Can a Government Hospital be alleged for medical Negligence;

 What is the Payment theory ?

 

In one case of Dr Hema, Dr Sulekha Dr Sethunath v/s S.Jayan & Others .11(2016) CPJ 306 NC National Commission has held that complainant do not fall within purview of consumer under Consumer Protection Act. Here was the question of making payment for the services hired and a Government hospital SAT Hospital not charging from the patients ,hence are not rendering services to the consumers under Consumer Protection Act. In this case, Sat Hospital is a Govt. Hospital, who had not charged from the patient and had not been charging from any other patient for the treatment .A Child Patient was brought to the causality on 11.10.2000, was kept in ICU. After one week from admission, surgery was conducted at the left hand and ultimately resulted into amputation of a portion of left forearm. It was alleged that post operation care was not given to the child as the child developed gangrene due to the negligence of the doctors .While coming to the facts of the case, complainants have no where pleaded in the complaint that any consideration was paid by them for obtaining services of the hospital neither could they press that hospital was charging from any other patients.

We may need to go back to the landmark judgment of apex court, the Supreme Court of India in the case of V.Shantha V Indian medical assocation in 1995

The word medical negligence has not been defined in the Consumer Protection Act. It has been covered in the services rendered and hence come under the head of deficiency in services while rendering medical services .Medical services rendered negligently has been explained in various judgments given by the Supreme Court right from the first case of V.Shantha V Indian medical assocation in 1995.Thereafter number of cases have been decided on the same footing namely Harjot Ahluwalia V Spring meadows 1998,Achyut Rao Haribhau Khodwa V State of Mahrashtra[1996] J.J.Merchant V Shri Nath chaturvedi 2002.etc.Jacob Methew V State of Punjab &others 1995 CTJ 1085 SC{CP} Malay Kumar Ganguli&Dr Kunal Saha V Dr Sukumar Mukherjee and others delivered on 7th August 2009

PAYMENT FOR SERVICES: JURISDICTION ISSUE: Various issues have already been discussed in the above cases. Still cases are coming before the courts on the point of jurisdiction when patient gets treatment from the Govt. Hospital .Judgments on this issue differ from case to case because all Govt. hospitals are not outs from the jurisdiction of consumer courts for the following reasons-

Govt Hospital is answerable before the consumer court -

·         If contribution from the employee’s salary deducted on account of medical facility

·         Payment by insurance company amounts to payment made by the consumer

·         Charitable hospitals come under the act because someone is paying for it in charity

·         Govt hospital not charging from the consumer but had been charging from some other patients. Fee/consideration is a must for falling under definition of consumer in any form or by anyone other than the treated person

 

But when Government hospital gives services completely free of cost and no charges are taken from one and all patients, in that case patient is not a consumer. In the matter of V.Shantha V/S Indian medical association this theory of liability of doctor as a service provider was explained in details which are the guideline till date for bringing a medical negligence case under the purview of consumer protection act. While considering doctors in Govt hospitals,they are  employees of the hospitals and not service providers, a distinction was made between the word ‘contract of service’ and ‘contract for services’

“No doubt that Parliamentary draftsman was aware of this well accepted distinction between "contract of service" and "contract for services" and has deliberately chosen the expression `contract of service' instead of the expression `contract for services', in the exclusionary part of the definition of `service' in Section 2(1)(o). The reason being that employer hospital cannot be regarded as service provider in respect of the services rendered by his employee in pursuance of a contract of employment. Therefore services rendered by employed doctors of the hospital do not render service by virtue of their employment towards the patients coming to the hospital “.

It is true that the relationship between a medical practitioner and a patient carries within it certain degree of mutual confidence and trust and, therefore, the services rendered by the medical practitioner can be regarded as services of personal nature but since there is no relationship between the doctor and the patient by virtue of accepting payment for services, doctor is not a service provider to the patient.

However the medical practitioners, Government hospitals/nursing homes and private hospitals/nursing homes (hereinafter called "doctors and hospitals") broadly fall in three categories:-

i) Where services are rendered free of charge to everybody availing the said services.(Govt. Hospitals) Patient is not a consumer under this category.

ii) Where charges are required to be paid by everybody availing the services. Clearly consumer.

iii) Where charges are required to be paid by persons availing services but certain categories of persons who cannot afford to pay are rendered service free of charges. Patient is a consumer

Doctors and hospitals who render service without any charge whatsoever to every person availing the service would not fall within the ambit of "service" under Section 2(1) (o) of the Act. The payment of a token amount for registration purposes only would not alter the position in respect of such doctors and hospitals.

As far as the second category is concerned, since the service is rendered on payment basis to all the persons they would clearly fall within the ambit of Section 2(1) (o) of the Act

The expenses incurred are when met  by the employer for providing free service as perks the service rendered by doctors and hospitals in such cases  fall within the ambit of Section 2(1) (o) of the Act.

But unfortunately in the above referred case of Dr Hema,Dr Sulekha Dr Sethunath v/s S.Jayan & Others .11(2016)CPJ 306 NC complainant failed to put any evidence that hospital had been charging any thing from any patient  

To conclude, we may say that while taking services from the Govt. hospitals, we need to check the facts and issue of payment for the services received as discussed above. Court delivers judgment on the bases of facts and circumstances of the case.

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