{"id":131648,"date":"2005-04-25T00:00:00","date_gmt":"2005-04-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/pravat-kumar-mukherjee-vs-ruby-general-hospital-ors-on-25-april-2005"},"modified":"2018-10-24T20:06:04","modified_gmt":"2018-10-24T14:36:04","slug":"pravat-kumar-mukherjee-vs-ruby-general-hospital-ors-on-25-april-2005","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/pravat-kumar-mukherjee-vs-ruby-general-hospital-ors-on-25-april-2005","title":{"rendered":"Pravat Kumar Mukherjee vs Ruby General Hospital & Ors on 25 April, 2005"},"content":{"rendered":"
National Consumer Disputes Redressal<\/div>\n
Pravat Kumar Mukherjee vs Ruby General Hospital & Ors on 25 April, 2005<\/div>\n
  \n \n \n \n \n \n NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION\n\n\n\n\n\n \n\n \n\n\n\n \n\nNATIONAL CONSUMER DISPUTES REDRESSAL\nCOMMISSION\n\n \n\n NEW\nDELHI \n\n \n\n \u00a0\n\n \n\n ORIGINAL PETITION NO. 90 OF 2002 \n\n \n\n \u00a0\n\n \n\nPravat\nKumar Mukherjee  Complainant \n\n \n\n Vs.` \n\n \n\nRuby\nGeneral Hsopital & Ors.  Opposite Parties \n\n \n\n  \u00a0\n\n \n\n BEFORE: \n\n \n\n HONBLE MR. JUSTICE M.B.SHAH, PRESIDENT \n\n \n\n DR. P.D.SHENOY, MEMBER. \n\n \n\n \u00a0\n\n \n\nFor the Complainant : Ms.\nManinder Acharya, Advocate\n\n \n\n (Amicu Curiae)\n\n \n\n \u00a0\n\n \n\nFor the Opposite Parties : Mr.\nAshok Desai & Mr. A.N. Haksar,\n\n\n \n\n Senior\nAdvocates with\n\n \n\n Mr.\nRaja Chatterjee, Ms.\nDeepa Somasekhar,\n\n \n\n Mr.\nSachin Das,Mr. Narain, Advocates.\n\n \n\n  \u00a0\n\n \n\n  \u00a0\n\n \n\n Dated\n25th April, 2005  \n\n \n\nO R D E R \n<\/pre>\n
 \u00a0<\/p>\n
M.B.SHAH,
\nJ. PRESIDENT <\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
  Can
\nDoctors insist and wait for money (fees) when death is knocking the doors of
\nthe patient? Obvious answer is recovery of fee can wait – but not the death
\nnor the treatment for trying to save the life.\n<\/p>\n
  The
\ncase involves unfortunate death of a young boy, Shri Sumanta Mukherjee, a student of
\nsecond year B.Tech., Electrical Engineering, at Netaji Subhash Chandra Bose
\nEngineering College, on 14.1.2001 who was injured in an accident at about 8.00
\na.m. in which a bus of the Calcutta Tramway Corporation dashed with the motor
\ncycle driven by the deceased. The
\ndeceased was brought to the Ruby General Hospital, Kolkata,
\nwhich was close to the place of accident.\n<\/p>\n
  The sole question that arises for
\nour consideration is whether the doctors
\nin the hospital were deficient in
\ndischarge of their duties in not continuing with the treatment after having started giving some treatment to
\nthe deceased. It is contended that
\ntreatment was not continued because of
\nfailure 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.\n<\/p>\n
  \u00a0<\/p>\n
 Brief
\nFacts:\n<\/p>\n
  Complainants
\nare the parents of the deceased boy.\n<\/p>\n
They approached this Commission for compensation and adequate
\nrelief. It is stated that because of the
\ndeath of their son, it has changed their lives in irreversible manner,
\ni.e. the mother of the deceased is under constant psychiatric
\ntreatment, while the father who is a doctor doing research in medicine has abandoned his medical
\nresearch in which he was actively involved before the death of his son and has
\nsuffered immense blow to his profession.\n<\/p>\n
 \u00a0<\/p>\n
  In
\nbrief it is their say that their son Sumanta Mukherjee, aged 20, a
\nstudent of 2nd Year Electrical Engineering met with an accident on 14th
\nJanuary, 2001 at 8.10 a.m. while he was going to attend his tuition on Motor Cycle.
\nHe was knocked down from behind
\nby a Bus of Calcutta Tram Company of Route No.14\/1 (bearing No.WB 04 A 0106).
\nBefore hitting Sumanta, the bus had already
\nhit one cyclist Vishwajeet Sardar
\nand Sumanta was the second victim of the bus. Since the said cyclist was from the humble
\nbackground, he was taken to National
\nCalcutta Medical College & Hospital which is a Government Hospital.\n<\/p>\n
 \u00a0<\/p>\n
  Sumanta who was conscious after the accident was taken to
\nthe respondent No.1 Hospital, which was around
\n1 km. from the site of accident
\nby a crowd of people which had gathered there after the accident, one of
\nthem being Mr. Sunil Saha, P.W.3 in the present
\ncase. The deceased was insured under
\nthe Mediclaim policy issued by the New India
\nAssurance Company Ltd. for a sum of Rs.65,000\/-. At the time of reaching the Hospital,
\ndeceased was conscious and showed the mediclaim
\ncertificate which he was carrying in his wallet to respondent No.3 to 5. He promised them that the charges for the
\ntreatment would be paid and that they
\nshould start the treatment. Acting on
\nthe promise the respondents Hospital started the treatment in its Emergency
\nRoom by giving moist oxygen, starting suction and by administering injection deryphyllime,
\ninjection lycotin and tetnus
\ntoxoid. The respondent No.3 to 5<\/span>
\nhowever after starting the treatment
\nbegan to insist upon the immediate payment of Rs.15,000\/- and threatened to
\ndiscontinue the same if it was not immediately deposited. Mr. Sunil Saha,
\n(P.W. 3) various other persons present in the crowd as well as Mr. Bhabatosh Roy
\n(P.W. 4) requested the respondent Nos.3 to 5 to continue treating Sumanta and assured them that the payment would be made as
\nsoon as they were able to get in touch
\nwith the parents of Sumanta. The crowd present there also offered to pay
\nRs.2,000\/- and to hand over the motorcycle to the respondent No.3 to 5. The mediclaim
\ncertificate issued by the Insurance Company was also showed again and again to
\nthe respondents by the members of the crowd and Mr. Sunil Saha. The respondents, however remained adamant
\nabout the immediate deposit of Rs.15,000\/- and showing the gross deficiency in
\nservice in utter violation of medical
\nethics. They discontinued the treatment after continuing
\nit for around 45 minutes. Mr. Sunil Saha and other persons from the crowd present there were
\nthen forced to take late Sumanta to National Calcutta
\nMedical College and Hospital which is about 7 to 8 Kms.
\nfrom the
\nRuby General Hospital. Sumanta, however,
\ndied on the way and was declared brought dead at the said hospital at
\n9.10 a.m.  <\/p>\n
 \u00a0<\/p>\n
  The
\ncomplaint, therefore, has been filed against the respondents i.e. Respondent
\nNo.1 Hospital, Respondent No.2, Sr. Manager (Administration), Respondent No.3
\nFront Office Assistant of the Hospital, Respondent No.4 Emergency Medical
\nOfficer, i.e. Doctor and Respondent No.5 Emergency Medical Assistant (para
\nmedical staff) claiming compensation of Rs.1,34,60,000\/- for the damages caused
\nto the complainants due to deficiency in service on behalf of the respondents
\nNo.1 to 5.\n<\/p>\n
 Submissions by Respondents:\n<\/p>\n
  On
\nbehalf of the Respondent it is submitted that though it is a commercial
\nhospital it also has charitable beds in the Mother Teresa Ward where beds are
\navailable for admitting patients at nominal charges of Rs.150\/- per bed. The
\nprices have not been increased from 1996 till date. However, bed charges for
\nother categories have nearly doubled in the last nine years. The Hospital also
\ndoes benevolent activities to the
\ncommunity at large by conducting free medical camps. At the interiors of Suderbans, free medical camp was organised where 40
\nspecialist doctors were taken, patients were treated and free medicines were
\ndistributed. The Central Coordinate Committee of Gold Green also expressed
\ntheir gratefulness to Ruby Hospital for organizing free medical checkup camp over there. Padmapurkar
\nNagrik Committee also expressed their gratefulness to
\nRuby Hospital for conducting free medical checkup
\ncamps, where over 500 patients were treated by Specialist Doctors.\n<\/p>\n
 \u00a0<\/p>\n
  On
\nmerits, it is submitted by the Respondents that the impact of the accident was
\nfatal in its effect. The patient was brought to the emergency department of the
\nhospital by a non-Bengali passer-by and immediate first aid medical treatment
\nwas started at the emergency department by the medical officer on duty without
\nany question of consideration.\n<\/p>\n
 \u00a0<\/p>\n
  It
\nis the case of the Hospital and the other Respondents that the persons
\naccompanying the patient had declined to sign the usual admission form and had
\ntaken the patient away for treatment to a Government Hospital within 4 to 5
\nminutes of starting of treatment which was started without the procedural
\nformalities for admission.\n<\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
.A. In
\nbackground of this bare facts preliminary contention raised is – whether the
\nfather of the deceased or the deceased can be regarded as a consumer?\n<\/p>\n
 \u00a0<\/p>\n
 It
\nis contended by the learned Senior Counsel Mr. Ashok
\nDesai that under the Consumer Protection Act, 1986, there is no concept of
\nimposing a consumer on a service provider. There is no law which makes the
\nperson injured a consumer of the hospital itself within the meaning of the
\nConsumer Protection Act, 1986. A person
\ncan be a consumer only by hiring or availing of services for consideration as
\nset out in Section 2(1)(d)(ii) of the Act. He therefore, contended that
\nadmittedly, in the present case, no consideration was fixed and no amount was received from the
\nComplainant, and, therefore, there is no relationship between the deceased and
\nor the Complainant with the hospital or doctors and therefore the deceased or
\nhis father is not a consumer covered under the Consumer Protection Act, 1986.
\nHence, this complaint is not maintainable.\n<\/p>\n
 \u00a0<\/p>\n
  At
\nfirst blush the contention is much more attractive having force but has no
\nsubstance in the context of the law and the duties of the Doctors. No doubt, in
\na society where there is cent per cent commercialisation
\nof each and every walk of the life this submission is cent per cent valid. But,
\nfortunately, we have not reached the stage of 100% commercialisation. We still believe in the ethics of noble
\nprofession, duties to the society, living animals (Art.51-A of the Constitution
\nof India) and the law on the subject is
\nalso settled.\n<\/p>\n
 \u00a0<\/p>\n
 For
\nappreciating this preliminary contention we would first refer to
\nSec.2(1)(d)(ii).\n<\/p>\n
 2(1)(d)
\nConsumer means any person who<\/p>\n
..\n<\/p>\n
hires or avails of any services for a
\nconsideration which has been paid or promised or partly paid and partly
\npromised, or under any system of deferred payment and includes any
\nbeneficiary of such services other than the person who hires or avails
\nof the services for consideration paid or promised, or partly paid
\nand partly promised, or under any system of deferred payment, when such
\nservices are availed of with the approval of the first mentioned person but
\ndoes not include a person who avails of such services for any commercial
\npurpose.\n<\/p>\n
 \u00a0<\/p>\n
(a)   This section has come up for
\ninterpretation in numerous cases.\n<\/p>\n
Important case is in the case of Indian Medical Association Vs. V.P.Shantha & Ors.(1995) 6 SCC 651, wherein the Indian
\nMedical Association raised the contention that services rendered by the medical
\npractitioner would not be covered by the provisions of the Consumer Protection
\nAct, 1986. In that case by judgment in
\nCosmopolitan Hospitals v. Vasantha P. Nair,
\nthe National Commission<\/a> held that the activity of providing medical assistance
\nfor payment carried on by hospitals and members of the medical profession falls
\nwithin the scope of the expression service as defined in Section 2(1)(o) of
\nthe Act and that in the event of any deficiency in the performance of such
\nservice, the aggrieved party can invoke the remedies provided under the Act by
\nfiling a complaint before the Consumer Forum having jurisdiction. It was also
\nheld that the legal representatives of the deceased patients who were undergoing
\ntreatment in the hospital are consumers under the Act and are competent to
\nmaintain the complaint. Against the said judgment, civil
\nappeals were filed before the Apex Court.  It
\nwas contended that medical practitioners are not covered by the provisions of
\nthe Consumer Protection Act, 1986. The
\nCourt negatived the said contention and relevant discussion in that is as
\nunder:\n<\/p>\n
27. Shri
\nHarish Salve, appearing for the Indian Medical
\nAssociation, has urged that having regard to the expression which is made
\navailable to potential users contained in Section 2(1)(o) of the Act,
\nmedical practitioners are not contemplated by Parliament to be covered within
\nthe provisions of the Act. He has urged that the said expression is
\nindicative of the kind of service the law contemplates, namely, service of an
\ninstitutional type which is really a commercial enterprise and open and
\navailable to all who seek to avail thereof. In this context, reliance has
\nalso been placed on the word hires in sub-clause (ii) of the
\ndefinition of consumer contained in Section 2(1)(d) of the Act. We are
\nunable to uphold this contention. The word hires in Section 2(1)(d)(ii)
\nhas been used in the same sense as avails of as would be evident from the
\nwords when such services are availed of in the latter part of Section 2(1)(d)(ii).
\nBy inserting the words or avails of after the word hires in Section 2(1)(d)(ii)
\nby the Amendment Act of 1993, Parliament has clearly indicated that the word
\nhires has been used in the same sense as avails of. The said amendment only
\nclarifies what was implicit earlier. The word use also means to avail
\noneself of. (See: Blacks Law Dictionary, 6th Edn.,
\nat p.1541.) The word user in the expression which is made available to
\npotential users in the definition of service in Section 2(1)(o) has
\nto be construed having regard to the definition of consumer in Section
\n2(1)(d)(ii) and, if so construed, it means availing of
\nservices. From the use of the words potential users it cannot, therefore,
\nbe inferred that the services rendered by medical practitioners are not
\ncontemplated by Parliament to be covered within the expression service as
\ncontained in Section 2(1)(o).\n<\/p>\n
 \u00a0<\/p>\n
In the
\nsaid case the Court has specified in which set of circumstance services
\nrendered by the medical practitioner
\nwould not be considered to be covered by the provisions contained in Section
\n2(1)(o) of the Act; the payment of token amount for registration purposes only
\nwould not alter the provision in respect of such doctors and hospitals. For the second category, there could not be
\nany dispute and it was held that it would clearly fall within the ambit of
\nSection 2(1)(o) of the Act. For the third category, the Court observed thus:\n<\/p>\n
The
\nthird category of doctors and hospitals do provide free service to some of the
\npatients belonging to the poor class but
\nthe bulk of the service is rendered to the patients on payment basis. The
\nexpenses incurred for providing free service are met out of the income from the
\nservice rendered to the paying patients. The service rendered by such doctors
\nand hospitals to paying patients undoubtedly falls within the ambit of Section
\n2(1)(o) of the Act.\n<\/p>\n
 \u00a0<\/p>\n
  Thereafter,
\nthe Court pertinently held thus:\n<\/p>\n
All persons who avail of the services by
\ndoctors and hospitals in category (iii) are required to be treated on the same
\nfooting irrespective of the fact that some of them pay for the service and
\nothers avail of the same free of charge. Most of the doctors and hospitals work
\non commercial lines and the expenses incurred for providing services free of
\ncharge to patients who are not in a
\nposition to bear the charges are met out of the income earned by such doctors
\nand hospitals from services rendered to paying patients. The government
\nhospitals may not be commercial in that sense but on the over all consideration
\nof the objectives and the scheme of the Act, it would not be possible to treat
\nthe government hospitals differently. We are of the view that in such a
\nsituation, the persons belonging to poor class who are provided services free of charge are the beneficiaries
\nof the service which is hired or availed of by the paying class. We are,
\ntherefore, of the opinion that service rendered by the doctors and hospitals
\nfalling in the category (iii) irrespective of the fact that part of the service is rendered free of
\ncharge, would nevertheless fall within the ambit of the expression service as
\ndefined in Section 2(1)(o) of the Act. We are further of the view that persons
\nwho are rendered free service are the beneficiaries and as such come within
\nthe definition of consumer under Section 2(1)(d) of the Act.\n<\/p>\n
 \u00a0<\/p>\n
In our
\nview status of emergency or critically
\nill patient would be same as persons
\nbelonging to Poor Class. Both are not
\nin a position to pay  may be for separate reasons.\n<\/p>\n
The relevant conclusions (para\n<\/p>\n
55) are as under:\n<\/p>\n
(10).\n<\/p>\n
Service rendered at a government hospital\/health centre\/dispensary where
\nservices are rendered on payment of charges and also rendered free of charge to
\nother persons availing of such services would
\nfall within the ambit of the expression service as defined in Section
\n2(1)(o) of the Act, irrespective of the fact that the service is rendered
\nfree of charge to persons who do not pay for such service. Free service would
\nalso be service and the recipient a consumer under the Act.\n<\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
  Keeping the aforesaid principles and the facts of the present case
\nin mind, admittedly, apart from
\nregistration fee, Respondent institute charges various amounts such as Hospital
\ncharges, Diagnostic charges etc. from some patients and to some patients free
\nof charge treatment is given. Hence, in case where service is rendered free of
\ncost to some patients, it would be service within the ambit of expression
\nservice as defined in Sec. 2(1)(o) of the Act. This would be irrespective of
\nthe fact that service rendered free of charge to persons who do not pay for
\nsuch services. Free services would
\nalso be services and the recipient would be a consumer under the Act.
\nEmergency or critically ill persons,
\nare the beneficiaries of the service which is hired or availed by
\nthe paying class.\n<\/p>\n
 \u00a0<\/p>\n
 In the present case, admittedly, the
\ndeceased availed for the services of the hospital and the Doctors. Doctors
\nstarted giving treatment to the deceased because of emergency. That itself is
\navailing of the services  may be free of cost or promised deferred payment.\n<\/p>\n
 \u00a0<\/p>\n
 The reasons for giving the treatment
\ncould be  (a) on the promise of deferred payment, or (b) on the assumption of the
\nduty as a member of noble profession to discharge such duties in such emergency
\ncases.\n<\/p>\n
 \u00a0<\/p>\n
(b) The
\nduty of the noble profession is crystallised by various judgments.\n<\/p>\n
 We would refer to the
\ndecision rendered by the Apex Court in Pt. Parmanand Katara Vs. Union of India & Ors. AIR 1989 SC 2039. In that case also it was
\nalleged that a scooterist was knocked down by a
\nspeeding car. Seeing the profusely bleeding scooterist,
\na person who was on the road picked up the injured and took him to the nearest
\nhospital. The doctors refused to attend on the injured and told the man that he
\nshould take the patient to a named different hospital located some 20 kilometers away authorised to handle medico legal cases.
\nThe Samaritan carried the victim. But, before he reached the hospital the
\npatient succumbed to his injuries. In that set of circumstances in a petition
\nunder Article 32 the Court pertinently observed that preservation of human life
\nis of paramount importance. That is so on account of the fact that once life is
\nlost, the status quo ante cannot be restored as resurrection is beyond the
\ncapacity of man. Therefore, injured citizen brought for medical treatment,
\nshould be instantaneously given medical aid to preserve life. For this purpose,
\nreference was made to Clauses 10 and 13 of the Code of Medical Ethics drawn up
\nwith the approval of the Central Government under Section 33 of the Medical
\nCouncil Act which are as under:\n<\/p>\n
10. Obligations to the sick:\n<\/p>\n
Though a physician is not bound to treat each and every one asking his
\nservices except in emergencies for the sake of humanity and the noble
\ntraditions of the profession, he should not only be ever ready to respond to
\nthe calls of the sick and the injured, but should be mindful of the high
\ncharacter of his mission and the responsibility he incurs in the discharge of
\nhis ministrations, he should never forget that the health and the lives of
\nthose entrusted to his care depend on his skill and attention. A physician
\nshould endeavour to add to the comfort of the sick by
\nmaking his visits at the hour indicated to the patients.\n<\/p>\n
 \u00a0<\/p>\n
13. The patient must not be neglected: A physician is free to
\nchoose whom he will serve. He should, however, respond to any request for
\nhis assistance in an emergency or whenever temperate public opinion expects the
\nservice. Once having undertaken a case, the physician should not neglect the
\npatient, nor should he withdraw from the case without giving notice to the
\npatient, his relatives or his responsible friends sufficiently long in
\nadvance of his withdrawal to allow them to secure another medical attendant. No
\nprovisionally or fully registered medical practitioner shall wilfully commit an act of negligence that may deprive his
\npatient or patients from necessary medical care.\n<\/p>\n
 \u00a0<\/p>\n
 In the concurring judgment, Ojha, J. has observed in pr.14 as under:\n<\/p>\n
14. It could not be forgotten that seeing an injured man in a miserable
\ncondition the human instinct of every citizen moves him to rush for help and do
\nall that can be done to save the life. It could not be disputed that in spite
\nof development economical, political and cultural still citizens are human
\nbeings and all the more when a man in such a miserable state hanging between
\nlife and death reaches the medical practitioner either in a hospital (run or
\nmanaged by the State) public authority or a private person or a medical
\nprofessional doing only private practice he is always called upon to rush to
\nhelp such an injured person and to do all that is within his power to save
\nlife. So far as this duty of a medical professional is concerned its duty
\ncoupled with human instinct, it needs no decision nor any code of ethics nor
\nany rule or law.\n<\/p>\n
 \u00a0<\/p>\n
  This
\naspect is also highlighted by Kerala High Court (K.S.Paripoornan and K.T.Thomas,
\nJJ.) in Dr. T.T.Thomas Vs. Smt.\n<\/p>\n
Elisa & Ors. AIR 1987 Ker. 52, in the following terms:\n<\/p>\n
Devaluation of standards in professional
\nethics is a dangerous trend. Its
\nproliferation in medical professional is more calamitous than in other
\nprofessional or occupational areas.\n<\/p>\n
There can be few, it any, professional other than that of medicine
\nabout which it is possible to fashion a television series entitled Your
\nLife in Their Hands- (Mason and McCall Smith  Law and Medical
\nEthics). Failure to make a proper
\ndiagnosis sometimes may be the consequence of human error. But when diagnosis is correctly made, the
\nimperative duty of the medical man to take adequate and prompt curative steps
\nneed not be over-emphasised, for, any inertia on his side is at his risk as
\nto all costs and consequence. If the
\nallegations in this case are true, this would fall within the amplitude of the
\nabove proposition.\n<\/p>\n
On evidence, in para
\n5, the Court observed thus:\n<\/p>\n
 \u00a0<\/p>\n
In the
\nwritten statement, the appellant admitted that he examined the patient on the
\n11th itself and diagnosed his disease as perforated appendix with
\nperitonitis and that he advised immediate operation. But the main contention of the appellant, in
\nhis written statement is that no surgery was done on the patient on 11-3-1974
\nbecause of the reluctance of the patient to undergo a surgery saying that he
\nhad similar attacks before and he used to get relief with injections and other
\nmedicine. So, according to the
\nappellant, other measure were taken to ameliorate the condition of the patient
\nwhich grew worse on the next, day when he was not in a operable condition,
\nthough the patient was then willing to be operated upon. The appellant denied, having received any
\namount from the plaintiffs. He also
\ndenied that he was absent in the hospital and that he went to the General
\nHospital only after the death of the patient on 13-3-1974. He emphatically denied the allegation that
\nthe death of the patient was due to his negligence.\n<\/p>\n
With regard to consent by the parties, in
\nparas 11, 12 and 13 the Court held thus:\n<\/p>\n
11. The
\nappellant has advanced a case the he could not perform the operation on
\n11-3-1974 as the patient did not gave consent to it. About this consent aspect, an understanding
\nabout its requirement is of help in this case.\n<\/p>\n
Why should a doctor insist on consent from his patient for the course of
\ntreatment to be adopted by him? Consent
\nfrom the patient is evidently not for the safety of the patient, but for the
\nprojection of the physician or the surgeon, as the case may be, every
\nsurgery, whether minor or major, is fraught with some degree of hazard or risk
\nwhich varies in accordance  with the seriousness of the disease. If a patient collapses during the course of a
\nsurgery or during the course of a treatment, law gives protection to the
\nmedical man, provided, he establishes that the risky step was adopted
\nwith the consent, express of implied, from the patient. In fact it is a defence available to the
\ndoctor as envisaged in S.88 of the Penal Code.\n<\/p>\n
The consent factor may be important very often in cases of selective
\noperations which may not be imminently necessary to save the patients
\nlife. But there can be instances
\nwhere a surgeon is not expected to say that.\n<\/p>\n
I did not operate him because, I did not get his consent. Such cases very often include emergency
\noperations where a doctor cannot wait for the consent of his patient or where
\nthe patient is not to give a conscious answer regarding consent. Even if he is in a fit state of mind to give
\na voluntary answer, the surgeon has a duty to inform him of the dangers ahead
\nor the risks involved by going without an operation at the earliest. In this
\ncontext, we find it advantageous to refer to a passage from Law and Medical
\nEthics by Mason and McCall Smith (page 113 of the 1983 edition) under the
\nsub-title is consent always necessary?\n<\/p>\n
The relevant passage is quoted below:\n<\/p>\n
 \u00a0<\/p>\n
As a
\ngeneral rule, medical treatment, even of a minor nature, should not proceed
\nunless the doctor has first obtained the patients consent. This consent may be expressed or it may by
\nimplied, as it is when the patient present himself to the doctor for
\nexamination and acquiesces in the suggested routine. The principle of requiring consent applies in
\nthe overwhelming majority of cases, but there are certain circumstance in which
\na doctor may be entitled to proceed without this consent- firstly, when the
\npatients balance of mind is disturbed, secondly. When the patient is incapable of giving
\nconsent by reason of unconsciousness; and, finally when the patient is a
\nminor.\n<\/p>\n
 \u00a0<\/p>\n
(P)12. Very often, poor and illiterate patients, and
\nsome times even the educated and the so-called sophisticated members of the
\nsociety are averse to surgery, but most of them would agree to it when they are
\ntold about the grave consequences otherwise.\n<\/p>\n
 \u00a0<\/p>\n
(P)13. When a surgeon or medical man advances a plea
\nthat the patient did not give his consent for the surgery or the course of
\ntreatment advised by him, the burden is on him prove that the
\nnon-administration of the treatment was on account of the refusal of the
\npatient to give consent thereto. This is
\nespecially so in a case where the patient is not alive to give evidence. Consent is implicit in the case of a patient
\nwho submits to the doctor and the absence of consent must be made out by the
\nperson alleging it. In most instances,
\nthe 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
\noperation must prove with satisfactory evidence that the patient refused to
\nundergo the operation, not only at the initial stage, but even after the
\npatient was informed about the dangerous consequences of not undergoing the
\noperation.\n<\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
 Similarly
\nin a case where, plaintiff, a women,
\naged 36, suffering from serious mental
\ndisability, had been, a voluntary in-patient
\nat a mental hospital controlled by the health authority in England, she had
\nformed a sexual relationship with a male patient. There was medical evidence that, from a
\npsychiatric point of view, it would be
\ndisastrous for her to become
\npregnant and the medical staff incharge of
\nthe hospital decided that the best course was
\nfor her to be sterilised. In that circumstances her mother sought a declaration that the
\nabsence of her consent would not make
\nsterilisation unlawful act. In that
\ncontext in F v. West Berkshire HA – [1989] 2 All ER 545 House of Lords in
\nAppeal observed:\n<\/p>\n
The issues canvassed in argument before
\nyour Lordships revealed the paucity of clearly defined principles in the common
\nlaw which may be applied to determine the
\nlawfulness of medical or surgical
\ntreatment given to a patient who for any reason, temporary or permanent, lacks
\nthe capacity to give or to communicate consent to that treatment. It seems to me to be axiomatic that treatment which is
\nnecessary to preserve the life, health or well-being of the patient may
\nlawfully be given without consent. But,
\nif a rigid criterion of necessity were to be applied to determine what is and what is not lawful in the
\ntreatment of the unconscious and the incompetent, many of those unfortunate enough to be
\ndeprived of the capacity to make or communicate rational decisions by accident,
\nillness or unsoundness of mind might be deprived of treatment which it would be
\nentirely beneficial for them to receive.\n<\/p>\n
Moreover, it seems to me of first importance that the common law
\nshould be readily intelligible to and applicable by all those who undertake the care of
\npersons lacking the capacity to consent to treatment. It
\nwould be intolerable for members of the medical, nursing and other
\nprofession devoted to the care of the sick that, in caring for those lacking
\nthe capacity to consent to treatment, they should
\nbe put in the dilemma that, if they administer the treatment which they believe
\nto be in the patients best interests, acting with due skill and care, they run
\nthe risk of being held guilty of trespass to the person, but, if they withhold
\nthat treatment, they may be in breach of a duty of care owed to the patient.\n<\/p>\n
 \u00a0<\/p>\n
  Considering
\nthe aforesaid law, it is apparent that:\n<\/p>\n
emergency
\ntreatment was required to be given to the deceased who was brought in a
\nseriously injured condition;\n<\/p>\n
there
\nwas no question of waiting for the consent of the patient or a passer by who
\nbrought the patient to the hospital, and was not necessary to wait for consent
\nto be given for treatment;\n<\/p>\n
 \u00a0<\/p>\n
There is
\nnothing on record to suggest that the Doctor has informed the patient or the
\nrelatives or the person who has brought him to the hospital with regard to
\ndangers ahead or the risk involved by going without the operation\/treatment at
\nthe earliest.\n<\/p>\n
 \u00a0<\/p>\n
Consent
\nis implicit in such cases when patient is brought to the hospital for
\ntreatment, and a surgeon who fails to perform an emergency operation must prove that the patient refused to undergo the
\noperation not only at the initial stage but even after the patient was informed
\nabout the dangerous consequences of not undergoing the operation.\n<\/p>\n
 \u00a0<\/p>\n
   This
\nis not there in the present case.\n<\/p>\n
 \u00a0<\/p>\n
  Hence, deficiency in service on the part of the
\nrespondents is apparent. Respondents have admitted that the hospital has
\ncharitable beds in Mother Theresa Charitable Ward and that the hospital does
\nbenevolent activities to the community
\nat large or conducting free medical camps. The other charitable activities are
\nmentioned in the submissions and for that documentary evidence is produced on record. If that was so, there
\nwas no necessity of withdrawing the medical aid which was started by the
\ndoctors. It cannot be disputed that there was emergency. It was for the doctors
\nto try to save the life of a young boy.\n<\/p>\n
Instantaneous medical help might have preserved the life. May be that in
\nan ordinary course Physician or a surgeon is not bound to treat each and every
\npatient, requiring his service. But, in a critical case where the close
\nrelative of the patient is not available it becomes the duty of such physician
\nor surgeon to be mindful of the high character of his mission and the
\nresponsibility in the discharge of his duties. As held above, so far this as
\nduty of medical profession is concerned, it is coupled with human instinct
\nand needs no decision nor any code of
\nethics nor any rule of law. In such
\ncases the life is in the hands of a Doctor. Waiting for consent of the patient
\nor a passer-by who brought the patient in the hospital is nothing but absurd and is apparent failure
\nof duty on the part of the doctors who were discharging their duties at the
\nsaid time. In such cases consent is not inevitable.\n<\/p>\n
  Further,
\nthis obligation to the society and the duty is admitted by Opposite Party which
\nwould be clear from the letter dated 4.6.2002 written by the Managing Director
\nof the Ruby General Hospital  <\/p>\n
to the Principal Secretary, Health and
\nFamily Welfare Department for renewal of licence to run the hospital. Nodoubt, this was
\nin connection with the departmental inquiry held against the Complainant which
\nwe would refer to hereafter. In the said
\nletter the it is stated that:\n<\/p>\n
 \u00a0<\/p>\n
According to your above communication
\nconveyed in memo No.HAD\/6R\/16\/A3293 dated 30th May, 2002 there has
\nbeen a complaint against Ruby General Hospital that one critically ill patient
\nbrought to Ruby General Hospitals Emergency Department was allegedly refused
\nadmission on monetary consideration.\n<\/p>\n
 \u00a0<\/p>\n
In the complaint referred to in your
\nmemo under reference, we had stated our position through written communications
\nto the Health Department and subsequently met the Honble Minister In-Charge
\n(Health & Family Welfare) today in this regard.\n<\/p>\n
 \u00a0<\/p>\n
I wish to reiterate that patients who
\nare brought to our emergency department are
\nimmediately rendered all possible medical treatment and thereafter, if
\nnecessary, promptly admitted in our hospital. I also wish to emphasise that
\nlack of advance monetary deposit has never been and will never be a factor for
\nrefusal of admission to critically ill patients.\n<\/p>\n
 \u00a0<\/p>\n
I undertake
\nto assure you that Ruby will continue to adhere to this policy of attending to
\nand admitting critically ill patients when they are brought to the hospitals
\nemergency department, irrespective of whether or not any advance monetary
\ndeposit is paid.\n<\/p>\n
 \u00a0<\/p>\n
In view of the above, I would request
\nyou to please renew the above mentioned Licences for one year with immediate
\neffect.\n<\/p>\n
 \u00a0<\/p>\n
  In
\naddition to the above, in the written version filed by the Respondents while
\ndealing with the allegations with regard to treatment to the deceased, it has
\nbeen stated as under:\n<\/p>\n
an unknown patient (now discovered to be
\nthe late Sumanta Mukherjee)
\nwas brought to the Hospital of the Respondent No.1 by one non-Bengali pedestrian on January 14,
\n2001 at approximately 8.00 a.m.;\n<\/p>\n
the late Sumanta
\nMukherjee was semi-conscious
\nand was bleeding from his mouth and nose. He was disoriented and could not
\nspeak anything;\n<\/p>\n
features of head injury were present on
\nlate Sumanta Mukherjee;\n<\/p>\n
in the above circumstances, myself and
\nmy assistant, Santanu Bhattacherjee,
\nimmediately leaving everything else aside made ourselves available for
\ntreatment of the late Sumanta Mukherjee;\n<\/p>\n
both oral and nasal bleeding of the late
\nSumanta Mukherjee were
\nsucked through sucker machine, and moist oxygen inhalation for the late Sumanta Mukherjee was resorted
\nto. Injection Driphylline, injection Lycortin and injection Teteanus
\nToxoid were administered to the late Sumanta Mukherjee and I advised that
\nthe patient be admitted immediately in the Intensive Therapy Unit under the
\nNeuro Surgery Department of the hospital;\n<\/p>\n
following my advise, the non-Bengali
\npedestrian, who had brought the late Sumanta Mukherjee went to the reception\/front office of the Hospital
\nfor complying with admission procedures but
\nforthwith returned therefrom and informed us that he
\nwould not permit the late Sumanta Mukherjee
\nto be treated in the hospital of the Respondent No.1 but that he would admit
\nhim in any Government Hospital for better treatment;\n<\/p>\n
the late Sumanta
\nMukherjee was immediately thereafter put on to a taxi
\nand removed from the hospital;\n<\/p>\n
the whole incident took place within a
\nspan of approximately 4 minutes and even before transfusion of intravenous
\nfluid, the late Sumanta Mukherjee
\nwas taken away, from the hospital; and <\/p>\n
none of the staff of the hospital, who
\nwere present including myself and my assistant could make any ticket or entry
\nin the records relating to such matter within such a short span of time and as
\nevery moment was vital for the benefit of late Sumanta
\nMukherjee, the late Sumanta
\nMukherjee left the hospital without any obstruction.\n<\/p>\n
 \u00a0<\/p>\n
 In the aforesaid written
\nversion there are admissions to the effect that when the deceased was brought
\nin the hospital he was semi-conscious; he was given medical treatment through
\nsuccour machine moist oxygen inhlation, injections
\nwere administered, and, thereafter, advice was given that patient be admitted
\nimmediately in the intensive therapy unit; non-Bengali pedestrian who had
\nbrought the deceased went to reception\/Front Office for complying with the
\nadmission procedure.\n<\/p>\n
 \u00a0<\/p>\n
 This
\nleaves no doubt that the hospital and the doctors started emergency treatment
\nto the deceased in discharge of their duties, may be on the promised deferred
\nconsideration by semi-conscious deceased
\nor others. In any case, the
\ndeceased availed of the services from a hospital
\nwhere consideration is taken from some patients and free of cost treatment is
\ngiven to others.\n<\/p>\n
 \u00a0<\/p>\n
 Further, for deficiency of
\nservice the concept of duty for medical practitioner is required to be
\nreiterated. Duty may arise because the person is a member of the noble
\nprofession In this context, it is worthwhile to refer the observations of the
\nApex Court, in Poonam Verma
\nVs. Ashwin Patel & Ors., (1996) 4 SCC 332, in the
\nfollowing terms:\n<\/p>\n
14. Negligence as a tort is the breach of a duty caused by omission to do
\nsomething which a reasonable man would do, or doing something which a prudent
\nand reasonable man would not do. (See: Blyth
\nv. Birmingham Waterworks Co. 2; Bridges v. Directors
\nof North London Rly. 3; Governor General in Council v. Saliman 4; Winfield and Jolowicz on Tort.) <\/p>\n
 \u00a0<\/p>\n
15. The definition involves the following constituents:\n<\/p>\n
 (1) a legal duty to exercise due care;\n<\/p>\n
 (2) breach of the duty; and <\/p>\n
consequential damages.\n<\/p>\n
 \u00a0<\/p>\n
16. The breach of duty may be occasioned either by not doing something which
\na reasonable man, under a given set of circumstances would do, or, by doing
\nsome act which a reasonable prudent man would not do.\n<\/p>\n
 \u00a0<\/p>\n
17. So far as persons engaged in the medical profession are concerned, it
\nmay be stated that every person who enters into the profession, undertakes to
\nbring to the exercise of it, a reasonable degree of care and skill. It is true
\nthat a doctor or a surgeon does not undertake that he will positively cure a
\npatient nor does he undertake to use the highest possible degree of skill, as
\nthere may be persons more learned and skilled than himself, but he definitely
\nundertakes to use a fair, reasonable and competent degree of skill.\n<\/p>\n
 \u00a0<\/p>\n
  The Court also referred to an
\nearlier decision in the case of Pt. Parmanand
\nKatara (Supra) Vs. Union of India & Ors. and it was observed that in the said case the
\nCourt has emphasised the need for rendering immediate medical aid to injured
\npersons to preserve life and the obligation of the State as well as Doctors in
\nthat regard. From the aforesaid set
\nof circumstances, it can be held that doctors on duty failed to do what a
\nprudent and reasonable doctor is
\nexpected to do. Hence, there was a duty and thereby deficiency in
\nservice.\n<\/p>\n
 \u00a0<\/p>\n
B. Whether
\nthe M.A.C.T. case would bar complaint under the C.P. Act?\n<\/p>\n
 \u00a0<\/p>\n
  The
\nother preliminary objection raised by learned Senior Counsel, Mr. Ashok Desai and Mr. HHaHaksar is with regard to maintainability
\nof this complaint on the ground that Complainant had already approached a
\ntribunal under the Motor Vehicles Act, 1988. It is also pointed out that in the M.A.C.T the Complainant has
\nreceived the amount of compensation and without disclosing the said fact he has
\napproached this Commission under the Consumer Protection Act, 1986. Therefore,
\nthe complaint is not maintainable.\n<\/p>\n
 \u00a0<\/p>\n
 In
\nour view, this submission also requires to be rejected because the two causes are different and are
\nrequired to be decided by separate Tribunals\/Forums having limited
\njurisdictions.\n<\/p>\n
the cause of action before the MACT was,
\nwith regard to rash and negligent driving by the Driver of the other vehicle by
\nwhich accident was caused; and <\/p>\n
the cause of action against the Doctors
\nor the hospital is for deficiency in rendering
\nservice  Emergency treatment by
\nthe hospital and the doctors.\n<\/p>\n
Both causes are separate and distinct.\n<\/p>\n
 \u00a0<\/p>\n
  Further,
\nit was not possible for the Complainant to maintain the complaint for the
\ndeficiency in service by the doctors before the Motor Accident Claims
\nTribunal. Similarly, before the Consumer
\nForum, the grievance with regard to the accident and drivers liability or the
\nvehicle owners liability cannot be dealt with or decided.\n<\/p>\n
  \u00a0<\/p>\n
 Merits:\n<\/p>\n
  Apart
\nfrom the aforesaid preliminary submissions learned Senior Counsel Mr.Desai and Mr.Haskar for the
\nRespondents submitted that the evidence produced on behalf of the of the
\nRespondents is not reliable. The Complainant was not present at the relevant
\ntime in the hospital. It is their
\ncontention that at the time when the
\ndeceased was brought to the hospital he was unconscious and there was no
\nquestion of showing any mediclaim policy or promise
\nby him for payment of fees. Payment of
\nfees was not insisted by the Doctors but
\nthe passer-by who brought the deceased stated that the deceased was required to
\nbe removed to Government Hospital. They further submitted that after the
\ninquiry, which was held by the Government of West Bengal, the Government has finally renewed the
\nlicence, and therefore, that inquiry
\ncannot be the basis for drawing any
\nadverse inference against the hospital or the Doctors. They have also contended
\nthat the evidence of Dr.Amalendu
\nChatterjee, Ex-Professor and Head of Department of
\nMedicines of ID & BJ Hospital, Beliagphata, Kolkata, was not reliable.\n<\/p>\n
 \u00a0<\/p>\n
 As against this, learned
\nCounsel for the Complainant strenuously pointed out all the relevant evidence and submitted
\nthat there is no reason to disbelieve
\nthe evidence of independent witness.\n<\/p>\n
 \u00a0<\/p>\n
 (i). For appreciating the contentions,
\nfirstly we would refer to the evidence of Dr.Amalendu
\nChatterjee (PW.5, Vol.9), wherein he has inter alia,
\nstated as under:\n<\/p>\n
.If a fatally injured patient having
\ninternal bleeding is put on oxygen and treatment by suction started and the same continues for sometime
\nand thereafter if it is suddenly discontinued by removing the oxygen and taking
\nthe patient off suction, it can hasten his death.\n<\/p>\n
 \u00a0<\/p>\n
That it is even worse than not starting the
\ntreatment at all and permitting the patient to be shifted taken to another
\nHospital immediately. If without starting the treatment a critically injured
\npatient suffering from internal injury is immediately taken to the Hospital
\nwhere the treatment is to be continued it does not only save the precious time
\nrequired to transport him to the proper place of treatment but may also
\nincrease his chance of survival.\n<\/p>\n
 \u00a0<\/p>\n
  From
\nthe aforesaid evidence of an expert doctor it has been pointed out that by discontinuing treatment the Respondents
\nhave hastened the death of the patient. If the hospital was not prepared to
\ngive the treatment to the patient for want of
\nmoney, it ought not to have started the treatment.\n<\/p>\n
 However, learned Counsel
\nfor the Respondent submitted that the aforesaid opinion is without examining
\nthe post-mortem report or the nature of the injuries suffered by the deceased,
\nand the opinion does not state as to what is meant by fatal injury, nor this
\ncan be the basis for holding that discontinuance of any treatment by the Ruby
\nwas the cause of death of Samanta.\n<\/p>\n
 In our view, we are not
\nholding that the cause of death of Samanta is
\ndiscontinuance of the treatment. But, at the same time, discontinuance of
\ntreatment in such critical cases affects adversely and that itself is
\ndeficiency in service.\n<\/p>\n
 Departmental
\nInquiry Reports:\n<\/p>\n
(ii).  Next
\nimportant evidence is the report of the inquiry held against the
\nhospital by the State of West Bengal for the lapses in not giving treatment to
\nthe deceased.\n<\/p>\n
 \u00a0<\/p>\n
   The
\nfirst inquiry was held on 12.4.2001 on
\nthe basis of the complaint lodged by Shri Roopchand Pal, M.P. against the Ruby General Hospital
\nregarding refusal of admission and treatment of accidental patient Shri Sumanta Mukhopadhyay
\non 14.1.2001 at 8.10 a.m. The inquiry was conducted by a committee of three
\neminent Doctors of the West Bengal wherein the statements of Doctors who were
\npresent during the incident in the Ruby General Hospital were recorded. After referring to the statement of Kanti Kumar Datta, Front Office
\nAssistant, in the report it was observed
\nas under:\n<\/p>\n
As per
\nthis statement the patient was given preliminary treatment in the emergency and
\nthe party accompanying the patient was asked to make necessary arrangements for
\nadmission of the patient in the ITU.\n<\/p>\n
Subsequently, the patient party refused admission and the patient was
\nshifted elsewhere by the party. The
\nwhole incident occurred within 5\/6 minutes.\n<\/p>\n
 \u00a0<\/p>\n
  Observation:\n<\/p>\n
The name of the patient was not entered
\ninto the register;\n<\/p>\n
The management of Ruby General Hospital
\ncould have admitted the patient taking into consideration the seriousness of
\nthe nature of accidents;\n<\/p>\n
It is clear from the views of front
\noffice assistant that the official procedures and the initial charges for
\nadmission prevented the party accompanying the patient to admit the patient in
\nRuby General Hospital.\n<\/p>\n
Only the statements of personnel of Ruby
\nGeneral Hospital was noted. The persons
\nwho accompanied the patient was not enquired.\n<\/p>\n
 Comments:\n<\/p>\n
In view of the above Government must enter
\ninto agreement with all private institutions having emergency facilities that
\nsuch type of patients requiring emergency intensive therapy should not be
\ndenied admission.\n<\/p>\n
That some relaxation of official procedure
\nshould be made by the management of such serious cases.\n<\/p>\n
All patients attending emergency should be
\nnoted in the register and the ultimate status whether they were released,
\nreferred or denied admission by the patient party should be noted. In case of refusal of admission by the party,
\npartys signature should be taken to avoid future complication.\n<\/p>\n
 \u00a0<\/p>\n
 From
\nthis Report it can be concluded that the name of the patient was
\nnot entered into the register and the Front Office Assistant has stated that
\nthe official procedure and the initial charges for admission prevented the
\nparty accompanying the patient to admit the patient in Ruby General Hospital.\n<\/p>\n
 \u00a0<\/p>\n
  On
\nthe basis of the said Enquiry Committee report a notice dated 27th
\nAugust, 2001, was issued by the Joint
\nDirector of Health Services, Government
\nof West Bengal wherein it was observed that there was serious negligence and
\nlaxity on the part of the hospital by refusing admission and treatment
\nfacilities to the youth who was almost in dying condition. As no reply was
\nreceived, second show cause notice was
\nsent on 3.1.2002. Thereafter, again the third show cause notice dated 30.1.2002
\nwas issued. It would be worthwhile to reproduce the contents of the notice which
\nclearly reveal that the contention of the Opposite Party that the
\npersons who accompanied the deceased wanted to take away was baseless. The
\nrelevant portion is as under:\n<\/p>\n
It has been stated that first aid was
\nadministered to the patient. But, the inspection report submitted by the
\nEnquiry Team reveals that nothing has been recorded in any register of your
\ninstitution, in this regard.\n<\/p>\n
It may be mentioned here categorically that
\nany kind of treatment or catering any medical assistance to any patient ought
\nto have been recorded in the register of the clinical set up.\n<\/p>\n
It is not understandable whether proper
\nmeasure was taken on your behalf, in the instant case since no documentary
\nevidence of treatment is made available.\n<\/p>\n
Again, the question of taking away of the
\npatient by the companion stands baseless as any such transfer should have
\nbeen done in the form of DORB\/or written undertaking.\n<\/p>\n
 \u00a0<\/p>\n
  After
\nthe three show cause notices, a detailed inquiry was held on 30.4.02 and the report was finally
\nsubmitted. Statements of various persons
\nwere recorded including that of Chief Manager, Receptionist, Medical Assistant,
\nWard boy and ors.\n<\/p>\n
 We
\nwould reproduce what has been stated in the said inquiry by Shri Kumar Kanti Dutta, the Front Office Assistant . The relevant
\nportion is as under:\n<\/p>\n
4th person Sri Kumar Kanti Dutta, the Front Office
\nAssistant worked for last 34 years, gave his written statement, on the day
\nof 14th he was on duty from 7.00 a.m. to 3.00 p.m. It is his duty to
\ndo the ticket for admission of the patient including receiving of money after
\nmaintaining the rules of the
\norganisation. On 14th at about 8.00 a.m. Sri Asis
\nMallick came with a person and reported for admission
\nof a patient who was lying at the emergency in a critical stage. The patient was the case of an emergency and
\nneeded for admission in ITU. As per rules and regulation and conventionally he
\nrequested them to submit Rs.15,000\/-.\n<\/p>\n
As the party failed to deposit the money on that moment the party
\nhurriedly left the place without giving any scope to something for him.
\nSince the incident from entrance to exit of the patient was of very short time
\nhe had no scope to appraise the hospital authority to give any treatment to the
\npatient. He has nothing to say further.\n<\/p>\n
 \u00a0<\/p>\n
 The Chief Manager has stated thus:\n<\/p>\n
 . the said hospital belongs to a
\ncommercial health organisation so as per norms the staff engaged for settlement
\nfor admission applied the norms to the patient party for deposition of advance
\nmoney, which was a conventional thing. But, as per his statement he tried to
\nprove that none of the patient left without having any treatment having no
\nmoney at all.\n<\/p>\n
 \u00a0<\/p>\n
  After
\nconsidering the statements, the Inquiry Officer, inter alia, observed as under:\n<\/p>\n
Not only that as per his statement the
\naccompanying person repeatedly requested to give admission and he will pay
\nlater on. But rejecting all the
\nappeals hospital authority rejected to
\nadmit. Mr.Mukherjee
\nand also confessed that the hospital authority had given a primary treatment at
\nemergency. But due to want of money accompanying person shifted the patient to
\nCNMC Government Hospital.\n<\/p>\n
  Finally,
\nthe Inquiry Officer came to the conclusion, inter alia, thus:\n<\/p>\n
After following through the total enquiry
\nI being the enquiry officer come to the following conclusions:\n<\/p>\n
(i).  Primarily due to fatal bus accident Sumanta Mukherjee the deceased person
\nsustained serious and grievous injuries which may be the ultimate cause of
\ndeath;\n<\/p>\n
(ii). Decision
\nof prompt and adequate management for the treatment of deceased Sumanta Mukherjee from the part
\nof the emergency Medical Officer who is being the leader of the emergency may
\nbe the cause of enhancement of death;\n<\/p>\n
(iii).  Misjudgment of shifting the patient to the other place is
\nthe last phase of enhancement of death;\n<\/p>\n
(iv). Overall
\nthe hospital authority is not above the defective administration as because they
\nhave not accustomed to maintain records upto date;\n<\/p>\n
(v). The
\nhospital authority have engaged the staff in the emergency and its front line
\nservices are not enough experienced and qualified. They are not capable to judge the seriousness
\nof a case as and why the allegation of carelessness of duty has been sustained;\n<\/p>\n
(vi). Regarding
\nallegation about submission of instant payment as demanded by hospital on that
\nmoment for which the accompanying person shifted the patient, has no probable
\nground to prove it. Only we are to depend upon the patient party. The hospital
\nauthority has furnished several proofs against such allegation, which has some
\nstrong background. The hospital
\nauthority supplied papers in regard to proofs where no advance payment was made at the time
\nof admission and relaxation of payment also at the time of discharge was shown
\n(copy enclosed). So the shifting of patient without receiving any treatment due
\nto non-deposition of money may not be the fact.\n<\/p>\n
As a whole, it is observed that the administration
\nof the hospital is somewhat relaxed and no attitude to extend cooperation and
\nhelp to the needbased sufferer rather the staff are
\ntrained up to collect the fees as per hospital norms. Not only that they have
\nno idea to tackle the serious accidental case promptly and ethically.\n<\/p>\n
 \u00a0<\/p>\n
  Thereafter,
\nby order dated 30th May, 2002,
\non the analysis of the inquiry reports the Joint Director held that
\nthere are gross negligences in providing
\ntreatment of the acutely ill and injured patient defying all the Medical Ethics
\nand there was gross violation of the Clinical Establishment Rules, and Act of
\n1950, as amended in 1998. It is a
\nsurprise as to how a moribund patient was denied life saving treatment for want
\nof advance payment on the spot? How a
\npatient who was advised admission at ITU
\nof the hospital was allowed to leave the hospital for treatment
\nelsewhere without signing any document and Risk Bond etc? Though the patient was eventually advised for
\nadmission at ITU, and given First-Aid and allowed to leave hospital, yet those
\nare not recorded anywhere in any of the registers of the hospital. These are gross violations of Clinical
\nEstablishment Rules.\n<\/p>\n
 \u00a0<\/p>\n
  In
\nour view, these reports establish that there was deficiency in service by the
\nhospital. The question of taking away of
\nthe patient by the passerby was found to be baseless. As such transfer ought to
\nhave been done in the form of DORB\/or written undertaking. The evidence of the
\nFront Office Assistant, Shri Kumar Kanti Dutta also reveals that as per the rules and regulations
\nconventionally the person who brought the patient was required to deposit
\nRs.15,000\/-. As the party failed to deposit on that moment the passerby hurriedly left the place without giving any scope
\nto do something for him.\n<\/p>\n
 \u00a0<\/p>\n
 Even the Chief Manager
\nof the hospital has admitted that the hospital authority had given preliminary
\ntreatment at emergency, but due to want
\nof money, the accompanying person shifted the patient to Government Hospital.\n<\/p>\n
 \u00a0<\/p>\n
 This inquiry was held
\nafter giving various opportunities to the hospital. The lapse or deficiency is
\nwrit large. Therefore, in our view, the case does not require any further proof
\nand the deficiency in service is established beyond doubt. The reason being non-deposit of Rs.15,000\/-
\ndemanded by the Front Office Assistant Shri Kanti Kumar Datta.\n<\/p>\n
  This
\nwe state so because the learned Counsel for the Respondents vehemently
\ncontended that evidence of some witnesses are not reliable for various reasons.
\nIn this view of the matter, the other evidence is not required to be discussed
\nin detail. Further, the importance of the Act lies in promoting the welfare of
\nthe society by enabling the consumer to participate directly in direct market
\neconomy and social welfare. This aspect is discussed in Lucknow Development
\nAuthority Vs. M.K.Gupta (1994) 1 SCC 243, in the
\nfollowing words:\n<\/p>\n
 \u00a0<\/p>\n
The importance of
\nthe Act lies in promoting welfare of the society by enabling the consumer to
\nparticipate directly in the market economy. It attempts to remove the helplessness
\nof a consumer which he faces against powerful business, described as, a
\nnetwork of rackets or a society in which, producers have secured power to
\nrob the rest and the might of public bodies which are degenerating into
\nstorehouses of inaction where papers do not move from one desk to another as a
\nmatter of duty and responsibility but for extraneous consideration leaving the
\ncommon man helpless, bewildered and shocked. The malady is becoming so rampant,
\nwidespread and deep that the society instead of bothering, complaining and
\nfighting against it, is accepting it as part of life. The enactment in these
\nunbelievable yet harsh realities appears to be a silver lining, which may in
\ncourse of time succeed in checking the rot.\n<\/p>\n
  The
\nCourt considered Section 2(1)(o) which gives inclusive definition to the word
\nservice and in that context the Court held:\n<\/p>\n
 \u00a0<\/p>\n
The main clause itself is very wide. It applies to any service made
\navailable to potential users. The words any and potential are significant.
\nBoth are of wide amplitude. The word any dictionarily
\nmeans one or some or all. In Blacks Law Dictionary it is explained
\nthus, word any has a diversity of meaning and may be employed to indicate
\nall or every as well as some or one and its meaning in a given statute
\ndepends upon the context and the subject-matter of the statute. The use of the
\nword any in the context it has been used in clause (o) indicates that
\nit has been used in wider sense extending from one to all. The other word potential
\nis again very wide. In Oxford Dictionary it is defined as capable of
\ncoming into being, possibility .\n<\/p>\n
 \u00a0<\/p>\n
  The
\nCourt held that the legislative intent is to protect the consumer against
\nservices rendered and the test is whether the nature of the duty and function
\nperformed by it is service or even facility. In this regard this observations
\nof the Court are as under:\n<\/p>\n
In absence of any
\nindication, express or implied there is no reason to hold that authorities
\ncreated by the statute are beyond purview of the Act. When banks advance loan
\nor accept deposit or provide facility of locker they undoubtedly render
\nservice. A State Bank or nationalised bank renders as
\nmuch service as private bank. No distinction can be drawn in private and public
\ntransport or insurance companies. Even the supply of electricity or gas which
\nthroughout the country is being made, mainly, by statutory authorities is
\nincluded in it. The legislative intention is thus clear to protect a consumer
\nagainst services rendered even by statutory bodies. The test, therefore, is not
\nif a person against whom complaint is made is a statutory body but whether the
\nnature of the duty and function performed by it is service or even facility.\n<\/p>\n
 \u00a0<\/p>\n
  \u00a0<\/p>\n
 Cause of Death:\n<\/p>\n
 \u00a0<\/p>\n
 It is next submitted that the treatment
\nor discontinuance of treatment by the hospital is not proved to be the cause of
\ndeath of Mr.Sumanta. Hence, the Complainant is not
\nentitled to claim damages from the respondents for the death of Sumanta.\n<\/p>\n
 \u00a0<\/p>\n
 Learned Senior Counsel Mr.Haskar appearing on behalf of the Doctors submitted that
\nas per the post-mortem report and the evidence which was brought on record
\nbefore the M.A.C.T. the doctor who carried out the post-mortem has stated that
\nthe accident was fatal and accident was the cause of death. It is, therefore,
\ncontended that the Complainant has failed to prove that not giving of treatment
\nby the respondents has resulted in death. It was sought to be contended that in
\nsuch a serious accident death was inevitable.\n<\/p>\n
 This
\nsubmission in our view is contrary to established principles of medical
\njurisprudence. Because, it is known that present day medical science believes
\nin giving treatment till the last breath and for sometime thereafter by
\nresuscitation. The treatment is not
\ngiven to the patient only in those cases where patient is likely to survive.
\nTreatment is given in all cases. Attempts are made to save the life even in
\nterminal cases. Doctors always hope for
\nthe best and survival and they do not predict and say that as the death is inevitable
\nthey would stop the treatment. Life or
\ndeath is uncertain and not in their hands. Still, however, patient and
\nrelatives believe that life is in the hands of Doctors. Hence, only attempts
\nare being made by the medical science for preventing the death. Therefore, the
\nreliance placed by the learned Counsel Mr.Haskar on
\nthe deposition of Doctor before the
\nM.A.C.T. is of no consequence.\n<\/p>\n
 \u00a0<\/p>\n
  Undisputedly,
\nin the present case, treatment was
\nstarted and withdrawn and that the withdrawal cannot be justified on any
\nground. He was given treatment in the emergency room by giving moist oxygen,
\nstarting suction and by administering injection deryphyllime,
\ninjection lycotin and tetnus
\ntoxoid. There was no justifiable ground
\nfor discontinuing the treatment.\n<\/p>\n
 \u00a0<\/p>\n
 It
\nis contended by the learned counsel for the Hospital and Doctors that because the passerby
\nwho had brought the deceased in the Hospital wanted to take him to Government Hospital and hence
\ntreatment was discontinued, is not at
\nall acceptable. Firstly, if the deceased
\nwas to be taken to a Government Hospital, there was no question of bringing him
\nin Ruby Hospital, at the initial
\nstage. As per the record other cyclist who was coming from poor
\nstrata was taken to Government Hospital
\nand the deceased was brought to the Ruby
\nHospital. Secondly, it is established
\non record from the departmental enquiry quoted above and from the admission of
\nthe Front Office Assistant that there was demand for initial admission charges and that prevented
\nthe persons accompanying the patient
\nto admit him in Ruby
\nHospital. It is the procedure of
\nthe Hospital to admit the patient after receiving the money.
\nAs per the statement of the Chief Manager, the Hospital, belongs to commercial health
\norganisation and as per the norms the staff engaged for settlement for admission applied norms to
\nthe patient for depositing of advance money.\n<\/p>\n
In our view, therefore, the
\ncontention of the Hospital that the passer-by
\nwho brought the patient to the
\nHospital wanted to take him to Government Hospital is baseless. In any case, the transfer from one
\nHospital to the other Hospital was
\nrequired to be done in the form prescribed and after taking a written
\nundertaking. Nothing was done. This establishes beyond doubt that admission
\nto deceased Sumanta was refused solely on the ground that the
\npersons who brought him in the
\nHospital were not in a position to deposit
\nthe amount of Rs.15,000\/-.\n<\/p>\n
 \u00a0<\/p>\n
 Further
\nOnce the treatment has started, it would mean that the Complainant has hired
\nthe services. May be at the relevant time the consideration was not fixed or
\nnot paid. But, it was either promised, deferred or because of implicit duty of
\na noble profession in such emergency
\ncases.\n<\/p>\n
 \u00a0<\/p>\n
 Compensation:\n<\/p>\n
  Many
\nsubmissions are made by the learned Counsel for the Opposite Parties on this
\nquestion. The main contention was that before the M.A.C.T. claim was for a sum
\nof Rs.17,73,000\/- which included the income of the deceased, dependency factor
\nand the claim which was made by the parents of the deceased, only an amount of
\nRs.3,78,500\/- was awarded by the Tribunal. And, therefore, the claim of Rs.2.20
\nCrores before this Commission is wholly exaggerated
\nand without any basis.\n<\/p>\n
 \u00a0<\/p>\n
 In
\nthe amended complaint, the claim of compensation is reduced to Rs.1.33 Crores.\n<\/p>\n
 \u00a0<\/p>\n
  In
\nthe present case, considering the facts and
\ndeficiency in service and withdrawal of the treatment to a young boy who
\nwas badly injured in a motor vehicle accident, compensation is to be awarded
\nnot only on the basis of principles applicable in Tort, but on the basis of
\nSection 14 of the Act and interpretation thereof. Section 14 of the Act confers
\njurisdiction on the Commission to award damages for any loss or injury
\nsuffered. Injury would include mental agony and torture. In Lucknow Development Authority (Supra) the
\nCourt observed that the word compensation used in Section 14 is of very wide
\nconnotation and has not been defined under the Act and held (para 14), in legal sense it may constitute actual loss
\nor expected loss and may extend to physical, mental or even emotional
\nsuffering, insult or injury or loss. Further, in Spring Meadows Hospital
\nand Anr. Vs. Harjol Ahluwalia & Anr, (1998) 4 SCC
\n39, the Apex Court considered the similar contention and observed that the compensation
\nis to be awarded in favour of the parents of the minor child for their acute
\nmental agony and the life-long care and attention which the parents would have
\nto bestow on the minor child. In the said case the contention was raised that
\nfor the expenses for the treatment of the child the parents were not required
\nto spend because the hospital authorities were taking care without charging any
\nmoney for the services rendered. In that context the Court observed:\n<\/p>\n
.. We, however, fail to appreciate this
\nargument advanced on behalf of the learned counsel for the appellants inasmuch
\nas the mental agony of the parents will not be diminished in any manner merely
\nseeing the only child living in a vegetative state on account of negligence of
\nthe hospital authorities on a hospital bed.\n<\/p>\n
 \u00a0<\/p>\n
  It
\nis also an established law that under the Act National Consumer Forum has
\njurisdiction to award compensation depending upon established facts and the
\ncircumstances of the case. While dealing with such contention in Charan Singh Vs. Healing Touch Hospital & Ors., (2000)
\n7 SCC 668, the Court observed that the
\nconsumer forums are required to make an attempt to serve the ends of justice so
\nthat compensation is awarded in an established case which not only serve the
\npurpose of recompensing the individual, but which also at the same time aims to
\nbring about the qualitative change in the attitude of service provider. The
\nCourt pertinently observed:\n<\/p>\n
 \u00a0<\/p>\n
 It
\nis not merely the alleged harm or mental pain, agony or physical discomfort,
\nloss of salary and emoluments etc. suffered by the appellant which is in issue
\n it is also the quality of conduct committed by the respondents upon which
\nattention is required tobe founded in a case of
\nproven negligence.\n<\/p>\n
 \u00a0<\/p>\n
  Keeping
\nthe aforesaid principles in mind, it would be just and reasonable to award
\ncompensation of Rs.10 lakhs for mental pain and
\nagony. This may serve the purpose of bringing about a qualitative change in the
\nattitude of the hospitals of providing service to the human beings as human
\nbeings. Human touch is necessary; that is their code of conduct; that is their
\nduty and that is what is required to be implemented. In emergency or critical cases let them
\ndischarge their duty\/social obligation of rendering service without waiting for
\nfees or for consent.\n<\/p>\n
 \u00a0<\/p>\n
 In
\nthe result, the complaint is allowed. The Respondents are directed to pay in
\nall Rs.10 lakhs to the Complainant. There shall be no
\norder as to costs.\n<\/p>\n
 \u00a0<\/p>\n
  We
\nreally appreciate the hard work and services rendered by the Amicus Curiae. We
\ndirect that she may be paid a token sum
\nof Rs.5,000\/- from the N.C.D.R.C. Legal Aid Fund.\n<\/p>\n
 \u00a0<\/p>\n
 Sd\/.J.\n<\/p>\n
 (M.B.SHAH) <\/p>\n
 PRESIDENT <\/p>\n
 \u00a0<\/p>\n
 \u00a0<\/p>\n
 Sd\/`..\n<\/p>\n
 (P.D.SHENOY) <\/p>\n
   MEMBER <\/p>\n","protected":false},"excerpt":{"rendered":"
National Consumer Disputes Redressal Pravat Kumar Mukherjee vs Ruby General Hospital & Ors on 25 April, 2005 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI \u00a0 ORIGINAL PETITION NO. 90 OF 2002 \u00a0 Pravat Kumar Mukherjee Complainant Vs.` Ruby General Hsopital & Ors. Opposite Parties \u00a0 BEFORE: HONBLE MR. JUSTICE M.B.SHAH, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-131648","post","type-post","status-publish","format-standard","hentry","category-judgements"],"yoast_head":"\nPravat Kumar Mukherjee vs Ruby General Hospital & Ors on 25 April, 2005 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/pravat-kumar-mukherjee-vs-ruby-general-hospital-ors-on-25-april-2005\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Pravat Kumar Mukherjee vs Ruby General Hospital & Ors on 25 April, 2005 - 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