MASS DEATHS DUE TO SHORTAGE OF OXYZEN
–CAN GOVT. HOSPITAL BE HELD RESPONSIBLE
Govt hospital/medical college in gorakhpur remained in prime news during
last month for mass deaths in the
hospital due to non supply of oxyzen.
Factual possition and actual cause of death is a
matter of investigation and without going into the details of the real story
behind it ,our concern is about the legal remedy available to the general
public at large and law point so far established by the apex court under
various situations.
Issue before us for discussion is –
1. What
is the responsibility of hospital towards its patients
2. How govt hospital is different from private
nusing homes if question of responsibilty is to be settled
3. What
is the role and responsibility of the doctor towards his/her patients while
giving treatment .
On
the first issue law is very clear that all infrastructure is to be provided by
the hospital to the patient which includes medicines ,doctors ,nurses,beds,
oxyzen and all other surgical as well as clinical equipments ,adequate serving
staff. This subject was discussed in details in landmark judgment by the apex
in the matter of Harjot Ahluwalia V Springmeadows 1998 Sc and was held-
‘It
is a case of non- availability of oxygen cylinder either because of the
hospital having failed to keep available a gas cylinder or because of the gas
cylinder being found empty. Then, the hospital may be liable in civil law but
the accused appellant cannot be proceeded against under Section 304A IPC on the
parameters of Bolam's test’
It further states-‘cases where
nurse is not trained ,case left to junior doctors without explaining case
history,wrong medicine or wrong injection given causing damage to the patient
,doctors/hospital/nursing home negligent for medical treatment
On
the basis of above opinion of the apex court ,hospital can be held responsible
under civil law/consumer law but cannot be proceeded with criminal negligence. We
must add here that govt. can always take action against its erring employees of
govt hospital as permissible under rules and law.
Can
govt. hospital get rid of the responsibility in case patient files case for
compensation before the consumer forum/consumer commission.Here comes a clause
in operation which requires payment of fee necessary for filing before consumer
courts
For Fee/consideration there are three categories defined in the first
lanmark judgment V.Shantha V Indian
Medical Association SC 1995 by the apex court on medical
negligence-:
· GOVT HOSPITALS ;
·
Govt Hospital liable if contribution from the employees salary
deducted and this is considered as fee
·
When hospital has added
private rooms and private facilities and charging from some people for those
facilities,in that case patient becomes consumer even if he has not paid fee.
·
Payment by insurance company amounts to payment made by the
consumers.
·
All cashless facility cases wherein insurance makes payment come
under Consumer Protection Act
· PRIVATE
NURSING HOMES
All Private nursing homes are anserable before
consumer courts.
· CHARITABLE HOSPITALS
Charitable Hospitals are
maintained by some rich persons and hence is paid by them in charity if not by
consumer directly . In other words hospital is paid by someone other than
consumer.These hospitals are anserable
before consumer courts
DOCTORS WHEN Negligent [V.Shantha V
Indian Medical Association SC 1995]
!) When there
is Damage to organ due to negligence.
!!) Wrong treatment due to wrong diagnosis.
!!!) Money receipt or prescription or discharge summery or test reports when
not provided.
!V)When treatment not chosen as per accepted and established norms in
medical science/ medical research/available medical literature.
Three steps necessary to be observed by the medical
practitioners [Achuterao
Haribhau Khodwa V State of Maharashtra SC 1996]
·
To decide whether he has to take up the
case or not.
·
If taken up the case, he is to decide
what treatment is to be given.
·
Whether the treatment given as per the
diagnosis made.
WHEN DOCTOR NOT NEGLIGENT
·
Doctors are not negligent if out of five methods established in
the medical science, doctors adopt one method for treatment which
does not bring expected results or treatment does not proove to be very
effective
·
Doctor not guarantor
·
It is expected from a doctor to have a reasonable skill and
knowledge and reasonable degree of care
·
Doctor is not negligent unless he has done something which
he ought not have done OR has not not done something which he
should have done.
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