2010(1) CPR 319 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
R.K. Batta, Presiding Member and Dr. P.D. Shenoy, Member
Dinesh Jaiswal & Ors. Through
L.Rs — Complainants
versus
Bombay Hospital and Medical Research
Centre (through Chief Administrative
Officer) & Anr. — Opposite Parties
Original Petition No.251 of 1999
Decided on 6-1- 2010

IMPORTANT POINT
Hospital is vicariously liable for acts of commission and omission by its doctors and para-medical staff, whether they are employed on permanent basis or as consultants or as visiting doctors.

Headnote:(A) Consumer Protection Act, 1986—Sections 2(1)(g), 2(1)(o) and 21—Medical services—Medical negligence—Patient died painful and slow death due to severe medical complications after surgery of legs—Doctor had not seen the patient for many days—Doctor did not appear at scene despite information given by nurse about seriousness of case—Treatment record of hospital not produced—Consent form does not show names of all three surgeries performed on patient on different dates—It does not also mention that treating surgeons have informed risks involved in surgeries and chances of success and failure of same—Such consent obtained cannot be an informed consent—Hospital is vicariously liable for acts of commission and omission by its doctor and para-medical staff, whether they are employed on permanent basis or as consultants or as visiting doctors—Compensation of Rs. 14,18,491/- with 9% interest alongwith cost of Rs. 25,000/- awarded. (Paras 40,41,42,46,65 to 68)

       (2009) 3 SCC 1—Distinguished.

       (2005) 6 SCC 1—Referred.

        (B) Torts—Medical negligence—Proof—In Indian conditions, it is very difficult to secure presence of an expert doctor to file an affidavit against another expert doctor—Though it would be desirable to get an expert doctor, it is not always possible—This is a case of res ipsa loquitur (facts speak for themselves). (Para 45)

       1986-99 Vol. III 4198 (NC)—Distinguished.

        (C) Torts—Medical negligence—Consent—Doctor has to seek and secure consent of patient before commencing a treatment—Consent so obtained should be real and valid. (Para 47)

       AIR 2008 SC 1385—Relied on.

        (D) Torts—Medical negligence—Very often in a claim for compensation arising out of medical negligence a plea is taken that it is a case of bona fide mistake which under certain circumstances may be excusable, but a mistake which would tantamount to negligence cannot be pardoned. (Paras 48 to 50)

       (1981) 1 ALL ER 267; (2004) 8 SCC 56 —Applied.

       (1996) 4 SCC 39—Relied on.

        (E) Maxim—Res ipsa loquitur—Applicability of the maxim in cases of medical negligence—In some situations principle of Res ipsa loquitur can be applied—Even delegation of responsibility to another may amount to negligence in certain circumstances. (Paras 51 and 52)

        (F) Consumer Protection Rules, 1987—Rule 14—Civil Procedure Code, 1908—Order 1, Rule 10—Consumer complaint—Provisions of CPC are applicable to a limited extent in proceedings before Commission—No suit shall fail because of misjoinder or non-joinder of parties—Even if after direction given by Commission doctor concerned and nursing staff, who were looking after deceased had not been impleaded as opposite parties it cannot result in dismissal of original petition as a whole. (Paras 59 and 60)

        (G) Consumer Protection Act, 1986—Section 2(1)(g) and 2(1)(o)—Medical negligence—Once a claim petition is filed and claimant has successfully discharged initial burden that hospital was negligent, and that as a result of such negligence patient died, then in that case burden lies on hospital and doctor concerned who treated that patient, to show that there was no negligence involved in treatment—Since burden is on hospital, they can discharge same by producing doctor who treated patient in defence to substantiate their allegation that there was no negligence—Burden is greater on institution/hospital than that on claimant—It is duty of hospital to satisfy that there was no lack of care or diligence. (Para 61)

        (H) Torts—Medical negligence—Distinction between ‘contract of service’ and ‘contract for service’ cannot absolve hospital or Institute as it is responsible for acts of its treating doctor and nursing staff who are on panel/staff of hospital and whose services are requisitioned from time to time, temporarily by hospital—For both, hospital as controlling authority is responsible and it cannot take shelter under plea that as a party claim petition should be dismissed. (Para 64)

       Result: Claim petition allowed.