"When Free of Cost Medical Services come within the purview of Consumer Protection Act and when they are not....."..
"When Free of Cost Medical Services come within the purview of Consumer Protection Act and when they are not....."..
There is a vast difference between the words "Nursery ICU" & "Nursery and ICU".
SARVODAYA HOSPITAL & TRAUMA CENTRE V/s. N.K. SRIVASTAVA, SAFDURJUNG HOSPITAL.
Facts In short :
1. The Appellant-1st Hospital was held liable for Medical Negligence, whereas Respondent No. 2 Safdurganj Hospital was discharged from the liability, by the State Consumer Forum.
2. The complainant admitted his pregnant wife with Appellant where she delivered a male baby, prematurely. However the Appellant Sarvodaya Hospital Informed they did not have such Nursery ICU facility and therefore referred the baby to the Second Opposite Party Hospital i.e. Safdurganj Hospital.
3. It was further contended that despite having Nursery ICU, Baby was admitted in General ICU in Safdargunj Hospital and there she acquired infections and ultimately unfortunately died within few days.
1. The Appellant-1st Hospital was held liable for Medical Negligence, whereas Respondent No. 2 Safdurganj Hospital was discharged from the liability, by the State Consumer Forum.
2. The complainant admitted his pregnant wife with Appellant where she delivered a male baby, prematurely. However the Appellant Sarvodaya Hospital Informed they did not have such Nursery ICU facility and therefore referred the baby to the Second Opposite Party Hospital i.e. Safdurganj Hospital.
3. It was further contended that despite having Nursery ICU, Baby was admitted in General ICU in Safdargunj Hospital and there she acquired infections and ultimately unfortunately died within few days.
Held :
1. It was contended before the national Commission by both the Hospitals that they were not at fault. 1st hospital contented that patient was coming for prenatal checkups and discharge card clearly mentions "Nursery and ICU" and not "Nursery ICU". The Patient refused the alternative given by 1st Hospital to transfer the baby to nearby GTB Hospital. Thus the allegations that precious time was lost were turned down
2. The State commission transferred all the buck on the shoulders of 1st hospital and exonerated 2nd Hospital as it provided services free of charge..
3. The National Commission turned down these findings and also held responsible the 2nd hospital for Medical Negligence by relying upon the celebrated judgment of Apex Court in the case of Indian Medical Association V/s. V.P. Shanta, reported in AIR 1996 SC 550, (http://judis.nic.in/supremecourt/imgs1.aspx?filename=10357). This is the case which brought the Doctors within the purview of COPRA Act.
4.The Conclusions of the Apex Court Judgment as mentioned in Para-56 may be reproduced are as under :
(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ’service’ as defined in Section 2(1) (o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered
by them from the ambit of the Act.
(3) A ’contract of personal service’ has to be distinguished from a ’contract for personal services’. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ’contract of personal service’. Such service is service rendered under a ‘contract for personal services’ and is not covered by exclusionary clause of the definition of ’service’ contained in Section 2(1) (o) of the Act. (4) The expression ’contract of personal service’ in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ’service’ as defined in Section 2(1) (o) of the Act.
(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6) Service rendered at a non-Government hospital/Nursing
home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose
only at the hospital/Nursing home would not alter the
position.
(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act.
(8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ’service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.
(9) Service rendered at a Government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(10) Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ’service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ’service’ as defined in Section 2(1) (o) of the Act.
(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ’service’ under Section 2(1) (o) of the Act.
1. It was contended before the national Commission by both the Hospitals that they were not at fault. 1st hospital contented that patient was coming for prenatal checkups and discharge card clearly mentions "Nursery and ICU" and not "Nursery ICU". The Patient refused the alternative given by 1st Hospital to transfer the baby to nearby GTB Hospital. Thus the allegations that precious time was lost were turned down
2. The State commission transferred all the buck on the shoulders of 1st hospital and exonerated 2nd Hospital as it provided services free of charge..
3. The National Commission turned down these findings and also held responsible the 2nd hospital for Medical Negligence by relying upon the celebrated judgment of Apex Court in the case of Indian Medical Association V/s. V.P. Shanta, reported in AIR 1996 SC 550, (http://judis.nic.in/supremecourt/imgs1.aspx?filename=10357). This is the case which brought the Doctors within the purview of COPRA Act.
4.The Conclusions of the Apex Court Judgment as mentioned in Para-56 may be reproduced are as under :
(1) Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ’service’ as defined in Section 2(1) (o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered
by them from the ambit of the Act.
(3) A ’contract of personal service’ has to be distinguished from a ’contract for personal services’. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ’contract of personal service’. Such service is service rendered under a ‘contract for personal services’ and is not covered by exclusionary clause of the definition of ’service’ contained in Section 2(1) (o) of the Act. (4) The expression ’contract of personal service’ in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ’service’ as defined in Section 2(1) (o) of the Act.
(5) Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service" as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6) Service rendered at a non-Government hospital/Nursing
home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service - is outside the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose
only at the hospital/Nursing home would not alter the
position.
(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act.
(8) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge would fall within the ambit of the expression ’service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.
(9) Service rendered at a Government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service - is outside the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(10) Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ’service’ as defined in Section 2(1) (o) of the Act irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ’service’ as defined in Section 2(1) (o) of the Act.
(12) Similarly, where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute ’service’ under Section 2(1) (o) of the Act.
This is a basic judgment which every Dr should be aware of !!
Thanks and Regards
Adv. Rohit Erande
Pune.
Pune.
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