HEALTH RELATED CASES UNDER CONSUMER LAW
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HEALTH RELATED CASES
UNDER
CONSUMER LAW
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HEALTH RELATED CASES
UNDER
CONSUMER LAW
Complied by
GAUTAM BANERJEE
MATHEW N. M
CEDRIC B. FINCH
Voluntary Health Association of India
ykCKISIOWLEDQMEISIT
The major contribution in this compilation was done by Mr. Gautam Banerjee, Advo
cate, Supreme Court of India.
Special thanks to Mr. Cedric B. Finch, Administrate r, VHAI for the concept and
support given for this publication. We are grateful to Mr. Jose K. Uthup, Member,
District Forum, Kottayam for his paper 'Health and Consumer Protection Act', repro
duced in this book. Sincere thanks to the Information and Documentation Division
and Communication Division of their assistance in production of this document.
Mathew N.M
Campaign Unit, VHAI
A
FOREWORD
The enactment of a unique piece of legislation in 1986 called Consumer Protection
Act, has indeed proved to be a big boom for the consumer movement in India. It was
instrumental in bringing justice to thousands of aggrieved consumers during the past
few years of its existence.
Whether medical services comes under the purview of CPA or not, remains a
hotly debated subject, even today, between consumer activists and doctors. Opinions
and legal interpretations have widely varied, so much so that the Supreme Court is
presently seized of this matter.
Medical services is a gray area as far as consumer protection is concerned. Con
sumers are mystified by the complexities involved in this branch of science. But, of
late, because of legal scrutiny of medical negligence cases in consumer courts, lot of
things are coming to light.
We hope this publication "Health Related Cases Under Consumer Law" will
promote consumer awareness and help obtain more transparency and accountability
in medical services. This should also give sufficient materials for the practicing doc
tors to understand the real implications of the Law and to provide them with neces
sary clues for safe handling of intricate medical cases.
VHAI stands for a healthy relationship between patients and doctors based on
mutual trust and respect for each others rights.
ALOK MUKHOPADHYAY
EXECUTIVE DIRECTOR
HEALTH AND CONSUMER PROTECTION ACT
JOSE K. UTHUP
Doctors consider the Consumer Protection Act, 1986 as a "snake in the grass." The
Indian Medical Association is vehemently protesting against their services being brought
under the purview of the C.P. Act. But I feel that these agitations and the practice of
defensive medicine are are all unnecessary if the doctors understand the Act properly.
In such an event, they will change their whole outlook towards CPA. In this regard we
can examine the case laws and verdicts of the various State Consumer Courts.
A mistaken diagnosis is not necessarily a negligent diagnosis
This is a well established principle guiding the Consumer Courts. In the case
"Navaneethan Vs. Dr. Rathinaswamy and Other", the Madras State Commission quoted
the famous words of Snna A.C.J. as "No human being is infallible and in the present
state of science even the most eminent specialist may be at fault in detecting the true
nature of a diseased condition. A practitioner can only be liable in this respect if his
diagnosis is so palpably wrong as to prove negligence, that is to say, if this mistake is
of such a nature as to imply absence of reasonable skill and care on his part, regard
being had to the ordinary level of skill in the practitioner."
It is an admitted fact that error of judgement is not a crime in Criminal or Civil
law. Wrongful diagnosis will not amount to a negligence. The law appreciates that
the medical practitioner is not obliged to achieve success in every case he treats. His
only duty according to the law is to exercise reasonable skill and care.
In a medical situation where the best method of treatment is not available to the
doctor, he isjustified in taking recourse to the next course of action, even if the end
result turns out to be negative. The doctor will not be held negligent. (Refer case No.
7 in this book - Iqbal Khan Vs. The Child Trust Hospital, Madras). In Smt. Dipli De
Sarkar Vs. Steel Authority of India Ltd. Rourkela Steel Plant and ORS case, the Orissa
State Commission upheld the famous Jurist Lord Dennig's words "you must not there
fore find the doctor negligent simply because something happens to go wrong." (Re
fer case No. 43 in this book)
The Delhi State Commission in a case Miss. Curpreet Kaur Vs. Dr. R.K. Bhutani
the court held "where the doctor has not been found negligent in providing treatment
to the patient the complaint for loss and suffering by such patient before Consumer
Forum is liable to be rejected. (Refer case No. 36 in this book).
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HEALTH AND CONSUMER PROTECTION ACT
Guarantees care not care
The doctors are now applying defensive medicine while treating patients for fear of
the C.P. Act. This is only because of the ignorance of law. The law appreciates that
the medical practitioner is not obliged to achieve success in every case he treats. His
only duty according to the law is to exercise reasonable skill and care. He guarantees
care not cure. This is a well established norm in Consumer Court verdicts. This fact
has been established by The Gujarat State Commission in Mashabai Vs. Parmar Bala
Bhai and Other case. (Ref. case No. 40 in this book). The Commission observed "it
may be noted that in the distant villages where the modern facilities are not available
and the doctors have to treat the patients with available means and resources, if the
wild allegations of negligence are made, time will come where no doctor will take
the patients in the hospital even if they are serious and will hesitate to give even
primary treatment and thereby avoid the possibility to expose himself to wild allega
tions, negligence and getting dragged in to the court".
When two different line of treatments are available to the doctor and he adopts
a particular course, he cannot be held negligent even if something goes wrong. This
principle was clearly demonstrated in a judgement given by the Tamil Nadu State
Commission. (Refer case No 44 in this book) in the case of R. Gopinath Vs. Eskeycee,
Medical Foundation and Other. The State Commission remarked that "a doctor is not
guilty of negligence if he has acted in accordance with a practice accepted as proper
by a responsible body of medical men skilled in that particular art - putting it the other
way round, a man is not negligent, if he is acting in accordance with such a practice,
merely because there is a body of opinion who would take a contrary view."
The other complaint in this case was regarding the consent. The consumer court
held that "in the instant case the only treatment, for the injuries suffered by the com
plainant was surgery and there can therefore be no ambiguity in the consent given by
the complainant when he himself has been quite conscious and voluntarily given the
consent, and there is absolutely no necessity to take the consent of his wife or other
relations."
It may also be interesting to verify some of the cases decided in favor of the
consumers. In Smt. R. Lalitha Vs. M. Leena case Tamil Nadu State Commission held
that rash and reckless act of the hospital amount to depriving of service.(Refer case
No. 1 7 in this book).
The State Commission agreed with the view of Lord Newart C.J. when he re2
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HEALTH AND CONSUMER PROTECTION ACT
marked that "even a qualified man may be held liable for recklessly undertaking a
case which he knew or should have known to be beyond his powers or for making his
patient the subject of reckless experiments". The Commission noted that here was a
case where the opposite party who was merely a nurse and mid-wife had taken upon
herself, the management of a situation pregnant with dire consequences. The oppo
site party had acted rashly, recklessly and with culpable negligence. The consequences
must therefore, lie squarely on her shoulders".
Another example is the famous case decided by the Kerala State Commission in
Kunji Pathumma Vs. Dr. Sr. Louie and another upheld by the National Consumer
Disputes Redressal Commission.(Refer case No. 11 in this book).
The health services in our community, like pharmaceutics is an Industry in itself
- it is profit oriented. Pharmaceutics is the most profitable industry in the world.
There is a flood of inferior, banned and substandard drugs in the market. Many
doctors support this industry by their dependency on it for favours. Now-a-days, a
busy doctor examines 50 to 60 patients in 3 hours. The piece meal and de-humanised
health care causes a lot of consumer dissatisfaction and is responsible for litigations.
Now there is no difference between hospital authorities who accept a patient for
treatment and railway or shipping authorities who accept a passenger for carriage.
Multiplicity of litigation
The main complaint of the doctors is about their being unnecessary dragged to con
sumer courts, their reputation and income thus being adversely affected for no fault of
theirs. This suspicion has no base. The recent survey conducted by the Civil Supply
Secretary of Kerala revealed that the Kottayam Consumer Forum is the top most Fo
rum in handling cases. The monthly average is 176 cases. From 3rd October, 1991
to 31st August, 1994, 5547 cases were filed and 4772 cases were settled. It is interest
ing to note that out of this 5547 cases there were only 34 cases against the doctors
and hospitals. At the same time the doctors filed 114 complaints against electricity,
water authority, telephone dept, dealers etc. The simple, speedy and free remedies
provided by Consumer Courts which are availed of by the doctors are three times
more than the grievances filed against them. For the last three years no false com
plaint was allowed in the Forum. So the suspicion and fear of the doctors about CPA
are totally unfounded and not based on facts.
Even after so many years of Independence, it is a pity, that we do not have a
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HEALTH AND CONSUMER PROTECTION ACT
Common Civil Code. This is a question which needs to be addressed to. If we ex
clude some professions from the purview of an Act, we will be doing a great disser
vice to our country. In a democratic country all citizens are equal. No profession is
superior to another. Equality of law should not only be in books but also in practice.
The statutory bodies like Indian Medical Council, Bar Council etc. have failed to
fulfill the aspirations of the hapless consumers. They still remain as mere "Anti
Corruption Departments". Under these circumstances, the Consumer Protection Act
is a little candle in the darkness. We can easily put it off but it is difficult to rekindle.
It is, therefore, of paramount importance that the doctors should acquaint them
selves fully with this Law, which will help them get rid of their unwarranted worries
and tensions. Good doctors who form the vast majority of the medical profession
need not fear the Act at all.
Mr. Jose K. Uthup is a sitting Member of the Kottayam (Kerala), District Forum.
0<
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__ MEDICAL SERVICES AS IF CONSUMERS MATTERED
MATHEW N. M
The Consumer Protection Act, 1986 has rightly been hailed as the single most impor
tant factor in taking consumer awakening in India to its present level. Its wide ranging
ramifications have resulted in an unprecedented energy and hope among the so far
unorganized and gullible consumer community. Emergence of a large number of
resistance groups and consumer organisations all over the country bears testimony to
this fact.
e
Let us now look at health services from the consumers point of view. All of us
need timely medical care during illness at an acceptable level of quality, price and
easiness. Quality of our life heavily depends on the kind of medical goods and ser
vices we have access to. We are the health consumers and we deserve fair play and
justice from health care services.
GOVERNMENT HEALTH SERVICES
Government is the largest provider of medical facilities in the country through its
wide network of Research Centres, Medical Colleges, District Hospitals, Community/
Primary Health Centres etc. But the over stretched Government sector has become
stagnant and insufficient to meet the health needs of the people. Although there has
been a phenomenal growth in Government infrastructure after Independence, it is
evident that the disillusionment and frustration with the growing ineffectiveness of
this sector is gradually driving people to the profit oriented private sector. According
to an Indian Council for Medical Research study in 1988 only 15 per cent of Primary
Health Centres in the country had the requisite personnel and facilities. Many a time
the only health service available to the needy people from the health centre is a slip
of paper with names of medicines which they have to get from shops outside. Even in
the city hospitals the conditions are far from satisfactory. There is an air of general
neglect all round. The staff are arrogant with a stiff necked posture. The emergency
services are ill-equipped and lacks essential medicines and facilities. There is over
congestion leading to un-hygienic surroundings. Therefore, patient satisfaction from
these services is very very low, if not absent altogether.
Health consumers in this country, in many ways, get a raw deal due to defi
ciency in services. Scarcity of health facilities makes their position weak and keep
them always at the receiving end. This disadvantage of the consumers is partly re-
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9
MEDICAL SERVICES AS IF CONSUMERS MATTERED
sponsible for making the health system irresponsive and unanswerable. Several inci
dences of medical negligence are being reported from both Government and private
hospitals, ranging from simple carelessness to willful cheating and criminal indul
gences. Many Govt, doctors get into private practice which adds to the woes of the
poor consumers. The lure of the lucre naturally diverts the doctors attention from the
Govt, hospital services.
HEALTH SERVICES OUTSIDE GOVERNMENT SECTOR
The gap between the demand and supply of medical services is filled by the non
governmental sector of charitable and private hospitals. They are supposed to be
more responsive to patients, but for a price. It has been noticed that about 76% of all
the out patient cases are handled by this sector. Hence its vital role in the health
management of the country.
But is the private sector on the consumers side? Opinions vary. Of late this
sector has come under lot of flak by allegations of callousness, overcharging, poor
quality service, wrong diagnosis, unnecessary medical investigations, prolonged hos
pitalizations, total lack concern for medical ethics and presence of quackery. There is
no standardization of charges or practicing methods. Consumers have reasons to be
frustrated with the lack of transparency in the whole gamut of patient care and other
connected issues. The mushrooming growth of business houses in medical care mostly
in the curative sphere is not necessarily a sign of growth of health care. In the absence
of any social audit mechanism or effective legal framework to deal with this problem,
consumer interests are seriously at risk.
CONSUMER PROTECTION ACT, 1986 AND GOVT. HEALTH SERVICES
The Consumer Protection Act at present exclude Government Medical Services from
in its ambit purely because it is not paid for by the patients. There is no hiring of the
service as the treatment is given free of cost and, therefore, CPA does not apply to the
Govt, sector. Consumers and doctors outside the Govt, sector are agitated about this
double standard. According to them, a negligence is a negligence irrespective of
whether it takes place in a Govt, hospital or a private hospital, if so why only the
latter is brought under CPA? Accountability should be equal for all and the Law
should not be partial. Patient's rights are violated in both the cases.
A recent incident clearly supports their argument. The scene is the prestigious
All India Institute of Medical Sciences, New Delhi. On 11th July, 1994, a 30 year old
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MEDICAL SERVICES AS IF CONSUMERS MATTERED
women named Bimla underwent Mastectomy and one of her healthy breasts was
removed by mistake. When the clinical examination of the patient revealed nothing
more than a small lump, doctors realised their mistake. The patient with breast cancer
was another Bimla. The formar'sORD registration No. was 8807 and the latters 114391.
The only option currently available to the health consumers of the Govt, ser
vices is to approach Civil or Criminal Courts for justice. Quick remedies are not
available through these over burdened Courts. It takes several years and involves
phenomenal costs for the consumers to get redressal, negating the very spirit of con
sumer protection. The poor patients who flock to Govt, hospitals for free care, bear
ing all inconveniences, can never think of approaching the above courts for obvious
reasons. Even CPA holds no promise for them at present.
The Committee on Subordinate Legislation of the Lok Sabha, in its 10th report
on consumer protection tabled in the House on 24th August this year, expressed
grave concern on keeping the Government doctors and other medical personnel out
side the purview of the Consumer Protection Act and asked the Government to recon
sider the matter. They argue that this amounts to discrimination against medical pro
fessionals in the private sector. But as of today, there is no sign of any positive move
on the part of the Government to bring Govt, medical services under the Consumer
Protection Act. Whereas, the Ministry of Civil Supplies, Consumer Affairs and Public
Distribution System of the Government of India is earnestly trying to resolve this
imbroglio in the interests of the patients, it is interesting to note that the Ministry of
Health and Family Welfare does not seem to be very keen on this for reasons best
known to them. This is one area where the consumer activists should also be gravely
concerned.
MEDICAL SERVICES UNDER CONSUMER PROTECTION ACT
From early 1990s, medical negligence cases started coming up in consumer courts.
Doctors did not take kindly to being dragged into these courts. They saw serious
threats to their profession freedom they have been enjoying practically unchallenged
for long. The Doctors are mainly regulated by the Medical Council of India estab
lished under the MCI Act 1 956, which is a body of doctors. MCI is a weak monitoring
body with no authority to adequately punish the erring doctor or to compensate the
medical victims. The CPA changed the whole scenario. It demanded accountability
of doctors to the patients and compensation for the victims of doctor's negligence.
Now the doctors and their professional bodies are demanding review of MC
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MEDICAL SERVICES AS IF CONSUMERS MATTERED
Act. They want MC machinery revamped almost on the same lines as in CPA, includ
ing compensation to the victims, setting up of medical tribunals-cum-disciplinary com
mittees at the Centre, State and District levels comprising of doctors, legal experts,
consumer representatives and other public figures. Some of them have also advo
cated initiating 'no-fault insurance' as prevalent in the US, wherein the patient pays a
small amount on admission to the hospital and the rest of the premium shared by the
institution and Government. In case death occurs during surgery, due to no fault of
the doctor, the accumulated amount goes to the patient's family. What would come
out of this new found doctors formulae is of considerable interest to the consumers.
Doctors argue that medical services do not come under the purview of the CPA
as it has not been specifically mentioned in the Act. The scope of the Act as given in
Section 2(o) says 'service of any description which is made available to potential
users'. Secondly, they argued that doctor's service is 'a contract of personal service'
which is exempted under this Law. Thirdly they argued that patients are not consum
ers as envisaged by CPA. The Act says 'consumer is a person who buys any goods or
service for a consideration (price) which has been fully or partly paid or promised'. So
any person availing of medical services in private hospitals by paying money be
comes a consumer. Different consumer courts ruled differently on these issues, but
generally the above arguments of the doctors were found untenable. In a land mark
case of wrong diagnosis in a hospital in Kerala (Vasantha P. Nair Vs Cosmopolitan
Hospitals in 1991) the State Commission and later the National Commission on
21.4.1992 set all these arguments at rest (Refer case No. 21 in this book).
Writ petitions challenging the applicability of CPA were filed in several High
Courts by agitated doctors. Few High Courts ruled in favour of the patients but the
Madras High Court in the case of Dr. C.S Subramanian Vs Kumarasamy & Ors - W.P
No 14713 of 1991 etc. dated 17.2.94 ruled that the patient is not a consumer and
medical services is a' contract of personal service' which is outside the purview of the
Act. The Court, however, did not extend this immunity to para medical services.
Now the scene has shifted to the Supreme Court. Hearing of the appeals filed by
the Indian Medical Association and several specialists organisations challenging the
inclusion of medical profession in CPA has started on 21 September, 1994. Con
sumer organisations are actively intervening in this matter.
As can be seen from the proceedings in the consumer courts the number of
cases filed against medical services are very few compared to other complaints. Proven
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MEDICAL SERVICES AS IF CONSUMERS MATTERED
cases are still fewer. The reason for this is that it is not easy to prove medical negli
gence because of the complexities involved. Medical services still remain mysterious
to the consumers. Added to that is the respect and awe doctors command. So, many
people do not dare to initiate action against the doctors.
In medical services, the consumer's Right to Choice and Information are se
verely restricted as the decisions are taken by a third party - the doctor. Thus the
consumers hardly have any control on the quality and price of goods and services
they are asked to avail of.
MEDICAL NEGLIGENCE
4
Unprincipled elements in the medical profession dilutes ethical standards and in
dulge in profiteering from people's miseries bringing disrepute to the entire profes
sion. The business in medical care is overtaking the business of medical services.
Doctors job is a very vital one as they deal with life and death. A lapse of the doctor
may cost the patient dearly. Therefore the doctors should take their responsibilities
seriously and if they do not, medical negligence litigations will result. Negligence is
a tort, i.e. a wrong done by one person to another. In medical parlance it is defined as
"a mistake by a medical practitioner which no reasonably competent and careful
professional would have committed". When a doctor agrees to treat a patient, it is
implied that he posses the required skill and knowledge. He should exercise reason
able care which is not the very highest nor the lowest. For things beyond his control
especially the unexpected developments and inherent risks associated with medical
cases, the doctor will not be held responsible. This is not negligence. Negligence is
precisely the absence of a minimum skill or standard of medical attention expected of
a competent doctor. Negligence can also occur ifany doctor attempts to handle cases
beyond his competency or training. Delay in attending to patients can also be consid
ered negligence. The negligent doctor cannot go scot free. He has to pay for his acts
of commission and omission. If there are elements of deliberate cheating or fraud on
the patient the case assumes more serious nature. Consumer Courts tries to bring
justice to the patients in such circumstances. The onus of proving the guilt of the
doctors lie with the consumer, hence the success rates of such cases are limited.
For a successful claim in the consumer forum, the patients will have to prove
negligence of the doctor in any of the following areas:
•0 negligent diagnosis
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MEDICAL SER
negligent operation
failure to listen to the problems of the patient
negligent administration of drugs, injections (in wrong areas, breaking needles
in the body etc.
negligent prescription of drugs
negligent exposure of the patient to risk of infections
negligence in advice, meaning failure to warn and inform the patient about
possible risks in the medicines or operations.
negligent supervision on follow up of cases
❖ negligent facilities - in providing essential support systems, staff and other
infrastructure
negligent operation leaving instrument or swab inside the patient
negligence in obtaining consent of the patient or authorised relatives.
The law is not against the honest and well meaning doctors who have so far
sustained the system. An honest attempt by the doctor for the well being of the
patient builds up good rapport between the patient and him which helps avoid un
necessary litigations. It is always safe for the doctor to explain to the patient the nature
of the disease, treatment, risks involved and the financial implications. Standard medical
practices should never be compromised. If somebody is in to blackmail or humiliate
any doctor by filing a frivolous or vexatious case, the consumer courts have powers to
take strong actions against such complainants by imposing penalties upto Rs 10 thou
sand on the complainant. But a case decided by the National Commission on Sep
tember 9, 1994 made history of sorts. The complainant was asked to pay Rs 10000
each to the doctor and hospital who were implicated. The court found that the com
plainant had concealed the history of his heart ailments while getting treated for gas
troenterology from Medical Research Centre, Bombay under Dr. N.H. Banka (Refer
case No. 32 in this book).
In another case in September, 1994, the Kerala State Commission granted Rs
4000 to the family of a patient died of breast cancer. The complaint was that the
Regional Cancer Centre delayed the result of the Carnico Embryonic Antigens (CEA)
test for 74 days which prevented prompt treatment and the patient died due to it. The
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MEDICAL SERVICES AS IF CONSUMERS MATTERED
Commission accepted that the delay in furnishing the result amounted to deficiency
in service but the cause of death could not be attributed to it.
Fear of consumer courts leads to distrust between patient and doctor. Some
doctors are inconvenienced by false cases. The solution to this problem is not by
doing away with the law but careful application of the Law to act as deterrents against
carelessness of doctors. Doctors going in for defensive medicines and taking up high
value insurance cover etc. will harm the cause of consumers. Law is only a stick and
the ideal situation is to do away with the need to use the stick.
LEGAL SAFEGUARDS FOR HEALTH CONSUMERS
Under the Fundamental Right to Life and Liberty (Article 21 of the Indian Constitu
tion) and the Directive Principle (Article 47) and other laws of the land, patients can
claim certain Rights in India. In other countries like UK and USA, the patients have
their 'Bill of Rights'. A Working Group consisting of consumer activists and profes
sionals is functioning under the Central Consumer Protection Council on the " Char
ter of Patient's Rights" for India.
The Patient's Rights can be broadly classified as follows:
1. Right to Health Care and Humane Treatment. This entitles the patient to
receive timely medical attention from an adequately qualified health personnel in
dignity and respect.
2. Right to Give Consent. All the investigations, treatments, experiments and
operations can be done only with the explicit consent of the patient or somebody
authorised to do so.
3. Right to Information. No information should be withheld from the patient
unless that can adversely affect his health. He can ask for information on the doctor
treating him, seek a second opinion from another doctor, if needed, ask for reports of
the diagnostic findings and explanations for bills raised on him.
4. Right to Adequate Prescription Information. Details of the drug use like side
effects, risks, cost and availability should be told to the patient. It is understood that
only medical of standard quality, efficacy and safety are prescribed.
5. Right to Health Education. The patient can seek advice of the doctor on
preventive measures, after care and tips for maintenance of good health.
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MEDICAL SERVICES AS IF CONSUMERS MATTERED
These rights also put certain responsibilities on the patients. Every patient has to take
of preventive methods to keep good health, provide accurate and complete informa
tion to the doctor and accept all the consequences of his own informed consent.
CONSUMERS AND MEDICINES
This is a vital area of concern for consumers. During sickness the patients may be
taking drugs without really knowing the need, potency, risks and side effects and
necessary precautions. Drugs can induce suffering and financial losses if given wrongly.
Drugs are indeed essential for treating diseases, but not all drugs available in the
market are essential. There are over 70 thousand formulations now in the market
many of which are unnecessary, banned, patently hazardous, irrational and over priced.
It is estimated that 40% of the available drugs are sub-standard, spurious or outright
useless. The drug industry flourishes on the ignorance of the consumers and in some
cases with the active connivance of doctors. The consumer's Right to Information,
Right to Safety and Right to Life are endangered by deliberate cover up acts and
malpractices of interested parties. Consumers should get effective, safe, specific, cheap
and easily available drugs. Doctors promote certain medicines as they get favours
from the manufacturers. Chemists prefer certain preparations because of larger profit
margins.
Consumers should know that they should take medicines only when it is inevi
table, strictly on the advice of a qualified doctor. They should obey the instructions
regarding dosages, timings, duration and precautions. They should report to the doc
tor if there are some unexpected reactions. They should never use any medicine after
the expiry date. Check the price and contra- indications mentioned on the packets.
Make sure to collect the receipt whenever a purchase is made. This will be
needed for filing complaints in consumer courts. Never hesitate to sue the doctor or
drug distributor and manufacturer if any hazardous, unsafe product is sold to you.
Consumers can also bring action against them if banned drugs are being sold to them
or un-substantiated claims about any medicines are advertised or proper informations
on them are withheld or restricted trade practices adopted.
Consumers have reasons to be disappointed with the recent pronouncement of
the Drug Policy by the Government of India. It is evident that the health needs of the
people and consumer interests have been given a go bye. Drug industry has been
further liberalized so that it can flourish and make good profits, without bothering
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MEDICAL SERVICES AS IF CONSUMERS MATTERED
about the production and distribution of essential drugs needed for the masses in
sufficient quantities and at affordable prices. Diseases like Malaria, TB, AIDS and
even Plague is coming back with a vengeance. The recent Rajasthan Malaria epi
demic killing more than 1000 people, proves that in such calamities essential drugs
are always in short supply. Market forces do not perhaps work to the advantage of
consumers in the case of medicines.
DOCTOR-PATIENT RELATIONSHIP
e
The relationship between the doctor and patient is still considered sacred in India. But are all
the doctors living up to accepted standards especially in the event of the rampant commer
cialization of medical services? Perhaps not. There is an urgent need for a new perspective,
a qualitative change and redefinition of doctors priorities. Patient should not be considered
as a commodity for economic gains. Consumer satisfaction should be the central focus in
medical services. This is a justifiable demand of the consumers, which the doctors will have
to listen to.
Consumer awareness is slowly building up in the country. Concepts are changing,
laws are getting updated, established systems are being challenged, consumers are getting
more vigilant and demanding. A new pro-consumer culture is slowly emerging. We are all
partners in this growing movement and let us be proud of it.
13
LIST OF CASES
14
i.
A.K. Hazarika Vs. Saraighat X-Ray & Clinical Laboratory.
2.
Kadan Karai Nadar & Ors. Vs. Rakkappan.
3.
Pavitar Singh & Ors. Vs. State of Punjab and Ors.
4.
Sowbhagya Prasad & Ors. Vs. State of Karnataka and Ors.
5.
Bhavchandbahai Mangibhai Lakhani Vs. Dr.Bhupendra D.Sagar.
6.
Haribhai Lagharbhai Solanki & Ors. Vs. Dr. Suresh Parikh.
7.
S. Iqbal Khan Vs. The Child Trust Hospital, Madras.
8.
Jagan Nath Vs. Jindal Dental & Orthopaedic Clinic.
9.
Dr. C.S. Subramanian Vs. Kumarasamy & Ors.
10.
Surendra Kumar Kumawat & Ors. Vs. Dr.(Smt.)Sunil Jain & Ors.
11.
Dr. (Sr) Louie & Ors. Vs. Kannotil Pathumma & Anr.
12.
Sachin Aggarwal & Vicky Vs. Dr. Ashok Arora.
13.
Melwyn Camera Vs. Mr. Bosco D'Souza.
14.
Smt. Sukanti Behera Vs. Dr. Sashi Bhusan Rath & Anr.
15.
Dr. Jacob ^George Vs. State of Kerala.
16.
R. Gopinathan Vs.Eskeycee Medical Foundation Pvt.Ltd.& Ors.
17.
M. Jeeva Vs. R. Lalitha.
18.
Vinita Ashok Vs. Lakshmi Hospital & Others.
19.
Renu Jain & Ors. Vs. Escorts Heart Institute & Res. Centre.
20.
Sir Ganga Ram Hospital Vs. D.P. Bhandari & Ors.
21.
M/S.Cosmopolitan Hospitals and anr. Vs. Vasantha P. Nair.
22.
Mrs. Marble Roosevelt Vs. State of Kerala.
23.
A. Narain Rao Vs. Dr. G. Ramakrishna Reddy and Anr.
24.
S. K. Abdul Sukur Vs. State of Orissa & Others.
25.
Consumer Unity & Trust Society, Jaipur Vs. State of Rajasthan and Others.
LIST OF CASES
e
9
26.
Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another.
27.
Pt. Parmanand Katara Vs. Union of India & Ors.
28.
Dr. T.T. Thomas Vs. Smt. Eliza & Ors.
29.
Ram Bihari Lal Vs. Dr. J.N. Shrivastava.
30.
Dr. Pinnamanein Narasimha Rao Vs. Gundavarapu Jayaprakatu and another.
31.
Orissa Nursing Home & Ors. Vs. Smt. Anurekha Sahoo.
32.
Brij Mohan Kher Vs. Dr. N.H. Banka and another.
33.
B.Shekhar Hegde Vs. Dr. Sudhanshu Bhattacharya & another.
34.
Anuradha Sahoo Vs. Orissa Nursing Home & another.
35.
A.K. Pias Vs. Carithas Hospital.
36.
Miss. Gurpreet Kaur (Minor) Vs. Dr. R.K. Bhutani.
37.
R.B. Seth Jessa Ram and Bros. Vs. Sushma.
38.
Smt. Ram Kali & Ors. Vs. Delhi Administration and Ors.
39.
Haresh Kumar Vs. Sunil Blood Bank and others.
40.
Vaghri Gopalbhai Mashabhai Vs. Parmar Navalben Balabhai and another.
41.
Delay in providing Lab. Test Results.
42.
Child's death due to Doctor's negligence.
43.
Treatment for Rabies and alleged negligence.
44.
Medical negligence in accident case.
4
HEALTH RELATED CASES UNDER CONSUMER LAW
1.
X-RAY & CLINICAL LABORATORY — NEGLIGENCE OF RADIOLOGIST
The complainant a Cancer patient was examined by an ENT Specialist at Assam to whom he
had gone and was asked to get a Sonography done. The Radiologist in the X-Ray Clinic
reported - "U/Sec Examination shows evidence of a low echoic mass measuring around 23
x 4 mm in size anterior to the IVC could be an enlarged node. Rest of the organs imaged
appear within normal limits/ The report worried the patient and he went to Cancer Insti
tute at Madras where the Radiologist gave a contrary report that no abnormality was de
tected. The patient claimed a compensation of Rs. 1,20,000/-against the first Radiologist for
negligence. During evidence before the State Commission, the patient stated that he did not
show or consult any Specialist at Guwahati before going to Madras. The evidence also
showed that he was a cancer patient and had visited Apollo Hospital 5/6 times earlier. In
view of the conduct of the patient in rushing to Madras Hospital it was held that he was not
entitled to any compensation as the case was dismissed.
(A.K. Hazarika Vs. Saraighat X-Ray & Clinical Laboratory - C.P.No. 122/92 dated 09.10.93Assam State C.D.R. Commission).
2.
HOMEOPATHY DOCTORS — Negligence
The complaintant's son was run over by a truck and was taken to the Hospital of the
opposite parties who were Homeopathic doctors. The allegation is that the boy was not
treated properly which caused the disability of the boy. The complaint filed did not State
anywhere that any consideration was paid or promised to be paid to the doctors for treating
the complainant's boy. Though he stated in evidence that Rs. 1000/- was paid to the
doctors, receipt of such amount was denied by the doctors. The question of payment was
disbelieved by the Commission. Since under S.2(1)(0) of the C.P. Act, 1986 service does
not include rendering of any service free of charge or under a contract of personal service, it
was held that the complainant is not a consumer as he did not hire any service for consider
ation. Accordingly, the complaint was dismissed.
(Kadan Karai Nadar & Others Vs. Rakkappan - A.P.No. 432/93 dated 08.10.93 - Tamil Nadu
C.D.R. Commission).
3.
DOCTOR IN CIVIL HOSPITAL
The facts of the case are that the wife of the complainant gave birth to two sons and two
daughters. On the advice of the opposite party doctor he agreed to get his wife operated
upon for tubectomy in the Civil hospital. The doctor did not perform the operation with
care and precaution and as a result the operation was not successful. The patient was
discharged immediately after the operation though she should have been kept in the
16
HEALTH RELATED CASES UNDER CONSUMER LAW
hospital for post-operation care.
She developed post-operation complications and the doctor at the hospital referred
her to another Civil Hospital where she died due to those complications. A sum of Rs. 3 Lacs
was claimed as compensation. Denying these allegations of neglect the doctor stated that
the patient left the hospital on her own and so long as she was there, no complication had
set in. Moreover, the treatment given was free of charge and as such the complainant was
not a 'Consumer' under the C.P. Act, 1986. The Commission found that the complainant
had nowhere stated in the complaint that he had paid any charges to the doctors of the said
hospital. It was also held that taxes paid to the Government for running the Civil Hospital
being a compulsory extraction did not constitute consideration for services rendered. The
Complaint was therefore dismissed.
(Pavitar Singh & Others Vs. State of Punjab and Others O.P.No. 41/93 dated 17.08.93 Punjab State C.D.R. Commission).
4.
FAMILY PLANNING OPERATION CAMP
The complainant sought a compensation of Rs. 10 Lacs from the State Health Department
for the defect in the tubectomy operation on the complainant, performed at a family plan
ning operation camp organised by the Department.
As the operation was not successful, she delivered a third female child later on. There
after she underwent another operation for total sterilization which resulted in complica
tion of her health. The State Commission found that the complainant had not stated in her
complaint that she had hired the services of the opposite party and instead was paid Rs. 70/
- by the Health Department after the tubectomy operation. She had not availed of the
services for consideration. Relying on the earlier judgement of the National Commissioruin
Consumer Unity & Trust Society, Jaipur Vs. State of Rajasthan wherein it was held that the
patient availing facility in a government hospital is not a consumer, the complaint was held
to be not maintainable.
(Sowbhagya Prasad & Others Vs. State of Karnataka & Others. O.P.No. 304/92 dated
06.11.93 Karnataka State C.D.R. Commission).
5.
OPERATION OF FEMUR PERFORMED AT NURSING HOME
The complainant met with an accident ^nd was admitted to the nursing home of the oppo
site party. He was advised immediate operation and promised that he would be com
pletely cured within three months. The operation of the neck of femur was performed and
the patient was discharged after 10 days with the advice not to make any movement. During
his stay in the nursing home he had complained of pain at the place of operation but the
doctor there had consoled him that some pain will be there but will be cured. Subse-
_________________________________________ M
HEALTH RELATED CASES UNDER CONSUMER LAW
quently when X-Ray was taken, the complainant found that the operation had failed be
cause of the negligence of the doctor.
The bone had not been properly fixed and the left leg had shortened by 2.5 inches.
The complainant was advised a second operation which was carried out. The complainant
claimed costs of the operation and damages. After considering all the evidence, the State
Commission came to the finding that the operation had failed because of the negligence of
the opposite party doctor. Rejecting the contention of the doctor that services of doctors are
not covered by the C.P. Act, 1986 as held by the.National Commission, the complainant
was awarded compensation of Rs. 29,676 with 12% interest and cost of Rs. 3000/(Bhavchandbhai Manjibhai Lakhani Vs. Dr. Bhupendra D. Sagar C.No.378/91 dated 26.08.93
Gujarat State C.D.R. Commission).
6.
NEGLIGENCE AGAINST DOCTOR NOT PROVED
The complainant claimed a compensation of Rs. 6 Lacs against the opposite party doctor
having caused the death of their son by negligent treatment. The deceased was a school
boy who was taken to the dispensary of the opposite party by the rector of the hostel as the
boy had fever. He was administered Beralgan injection without verifying as to whether
reaction would be caused by the injection. The boy complained of difficulty in vision but no
attention was paid to it. He was taken to the Referral Hospital where despite oxygen being
given, the boy died. Post mortem was carried out and a Police complaint was filed. The
opposite party denied negligence on his part or even his liability in the matter.
The State Commission found that the complainants have not been able to establish
from the evidence that death was due to injection or any other treatment given by the
opposite party. It was also observed that failure of the heart or respiratory system is attribut
able to ailment from which the boy was suffering for 2/3 days. It could be a case of natural
death. Negligence not having been proved, the question of awarding compensation did
not arise.
(Haribhai Lagharbhai Solanki & Others Vs. Dr. Suresh Parikh, C.No. 165/91 dated 21
.07.93 Gujarat State C.D.R. Commission).
7.
BLOOD TRANSFUSION — Negligence in
The complainant's 6 months old child was treated twice at the JIPMER Hospital, Pondicherry
and was referred to the hospital of the opposite party for better and further treatment. After
diagnosis the child was administered blood transfusion against payment. But the complain
ant later learnt that instead of AB positive blood which the child had, B positive blood was
administered without verifying the blood received from the blood bank. The child turned
blue and was taken to the intensive care ward. Subsequently the child was administered the
correct blood but she had developed renal failure caused by incorrect transfusion of blood
I 18 I
HEALTH RELATED CASES UNDER CONSUMER LAW
earlier. The child's condition worsened and she was taken to C.M.C. hospital, Vellore but
died on the way. The complainant claimed compensation for mental pain, agony and for
costs.
The opposite party denied its liability as to negligence and stated that it was an ac
cepted practice that in emergency situations one was justified to give 'B' group blood since
persons having AB Blood group are universal recipients. Moreover, the child had thirteen
complications when it was brought into the hospital. The State Commission referred to the
Manual of Blood Transfusion in Clinical Medicine by Shiraz Kareem where it has been
stated at page 98 that in emergency situations, if the recipient is of blood group AB, either
group A or group B can be transfused, but both group A and Group B should never be
transfused at the same time. Accordingly, it was held that there was no deficiency in service
or negligence when the opposite party hospital, having no alternative (AB positive blood
group was not available) had to give B positive blood transfusion in order to save the child.
Such transfusion also did not have any adverse reaction and her condition did not improve
as she was suffering from Haemolytic Uremic Syndrome. The complaint was, therefore,
dismissed.
(S. Iqbal Khan Vs. The Child Trust Hospital Madras - O.P.No.209 of 1993 dated 20.10.93 Tamil Nadu State C.D.R. Commission).
8.
ORTHOPAEDIC TREATMENT
The complainant had a fall from a stool in his shop and injured his left fore-arm. He was
given orthopaedic treatment at the Clinic of the Opposite Party but the plate inserted in the
forearm subsequently got infected. He had then to seek treatment in the orthopaedic De
partment of the P.G.I. where he could prevent amputation of his arm. He sought damages of
ten Lacs rupees and further compensation of Rs. 4 Lacs as his shop had to be closed down
and because of the pain and suffering caused by negligence in treatment. The State
Commission found that the foundation of the claims were more imaginary than real and the
computed loss of Rs. 14 Lacs is at a level to which it cannot reasonably or even possibly be
stretched. The main stress was upon the apprehended suffering and injury had the infec
tion led to the amputation of the arm and on the basis of patently remote damages on the
ground of loss of business due to closure of shop. Relying on an earlier decision of the
Commission (Complaint case 80 of 1993) wherein it was held that mere apprehended haz
ard or jeopardy to life and limb was not compensatable under section 14 of the Act, the
complaint was directed to be returned. It was also held that the complainant's computation
of loss and injury alone did not conclusively govern the pecuniary jurisdiction of the redressal
agencies under the Act.
(Jagan Nath Vs. Jindal Dental and Orthopaedic Clinic of Kaithan and another - C.C. No. 82
of 1993 dated 09.12.93 Haryana State C.D.R. Commission).
HEALTH RELATED CASES UNDER CONSUMER LAW.
9.
WHETHER 'MEDICAL SERVICE' COMES WITHIN THE CONSUMER PROTECTION
ACT, 1986 - MADRAS HIGH COURT JUDGEMENT.
Several medical practitioners against whom complaints of negligence and recovery of com
pensation had been filed in different consumer fora, filed writ petitions in the Madras High
Court challenging the applicability of the Consumer Protection Act, 1986 to Medical Prac
titioners. It was contended that the services rendered by a Medical Practitioner or those
rendered in a hospital did not fall within the definition of 'Service' as understood under
section 2(1 )(0) of the C.P. Act and that a patient who receives treatment from a Medical
Practitioner or in a hospital cannot be treated as a 'consumer' within the meaning of section
2(1 )(d) of the Act. It was, therefore, contended that Medical Practitioners were outside the
purview of the consumer fora set up under the Act. The basis of this objection was that
members of the fora were neither qualified nor possessed the calibre to decide complicated
and technical issues, no guidelines were there for the selection of these members, and the
summary nature of the proceedings and the manner of adjudication based on the majority
view of the members was unconstitutional. After hearing arguments both on behalf of the
Medical Practitioners and counsels for the respondents the High Court summarized its views
as fol lows
a. The services rendered to a patient by a Medical Practitioner or a hospital by way of
diagnosis and treatment both medicinal and surgical would not come within the
meaning of 'service' as defined in section 2(1 )(0) of C.P. Act, 1986.
b. A patient who undergoes treatment under a Medical Practitioner or a hospital by
way of diagnosis and treatment both medicinal and surgical cannot be considered
to be a 'consumer' within the meaning of section 2(1) (d) of the C.P. Act, 1986.
c. The Medical Practitioners or hospitals undertaking and providing paramedical
services of any categories or kind cannot claim similar immunity from the provi
sions of the Act and they would fall, to the extent of such services rendered by
them within the definition of'service' and a person availing of such service would
be a 'consumer' within the meaning of the Act.
d. The services rendered by a medical practitioner or a hospital by way of diagnosis
and treatment of medicinal and surgical other than paramedical services, would
fall within the exclusionary clause 'contract of personal service' and therefore
would be outside the purview of the Act.
e. There is very little difference between the obligations undertaken by a Medical
Practitioner in private practice and those imposed on his colleagues and counter
parts working in the hospitals run and administered either by the Government or
Local Authorities or Philanthropic Bodies. All medical practitioners thus owe a
20
HEALTH RELATED CASES UNDER CONSUMER LAW
duty to their patients to exercise reasonable care in carrying out their professional
skills of diagnostic advice, treatment or surgery.
(Dr. C.S. Subramanian Vs. Kumarasamy and Others - W.P.No. 14713 of 1991 etc. dated
1 7.02.94 - Madras High Court).
10.
D.N.C. OPERATION
The complainant who had three daughters became pregnant a fourth time but wanted a son
and not a daughter. The opposite party doctors were approached for a D.N.C. operation
but was told that as she is weak, the operation cannot be done immediately. She was given
medicinesand treatment for three months. She was advised thereafter to go for Sonography
and if a male child is indicated not to go in for D.N.C. operation. The Sonography was
carried out and complainant was assured of a male child. After seven months Sonography
was again done and she was told that if a girl is born, the doctors would take her and send
the infant to a foreign country for 4 or 5 lacs rupees out of which 1.5 lacs rupees would be
paid to her. Eventually, a girl was born who died.
The complainant claimed compensation for bodily pain and mental agony and for
costs incurred with the doctors. On appreciation of the evidence the State Commission
found that there was no deficiency on the part of the doctors. Not carrying out D.N.C.
operation by itself did not constitute deficiency of service. It was also held that a mistaken
diagnosis was not necessarily a negligent diagnosis. It is also firmly established that a Medi
cal Practitioner should not be found negligent simply because one of the risks inherent in an
operation of that kind occurs or because in a matter of opinion he made an error of judge
ment or because he has failed to warn the patient of every risk involved in a proposed
course of treatment. As the opposite party were not negligent there was no question of
compensation to the complainant. It was also held that no relief which is not enumerated in
section 14(1) of the Act can be granted even if prayed for.
(Surendra Kumar Kumawat & another Vs. Dr. (Smt.) Sunil Jain & Others -C.C No. 53 of 1991
dated 19.08.93 - Rajasthan State C.D.R. Commission).
11.
NEGLIGENCE IN THE LABOUR ROOM
The doctor who owned the Josgiri Hospital and Nursing Home had employed a doctor who
was not a Gynecologist. But with her consent had put her name board in the hospital
with the letters M.D. (Gynae.) to mislead patients into believing that she had a post-graduate
degree in Gynaecology.
Three days after the complainant's daughter was admitted, she was removed to the
labour room at 3 P.M. and the alleged Gynae informed her relations that she would shortly
deliver the baby and herself went to the OPD and started seeing patients. In the meanwhile
iQt
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DOCUMENTATION
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HEALTH RELATED CASES UNDER CONSUMER LAW,
the patient in the labour room started screaming. The Anesthesiologist was then managing
the labour. The Gynae came to the labour room at 4.20 P.M. After some time she informed
the relatives that a male child had been delivered but his condition was serious and that the
mother was having severe bleeding. Blood was donated by the husband and some blood
was also purchased. But at 9.30 P.M. the relatives were told that the mother of the baby had
died as the uterus did not contract and bleeding could not be stopped. An inquiry was made
by the complainant and it was revealed that the alleged Gynae was not a post-graduate in
Gynaecology as claimed by her and the hospital. The baby was thereupon removed to
another hospital where he also died. The complaint was filed against the hospital and the
alleged Gynae for mishandling the case and Rs. 5 Lakhs was claimed as compensation. The
opposite parties denied their liability and stated that there was no mishandling of the case
on their part. The State Commission found that by not using the word 'Freiburg' in W.
Germany after the words M.D. (Gyn.) from where she had done her course in Gynaecology,
she had violated section 42(1) of the Travancore Cochin Medical Practitioner's Act. Negli
gence on the part of the opposite party was upheld. The service rendered by the hospital
was not free of charge nor there was any element of contract of personal service. The
complaint was also held to be competent as the mother who was heir/legal representative
could maintain such complaint. Relying on the views of the National Commission in the
case of Cosmopolitan Hospitals, it was held that there was no personal service involved in
hospitals which provide treatment to patients for payment. Consequently, the compensa
tion awarded by the State Commission was upheld except for what was awarded to bring up
the first living child of the husband.
(Dr. Sr. Louie & anr. Vs. Kannolil Pathumma & Anr. - F.A. 97 of 1991 dated 16.11.92National C.D.R. Commission, New Delhi).
12.
INSERTING STEEL PLATE IN BROKEN FEMUR BONE
The present complaint has been filed by a 13 years old boy through his father alleging
negligence on the part of the opposite party orthopaedic surgeon who put a steel plate in
his left leg in which the femur bone had got fractured in scooter accident at Hissar. The
steel plate was screwed to the bone as an aid to the healing of the fracture. After three
months of the said operation, the bone had again broken where a hole had been inserted by
the opposite party. This was attributed to the negligence of the opposite party.
When the second fracture recurred, the complainant had to take treatment at Delhi
and undergo three major operations.
He was then told that in the earlier operation, a proper hole was not made and the
insertion of the steel plate was an act of sheer negligence. The complainant as a growing
child of 13 years had been virtually invalidated for the rest of his life and a compensation
of Rs. 3 Lacs with interest at 18% has been claimed.
| 22
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e
HEALTH RELATED CASES UNDER CONSUMER LAW
The opposite party contended that the second fracture was occasioned by another fall
as borne out from the discharge file at the Delhi hospital and the entire story of a defect in
the hole and the plating is a concoction and not based on evidence. In fact, in compression
plating, no hole is made in the bone. It was further stated that 'INOR' quality steel was
unbreakable, compression plating between 12 and 18 years in fracture not near the growing
points was medically advised, and an independent expert orthopaedic surgeon testified that
there was no abnormality. Moreover the hospital at Delhi adopted the same methodology
as was used by the opposite party. It was therefore, held by the State Commission that
dynamic compression plating on the fractured femur of a child of 13 years cannot be
deprecated as an inherently negligent procedure in Orthopaedic surgery. The consequence
of the subsequent fall was wrongly sought to be laid at the door of the opposite party who
has been unreasonably dragged into the vortex of a consumer dispute. It was also pointed
out that the ease and inexpensive nature of the consumer jurisdiction should not be allowed
to become a vicious weapon in the hands of either the careless or the unscrupulous patients
to harass the medical professionals without good and adequate cause. The complainant was
directed to pay costs of Rs. 2000/- to the opposite party.
(Sachin Aggarwal @ Vicky Vs. Dr.Ashok Arora - C.C. No. 31 of 1992 dated 29.10.92 Haryana State C.D.R. Commission, Chandigarh).
13.
NON PROVISION OF TOILET AT NEW YEAR DANCE - WHETHER DEFICIENCY IN
SERVICE
A complaint was filed against the opposite party who was the organizer for new year dance
held in open air in the style of street dance at Panaji, Goa. The complaint was that the
opposite party did not provide toilet facility inspite of the whole night dance besides other
complaints attributing deficiency in service. The District forum held that non provision of
toilet facility had been proved which resulted in inconvenience to the complainant and
directed a compensation of Rs. 2000/- with interest at 18%. In the appeal before the State
Commission, the respondent quoted section 90 of the Goa, Daman and Diu Public Health
Act, 1985 and stated that under this section it was incumbent upon the person or committee
appointed by the local authority for organising fairs and festivals to provide for all sanitary
arrangements. This was the obligation of the organizer as he had obtained the necessary
No-Objection Certificates/Permission for the show and for the bar and ought to have made
provision for the toilets or ought to have got it done from the respective local authority who
had issued the license. The State Commission agreed that toilet provision should have been
made as required by the above section 90 and dismissed the appeal and directed the
appellant/opposite party to pay a further Rs. 550/- as costs of the appeal.
(Melwyn Camera Vs. Mr. Bosco D' Souza-Appeal No. 37, of 1992 dated 16.09.92 Goa
State C.D.R. Commission, Panaji).
23
HEALTH RELATED CASES UNDER CONSUMER LAW.
14.
WHETHER OBSTRUCTING M.T.P. IS NEGLIGENCE?
The complainant wanted to get her pregnancy medically terminated and approached oppo
site party No. 1 who is a doctor in the Government hospital. The doctor refused to terminate
the pregnancy although another doctor in the same hospital advised her to do it. When
everything was laid on the table for the operation, the opposite party No. 1, obstructed such
service to be rendered. Before the district forum the opposite party stated that the complaint
had been motivated by a doctor against whom some malpractice had been reported to the
Chief District Medical Officer. The district forum dismissed the complaint as the complain
ant had not paid for the service to be rendered by the opposite party. Disagreeing with this
view, the State Commission held that beneficiary of a service rendered for which the person
rendering the service is paid for, is also a consumer as defined in section 2(1) (d) of the C.P.
Act, 1986. State Government has paid the doctor to render the service to the people of
Orissa who attend the hospital.
The Commission also found that the doctor opposite party had obstructed the M.T.P.
of the complainant. Obstruction to the M.T.P. would not be a negligence in rendering
service. Merely because one doctor had advised termination of such pregnancy and another
doctor was also prepared to operate the complainant, the view taken by the opposite party
that there should be no termination cannot be said to be unreasonable. In the absence of
better particulars to support the unreasonableness of such view does not amount to negli
gence for which the complainant has to be compensated. The complainant was without
merit and accordingly the appeal was dismissed.
(Smt. Sukanti BeheraVs. Dr. Sashi Bhusan Rath & another C.D. Appeal No. 50 of 1991 dated
15.12.92 - Orissa State C.D.R. Commission, Cuttack)
15.
HOMEOPATH USING GADGETS FOR ABORTION NOT TRAINED TO USE.
A practicing Homeopath had performed an abortion operation on the patient using gadgets
which he was not trained to use. As a result, the uterus of the patient got perforated and two
days later the patient died. On the basis of criminal charges against the doctor, proceedings
for conviction were taken. Before the Kerala High Court, the action of the Homeopath was
described as daring, crude and criminal. The Homeopath was sentenced to undergo impris
onment and pay a fine of Rs. 5000/- out of which Rs. 4000/- was to be paid to the minor son
of the deceased patient as compensation.
Before the Supreme Court of India in appeal, the Homeopath sought to be released on
probation and prayed for reduction of sentence of imprisonment to the period already served.
Rejecting this prayer, the Supreme Court, raised the quantum of fine to Rs. 1 Lakh to be kept
in a nationalized bank so that the child's guardian could utilise the interest accruing thereon
for bringing up the child. The deposit was to be paid to the child on his attaining majority
r^i_________________________________
HEALTH RELATED CASES UNDER CONSUMER LAW
age. The court emphasised that the fine imposing power is a measure of responding appro
priately to crime as well as reconciling the victim with the offender.
(Dr. Jacob George Vs. State of Kerala (1994)3 SCC 430)
16.
DOCTOR - TWO SURGICAL METHODS
The Tamil Nadu State Commission came to the finding on a perusal of evidence that there
was no delay in the performance of the surgery on the injured leg of the complainant, the
complainant had himself consented to the surgery, the surgeon who performed the surgery
was competent and qualified and the second surgeon who was brought to the witness box
did not cast any shadow or doubt on his credentials, that there are two methods of surgery
particularly in cases of orthopaedic surgery and the performing surgeon had followed the
technique prevalent in the U.K. while the other surgeon followed the technique adopted in
America, that the evidence showed that the complainant did not follow the precautions and
the other surgeon had nowhere stated that the operation performed suffered from any irre
versible or irreparable defect so as to necessitate second operation. On the basis of this
finding the State Commission dismissed the complaint. Agreeing, with the above finding the
National Commission on appeal dismissed the appeal and held that when there is no evi
dence to show that the technique adopted by the performing surgeon is not a well-recognised
technique it is difficult to hold that the said doctor is guilty of any negligence or deficiency in
performing the operation. The Commission quoted the following observation made by Mr.
Justice Barrie in Moore Vs. Lewisham Group HNC (1959) as applicable to the present case
: "When there are two genuinely responsible schools of thought about the management of a
clinical situation the courts could do no great disservice to the community or the advance
ment of medical science than to place the hall mark of legality upon one form of treatment".
(R. Gopinathan V. Eskeycee Medical Foundation Private Ltd. & Anr - F.A No. 237 of 1992
dated 4th February, 1994- National C.D.R. Commission).
17. MIDWIFE-NURSE
A complaint was made before the State Commission against the opposite party who was a
registered nurse and midwife entitled to practice midwifery under the Tamil Nadu Nurses
and Midwives Act, 1926 and was running the Jeevan Hospital rendering prenatal medical
services, delivery etc. round the clock.
The complaint was that opposite party rendered deficient medical services at her hos
pital which caused rupture of the complainant's uterus and delivery of a dead male child.
Her uterus had to be removed and she suffered pain and mental agony and could not con
ceive in future. When the complainant with a 35 week foetus went to the hospital of the
opposite party at 11 A.M. on the relevant date, she was taken to the delivery ward at 7 P.M.
_________________ _________ ________________
I 25 I
HEALTH RELATED CASES UNDER CONSUMER LAW.
and administered some injections. On the next day at 1 A.M. the complainant started heavy
bleeding from the uterus. She was at once referred to the City Hospital and was taken there
in her car. At the City Hospital an entry was made that the patient referred had a previous
caesarean with threatened rupture. At this hospital she was operated upon, uterus removed
and a dead child was born. The State Commission, found that the opposite party was not
justified in keeping the complainant in her hospital for about 14 hours as she had a preg
nancy within one year of the first Caesarean and had a rare blood group. She was held to be
responsible for the harm as she acted rashly, recklessly and with culpable negligence. She
was directed by the National Commission to pay compensation of Rs. 2 Lakhs and Rs. 10,000/
- as costs of the appeal.
(M. Jeeva Vs. R. Lalitha - P.A. No. 322 of 1992 dated 04.05.94 - National C.D.R. Commis
sion, New Delhi).
18.
REMOVAL OF UTERUS
The complainant woman who was 26 years old and having a son went to the opposite party
doctor (Gynecologist) when she became pregnant again. The doctor advised her to termi
nate her pregnancy as the earlier delivery was a Caesarean. On the appointed day she went
to the hospital of the opposite party where she was taken to the labour room. The relatives
were informed that she was bleeding profusely and the operation was carried out. The
doctor informed the husband of the complainant that it was a case of cervical pregnancy and
her uterus has been removed. Such removal of uterus has been attributed to the rash and
negligent act of the doctor. Having been deprived of the uterus at a young age, the com
plainant claimed a compensation of Rs. 15 Lacs. The opposite party denied any negligence
and asserted that diagnosis and treatment had been properly conducted. Because of exces
sive bleeding Hysterectomy was resorted to for saving the complainant's life. The doctor in
her reply justified how the condition of the uterus and examinations compelled the removal
of the uterus. After examining the evidence on record and the contentions of the parties, the
National Commission came to the finding that it was a case of normal pregnancy at the
normal site. It was also the finding that hysterectomy had to be performed upon the com
plainant and not on account of any negligence in the diagnosis and treatment. In case of
emergency the operating doctor has wider discretion about the treatment. After looking at
great length into the evidence on the record, the pleadings submitted by the parties and the
classic treatises on 'Obstetrics' and 'Gynaecology' 'Pregnancy' etc., the commission came to
the conclusion that in the present case the doctors concerned at the hospital acted with due
care, circumspection and professional skill and competence and there was no negligence of
any kind on the part of any of them. The use of lamineria tent is not proximate cause to the
removal of the uterus of the complainant. Accordingly, the petition was dismissed with
costs.
26
HEALTH RELATED CASES UNDER CONSUMER LAW.
(Vinitha Ashok Vs. Lakshmi Hospital and others O.P. No. 11 of 1991 - dated 08.05.91
National C.D.R. Commission, New Delhi).
19.
DEATH BY BRAINSTEM HEMORRHAGE.
The husband of the complainant had a By-pass surgery at the hospital of the opposite party
where after successful surgery he was discharged. The allegation is that in the wound in the
thigh above the knee there was mild redness and inflammation and slight blackening. This
was stated to have been caused by infection at the hospital. This resulted in re-admission of
the patient in the hospital after 20 days in a state of coma and eventually he died. The
complainant claimed compensation of Rs.21.44 lacs and alleged negligence of the hospital.
It was alleged that the patient was discharged prematurely, infection came from the hospital,
the hospital failed to carry out tests to detect and treat the infection for which he suffered
thrombo embolism phenomenon which is a post operative complication. The hospital
disclaimed any deficiency in service to the patient and negligence in treatment. There was
also no evidence of any infection at the time of discharge necessitating administration of
antibiotics. According to the opposite party the patient died of brainstem hemorrhage fol
lowed by acute renal failure and cardio pulmonary arrest. The brainstem hemorrhage has no
relationship with the coronary by-pass surgery or with the infection of the wound above the
knee. The National Commission agreed with this contention after examining expert evi
dence produced by the hospital. The commission also found that no evidence was there
about the infection when the patient was discharged, no autopsy was required as this was
not a medico-legal case and cause of death had been determined precisely. There was no
omission or negligence on the part of the hospital and as the complaint was fishy in nature,
the same was dismissed. The hospital however, agreed to refund ex-gratia the sum of Rs.
20,000/- that was deposited at the time of patient's re-admission in the hospital.
(Renu Jain & Others Vs. Escorts Heart Institute & Research Centre, O.P. No. 84 of 1991 dated
10.04.92, National C.D.R. Commission, New Delhi).
20.
HOSPITAL NOT TRANSFERRING PATIENT TO I.C.U.
The complainant alleged failure on the part of the opposite party hospital to provide proper
treatment to the patient Rajesh Bhandari, related to the complainant. The failures
were - delay of 57 hours in taking a scan of the abdomen, failure to put the patient on
respirator, and failure to admit him in the ICU even though the doctors considered this
essential. When the patient died, the complainant sought compensation for negligence and
deficiency of service on the part of the hospital. The State Commission found negligence of
the hospital only for not shifting the patient to ICU or to inform the relatives of the patient
that no bed was available in the ICU. The complainant was awarded a compensation of Rs.
1 lac and Rs. 20,000/- as costs. In appeal before the National Commission the hospital
____________________________ r^n
HEALTH RELATED CASES UNDER CONSUMER LAW
denied its liability to pay compensation as there was no negligence or deficiency on its part.
On an appreciation of the evidence and the observations made by the State Commission,
The National Commission came to the finding that there was no negligence on the part of the
hospital in not having been able to shift the patient to the ICU and all proper care and
treatment was given to him. Neither was the hospital's failure to inform the relatives to
remove the patient to some other hospital as no bed in the ICU was available was held to be
negligence. The appeal was allowed and the orders of the state Commission were set aside.
(Sir Ganga Ram Hospital Vs. D.P. Bhandari & Others F.A. No. 162 of 1991 dated 23.04.92
- National C.D.R. Commission, New Delhi).
21.
HOSPITAL'S NEGLIGENCE IN DIAGNOSIS.
The complainant's husband was admitted to the hospital of the opposite party for treatment
of persistent back pain. The hospital takes charges for the treatment rendered to patients.
The patient was at first diagnosed for TB but based on other symptoms was treated for jaun
dice. As his condition worsened he was advised to be removed to the Medical College
Hospital where he died after some days. Alleging negligence in diagnosis a complaint was
filed by the wife and sons of the deceased claiming compensation from the first hospital
(opposite party) of about Rs. 5.67 lacs. Preliminary objections were taken about the main
tainability of the complaint and it was submitted that the death occurred due to cardiac arrest
and not due to negligence of the hospital. The State Commission rejected the preliminary
objections and the hospital came in appeal before the National Commission. The Indian
Medical Association and the Medical Practitioner's Association were allowed to intervene
and were heard in the matter. After considering the issues the National Commission held as
follows:
a. The complainants who were legal representatives of the deceased patient were
"Consumers* entitled to invoke the jurisdiction of the Redressal Forum under the
CP Act, 1986.
b. The activity carried on by the opposite party hospital constitutes "Service* as de
fined in the said Act,
c. The Services rendered by the hospital do not bring it within the exempted category
of service rendered under a "Contract of personal service*.
d. When parliament has unambiguously defined the expression "service* in such a
broad language giving it the widest amplitude, we see absolutely no warrant for
cutting down and restricting the scope of the definition to only service relating to
"commercial transactions*.
e. A patient does not hire the service of a doctor when he hires the services of the
28
e
HEALTH RELATED CASES UNDER CONSUMER LAW
hospital where the doctors treat him because there is no privity of contract between
the patient and the individual doctors.
(M/s. Cosmopolitan Hospitals and another Vs. Vasantha P. Nair, F.A. No. 48 of 1991 and
F.A. No. 94 of 1991 dated 21.04.92 National C.D.R. Commission, New Delhi).
22.
TREATMENT AT HOSPITAL FREE OF CHARGE
The complainant's husband suffered a cardiac arrest while under anesthesia for undergoing
surgery in the Medical College Hospital. He sustained severe cerebral damage on account of
lack of blood circulation and as a result he lay in the pay ward of the hospital in a semi
conscious state like a vegetable for one and a half year. The treatment at the hospital was free
of charge as the patient had declared at the time of his admission that his income was only
Rs. 300/- p.m. As the treatment was found to be free of charge the National Commission held
that the claim for compensation in respect of the patient was not maintainable. The ruling
given by the commission in the earlier case of consumer unity and Trust Society, Jaipur Vs.
State of Rajasthan (F.A. No. 2 of 1989 dated 15.12.98) was followed. However, in view of
the unfortunate, condition of the patient, on humanitarian grounds, a suggestion was made
to the counsel for the government of Kerala (appearing on behalf of the hospital) to grant a
job to either of the two sons or wife of the patient on compassionate grounds.
(Mrs. Marble Roosevelt Vs. State of Kerala - O.P. No. 15, and 16 of 1989 dated 10.07.90 National C.D.R. Commission, New Delhi).
23.
NURSING HOME - TRANSFUSION OF CONTAMINATED BLOOD
The complainant had to undergo surgery of his prostate gland (Trans urethral Resection of
prostate gland) at the nursing home of the opposite party doctor. His blood sample was
taken for tests and he paid Rs. 200/- towards cost of blood to be obtained for transfusion. He
desired that blood be obtained from the Institute of Preventive Medicine. Blood transfusion
was given to him during the surgery and when he was discharged he came to know that the
nursing home had got the blood from a private blood bank. After four months he started
showing prodromal symptoms of 'post-transfusion hepatitis'. Tests revealed that he was
suffering from Hepatitis B infection. On the ground that infected blood brought from the
private blood bank and by using contaminated equipment and apparatus, the Nursing home
had negligently passed on the virus of hepatitis B to him, the complainant claimed a com
pensation of Rs. 1 lac from the opposite parties each and the costs incurred by him. The
opposite parties denied any negligence or deficiency in service and asserted that the opera
tion was done with care and properly. The State Commission had come to the finding that
the complainant had failed to prove that the blood transfused was infected with Hepatitis - B.
It was also found that he was suffering from jaundice even before the date of the blood
transfusion. The National Commission examined the evidence in detail in the context of the
___ ____________________________ r^~i
HEALTH RELATED CASES UNDER CONSUMER LAW
objections taken by the complainant and concluded that the infection was on account of the
jaundice. The appeal was dismissed with costs at Rs.5000/-.
(A. Narain Rao Vs. Dr. C. Ramakrishna Reddy and another - F.A. No.25 of 1992 dated
05.03.93 National C.D.R. Commission, New Delhi).
24.
NEGLIGENCE IN BLOOD GROUP TESTING
The complainant's wife was admitted to the Gynaecology and Obstetrics Department of the
Medical College Hospital. She was advised a blood transfusion. The blood grouping test
was performed and a requisition slip alongwith blood sample was given to the patient to
bring one bottle of 'O' positive group blood from the blood bank. The blood bank carried
out cross matching test between the blood samples and gave one bottle of blood as desired.
When this blood was transfused in the patient, she gave abnormal reactions and died. Her
body was handed over without a post mortem. The complainant sought compensation of
Rs. 7.5 lacs due to negligence in mismatching of blood by the opposite parties. The State
Commission took the view that competent forum in this case would be the civil court as oral
evidence and cross-examination would be necessary. In appeal, the National Commission
held that the State Commission was in error in declining to adjudicate upon the merits of the
complaint and remanded the case to it for fresh disposal in accordance with law. It was
observed that the very purpose of C.P. Act, 1986 was to provide a cheap and speedy remedy
to aggrieved consumers by way of an alternative to the time consuming and expensive pro
cess of civil litigation. Sections 13 (4) and 18 of the Act give the Redressal Forums power to
summon witnesses and enforce production of documents similar to the powers of a Civil
Court. The mere fact that witnesses may have to be examined and their cross examination is
necessary is not by itself a valid ground for refusing adjudication of the dispute before the
Redressal Forums constituted by the Act. It would amount to unjust denial of the benefits of
the Act to the aggrieved consumer.
(S.K. Abdul Sukur Vs. State of Orissa & Others - F.A. No. 96 of 1990 - dated 05.04.91 National C.D.R. Commission, New Delhi).
25.
TUBECTOMY OPERATION AT GOVERNMENT HOSPITAL
The complainant, a registered consumer association filed the complaint on behalf of a woman
who underwent abdominal tubectomy operation at the Government hospital at Kota in
Rajasthan as part of the family planning programme. After the operation she developed
serious complications which reduced her condition to that of an invalid. Negligence was
attributed to the civil Surgeon, Kota who performed the operation and also due to lack of
proper post operative care and attention. A compensation of Rs. 9.31 lacs was claimed for
the loss and injury suffered by the patient. Preliminary objections were taken by the
opposite party on the maintainability of the complaint. The State Commission upheld the
I 30 I
HEALTH RELATED CASES UNDER CONSUMER LAW.
objections and thereafter the matter came in appeal before the Nation Commission.
After hearing the contentions made, the Commission laid down the following law:-
a. A person getting medical treatment in a Govt, hospital is not a 'consumer '
within the meaning of section 2(1) d(ii) of the C.P. Act, 1986;
b. Facility of medical treatment in a government hospital cannot be regarded as
'service' hired for 'consideration' and the payment of direct or indirect taxes by
the public does not constitute 'consideration'paid for hiring the services in the
Government hospitals;
c. Compliant against government doctor for negligence while performing operation
for sterilization and post operation care in government hospital is not maintain
able as patient or relative is not a 'consumer'.
d. No compensation can be awarded under the C .P . Act, 1986 and the
recourse is to file a civil suit.
proper
e. "Fees" charged at hospitals are an amount voluntarily paid for a privilege while
payment of' taxes' is obligatory and is a levy made by the State to raise funds
for support of and for general purposes of Government and cannot be regarded
as payment for any particular or special service. (A dissenting view was expressed
by Mr. Y. Krishan, Member of the Commission that'fee'is for a special purpose
and is quid pro quo (something for something) for that purpose and can be
deemed to be'consideration'for special service or benefit rendered. 'Tax'is for
general and public purpose without reference to special benefit to the tax
payer).
(Consumer Unity and Trust Society, Jaipur Vs. State of Rajasthan & Others F.A. No. 2 of
1989 dated 15.12.89, National C.D.R. Commission, New Delhi).
26.
DUTIES OF DOCTOR TOWARDS PATIENT GENERALLY
In a case where a femur bone was fractured in an accident, the doctor attempted reduction or
the fracture without taking the elementary caution of giving anesthesia to the patient. The
patient died due to shock resulting from reduction of fracture by use of heavy traction and
excessive force without administering anesthesia. The doctor was sued for damages under
the Fatal Accidents Act, 1855 for negligence which was confirmed by the High Court. The
Supreme Court in appeal agreed with the findings of the High Court and laid down the
duties owed by doctors towards his patient in the following words.
"The duties which a doctor owes to his patient are clear. A person who holds himself
out ready to give medical advice and treatment impliedly undertakes that he is possessed of
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HEALTH RE
skill and knowledge for the purpose. Such a person when consulted by a patient owes him
certain duties, viz. a duty of care in deciding whether to undertake the case, a duty of care in
deciding what treatment to give or a duty of care in the administration of the treatment. A
breach of any of those duties gives a right of action for negligence to the patient. The
practitioner must bring to his task a reasonable degree of skill and knowledge and must
exercise a reasonable degree of care. Neither the very highest nor a very low degree of care
and competence judged in the light of the particular circumstances of each case is what
the law requires".
The doctor no doubt has a discretion in choosing treatment which he proposes to give
to the patient and such discretion is relatively ampler in cases of emergency.
(Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole and another C.A. No. 547/65
dated 2.5.68).
27.
DOCTOR ATTENDING TO PERSON INJURED IN ACCIDENT
A public interest petition was filed before the Supreme Court in which the question was
raised whether an injured person brought for medical treatment should be given instanta
neous medical aid and only thereafter the procedural criminal law should be allowed to
operate. The Supreme Court stated that there is no legal impediment for a doctor to attend to
such cases immediately. The effort to save a person's life should have top priority not only
of the medical professional but even of the police or any other citizen who happens to be
connected with the matter or who happens to notice such an incident or a situation. Life
once lost, the status quo ante cannot be restored. Every doctor whether at the Government
hospital in or otherwise is duty bound to extend medical assistance with due expertise for
preserving life. The obligation being total, absolute and paramount, laws of procedure whether
in statutes or otherwise (Zonal Regulation and Classifications) which would interfere with
the discharge of this obligation cannot be sustained, and must, therefore give way. Lawyers
are also to see that doctors are not called unnecessarily to give evidence and they are freed
from needless harassment.
(Pt. Parmanand Katara Vs. Union of India & Ors. Cr. w.p. No. 270/88 dated 28.8.89).
28.
DOCTOR NOT PERFORMING EMERGENCY OPERATION
A patient with complaints of severe abdominal pain was admitted to the hospital where the
doctor diagnosed the case as of acute appendicitis. Emergency operation was not however
performed and the patient died the next day as his condition deteriorated fast. The lower
court granted a decree of Rs.37,700/= as damages to the relatives of the deceased as the
negligence of the doctor was proved. Before the High Court the doctor took the plea that he
did not perform the operation as the patient did not give consent to it. Infact, consent is a
I 32 I
HEALTH RELATED CASES UNDER CONSUMER LAW.
defense available under section 88 of the I.P.C. But in such cases, it is the burden of the
doctor to prove that the surgery was not performed or a treatment was not administered due
to the refusal of the patient to give consent thereto. This is especially so in a case where the
patient is not alive to give evidence. Consent is normally implicit in the case of a patient,
who submits to the doctor and the absence of consent must be made out by the person
alleging it. A surgeon in an emergency case has to prove that consent was refused by the
patient not only at the initial stage but even after he was informed about the dangerous
consequences of not undergoing the operation.
(Dr.T.T. Thomas vs. Smt Eliza & ors A.S.No.330/80 Dtd 11.8.86)
29.
REMOVAL OF GALL BLADDER BY MISTAKE.
Damages were granted in a suit against a Civil Surgeon for rash and negligent act of operat
ing the patient. In this case the appendix of the patient was being removed. The patient had
a history of abdominal pain which was ignored, the hospital had no basic facilities like
oxygen, blood-transfusion, etc. no urine test or other investigations had been carried out,
and with consent of patient's husband incision was done under chloroform but when appendix was found to be normal the gall bladder was removed without husband's consent. The
patient died due to toxic effects of chloroform and renal failure.
(Ram Bihari Lal Vs. Dr. J.N. Shrivastava, L.P.A. No.12/80 dated 14.12.84).
30.
STANDARD OF PROFICIENCY OF DOCTORS
In this case the.Anesthetist after administering anesthesia exposed the patient for about three
minutes to room temperature and failed to administer fresh breaths of oxygen before remov
ing endo-tracheal tube and there was delay on his part in inserting the tube again when
respiratory arrest occurred. The Surgeon who was present in the operation theatre did not
bother to ascertain from the Anesthetist the state of the patient and instead commenced the
operation and completed the same which resulted in the patient becoming victim of Cere
bral Anoxia rendering the patient of 17 years dependent on his parents. Damages in torts
was allowed both against the Anesthetist and the Surgeon for negligence. The High Court
stated that negligence constitutes an independent basis of tort liability. Law imposes a duty
on everyone to conform to a certain standard of conduct for the protection of others. In the
case of persons who undertake work requiring special skill must not only exercise reason
able care but measure upto the standard of proficiency that can be expected from persons of
such profession. Failure to conform to the required standard of care resulting in material
injury is actionable negligence if there is proximate connection between the defendant's
conduct and the resultant injury. A surgeon or Anesthetist will be judged by the standard of
an average practitioner of class to which he belongs or holds himself out to belong. In the
case of specialists a higher degree of skill is called.
33
HEALTH RELATED CASES UNDER CONSUMER LAW
(Dr. Pinnamanein Narasimha Rao Vs. Gundavarapu Jayaprakatu and another. A.NO.651
and 710/79 dated 1.2.89)
31.
INDUCING LABOUR PAINS
At the nursing home, the complainant who experienced pains resembling labour pains one
month before her expected date of delivery was injected Syntocinon in order to induce
labour. Attempts were made to pull out the child surgically but this failed and the child was
pushed back into the uterus. When she was shifted to the SCB Medical College & Hospital,
the uterus was found to be ruptured and the head of foetus was perforated. She was oper
ated upon and the dead child was brought out. She lost her uterus and the ability to bear
children. The State Commission allowed her compensation of Rs. One lac. The National
Commission before whom cross appeals were filed both by the complainant and the nursing
home found that the State Commission's findings were full of infirmity. No finding on the
facts of the case had been recorded which would have established deficiency in service of
opposite parties, the out-of-court settlement had been taken into account by the State Com
mission and conflicting observations about payment made for services at the nursing home
were made. On the question of the deficiency of the nursing home the conclusions of the
State Commission were conjectural and accordingly, the orders of the’State Commission
were set aside and the complainant was allowed to prosecute her claim before the Civil
Court.
(Orissa Nursing Home & Others Vs. Smt. Anurekha Sahoo - F.A. No. 312 and 451 of 1992
dated 04.08.94).
32.
MEDICAL NEGLIGENCE DISPROVED
By a 44 page judgement and order the National Commission has laid down that the
Consumer Fora should not be used by patients to claim high compensation against medical
doctors on the alleged ground of negligence based on falsities even if affidavits are fur
nished to support them. The complainant in this case claimed Rs. 55.9 lacs against the
opposite party doctors who had treated him on the ground that if the ECG taken at the
Bombay Hospital where he was examined had been correctly read by the doctors, he should
have been immediately transferred to the Intensive Cardiac Care Unit. As this was not done,^
he alleged that he suffered damage of the heart muscles. The commission made a very
detailed examination of all the affidavits furnished in support of the complainant's case but
found his case in all particulars to be false as proved from surrounding circumstances and
other documents. Relying on the decision of the Supreme Court in Morgan Stanley Mutual
Fund Vs. Kartik Dass & Others (1994 CPJ 7 (II) SC) the Commission found that the present
case was a typical instance of indulgence in speculative litigation and adventurism by the
complainant, a tendency which must be put down with a heavy hand. The complaint was
I 34 I
HEALTH RELATED CASES UNDER CONSUMER LAW
accordingly dismissed and the complainant was directed to pay a sum of Rs. 10,000 by way
of costs to each of the two opposite parties. Hon'ble Member Shri. Y. Krishnan has pleaded
for enhancement of the outer limit of the costs presently impossible under section 26 of the
Consumer Protection Act, 1986 on the complainant for false and vexatious complaints.
(Brij Mohan Kher Vs. Dr. N.H. Banka and another - O.P.No.100 of 1993 dated 09.09.94).
33.
DEFICIENCY IN POST OPERATIVE CARE
The complainant was admitted as an indoor patient with chest pain in the opposite party
hospital and was operated for coronary artery by-pass graft surgery. He paid operation
charges as also charges of Rs. 40,000/-for post-operative care which he alleges was defi
cient in service as he was required to undergo another operation of the rib from the chest
region in which a part of infected rib was removed. The State Commission came to the
conclusion that there was gross negligence on the part of the doctor in the post-operative
care. Also, the fees for operation of a medical practitioner should normally be inclusive of
fees of post operative care. The medical practitioner is under ethical and moral obligation
to take care of a patient after he has been operated upon. No separate fees, under the
heading 'post operative care' can be imagined. It is not the normal practice. Holding that
the doctor exhibited indifferent and uncalled for attitude towards the complainant the com
plainant was awarded a compensation of Rs. 2 Lacs against the doctor in view of the hurts,
financial loss and mental distress caused to him by the doctor. It was also held that a patient
who hires services of a doctor for a consideration is a 'Consumer' and service rendered by a
private medical practitioner also falls within the meaning of 'service' under the C.P. Act,
1986.
(B. Shekhar Hegdevs. Dr. Sudhanshu Bhattacharya&Another-C.C. No. 140/91 dated 26.05.92
Maharashtra C.D.R. Commission).
34.
TREATMENT AT NURSING HOME
The complainant alleged deficiency of service on the part of the opposite party nursing home
where she had gone for treatment. She had to be shifted to the S.C.B. Medical College
Hospital but before the State Commission the nursing home was unable to explain the cir
cumstances under which the patient had to be shifted to another hospital. It was also not
explained as to what sufferings were found on the patient upon examination which required
sophisticated treatment at a medical college hospital. The commission held that continuing
such patient in the nursing home was a deficiency in service. The complainant was awarded
compensation of Rs. 1 lac.
(Anuradha Sahoo Vs. Orissa Nursing Home & another - CC Case No. 47 of 1990 dated
6.7.92 -Orissa State CDR Commission).
35
HEALTH RELATED CASES UNDER CONSUMER LAW.
35.
FATAL SNAKE BITE.
The complainant sought a compensation of Rs. 10 lacs from the opposite party hospital on
the alleged ground that his brother who was bitten by a snake (Cobra) was not properly
treated and due to negligence of the doctors he died. Even though the State Commission
gave sufficient opportunities to the complainant to prove the negligence of the doctors, he
filed a statement that despite his best efforts he was not able to procure the assistance of any
competent doctor to give evidence, that the doctors whom he contacted were reluctant to
give evidence against their brother doctors and a medical institution. The Commission
came to the finding that there was nothing on the record to show that the doctors who
attended on the patient were indifferent or negligent in treatment or that he died on account
of their professional negligence. Accordingly, the complaint was dismissed.
(A.K. Rias Vs. Carithas Hospital, C.C.No. 44 of 1990 dated 23.1.91 - Kerala State C.D.R.
Commission).
36.
DAMAGE DUE TO EYE OPERATION.
The complainant, a minor girl, was taken by her mother for treatment to the ENT Clinic of the
Opposite party for treatment of eye disease. The eye was operated upon which resulted in
permanent damage to the left eye of the patient. The Commission found that no evidence
had been placed before it to support the allegation that no tests had been carried out and that
proper examination was not done before the operation was conducted. Infact, there was
evidence placed by the opposite party that blood and urine tests had been carried out. No
evidence was also brought forward in support of the allegation that improper and dangerous
medicines had been used. She was regularly attended to even after her discharge. From the
previous medical records it was also seen that the girl was operated on her left eye at A.I.I.M.S.
which showed that the girl was carrying the problem from her birth. Finding no fault of
negligence with the operating doctor who had taken all precaution in accordance with medi
cal ethics, the State Commission rejected the complaint.
(Miss. Gurpreet Kaur (Minor) Vs. Dr. R.K. Bhutan! - Case No. C-135/90 dated 6.3.92 - Delhi
State C.D.R Commission).
37.
TUBECTOMY OPERATION.
The complainant was registered for tubectomy operation under Family Welfare Scheme of
the Government of India and alleged in her complaint that she was entitled to free services
from the hospital. The hospital had charged Rs. 1020 for the sterilization operation that is,
operation fee Rs. 600/-, Operation Theatre Charges Rs. 180/-, Anesthesia fee Rs. 180/- and
Operation and Theatre drugs Rs. 60/-. As the complainant was operated under Family Wel
fare Scheme of the Government, she asked for a refund and the District Forum ordered a
36
HEALTH RELATED CASES UNDER CONSUMER LAW.
refund of Rs. 2380/- which was the entire expenditure incurred on delivery and on steriliza
tion. As the government had given her an incentive of Rs. 145/-for the sterilization, the State
Commission held that she was entitled to the refund of Rs. 1020 and modified the order of
the District Forum to that extent.
(R.B. Seth Jessa Ram & Eros. Vs. Sushma - Appeal No. A-2/90 dated 5.4.90 - Delhi State
Commission.)
38.
STERILIZATION FROM ESI HOSPITAL.
Almost three years after her husband was operated upon for sterilization at the ESI hospital,
the complainant - wife was found to have become pregnant. On verification through medi
cal examination it was found that the sterilization operation had not been successful. A
complaint was consequently filed for recovery of Rs.5 lacs as compensation. Before the
State Commission the opposite party resisted the complaint as being not maintainable as the
operation was done at the ESI hospital free of cost and incentive money was provided to
those who took benefit of the service from the hospital. The ESI hospital is run by the
Employees State Insurance Corporation constituted under the ESI Act. Normally such hospi
tals are meant for industrial workers. However, the Govt, of India in view of enormous
growth of population realised that its control was necessary in order to improve economic
conditions of the masses. Therefore, various hospitals were designated to perform family
planning activities as per all India Post Partum Programmes of Hospitals. Relying on the
decision of the National Commission in Consumer Unity and Trust Society, Jaipur V. State of
Rajasthan and others (F.S. No. 2/89 dated 15.12.89) it was held that a person who availed
himself of the-facility of medical treatment in the Government hospital was not a consumer
and the facility offered in the Government hospital could not be regarded as service hired for
consideration. Hence no complaint under the C.P. Act, 1986 could be preferred either by
any such person or by a consumer association on his behalf.
(Smt. Ram Kali & Others Vs. Delhi Administration and Others. Case No. C-3/90 dated
25.02.91 - Delhi State C.D.R. Commission).
39.
CONTAMINATED BLOOD FROM BLOOD BANK
The unit of blood which the complainant bought from the blood bank for his wife con
tained the virus of Hepatitis B. As a result, his wife suffered from viral Hepatitis B which was
later communicated by her to her husband and the couple suffered for a few months due to
defective and contaminated blood supplied by the opposite party blood bank. The opposite
party failed to observe the fundamental requirement of ensuring that the blood supplied to
the complainant was free from any contamination. The doctor attending to his wife had
initially suggested that blood be donated by the relations and merely because she suggested
the name of the opposite party blood bank that did not make her responsible for the con-
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HEALTH RELATED CASES UNDER CONSUMER LAW.
tamination in the blood. There is no procedure for testing the blood at the time of transfu
sion before the operation. The commission found the opposite party blood bank to have
supplied blood to the complainant that was contaminated and as such awarded a compen
sation of Rs.20000/- as damages to the complainant.
*
(Haresh Kumar Vs. Sunil Blood Bank and others-Case No. C-91/90 dated 27.03.91 - Delhi
State C.D.R. Commission).
40.
TWIN CHILD DELIVERY
The wife of the complainant delivered one child before the village 'dais' but on finding that
there was another child in the womb which was not delivered for a long time she was taken
on Camel Cart to the Primary Health Centre. The doctor at this centre treated her but
because of complications advised her to be taken to the Maternity hospital where she was
admitted but as she had to be taken to another hospital where blood was available she died
in the Jeep in which she was being carried. The complaint was filed as the doctors were
alleged to be negligent even though they had charged their fees. The State Commission
found that the allegation of negligence against the doctors had not been proved. There was
no other patient in the hospital and the doctor attended to the patient and administered
three bottles of dextrose to induce delivery. No qualified person was examined by the
complainant to support her case. As no negligence had been proved, the complaint was
dismissed.
(Vaghri Copalbhai Mashabhai Vs. Parmar Navalben Balabhai and another - Complaint No.
22 of 1992 - dated 12.11.92 Gujarat State C.D.R. Commission).
41.
DELAY IN PROVIDING LABORATORY TEST RESULTS
A complaint was filed in the Kerala State Consumer Disputes Redressal Commission against
the Regional Cancer Centre (RCC) Thiruvananthapuram, Kerala by the family members of
prof., N.V Sulaikha of PSMO College, Tirurangadi who died on June 8, 1991. The com
plainants contented that the inordinate delay of 74 days in providing the result of the Carnico
Embryonic Antigens (CEA) estimation test by the RCC had deprived the victim of prompt and
proper treatment leading to her death.
The Commission accepted that there was deficiency in service in conducting the test and
giving the result. However, it said that it was unable to hold that the death was due to the
failure to give prompt treatment. "No doubt, prompt treatment could have been started, and
that could have arrested the sudden deterioration and prolonged the end, even if the fatal
consequences could not have been averted". Rejecting RCC's contention that the CEA test
had no relevance to the treatment of breast cancer and therefore non-supply of the result was
inconsequential, the Commission affirmed that there was deficiency in service and awarded
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HEALTH RELATED CASES UNDER CONSUMER LAW
a compensation of Rs 3000 and a cost of Rs 1000 to the family of the diseased woman
professor.
(Rajasthan Patrika, Jaipur dated 16 September, 1994).
42.
CHILD'S DEATH DUE TO DOCTOR'S NEGLIGENCE
The father who lost his only son aged 13 years filed a case recently in the Maharashtra State
Consumer Disputes Redressal Commission. The child was first examined by a neurologist in
December, 1991 and was put on "Zeptoin" tablets. The child had a history of four attacks of
convulsions and was already taking "Cardinal" tablets. On developing severe rashes all over
his body, the neurologist changed the tablet to "Eptoin". But the convulsions increased and
on January 4th, the child was critical. The neurologist refused to visit the patient being a
weekend, but on his advise the father got his son admitted in Shushrusha Hospital. A junior
doctor gave the child four injections of a substance that might have been ' largactyl' within a
space of about 10 minutes. The neurologist arrived at 4.30 p.m. on 6th January and ordered
yet another injection. The child became unconscious. By 7th morning the patient had devel
oped bed sores and his breathing was heavy and laboured. Despite being put on oxygen and
having shifted to operation theatre, the child died in the evening of 8th. Jan., 1992.
The Commission found the neurologist, Dr. Nathan negligent as he failed to diagnose
the problem properly and misdirected the entire investigation and treatment. He did not
take reasonable care expected of a medical practitioner of ordinary prudence. The indepen
dent expert criticized that the child died due to complications, resulting from serious negli
gence and mismanagement of the case by the doctors and staff at Shushurusha Citizen's
Cooperative Hospital, Dadar, Bombay. Based on this opinion the Commission held the hos
pital responsible for the child's death and awarded a compensation of Rs 3.55 lakhs to the
father (including Rs 55 thousand from Dr. Nathen).
(Indian Express, New Delhi, 23.11.1994)
43.
TREATMENT FOR RABIES AND ALLEGED NEGLIGENCE
The son of the complainant was bitten by a cat and he was taken to the hospital for treatment.
The doctor gave first aid and advised a course of A.R Vaccinations. But due to the reaction of
this treatment, the patient died which in medical parlance is called the Neuroparalytic Reac
tion following Nerve Tissue Vaccine (ARV), a well known complication.
The Orissa State Commission held that "we feel that this instant case is an unfortunate
incidence for which none can be blamed or held responsible. As a matter of fact, the doctors
would have erred had they not given the prophylactic treatment. So we are of the view that
rabies being a health problem of considerable magnitude in India with an estimated mortal
ity of more than 25 thousand people per year and that A.R.V being the only prophylaxis
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HEALTH RELATED CASES UNDER CONSUMER LAW.
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i
against the it and as there is no treatment once it develops, doctors did not take the case
lightly. Unfortunately, this type of nerve tissue vaccination carries risks of complications
with 20-25% mortality. Under these circumstances, we dismiss the complaint*.
(Smt. Dipli De Sarkar Vs. Steel Authority of India Ltd, Rourkela Steel Plant & Ors. 1992 CPR
559).
44.
MEDICAL NEGLIGENCE IN ACCIDENT CASE
The complainant who is an advocate himself, filed a complaint before the Tamil Nadu State
Commission for the medical negligence and deficiency of service. The advocate met with a
motor accident and the right ankle was injured. We was immediately admitted to the
respondent's hospital and the duty doctor attended on him. The patient requested for the
services of an Orthopedist, but only an Anesthetist attended on him. The patient's wife,
herself an advocate came for information. On the next day, even without informing her, the
patient was taken to the operation theatre, put under anesthesia and operated upon. Subse
quently the patient had to be transferred to another hospital and an Orthopaedist had to
conduct a second surgery on him.
The crux of the matter was whether in that condition of the patient, as per the record of
the Orthopaedic Surgeon, viz evidence of Synovitis, non-union of the medical Mallegnus,
the irregularity of the particular surface of tibia, chondral sclerosis, the erosion and the ir
regular nature of the articular surface of the talus can be attributed to the operation con
ducted by the first doctor. After due consideration of all the facts, the Commission con
cluded that it was unable to hold first doctor responsible for the condition. The case was
dismissed without costs.
(R. Gopinath Vs. Eskeycee, Medical Foundation & Other, 1993, CP] 338)
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Voluntary Health Association of India (VHAI) is a non-profit registered society
formed by the federation of Voluntary Association at the level of States and
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Voluntary Health Association of India
Tong Swasthya Bhavan,
40, Institutional Area, (Near Qutab Hotel)
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Phones : 668071, 668072, 665018, 655871, 652953
Fax : 91-11-6853708
Gram : VOLHEALTH, N.D. -16
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