefore, in our view, the case does not require any further proof
and the deficiency in service is established beyond doubt. The reason being non-deposit of Rs.15,000/-
demanded by the Front Office Assistant Shri Kanti Kumar Datta.
This
we state so because the learned Counsel for the Respondents vehemently
contended that evidence of some witnesses are not reliable for various reasons.
In this view of the matter, the other evidence is not required to be discussed
in detail. Further, the importance of the Act lies in promoting the welfare of
the society by enabling the consumer to participate directly in direct market
economy and social welfare. This aspect is discussed in Lucknow Development
Authority Vs. M.K.Gupta (1994) 1 SCC 243, in the
following words:
The importance of
the Act lies in promoting welfare of the society by enabling the consumer to
participate directly in the market economy. It attempts to remove the helplessness
of a consumer which he faces against powerful business, described as, a
network of rackets or a society in which, producers have secured power to
rob the rest and the might of public bodies which are degenerating into
storehouses of inaction where papers do not move from one desk to another as a
matter of duty and responsibility but for extraneous consideration leaving the
common man helpless, bewildered and shocked. The malady is becoming so rampant,
widespread and deep that the society instead of bothering, complaining and
fighting against it, is accepting it as part of life. The enactment in these
unbelievable yet harsh realities appears to be a silver lining, which may in
course of time succeed in checking the rot.
The
Court considered Section 2(1)(o) which gives inclusive definition to the word
service and in that context the Court held:
The main clause itself is very wide. It applies to any service made
available to potential users. The words any and potential are significant.
Both are of wide amplitude. The word any dictionarily
means one or some or all. In Blacks Law Dictionary it is explained
thus, word any has a diversity of meaning and may be employed to indicate
all or every as well as some or one and its meaning in a given statute
depends upon the context and the subject-matter of the statute. The use of the
word any in the context it has been used in clause (o) indicates that
it has been used in wider sense extending from one to all. The other word potential
is again very wide. In Oxford Dictionary it is defined as capable of
coming into being, possibility .
The
Court held that the legislative intent is to protect the consumer against
services rendered and the test is whether the nature of the duty and function
performed by it is service or even facility. In this regard this observations
of the Court are as under:
In absence of any
indication, express or implied there is no reason to hold that authorities
created by the statute are beyond purview of the Act. When banks advance loan
or accept deposit or provide facility of locker they undoubtedly render
service. A State Bank or nationalised bank renders as
much service as private bank. No distinction can be drawn in private and public
transport or insurance companies. Even the supply of electricity or gas which
throughout the country is being made, mainly, by statutory authorities is
included in it. The legislative intention is thus clear to protect a consumer
against services rendered even by statutory bodies. The test, therefore, is not
if a person against whom complaint is made is a statutory body but whether the
nature of the duty and function performed by it is service or even facility.
Cause of Death:
It is next submitted that the treatment
or discontinuance of treatment by the hospital is not proved to be the cause of
death of Mr.Sumanta. Hence, the Complainant is not
entitled to claim damages from the respondents for the death of Sumanta.
Learned Senior Counsel Mr.Haskar appearing on behalf of the Doctors submitted that
as per the post-mortem report and the evidence which was brought on record
before the M.A.C.T. the doctor who carried out the post-mortem has stated that
the accident was fatal and accident was the cause of death. It is, therefore,
contended that the Complainant has failed to prove that not giving of treatment
by the respondents has resulted in death. It was sought to be contended that in
such a serious accident death was inevitable.
This
submission in our view is contrary to established principles of medical
jurisprudence. Because, it is known that present day medical science believes
in giving treatment till the last breath and for sometime thereafter by
resuscitation. The treatment is not
given to the patient only in those cases where patient is likely to survive.
Treatment is given in all cases. Attempts are made to save the life even in
terminal cases. Doctors always hope for
the best and survival and they do not predict and say that as the death is inevitable
they would stop the treatment. Life or
death is uncertain and not in their hands. Still, however, patient and
relatives believe that life is in the hands of Doctors. Hence, only attempts
are being made by the medical science for preventing the death. Therefore, the
reliance placed by the learned Counsel Mr.Haskar on
the deposition of Doctor before the
M.A.C.T. is of no consequence.
Undisputedly,
in the present case, treatment was
started and withdrawn and that the withdrawal cannot be justified on any
ground. He was given treatment in the emergency room by giving moist oxygen,
starting suction and by administering injection deryphyllime,
injection lycotin and tetnus
toxoid. There was no justifiable ground
for discontinuing the treatment.
It
is contended by the learned counsel for the Hospital and Doctors that because the passerby
who had brought the deceased in the Hospital wanted to take him to Government Hospital and hence
treatment was discontinued, is not at
all acceptable. Firstly, if the deceased
was to be taken to a Government Hospital, there was no question of bringing him
in Ruby Hospital, at the initial
stage. As per the record other cyclist who was coming from poor
strata was taken to Government Hospital
and the deceased was brought to the Ruby
Hospital. Secondly, it is established
on record from the departmental enquiry quoted above and from the admission of
the Front Office Assistant that there was demand for initial admission charges and that prevented
the persons accompanying the patient
to admit him in Ruby
Hospital. It is the procedure of
the Hospital to admit the patient after receiving the money.
As per the statement of the Chief Manager, the Hospital, belongs to commercial health
organisation and as per the norms the staff engaged for settlement for admission applied norms to
the patient for depositing of advance money.
In our view, therefore, the
contention of the Hospital that the passer-by
who brought the patient to the
Hospital wanted to take him to Government Hospital is baseless. In any case, the transfer from one
Hospital to the other Hospital was
required to be done in the form prescribed and after taking a written
undertaking. Nothing was done. This establishes beyond doubt that admission
to deceased Sumanta was refused solely on the ground that the
persons who brought him in the
Hospital were not in a position to deposit
the amount of Rs.15,000/-.
Further
Once the treatment has started, it would mean that the Complainant has hired
the services. May be at the relevant time the consideration was not fixed or
not paid. But, it was either promised, deferred or because of implicit duty of
a noble profession in such emergency
cases.
Compensation:
Many
submissions are made by the learned Counsel for the Opposite Parties on this
question. The main contention was that before the M.A.C.T. claim was for a sum
of Rs.17,73,000/- which included the income of the deceased, dependency factor
and the claim which was made by the parents of the deceased, only an amount of
Rs.3,78,500/- was awarded by the Tribunal. And, therefore, the claim of Rs.2.20
Crores before this Commission is wholly exaggerated
and without any basis.
In
the amended complaint, the claim of compensation is reduced to Rs.1.33 Crores.
In
the present case, considering the facts and
deficiency in service and withdrawal of the treatment to a young boy who
was badly injured in a motor vehicle accident, compensation is to be awarded
not only on the basis of principles applicable in Tort, but on the basis of
Section 14 of the Act and interpretation thereof. Section 14 of the Act confers
jurisdiction on the Commission to award damages for any loss or injury
suffered. Injury would include mental agony and torture. In Lucknow Development Authority (Supra) the
Court observed that the word compensation used in Section 14 is of very wide
connotation and has not been defined under the Act and held (para 14), in legal sense it may constitute actual loss
or expected loss and may extend to physical, mental or even emotional
suffering, insult or injury or loss. Further, in Spring Meadows Hospital
and Anr. Vs. Harjol Ahluwalia & Anr, (1998) 4 SCC
39, the Apex Court considered the similar contention and observed that the compensation
is to be awarded in favour of the parents of the minor child for their acute
mental agony and the life-long care and attention which the parents would have
to bestow on the minor child. In the said case the contention was raised that
for the expenses for the treatment of the child the parents were not required
to spend because the hospital authorities were taking care without charging any
money for the services rendered. In that context the Court observed:
.. We, however, fail to appreciate this
argument advanced on behalf of the learned counsel for the appellants inasmuch
as the mental agony of the parents will not be diminished in any manner merely
seeing the only child living in a vegetative state on account of negligence of
the hospital authorities on a hospital bed.
It
is also an established law that under the Act National Consumer Forum has
jurisdiction to award compensation depending upon established facts and the
circumstances of the case. While dealing with such contention in Charan Singh Vs. Healing Touch Hospital & Ors., (2000)
7 SCC 668, the Court observed that the
consumer forums are required to make an attempt to serve the ends of justice so
that compensation is awarded in an established case which not only serve the
purpose of recompensing the individual, but which also at the same time aims to
bring about the qualitative change in the attitude of service provider. The
Court pertinently observed:
It
is not merely the alleged harm or mental pain, agony or physical discomfort,
loss of salary and emoluments etc. suffered by the appellant which is in issue
it is also the quality of conduct committed by the respondents upon which
attention is required tobe founded in a case of
proven negligence.
Keeping
the aforesaid principles in mind, it would be just and reasonable to award
compensation of Rs.10 lakhs for mental pain and
agony. This may serve the purpose of bringing about a qualitative change in the
attitude of the hospitals of providing service to the human beings as human
beings. Human touch is necessary; that is their code of conduct; that is their
duty and that is what is required to be implemented. In emergency or critical cases let them
discharge their duty/social obligation of rendering service without waiting for
fees or for consent.
In
the result, the complaint is allowed. The Respondents are directed to pay in
all Rs.10 lakhs to the Complainant. There shall be no
order as to costs.
We
really appreciate the hard work and services rendered by the Amicus Curiae. We
direct that she may be paid a token sum
of Rs.5,000/- from the N.C.D.R.C. Legal Aid Fund.
Sd/.J.
(M.B.SHAH)
PRESIDENT
Sd/`..
(P.D.SHENOY)
MEMBER