SAVITA GARG v. THE DIRECTOR, NATIONAL HEART INSTITUTE

Citation: [2004] SUPP. 5 S.C.R. 359

Court: Supreme Court of India

Bench: B.N. AGRAWAL, A.K. MATHUR

Case summary

SAVITA GARG v. THE DIRECTOR, NATIONAL HEART INSTITUTE.pdf

Judgment text

SAVITA GARG v. THE DIRECTOR, NATIONAL HEART INSTITUTE OCTOBER 12, 2004 [B. N. AGRAWAL AND A. K. MATHUR, Jl] Consumer Protection Act 1986/Rules made there under Medical negligence in private hospital/institution-Original petition not impleading treating doctor a11d nurses as party-Effect of-Held; It will not result in dismissal of petition for non-joinder of necessary parties-When petitioner has successfally discharged initial burden that hospital was negligent, the" heavy burden of giving details as to which doctor gave treatment and whether it was doctor or nursing staffwho was negligent, and implead them as parties, cannot be placed on patient or their relatives-In view of the expression used in Rule 14 (b) ofConsumer Protection Rules, 'so far as they can be ascertained', hospital has anyhow to produce those doctors/nurses to substantiate their claim that there was no negligence--Code ofCivil Procedure, Order 1 Rules 9 and Rules 10. Medical.

negligence in hospital/institution by doctors/nurses taken temporarily for 'treatment ofpatients-Held; Hospital as controlling authority was responsible for their negligence-It could not escape its liability by maki,ig a distinction between 'contract ofservice' and 'contract for service'. Hpsband of appellant died . while undergoing medical treatment in the respondent institute. Alleging that death was due to negligence of respondent, she filed a complaint before. National Consumer Dispute Redressal Commission claiming compensation. The Commission observed that despite its direction to implead necessary partie~, no effort was made by the appellant toimple~d the treating doctors and nurses, and dismiss~d the complaint as non-maintainable for non-joinder of parties. Hence the present appeal. . Allowing the appeal, the Court HELD: t. Summary dismissal of the original by the Commission on · the question of non-joinder of necessary parties was not proper.

In case, , the complainant fails to subtantiate the allegation, the complaint will fail, but not on the ground of non-joinder of parties. [374-EJ 2. 1. When a patient is admitted to the highly commercial hospital like the respondent institute, a thorough check up of the patient is done by the authorities. It is the institute which selects after examination of the patient that he suffers from what malady and who is the best doctor who can attend, except when the patient or the family member desire to be treated by a particular doctor or surgeon as the case may be. Normally, the private hospitals have a panel of doctors, in various specialities and it is they who choose who is to be called. It is very difficult for the patient to give any details that which doctor treated the patient and whether the doctor was negligent or the nurshing staff was negligent. It is very difficult for such patient or his relatives to implead them as parties in the claim petition.

It will be impossible task and if the claim is to be defeated on that ground it will virtually be frustrating the provisions of the Act, leaving the claimant high and dry. Such a heavy burden canno. t be placed on the patient or the family member/relatives to implead all those doctor who have treated the patient or the nursing staff to be impleaded as party . It will be difficult task for the patient or his relatives to undertake this searching enquiry from the Hospital and sometimes hospital may not cooperate. It may give such details and sometimes may not give the details. (367-G, H; 368-A-BI 2. 2.

The expression used in Rule in 14 (b) of Consumer Protection Rules, 1987 'so far as they can be ascertained', makes it clear that the framers of the Rules realised that it will be very difficult specially in the case of medical profession to pinpoint that who is responsible for not providing proper and efficient service which gives rise to the cause for filing a complaint and spe - I ~ an injection of cocaine which was given by the operating surgeon in the I mistaken belief that ·it was procaine. The operating surgeon had ordered procaine on . the telephone, but the resident house surgeon (who was then unqualified) had mis-heard "procaine" as "cocaine", and had told the pharmacist to dispense a mixture· which was, in fact, Jeth~!. The pharmacist dispensed the mixture without making further inquiry and without requiring the written instruction of a qualified person, and the operating surgeon had given the injection without checking that it was what he had ordered.

The operating surgeon, the house surgeon, and the pharmacist were all three in the full-time or part-time employment of the c. ouncil. In an action by the patient's widow against the county council and the operating surgeon alleging that the death was the result of (a) the council's negligence in the conduct of thei. r hospi! al, and (b) the operating surgeon's failure to exercise reasonable care. It was held as follows: "(i) The county council, in managing the hospital, was permitting a dangerous and negligent system to be in operation, and the operating surgeon and the house .

surgeon had failed to exercise reasonable skill and care: (ii) the counci_l were able to control the manner in which the resident medical officer performed her work and, therefore, the acts of the house surgeon done in the course of her employment were acts for which the council was responsible, - (iii) although the operating surgeon was a part-time employee on the staff of the council, the council could not control how he was to perform his duties and was not responsible for his want of care. " Learned counsel submitted that in view of the above decisions since the doctor was on part-time employment, as such he was not responsible. With respect this distinction which is tried to be advanced by learned coμns'el for the respondent, does not find favour in subsequent decision rendered by the English Court in the case of Cassidy v. Ministry ofHealth, reported in (1951) 2 K. B. 343. In this case, the earlier decision in the case of Gold and Ors. v.

Essex County Council, reported in (1942) 2 All E. R. 237 came up· for consideration. Lord Denning, J. speaking for himself observed that a hospital authority is liable for the negligence of doctors and surgeons employed by the authority under a contract for service arising in the course of the performance of their professional duties. It was observed as follows: SAVITAGARG v. DIRECTOR, NATIONAL HEART INSTITUTE [A. K. MATHUR, J. ) 371 "The hospital authority is liable for the negligence of professional men employed by the authority under contracts for service as well as under contracts of service. The authority owes a duty to give proper treatment medical, surgical, nursing and the like- and though it may delegate the performance ofthat duty to those who are not its servants, it remains liable ifthat duty be improperly or inadequately performed by its delegates. The plaintiff ent_ered a hospital for an operation on his left hand, which necessitated post-operational treatment.

While undergoing that treatment he was under the care of the surgeon who performed 'the operation, who was a whole-time assistant medial officer of the hospit_al, the house surgeon and members of the nursing staff of the hospital, all of whom were employed under contracts of service. At the end of the treatment it was found that his hand had been rendered useless. The trial judge dismissed his action for damages for negligent treatment which he brought against the hospital on the ground that he had failed to prove any negligence. On appeal it was held that in the circumstances, the doctrine of res ipsa /oquitur applied, and the onus lay on the hospital authority to prove that there had been no negligence on its part or on the part of anyone for whose acts or omission it was liable, and that onus had not been discharged.

" Therefore, as per the English decisions also the distinction of 'contract of service' and 'contract for service', in both the contingencies the courts have taken the view that the hospital is responsible for the acts of their permanent staff as well as staff whose services are temporarily requisitioned for the treatment of the patients. Therefore, the di<;tinction which is sought to be pressed into service so ably by learned counsel cannot absolve the hospital or the institute as it is responsible for the acts of its treating doctors who are on the_panel and whose services are requisitioned from time to time by the hospital looking to the nature of the diseases. The hospital or the institute is responsible and no distinction could be made between the two classes of persons i. e. the treating doctor who was on the staff of the hospital and the nursing staff and the doctors whose services were temporarily taken for treatment of the patients.

On both, the -hospital as the controlling authority is responsible and it cannot take tpe shelter under the plea that treating physician is not impleaded as a party, the claim petition should be dismissed. In this connection, a reference may be made to a decision of this Court in the case of Indian Medical Association v. V. P. Shantha and Ors. reported in AIR (1996) SC 550. There the question had come up before this Court with regard to the provisions of the Consumer Protection Act, 1986 vis-a-vis the medical profession. This Court has dealt with all aspects of medical profession from every angle and has come to the conclusion that the doctors or the institutes owe a duty to the patients and they cannot get away in case of lack of care to the patients.

Their Lordships have gone to the extent that even if the doctors are rendering services free ofcharge to the patients in the Government hospitals, the provisions of the Consumer Protection Act will apply since the expenses of running the said hospitals are met by appropriation from the Consolidated Fund which is raised from the taxes paid by the tax payers. Their Lordships have dealt with regard to the definition of "service" given in Section 2(1)(o) of the Consumer Protection Act, 1986, and have observed as follows: "The service rendered free of charge to patients by doctors/ hospitals r-··· whether non-Govt. or Govt who render free service to poor patients but charge fee for services rendered to other patients would, even though it is free, not be excluded from definition ofservice in S. 2(l)(o). The Act seeks to protect the interests of consumers as a class.

To hold otherwise would mean that the protection of the Act would be available to only those who can afford to pay and such protection would be denied to those who cannot so afford, though they are the people ~ho need the protection more. It is difficult to conceive that the legislature intended to achieve such a result. Another consequence of adopting a construction, which would restrict the protection of the Act to persons who can afford to pay for the services availed by them and deny such protection to those who are not in a position to pay for such services, would be that the standard and quality of services rendered at an establishment would cease to be uniform. It would be of a higher standard and of better quality for persons' who. are in: a position to pay for such service while. the standard and qual_ity . ot such service would be inferior for p_erson'who cannot. afford to pay for such service and who avail the service without payment.

Such a consequence would defeat the object of the Act. '. All. persons who .. avail the services by doctors. and hospitals who _give free service to poor patients but charge. fee for others ar~ ;equired: to be-treated. on the same f~oting irrespe~tiv6 ciitile f"actthat some Pfthem pay for the se.. Vice and others avail the same free of charge. Mbst of th~ doctprs _ and hospitals work on _commercial lines and the expenses incurred for SAVITAGARG v. DIRECTOR, NATIONAL HEARTINSTITUTE [A. K. MATHUR. J. ] 373 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 overall consideration of the objectives and the scheme of the Act it would not be possible to treat the Government hospitals differently.

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". Service rendered by the doctors and hospitals who render free service to poor patients and charge fees for others 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(l)(o) of the Act. " Therefore, the distinction between the 'contract ofservice' and 'contract for service' has been very elaborately . discussed in the above case and this Court has extended the provisions of the Consumer Protection Act, 1986, to the medical profession also and included in its ambit the services rendered by private doctors as well as the Government Institutions or the non-Governmental institutions, be it free medical services provi~ed by the Government Hospitals.

In the case of Achutrao Haribhau Khodwa and Ors. v. State ofMaharashtra and Ors. reported in [1996] 2 SCC 634, Their Lordships observed that in cases where the doctors act carefossly and in a manner which is not expected of a medical practitioner, then in such a case an action on torts would be maintainable. Their Lordships further observed that if the doctor has taken proper precaution and despite that if the patient does not survive then the Court should be very slow in attributing negligence on the part of the doctor. It was held as follows: "A medical practitioner has various duties towards his patient and he must act with a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. This is the least which a patient expects from a doctor. The skill ofmedical practitioners differs from doctor to doctor. The very nature of the profession is such that there may be more than one course of treatment which may be advisable for treating a patient.

Courts would indeed be slow in attributing negligence on the part of a doctor if he has performed his duties to the best of his ability and with due care and caution. Medical opinion may differ with regard to the course of action to be taken by a doctor treating a patient, but as long ·as a doctor acts in a manner which is acceptable to the medical profession and the court finds that he has attended on the patient with due care, skill and diligence and if the patient still does not survive or suffers a permanent ailment, it would be difficult to hold the doctor to be guilty of negligence. But in cases where the doctors ·act carelessly and in a manner which is not expected of a medical prac! itioner, then in such a case an action in torts would be maintainable. " Similarly, our attention was invited to a decision in the case of Spring Meadows Hospital and Anr. v. Harjo/ Ahluwalia through K. S. Ahluwalia and Anr. reported in [1998] 4 SCC 39.

Their Lordships observed as follows: "Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusal:ile, but a mistake which would tantamount to negligence cannot be pardoned. In the former case a court can accept that ordinary human fallibility precludes the liability while in the latter the conduct of the defendant is considered to have gone beyond the bounds of what is expected of the skill of a reasonably competent doctor. " Therefore, as a result of our above discussion we are opinion that summary dismissal of the original petition by the Commission on the question ofnonjoinder of necessary parties was not proper. In case, the complainant fails to substantiate the allegation, then the complaint will fail. But not on the ground of non-joinder of necessary party. But.

at the same time the hospital can discharge the burden by producing the treating doctor in defence that all due care and caution was taken and despite that patient died. The hospital/Institute is not going to suffer on account of non-joinder of necessary parties and Commission should have proceeded against hospital Even otherwise also the Institute had to produce the concerned treating physician and has to produce evidence that all care and caution was taken by them or their staff to justify that there was no negligence involved in the matter. Therefore, nothing turns in. not impleading the treating doctor as a party. Once an allegation is made that the patient was admitted in a particular hospital and evidence is produced to satisfy that he died because of lack of proper care and negligence, then the burden lies on the hospital to justify that there was no negligence on the part of the treating doctor/ or hospital.

Therefore, in any case, the hospital which is in better positlon to disclose that what care was taken or what medicine SAVITA GARG v. DIRECTOR, NATIONAL HEART INSTITUTE [A. K. MATHUR, J. ] 375 was administered to the patient. It is the duty of the hospital to satisfy that there was no lack of care or diligence. The hospitals are institutions, people expect better and efficient service, if the hospital fails to discharge their • duties througJl their doctors being employed on job basis or employed on contract basis, it is the hospital which has to justify and by not impleading a particular doctor will not absolve the hospital of their responsibilities. In the result, we allow this appeal, set aside the order dated 6. 2. 2003 passed by the National Consumer Disputes Redressal Commission, New Delhi in Original Petition No. 121 of 1995 and remit back the original petition to the National Consumer Disputes Redressal Commission to be decided in accordance with law. No order as to costs. V.

S. Appeal allowed.