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

 

 

 

 

 

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