CONTROVERSIES ON MEDICAL NEGLIGENCE CASES

[JURISDICTION OF CONSUMER FORUM ISSUE ]

 

Miscellaneous Petition No.53 of 2000 was filed before the National Consumer Disputes Redressal Commission (hereinafter referred to as "National Commission"), New Delhi in Original Petition No.252 of 1993 In The Matter Of Dr. J.J. Merchant & Ors.Vs. Shrinath Chaturvedi,  doctors praying that complaint filed for alleged medical negligence be either dismissed as according to them complicated questions of law and facts arise which can best be decided by the Civil Court or in the alternative the proceeding be stayed during the pendency of criminal prosecution pending against them in criminal court at Mumbai.

That application was rejected by the Commission.

Hence, an   Appeal (civil) 7975 of 2001was filed before the Supreme court which was decided on 12/08/2002 by the Bench: M.B. Shah, Bisheshwar Prasad Singh & H.K. Sema, Judgment Written by Shah, J.

In the present case, complainant respondent filed Original Petition before the National Commission on 26.8.1993 alleging that his son aged 21 years was admitted to the Breach Candy Hospital, Mumbai on 4.8.1992 for operation of slip disc as he was suffering from backache. It was stated that before that, he had returned from USA in the month of June, 1992 after obtaining degree in Business Management. He died on 29th August, 1992 in the hospital itself. For this, he attributed medical negligence.

Doctors argued that (a) there was   inordinate delay in disposal of the complaint (b) complicated question of law and facts involved in this case depending upon medical expert’s opinion summary procedure is not proper remedy for deciding such issues; hence complainant should be directed to approach the Civil Court

Apex Court while deciding the above case referred to number of earlier decided cases and quoted Indian Medical Association v. V.P. Shanta [(1995) 6 SCC 651] wherein delay in deciding the case was made an argument for dismissing the case .The facts of the case revealed the reasons for delay were :

a) Delay in making appointment of the Chairman and Members of the Forum or Commission including National Commission;

b) Not providing adequate infrastructure;

c) Delay because of heavy workload and there is only one Bench of the National Commission or the State Commissions for deciding complaints;

d) Delay in procedure;

Court in the above case had observed

“If this contention raised by the learned counsel for the appellants is accepted, apart from the fact that it would be unjust, the whole purpose and object of enacting the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') would be frustrated. One of the main objects of the Act is to provide speedy and simple redressal to consumer disputes and for that quasi-judicial machinery is sought to be set up at the district, State and Central level.”

The object and purpose of enacting the Act is to render simple, inexpensive and speedy remedy to the consumers with complaints against defective goods and deficient services and the benevolent piece of legislation intended to protect a large body of consumers from exploitation would be defeated. Prior to the Act, consumers were required to approach the Civil Court for securing justice for the wrong done to them and it is known fact that decision in suit takes years. Under the Act, consumers are provided with an alternative, efficacious and speedy remedy. As such, the Consumer forum is an alternative forum established under the Act to discharge the functions of a Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court.

Charan Singh v. Healing Touch Hospital and Others [(2000) 7 SCC 668] observed that appellant ought not to have been condemned unheard after waiting for six long years that

"The Consumer Forums must take expeditious steps to deal with the complaints filed before them and not keep them pending for years. It would defeat the object of the Act, if summary trials are not disposed of expeditiously by the forums at the District, State or National levels. Steps in this direction are required to be taken in the right earnest".

In view of the above observations made by the Supreme Court in earlier matters, Supreme Court again set the controversy at rest about the jurisdiction of consumer courts in medical negligence matters and HELD:

“However, apart from the contemplated legislative action, it is expected that the Government would also take appropriate steps in providing proper infrastructure so that the Act is properly implemented and the legislative purpose of providing alternative, efficacious, speedy, inexpensive remedy to the consumers is not defeated or frustrated.

Further, in the present case, the complainant's case is based upon the negligence of the Doctors in giving treatment to the deceased. Whether there was negligence or not on the part of the concerned Doctors would depend upon facts alleged to and in such a case there is no question of complicated question of law involved.

It is true that it is the discretion of the Commission to examine the experts if required in appropriate matter. It is equally true that in cases where it is deemed fit to examine experts, recording of evidence before a Commission may consume time. The Act specifically empowers the Consumer Forums to follow the procedure which may not require more time or delay the proceedings. Only caution required is to follow the said procedure strictly. Under the Act, while trying a complaint, evidence could be taken on affidavits [under Section 13(4) (iii)]. It also empowers such Forums to issue any Commission for examination of any witness [under Section 13(4) (v)]. It is also to be stated that Rule 4 in Order XVIII of C.P.C. is substituted which inter alia provides that in every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him for evidence. It also provides that witnesses could be examined by the Court or the Commissioner appointed by it. As stated above, the Commission is also empowered to follow the said procedure. Hence, we do not think that there is any scope of delay in examination or cross-examination of the witnesses. The affidavits of the experts including the doctors can be taken as evidence. Thereafter, if cross-examination is sought for by the other side and the Commission finds it proper, it can easily evolve a procedure permitting the party who intends to cross-examine by putting certain questions in writing and those questions also could be replied by such experts including doctors on affidavits. In case where stakes are very high and still party intends to cross-examine such doctors or experts, there can be video conferences or asking questions by arranging telephone conference and at the initial stage this cost should be borne by the person who claims such video conference. Further, cross- examination can be taken by the Commissioner appointed by it at the working place of such experts at a fixed time”

 

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 DR PREM LATA

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