The National Consumer Dispute Redressal Commission slapped a fine of Rs. 10 lakh on Ruby General Hospital for not attending to an accident victim because he failed to pay a fee of Rs. 15,000 which was demanded by the hospital before starting his treatment. The hospital did not attend to the patient despite assurances from his relatives that all the fees and expenses would be paid. The patient died due to lack of treatment. The Commission held that the injured victim’s failure to pay medical fees before the start of treatment is no ground to refuse the treatment of the patient.
Equivalent citations: II (2005) CPJ 35 NC
Bench: M Shah, P Shenoy
Pravat Kumar Mukherjee vs Ruby General Hsopital And Ors. on 25/4/2005
M.B. Shah, J. (President)
1. Can Doctors insist and wait for money (fees) when death is knocking the doors of the patient? Obvious answer is recovery of fee can wait – but not the death – nor the treatment for trying to save the life.
2. The case involves unfortunate death of a young boy, Shri Sumanta Mukherjee, a student of second year B.Tech., Electrical Engineering, at Netaji Subhash Chandra Bose Engineering College, on 14.1.2001 who was injured in an accident at about 8.00 a.m. in which a bus of the Calcutta Tramway Corporation dashed with the motor cycle driven by the deceased. The deceased was brought to the Ruby General Hospital, Kolkata, which was close to the place of accident.
3. The sole question that arises for our consideration is whether the doctors in the hospital were deficient in discharge of their duties in not continuing with the treatment after having started giving some treatment to the deceased. It is contended that treatment was not continued because of failure on the part of the persons who brought him to the hospital to deposit Rs. 15,000/-. This resulted in denial of treatment and consequential death of the young boy.
4. Complainants are the parents of the deceased boy. They approached this Commission for compensation and adequate relief. It is stated that because of the death of their son, it has changed their lives in irreversible manner, i.e. the mother of the deceased is under constant psychiatric treatment, while the father who is a doctor doing research in medicine has abandoned his medical research in which he was actively involved before the death of his son and has suffered immense blow to his profession.
5. In brief it is their say that their son Sumanta Mukherjee, aged 20, a student of 2nd Year Electrical Engineering met with an accident on 14th January, 2001 at 8.10 a.m. while he was going to attend his tuition on Motor Cycle. He was knocked down from behind by a Bus of Calcutta Tram Company of Route No. 14/1 (bearing No. WB 04 A 0106). Before hitting Sumanta, the bus had already hit one cyclist Vishwajeet Sardar and Sumanta was the second victim of the bus. Since the said cyclist was from the humble background, he was taken to National Calcutta Medical College & Hospital which is a Government Hospital.
6. Sumanta who was conscious after the accident was taken to the respondent No. 1 Hospital, which was around 1 km. from the site of accident by a crowd of people which had gathered there after the accident, one of them being Mr. Sunil Saha, P.W.3 in the present case. The deceased was insured under the Mediclaim policy issued by the New India Assurance Company Ltd. for a sum of Rs. 65,000/-. At the time of reaching the Hospital, deceased was conscious and showed the mediclaim certificate which he was carrying in his wallet to respondent No. 3 to
5. He promised them that the charges for the treatment would be paid and that they should start the treatment. Acting on the promise the respondents Hospital started the treatment in its Emergency Room by giving moist oxygen, starting suction and by administering injection deryphyllime, injection lycotin and tetnus toxoid. The respondent No. 3 to 5 however after starting the treatment began to insist upon the immediate payment of Rs. 15,000/- and threatened to discontinue the same if it was not immediately deposited. Mr. Sunil Saha, (P.W. 3) various other persons present in the crowd as well as Mr. Bhabatosh Roy (P.W. 4) requested the respondent Nos. 3 to 5 to continue treating Sumanta and assured them that the payment would be made as soon as they were able to get in touch with the parents of Sumanta. The crowd present there also offered to pay Rs. 2,000/- and to hand over the motorcycle to the respondent No. 3 to 5. The mediclaim certificate issued by the Insurance Company was also showed again and again to the respondents by the members of the crowd and Mr. Sunil Saha. The respondents, however remained adamant about the immediate deposit of Rs. 15,000/- and showing the gross deficiency in service in utter violation of medical ethics. They discontinued the treatment after continuing it for around 45 minutes. Mr. Sunil Saha and other persons from the crowd present there were then forced to take late Sumanta to National Calcutta Medical College and Hospital which is about 7 to 8 Kms. from the Ruby General Hospital. Sumanta, however, died on the way and was declared brought dead at the said hospital at 9.10 a.m.
7. The complaint, therefore, has been filed against the respondents i.e. Respondent No. 1 Hospital, Respondent No. 2, Sr. Manager (Administration), Respondent No. 3 Front Office Assistant of the Hospital, Respondent No. 4 Emergency Medical Officer, i.e. Doctor and Respondent No. 5 Emergency Medical Assistant (para medical staff) claiming compensation of Rs. 1,34,60,000/- for the damages caused to the complainants due to deficiency in service on behalf of the respondents No. 1 to 5.
Submissions by Respondents:
8. On behalf of the Respondent it is submitted that though it is a commercial hospital it also has charitable beds in the Mother Teresa Ward where beds are available for admitting patients at nominal charges of Rs. 150/- per bed. The prices have not been increased from 1996 till date. However, bed charges for other categories have nearly doubled in the last nine years. The Hospital also does benevolent activities to the community at large by conducting free medical camps. At the interiors of Suderbans, free medical camp was organised where 40 specialist doctors were taken, patients were treated and free medicines were distributed. The Central Coordinate Committee of Gold Green also expressed their gratefulness to Ruby Hospital for organizing free medical checkup camp over there. Padmapurkar Nagrik Committee also expressed their gratefulness to Ruby Hospital for conducting free medical checkup camps, where over 500 patients were treated by Specialist Doctors.
9. On merits, it is submitted by the Respondents that the impact of the accident was fatal in its effect. The patient was brought to the emergency department of the hospital by a non-Bengali passer-by and immediate first aid medical treatment was started at the emergency department by the medical officer on duty without any question of consideration.
10. It is the case of the Hospital and the other Respondents that the persons accompanying the patient had declined to sign the usual admission form and had taken the patient away for treatment to a Government Hospital within 4 to 5 minutes of starting of treatment which was started without the procedural formalities for admission.
A. In background of this bare facts preliminary contention raised is – whether the father of the deceased or the deceased can be regarded as a consumer?
11. It is contended by the learned Senior Counsel Mr. Ashok Desai that under the Consumer Protection Act, 1986, there is no concept of imposing a consumer on a service provider. There is no law which makes the person injured a consumer of the hospital itself within the meaning of the Consumer Protection Act, 1986. A person can be a consumer only by hiring or availing of services for consideration as set out in Section 2(1)(d)(ii) of the Act. He therefore, contended that admittedly, in the present case, no consideration was fixed and no amount was received from the Complainant, and, therefore, there is no relationship between the deceased and or the Complainant with the hospital or doctors and therefore the deceased or his father is not a consumer covered under the Consumer Protection Act, 1986. Hence, this complaint is not maintainable.
12. At first blush the contention is much more attractive having force but has no substance in the context of the law and the duties of the Doctors. No doubt, in a society where there is cent per cent commercialisation of each and every walk of the life this submission is cent per cent valid. But, fortunately, we have not reached the stage of 100% commercialisation. We still believe in the ethics of noble profession, duties to the society, living animals (Art.51-A of the Constitution of India) and the law on the subject is also settled.
13. For appreciating this preliminary contention we would first refer to Sec.2(1)(d)(ii). 2(1)(d) “Consumer” means any person who hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.”
(a) This section has come up for interpretation in numerous cases. Important case is in the case of Indian Medical Association v. V.P. Shantha and Ors. (1995) 6 SCC 651, wherein the Indian Medical Association raised the contention that services rendered by the medical practitioner would not be covered by the provisions of the Consumer Protection Act, 1986. In that case by judgment in Cosmopolitan Hospitals v. Vasantha P. Nair, the National Commission held that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression ‘service’ as defined in Section 2(1)(o) of the Act and that in the event of any deficiency in the performance of such service, the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction. It was also held that the legal representatives of the deceased patients who were undergoing treatment in the hospital are ‘consumers’ under the Act and are competent to maintain the complaint. Against the said judgment, civil appeals were filed before the Apex Court. It was contended that medical practitioners are not covered by the provisions of the Consumer Protection Act, 1986. The Court negatived the said contention and relevant discussion in that is as under:
“27. Shri Harish Salve, appearing for the Indian Medical Association, has urged that having regard to the expression “which is made available to potential users” contained in Section 2(1)(o) of the Act, medical practitioners are not contemplated by Parliament to be covered within the provisions of the Act. He has urged that the said expression is indicative of the kind of service the law contemplates, namely, service of an institutional type which is really a commercial enterprise and open and available to all who seek to avail thereof. In this context, reliance has also been placed on the word ‘hires’ in sub-clause (ii) of the definition of ‘consumer’ contained in Section 2(1)(d) of the Act. We are unable to uphold this contention. The word ‘hires’ in Section 2(1)(d)(ii) has been used in the same sense as “avails of” as would be evident from the words “when such services are availed of” in the latter part of Section 2(1)(d)(ii). By inserting the words “or avails of” after the word ‘hires’ in Section 2(1)(d)(ii) by the Amendment Act of 1993, Parliament has clearly indicated that the word ‘hires’ has been used in the same sense as “avails of”. The said amendment only clarifies what was implicit earlier. The word ‘use’ also means “to avail oneself of”. (See: Black’s Law Dictionary, 6th Edn., at p.1541.) The word ‘user’ in the expression “which is made available to potential users” in the definition of ‘service’ in Section 2(1)(o) has to be construed having regard to the definition of ‘consumer’ in Section 2(1)(d)(ii) and, if so construed, it means “availing of services”. From the use of the words “potential users” it cannot, therefore, be inferred that the services rendered by medical practitioners are not contemplated by Parliament to be covered within the expression ‘service’ as contained in Section 2(1)(o).
In the said case the Court has specified ‘in which set of circumstance services rendered by the medical practitioner would not be considered to be covered by the provisions contained in Section 2(1)(o) of the Act; the payment of token amount for registration purposes only would not alter the provision in respect of such doctors and hospitals. For the second category, there could not be any dispute and it was held that it would clearly fall within the ambit of Section 2(1)(o) of the Act. For the third category, the Court observed thus:
“The third category of doctors and hospitals do provide free service to some of the patients belonging to the poor class but the bulk of the service is rendered to the patients on payment basis. The expenses incurred for providing free service are met out of the income from the service rendered to the paying patients. The service rendered by such doctors and hospitals to paying patients undoubtedly falls within the ambit of Section 2(1)(o) of the Act.”
14. Thereafter, the Court pertinently held thus:
“All persons who avail of the services by doctors and hospitals in category (iii) are required to be treated on the same footing irrespective of the fact that some of them pay for the service and others avail of the same free of charge. Most of the doctors and hospitals work on commercial lines and the expenses incurred for providing services free of charge to patients who are not in a position to bear the charges are met out of the income earned by such doctors and hospitals from services rendered to paying patients. The government hospitals may not be commercial in that sense but on the over all consideration of the objectives and the scheme of the Act, it would not be possible to treat the government hospitals differently. We are of the view that in such a situation, the persons belonging to “poor class” who are provided services free of charge are the beneficiaries of the service which is hired or availed of by the “paying class”. We are, therefore, of the opinion that service rendered by the doctors and hospitals falling in the category (iii) irrespective of the fact that part of the service is rendered free of charge, would nevertheless fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act. We are further of the view that persons who are rendered free service are the ‘beneficiaries’ and as such come within the definition of ‘consumer’ under Section 2(1)(d) of the Act”.
In our view status of “emergency or critically ill patient” would be same as “persons belonging to Poor Class”. Both are not in a position to pay – may be for separate reasons. The relevant conclusions (para 55) are as under:
(10). Service rendered at a government hospital/health centre/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing of such services would fall within the ambit of the expression ‘service’ as defined in Section 2(1)(o) of the Act, irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be ‘service’ and the recipient a ‘consumer’ under the Act.”
15. Keeping the aforesaid principles and the facts of the present case in mind, admittedly, apart from registration fee, Respondent institute charges various amounts such as Hospital charges, Diagnostic charges etc. from some patients and to some patients free of charge treatment is given. Hence, in case where service is rendered free of cost to some patients, it would be service within the ambit of expression ‘service’ as defined in Sec. 2(1)(o) of the Act. This would be irrespective of the fact that service rendered free of charge to persons who do not pay for such services. Free services would also be ‘services’ and the recipient would be a consumer under the Act. “Emergency or critically ill” persons, are the beneficiaries of the service which is hired or availed by the paying class.
16. In the present case, admittedly, the deceased availed for the services of the hospital and the Doctors. Doctors started giving treatment to the deceased because of emergency. That itself is availing of the services – may be free of cost or promised deferred payment.
17. The reasons for giving the treatment could be – (a) on the promise of deferred payment, or (b) on the assumption of the duty as a member of noble profession to discharge such duties in such emergency cases.
(b) The duty of the noble profession is crystallised by various judgments.
18. We would refer to the decision rendered by the Apex Court in Pt. Parmanand Katara v. Union of India and Ors. AIR 1989 SC 2039. In that case also it was alleged that a scooterist was knocked down by a speeding car. Seeing the profusely bleeding scooterist, a person who was on the road picked up the injured and took him to the nearest hospital. The doctors refused to attend on the injured and told the man that he should take the patient to a named different hospital located some 20 kilometers away authorised to handle medico legal cases. The Samaritan carried the victim. But, before he reached the hospital the patient succumbed to his injuries. In that set of circumstances in a petition under Article 32 the Court pertinently observed that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. Therefore, injured citizen brought for medical treatment, should be instantaneously given medical aid to preserve life. For this purpose, reference was made to Clauses 10 and 13 of the Code of Medical Ethics drawn up with the approval of the Central Government under Section 33 of the Medical Council Act which are as under:
“10. Obligations to the sick: Though a physician is not bound to treat each and every one asking his services except in emergencies for the sake of humanity and the noble traditions of the profession, he should not only be ever ready to respond to the calls of the sick and the injured, but should be mindful of the high character of his mission and the responsibility he incurs in the discharge of his ministrations, he should never forget that the health and the lives of those entrusted to his care depend on his skill and attention. A physician should endeavour to add to the comfort of the sick by making his visits at the hour indicated to the patients.
13. The patient must not be neglected: A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency or whenever temperate public opinion expects the service. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving notice to the patient, his relatives or his responsible friends sufficiently long in advance of his withdrawal to allow them to secure another medical attendant. No provisionally or fully registered medical practitioner shall wilfully commit an act of negligence that may deprive his patient or patients from necessary medical care.”
19. In the concurring judgment, Ojha, J. has observed in pr.14 as under:
“14. It could not be forgotten that seeing an injured man in a miserable condition the human instinct of every citizen moves him to rush for help and do all that can be done to save the life. It could not be disputed that in spite of development economical, political and cultural still citizens are human beings and all the more when a man in such a miserable state hanging between life and death reaches the medical practitioner either in a hospital (run or managed by the State) public authority or a private person or a medical professional doing only private practice he is always called upon to rush to help such an injured person and to do all that is within his power to save life. So far as this duty of a medical professional is concerned its duty coupled with human instinct, it needs no decision nor any code of ethics nor any rule or law.”
20. This aspect is also highlighted by Kerala High Court (K.S. Paripoornan and K.T. Thomas, JJ.) in Dr. T.T. Thomas v. Smt. Elisa and Ors. AIR 1987 Ker. 52, in the following terms:
“Devaluation of standards in professional ethics is a dangerous trend. Its proliferation in medical professional is more calamitous than in other professional or occupational areas. “There can be few, it any, professional other than that of medicine about which it is possible to fashion a television series entitled “Your Life in Their Hands’- (Mason and McCall Smith – Law and Medical Ethics). Failure to make a proper diagnosis sometimes may be the consequence of human error. But when diagnosis is correctly made, the imperative duty of the medical man to take adequate and prompt curative steps need not be over-emphasised, for, any inertia on his side is at his risk as to all costs and consequence. If the allegations in this case are true, this would fall within the amplitude of the above proposition.”
21. On evidence, in para 5, the Court observed thus:
“In the written statement, the appellant admitted that he examined the patient on the 11th itself and diagnosed his disease as ‘perforated appendix with peritonitis” and that he advised immediate operation. But the main contention of the appellant, in his written statement is that no surgery was done on the patient on 11-3-1974 because of the reluctance of the patient to undergo a surgery saying that “he had similar attacks before and he used to get relief with injections and other medicine. “So, according to the appellant, other measure were taken to ameliorate the condition of the patient which grew worse on the next, day when he was not in a operable condition, though the patient was then willing to be operated upon. The appellant denied, having received any amount from the plaintiffs. He also denied that he was absent in the hospital and that he went to the General Hospital only after the death of the patient on 13-3-1974. He emphatically denied the allegation that the death of the patient was due to his negligence.”
22. With regard to consent by the parties, in paras 11, 12 and 13 the Court held thus:
“11. The appellant has advanced a case the he could not perform the operation on 11-3-1974 as the patient did not gave consent to it. About this consent aspect, an understanding about its requirement is of help in this case. Why should a doctor insist on consent from his patient for the course of treatment to be adopted by him?