Medical negligence—Claim for Damages—Dismissal of petition
for non-impleadment of treating doctor and other nursing staff—Validity—Burden
cannot be placed on patient to implead all those treating doctors or attending staff as parties—Once
patient admitted in hospital, it is the responsibility of hospital to provide
best service
|
AIR 2004 SC 5088 : (2004) 5 Suppl. SCR 359 : (2004)
8 SCC 56 : JT 2004 (8) SC 607 : (2004) 8 SCALE 694
(SUPREME COURT OF INDIA)
(Before
: B. N. Agrawal And A. K. Mathur, JJ.)
Civil Appeal No. 4024 of 2003,*Decided
on : 12-10-2004.
Consumer
Protection Act, 1986—Sections 22, 13; Consumer Protection Rules, 1987—Rule
14; Civil Procedure Code, 1908—Order 1, Rules 9, 10(4)—Non-joinder of
necessary parties—Medical negligence—Claim
for Damages—Dismissal of petition for non-impleadment of treating doctor and
other nursing staff—Validity—Burden cannot be placed on patient to implead
all those treating doctors or
attending staff as parties—Once patient admitted in hospital, it is the
responsibility of hospital to provide best service—Hospital cannot take
shelter under technical ground that as concerned surgeon not impleaded, claim
should be rejected—Consumer Forums to provide better protection to consumer’s
interests but not to short circuit matters or to defeat claims on technical
grounds—Impugned order set-aside—Matter remanded to National Commission for
decision in accordance with law.
Civil
Procedure Code, 1908—Order 1, Rule 8—Medical negligence—Non-joinder
of treating surgeon and nursing staff—Effect—Burden cannot be placed on
patient to implead all those treating doctors
or attending staff—Complaint/Claim cannot be rejected on ground of
non-impleadment.
In
the present case, the appellant filed original petition impleading the
Institute where her husband was admitted as a party but she did not implead
the treating doctors and nurses who were attending on her husband. Though the
Commission directed that necessary parties may be impleaded and it appears
that no effort was made to implead the treating Surgeon or the nursing staff
as a party. Therefore, the question is whether non-impleading the treating
Surgeon or a nursing staff can be said to be necessary party and if they are
not implead then in that case, the original petition can result into
dismissal on account of non-joinder of necessary party. So far as the law
with regard to the non-joinder of necessary party under Code of Civil
Procedure, Order 1, Rule 9 and Order 1, Rule 10 of the CPC there also even no
suit shall fail because of mis-joinder or non-joinder of parties. It can
proceed against the persons who are parties before the Court. Even the Court
has the power under Order 1, Rule 10(4) to give direction to implead a person
who is a necessary party. Therefore, even if after the direction given by the
Commission the concerned doctor and the nursing staff who were looking after
the deceased A.K. Garg have not been impleaded as opposite parties it cannot
result in dismissal of the original petition as a whole.
The
Consumer Forum is primarily meant to provide better protection in the
interest of the consumers and not to short circuit the matter or to defeat
the claim on technical grounds. Reverting back to the facts of the present
case, whether non-joinder of the treating doctor, nursing staff can result
into dismissal of the claim petition. As a matter of fact, when a patient is admitted to the highly commercial
hospital like the present institute, a through check up of the patient
is done by the hospital authorities, it is the Institute which selects after
the examination of the patient that he suffers from what malady and who is
the best doctor who can attend, except when the patient or the family members
desire to be treated by a particular doctor or the surgeon as the case may
be. Normally, the private hospitals have a panel of doctors in various
specialities and it is they who choose who is to be called. It is very
difficult for the patient to give any detail that which doctor treated the
patient and whether the doctor was negligent or the nursing staff was negligent.
It is very difficult for such patient or his relatives to implead them as
parties in the claim petition. It will be an impossible task and if the claim
is to be defeated on that ground it will virtually be frustrating the
provisions of the Act, leaving the claimant high and dry. We cannot place such a heavy burden on the patient
or the family members/relatives to implead all those doctors who have treated
the patient or the nursing staff to be impleaded as party. It will be a
difficult task for the patient or his relatives to undertake this searching
enquiry from the Hospital and sometimes hospital may not co-operate. It may
give such details and sometimes may not give the details. Therefore, the
expression used in Rule 14(1)(b), “so far as they can be ascertained”, makes
it clear that the framers of the Rules realized that it will be very
difficult specially in the case of medical profession to pinpoint that who is
responsible for not providing proper and efficient service which gives rise
to the cause for filing a complaint and specially in the case like the one in
hand. The patients once they are admitted to such hospitals. It is the
responsibility of the said hospital or the medical institutions to satisfy
that all possible care was taken and no negligence was involved in attending
the patient. The burden cannot be placed on the patient to implead all those
treating doctors or the attending staff of the hospital as a party so as to
substantiate his claim. Once a patient is admitted in a hospital it is the
responsibility of the Hospital to provide the best service and if it is not,
then hospital cannot take shelter under the technical ground that the
concerned surgeon or the nursing staff, as the case may be, was not
impleaded, therefore, the claim should be rejected on the basis of
non-joinder of necessary parties. In fact, once a claim petition is filed and
the claimant has successfully discharged the initial burden that the hospital
was negligent, as a result of such negligence the patient died, then in that
case the burden lies on the hospital and the concerned doctor who treated the
patient that there was no negligence involved in the treatment. Since the
burden is on the hospital, they can discharge the same by producing that
doctor who treated the patient in defence to substantiate their allegation
that there was no negligence. In fact it is the hospital who engages the
treating doctor thereafter it is their responsibility. The burden is greater
on the Institution/hospital than that of the claimant. The institution is
private body and they are responsible to provide efficient service and if in
discharge of their efficient service and if in discharge of their efficient
service they are couple of weak links which has caused damage to the patient
then it is the hospital which is to justify the same and it is not possible
for the claimant to implead all of them as parties.
Therefore,
as a result of our above discussion we are of opinion that summary dismissal
of the original petition by the Commission on the question of non-joinder of
necessary parties was not proper. In case, the complainant fails to
substantiate the allegation, then the complaint will fail. But not on the
ground of non-joinder of necessary party. But at the same time the hospital can
discharge the burden by producing the treating doctor in defence that all due
care and caution was taken and despite that patient died. The
hospital/Institute is not going to suffer on account of non-joinder of
necessary parties and Commission should have proceeded against hospital. Even
otherwise also the Institute had to produce the concerned treating physician
and has to produce evidence that all care and caution was taken by them or
their staff to justify that there was no negligence involved in the matter.
Therefore, nothing turns in not impleading the treating doctor as a party.
Once an allegation is made that the patient was admitted in a particular
hospital and evidence is produced to satisfy that he died because of lack of
proper care and negligence, then the burden lies on the hospital to justify
that there was no negligence on the part of the treating doctor/or hospital.
Therefore, in any case, the hospital which is in better position to disclose
that what care was taken or what medicine was administered to the patient. It
is the duty of the hospital to satisfy that there was no lack of care or
diligence. The hospitals are institutions, people except better and efficient
service, if the hospital fails to discharge their duties through their doctors
being employed on job basis or employed on contract basis, it is the hospital
which has to justify and by not impleading a particular doctor will not
absolve the hospital of their responsibilities.
Civil
Procedure Code, 1908—Section 2(1)(g)—Medical negligence—Non-joinder of
treating surgeon and nursing staff—Effect—Burden cannot be placed on patient
to implead all those treating doctors or attending staff—Complaint/Claim
cannot be rejected on ground of non-impleadment.
In
the present case, the appellant filed original petition impleading the
Institute where her husband was admitted as a party but she did not implead
the treating doctors and nurses who were attending on her husband. Though the
Commission directed that necessary parties may be impleaded and it appears
that no effort was made to implead the treating Surgeon or the nursing staff
as a party. Therefore, the question is whether non-impleading the treating
Surgeon or a nursing staff can be said to be necessary party and if they are
not implead then in that case, the original petition can result into
dismissal on account of non-joinder of necessary party. So far as the law
with regard to the non-joinder of necessary party under Code of Civil
Procedure, Order 1, Rule 9 and Order 1, Rule 10 of the CPC there also even no
suit shall fail because of mis-joinder or non-joinder of parties. It can
proceed against the persons who are parties before the Court. Even the Court
has the power under Order 1, Rule 10(4) to give direction to implead a person
who is a necessary party. Therefore, even if after the direction given by the
Commission the concerned doctor and the nursing staff who were looking after
the deceased A.K. Garg have not been impleaded as opposite parties it cannot
result in dismissal of the original petition as a whole.
The
Consumer Forum is primarily meant to provide better protection in the
interest of the consumers and not to short circuit the matter or to defeat
the claim on technical grounds. Reverting back to the facts of the present
case, whether non-joinder of the treating doctor, nursing staff can result
into dismissal of the claim petition. As a matter of fact, when a patient is
admitted to the highly commercial hospital like the present institute, a
through check up of the patient is done by the hospital authorities, it is
the Institute which selects after the examination of the patient that he
suffers from what malady and who is the best doctor who can attend, except
when the patient or the family members desire to be treated by a particular
doctor or the surgeon as the case may be. Normally, the private hospitals
have a panel of doctors in various specialities and it is they who choose who
is to be called. It is very difficult for the patient to give any detail that
which doctor treated the patient and whether the doctor was negligent or the
nursing staff was negligent. It is very difficult for such patient or his
relatives to implead them as parties in the claim petition. It will be an
impossible task and if the claim is to be defeated on that ground it will
virtually be frustrating the provisions of the Act, leaving the claimant high
and dry. We cannot place such a heavy burden on the patient or the family
members/relatives to implead all those doctors who have treated the patient
or the nursing staff to be impleaded as party. It will be a difficult task
for the patient or his relatives to undertake this searching enquiry from the
Hospital and sometimes hospital may not co-operate. It may give such details
and sometimes may not give the details. Therefore, the expression used in
Rule 14(1)(b), “so far as they can be ascertained”, makes it clear that the
framers of the Rules realized that it will be very difficult specially in the
case of medical profession to pinpoint that who is responsible for not
providing proper and efficient service which gives rise to the cause for
filing a complaint and specially in the case like the one in hand. The
patients once they are admitted to such hospitals. It is the responsibility
of the said hospital or the medical institutions to satisfy that all possible
care was taken and no negligence was involved in attending the patient. The
burden cannot be placed on the patient to implead all those treating doctors
or the attending staff of the hospital as a party so as to substantiate his
claim. Once a patient is admitted in a hospital it is the responsibility of
the Hospital to provide the best service and if it is not, then hospital
cannot take shelter under the technical ground that the concerned surgeon or
the nursing staff, as the case may be, was not impleaded, therefore, the
claim should be rejected on the basis of non-joinder of necessary parties. In
fact, once a claim petition is filed and the claimant has successfully
discharged the initial burden that the hospital was negligent, as a result of
such negligence the patient died, then in that case the burden lies on the
hospital and the concerned doctor who treated the patient that there was no
negligence involved in the treatment. Since the burden is on the hospital,
they can discharge the same by producing that doctor who treated the patient
in defence to substantiate their allegation that there was no negligence. In
fact it is the hospital who engages the treating doctor thereafter it is
their responsibility. The burden is greater on the Institution/hospital than
that of the claimant. The institution is private body and they are
responsible to provide efficient service and if in discharge of their
efficient service and if in discharge of their efficient service they are
couple of weak links which has caused damage to the patient then it is the
hospital which is to justify the same and it is not possible for the claimant
to implead all of them as parties.
Therefore,
as a result of our above discussion we are of opinion that summary dismissal
of the original petition by the Commission on the question of non-joinder of
necessary parties was not proper. In case, the complainant fails to
substantiate the allegation, then the complaint will fail. But not on the
ground of non-joinder of necessary party. But at the same time the hospital
can discharge the burden by producing the treating doctor in defence that all
due care and caution was taken and despite that patient died. The
hospital/Institute is not going to suffer on account of non-joinder of
necessary parties and Commission should have proceeded against hospital. Even
otherwise also the Institute had to produce the concerned treating physician
and has to produce evidence that all care and caution was taken by them or
their staff to justify that there was no negligence involved in the matter.
Therefore, nothing turns in not impleading the treating doctor as a party.
Once an allegation is made that the patient was admitted in a particular
hospital and evidence is produced to satisfy that he died because of lack of
proper care and negligence, then the burden lies on the hospital to justify
that there was no negligence on the part of the treating doctor/or hospital.
Therefore, in any case, the hospital which is in better position to disclose
that what care was taken or what medicine was administered to the patient. It
is the duty of the hospital to satisfy that there was no lack of care or
diligence. The hospitals are institutions, people except better and efficient
service, if the hospital fails to discharge their duties through their
doctors being employed on job basis or employed on contract basis, it is the
hospital which has to justify and by not impleading a particular doctor will
not absolve the hospital of their responsibilities.
Consumer
Protection Act, 1986—Section 2(1)(g)—Service—‘Contract of service’ and
‘Contract for service’—Distinction—Explained.
In
this connection, learned counsel appearing for the respondent ably tried to
make a distinction between ‘contract for service’ and ‘contract of service’.
He submitted that those persons who are on contract for service are different
from those persons who are on contract of service. He submitted that in a contract
of service there is a contract whereby one party undertakes to render service
e.g., professional or technical service, to or for another in the performance
of which he is not subject to detailed direction and control but exercises
professional or technical skill and uses his own knowledge and discretion. A
‘contract of service’ implies relationship of master and servant and involves
an obligation to obey orders in the work to be performed and as to its mode
and manner of performance.
Therefore,
as per the English decisions also the distinction of ‘contract of service’
and ‘contract for service’, in both the contingencies the Courts have taken
the view that the hospital is responsible for the acts of their permanent
staff as well as staff whose services are temporarily requisitioned for the
treatment of the parties. Therefore, the distinction which is sought to be
pressed into service so ably by learned counsel cannot absolve the hospital
or the institute as it is responsible for the acts of its treating doctors
who are on the panel and whose services are requisitioned from time to time
by the hospital looking to the nature of the diseases. The hospital or the
institute is responsible and no distinction could be made between the two
classes of persons i.e., the treating doctor who was on the staff of the
hospital and the nursing staff and the doctors whose services were
temporarily taken for treatment of the patients. On both, the hospital as the
controlling authority is responsible and it cannot take the shelter under the
plea that treating physician is not impleaded as a party, the claim petition
should be dismissed.
Consumer
Protection Rules, 1987—Rule 14(1)—Medical Negligence—Non-joinder of treating
surgeon and nursing staff—Effect—Burden cannot be placed on patient to
implead all those treating doctors or attending staff—Complaint/Claim cannot
be rejected on ground of non-impleadment.
In
the present case, the appellant filed original petition impleading the
Institute where her husband was admitted as a party but she did not implead
the treating doctors and nurses who were attending on her husband. Though the
Commission directed that necessary parties may be impleaded and it appears
that no effort was made to implead the treating Surgeon or the nursing staff
as a party. Therefore, the question is whether non-impleading the treating
Surgeon or a nursing staff can be said to be necessary party and if they are
not implead then in that case, the original petition can result into
dismissal on account of non-joinder of necessary party. So far as the law
with regard to the non-joinder of necessary party under Code of Civil
Procedure, Order 1, Rule 9 and Order 1, Rule 10 of the CPC there also even no
suit shall fail because of mis-joinder or non-joinder of parties. It can
proceed against the persons who are parties before the Court. Even the Court
has the power under Order 1, Rule 10(4) to give direction to implead a person
who is a necessary party. Therefore, even if after the direction given by the
Commission the concerned doctor and the nursing staff who were looking after
the deceased A.K. Garg have not been impleaded as opposite parties it cannot
result in dismissal of the original petition as a whole.
The
Consumer Forum is primarily meant to provide better protection in the
interest of the consumers and not to short circuit the matter or to defeat
the claim on technical grounds. Reverting back to the facts of the present
case, whether non-joinder of the treating doctor, nursing staff can result
into dismissal of the claim petition. As a matter of fact, when a patient is
admitted to the highly commercial hospital like the present institute, a
through check up of the patient is done by the hospital authorities, it is
the Institute which selects after the examination of the patient that he
suffers from what malady and who is the best doctor who can attend, except
when the patient or the family members desire to be treated by a particular
doctor or the surgeon as the case may be. Normally, the private hospitals
have a panel of doctors in various specialities and it is they who choose who
is to be called. It is very difficult for the patient to give any detail that
which doctor treated the patient and whether the doctor was negligent or the
nursing staff was negligent. It is very difficult for such patient or his
relatives to implead them as parties in the claim petition. It will be an
impossible task and if the claim is to be defeated on that ground it will
virtually be frustrating the provisions of the Act, leaving the claimant high
and dry. We cannot place such a heavy burden on the patient or the family
members/relatives to implead all those doctors who have treated the patient
or the nursing staff to be impleaded as party. It will be a difficult task
for the patient or his relatives to undertake this searching enquiry from the
Hospital and sometimes hospital may not co-operate. It may give such details
and sometimes may not give the details. Therefore, the expression used in
Rule 14(1)(b), “so far as they can be ascertained”, makes it clear that the
framers of the Rules realized that it will be very difficult specially in the
case of medical profession to pinpoint that who is responsible for not
providing proper and efficient service which gives rise to the cause for filing
a complaint and specially in the case like the one in hand. The patients once
they are admitted to such hospitals. It is the responsibility of the said
hospital or the medical institutions to satisfy that all possible care was
taken and no negligence was involved in attending the patient. The burden
cannot be placed on the patient to implead all those treating doctors or the
attending staff of the hospital as a party so as to substantiate his claim.
Once a patient is admitted in a hospital it is the responsibility of the
Hospital to provide the best service and if it is not, then hospital cannot
take shelter under the technical ground that the concerned surgeon or the
nursing staff, as the case may be, was not impleaded, therefore, the claim
should be rejected on the basis of non-joinder of necessary parties. In fact,
once a claim petition is filed and the claimant has successfully discharged
the initial burden that the hospital was negligent, as a result of such
negligence the patient died, then in that case the burden lies on the
hospital and the concerned doctor who treated the patient that there was no
negligence involved in the treatment. Since the burden is on the hospital,
they can discharge the same by producing that doctor who treated the patient in
defence to substantiate their allegation that there was no negligence. In
fact it is the hospital who engages the treating doctor thereafter it is
their responsibility. The burden is greater on the Institution/hospital than
that of the claimant. The institution is private body and they are
responsible to provide efficient service and if in discharge of their
efficient service and if in discharge of their efficient service they are
couple of weak links which has caused damage to the patient then it is the
hospital which is to justify the same and it is not possible for the claimant
to implead all of them as parties.
Therefore,
as a result of our above discussion we are of opinion that summary dismissal
of the original petition by the Commission on the question of non-joinder of
necessary parties was not proper. In case, the complainant fails to
substantiate the allegation, then the complaint will fail. But not on the
ground of non-joinder of necessary party. But at the same time the hospital
can discharge the burden by producing the treating doctor in defence that all
due care and caution was taken and despite that patient died. The
hospital/Institute is not going to suffer on account of non-joinder of
necessary parties and Commission should have proceeded against hospital. Even
otherwise also the Institute had to produce the concerned treating physician
and has to produce evidence that all care and caution was taken by them or
their staff to justify that there was no negligence involved in the matter.
Therefore, nothing turns in not impleading the treating doctor as a party.
Once an allegation is made that the patient was admitted in a particular
hospital and evidence is produced to satisfy that he died because of lack of
proper care and negligence, then the burden lies on the hospital to justify
that there was no negligence on the part of the treating doctor/or hospital.
Therefore, in any case, the hospital which is in better position to disclose
that what care was taken or what medicine was administered to the patient. It
is the duty of the hospital to satisfy that there was no lack of care or
diligence. The hospitals are institutions, people except better and efficient
service, if the hospital fails to discharge their duties through their
doctors being employed on job basis or employed on contract basis, it is the
hospital which has to justify and by not impleading a particular doctor will
not absolve the hospital of their responsibilities.
Counsel
for the Parties:
Dinesh Kumar Garg and Manzoor Ali Khan, Advocates, for
Appellant.
Rajshekhar Rao, Advocate for Nikhil Nayyar, Advocate,
for Respondent.
Judgment
A. K. Mathur, J—This
appeal is directed against the order passed by the National Consumer Disputes
Redressal Commission (hereinafter to be referred to as 'the Commission'), New
Delhi whereby the Commission has dismissed the original petition of the
appellant on the ground of non-joinder of necessary parties.
2. Brief facts
which are necessary for disposal of this appeal are as follows.
The
appellant is the wife of one deceased A.K. Garg who was admitted to the
National Heart Institute (hereinafter referred to as 'the Institute') for
medical treatment and because of the negligence of the doctors of the
Institute he could not get proper medical treatment and ultimately he died.
The deceased A.K. Garg was employed as Electrical Engineer in I.D.P.L. Vir
Bhadra (Rishikesh). The deceased was drawing a salary of ` 8000/- per month
at the time of his death. He left behind his family members namely; (i) Smt.
Savit Garg (wife), (ii) Smt. Sushila Garg (mother), (iii) Shri Ankul Garg
(son), (iv) Miss. Ruchi (daughter), (v) Shri Sauragh (son) and (vi) Anoop
Garg (brother). Prior to the admission of the deceased, A.K. Garg in the
Institute he was being treated at G.B. Pant Hospital and he did not improve
there, therefore, his case was referred to the Institute by his employer,
IDPL. The deceased was admitted for angiography on 4-7-1994 and a sum of ` 14,000/- was
deposited for his treatment. He was discharged on 5-7-1994 after angiography.
Again he was admitted on 2-8-1994 at 11.15 A.M. and remained there till
9-8-1994 and ultimately died at the Institute. It was alleged that on
3-8-1994 he was operated and was brought to the Intensive Care Unit of the
Institute. No attendant was allowed to see the patient except through the
glass windows of I.C.U. The deceased was operated twice by Dr. O.P. Yadav of
the Institute for his treatment. It is further alleged that Dr. O.P. Yadav
was too much worried and perturbed after the deceased's operation. On the
said day i.e. on 3-8-1994, 8 bottles of blood were transferred in the body of
the deceased and even on 4-8-1994 another 8 bottles of blood was demanded by
the Doctors of the Institute and the same was somehow arranged. The deceased
is said to have developed jaundice may be because of wrong transfusion or
extra transfusion of blood. It is further alleged that the deceased developed
septic and as the septic in the bone became incurable, therefore a Doctor
from Batra Hospital was called for to amputate one leg of the deceased A.K.
Garg. Thereafter, as it was reported to be case of kidney failure, the
deceased was put on dialysis. However, on 9-8-1994 at 2.30 hours the deceased
was declared dead. Therefore, a complaint was filed before the Commission
claiming a sum of ` 45 lacs,
the details of which have already been given in the complaint. The appellant
has detailed the reasons for the negligence in her original petition filed
before the Commission. An affidavit in opposition was filed by the Institute
and they denied the allegations of negligence and pointed out that all proper
care was taken, there is no negligence on the part of the Institute. An
objection was also taken that the provisions as contained in the Consumer
Protection Act, 1986 do not satisfy the requirement of a complaint as defined
under the Act as it does not disclose any deficiency. The Institute also
challenged the jurisdiction of the Commission to entertain the said original
petition.
3. A rejoinder was
also filed by the appellant and it is alleged that septic was developed
because of the negligence which shows lack of care on the part of the
doctors. However, when the matter came up for hearing on 12-4-2002, the
Commission directed both the parties to file brief notes of submissions on
the question of maintain-ability of the complaint as well as the effect on
non-impleading the attending doctors against whom the medical negligence has
been alleged and the matter was posted to 2-5-2002 for directions. Thereafter
ultimately the matter was disposed of by the Commission by its order dated
6-2-2003 holding that the original petition is not maintainable in the
absence of the treating doctors being impleaded as party. It was also
observed that no effort was made by the appellant to implead the concerned
doctors at any stage of the proceedings. Therefore, the Commission held that
there is no alternative but to dismiss the complaint for non-joinder of
parties. The Commission however, observed that considering the age of the
deceased and the number of dependents upon her, the Institute will consider
the matter sympathetically and make some ex-gratia payment to the family
members of the deceased.
4. The question is
whether non-impleading the treating doctor as party could result in dismissal
of the original petition for non-joinder of necessary party.
5. It is the common
experience that when a patient goes to a private clinic, he goes by the
reputation of the clinic and with the hope that proper care will be taken by
the Hospital authorities. It is not possible for the patient to know that
which doctor will treat him. When a patient is admitted to a private
clinic/hospital it is hospital/clinic which engages the doctors for
treatment. In the present case, the appellant's husband was admitted to the
best of the hospital and it is not possible for the appellant to find out
that who is the best doctor and who is not. Normally, the private clinics go
by the reputation and people look forward for best treatment when they are
run commercially. It is the responsibility of the clinic that they must
provide best of the services when they charge for the services rendered by
them. In case it is found that services rendered by the clinic or hospital,
as the case may be, is not up to the mark and it involves some negligence on
their part, for which the patients suffer, then they are bound to reimburse
them. They charge fee for the services rendered by them and they are supposed
to bestow the best care. Looking at the present appeal, the whole claim petition
was dismissed simply on the ground that the treating doctor was not impleaded
as a party. The question is therefore, whether in the absence of the treating
doctor could the original petition be dismissed on the ground of non-joinder
of necessary party. As per the provisions of Section 22 of the Consumer
Protection Act, 1986 (hereinafter referred to as 'the Act') the Commission
has to regulate its business. Section 22 lays down the power of and procedure
applicable to the National Commission. It reads as under:
“22.
Power of and procedure applicable to the National Commission - The National
Commission shall, in the disposal of any complaints or any proceedings before
it, have-
(a) the
power of a civil Court as specified in sub-sections (4), (5) and (6) of Section
13;
(b) the
power to issue an order to the opposite party directing him to do any one or
more of the things referred to in clauses (a) to (i) of sub-section (1) of
Section 14,
and
follow such procedure as may be prescribed by the Central Government”.
6. According to
Section 22 whether procedures which have been prescribed under Section 13 for
the District Forum shall be applicable. Sub-sections (4), (5) and (6) of
Section 13 which are relevant for our purpose read as under:
“13.
Procedure on receipt of complaint-
**********
(4) For
the purposes of this section, the District Forum shall have the same powers
as are vested in a civil Court under Code of Civil Procedure, 1908 while
trying a suit in respect of the following matters, namely:-
(i) the
summoning and enforcing the attendance of any defendant or witness and
examining the witness on oath,
(ii) the
discovery and production of any document or other material object producible
as evidence,
(iii) the
reception of evidence on affidavits,
(iv) the
requisitioning of the report of the concerned analysis or test from the
appropriate laboratory or from any other relevant source,
(v)
issuing of any commission for the examination of any witness, and
(vi) any
other matter which may be prescribed.
(5) Every
proceeding before the District Forum shall be deemed to be a judicial
proceeding within the meaning of Sections 193 and 228 of the Indian Penal
Code (45 of 1860), and the District Forum shall be deemed to be a civil Court
for the purposes of Section 195, and Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974).
(6) Where
the complainant is a consumer referred to in sub-clause (iv) of clause (b) of
sub-section (1) of Section 2, the provisions of Rule 8 of Order 1 of the
First Schedule to the Code of Civil Procedure, 1908 (5 of 1908) shall apply
subject to the modification that every reference therein to a suit or decree
shall be construed as a reference to a complaint or the order of the District
Forum thereon.”
7. Sub-sections
(4), (5) and (6) of Section 13 lays down that the Forum shall have the power
to summon and enforce the attendance of any defendant or witness as laid down
in the Code of Civil Procedure. Likewise, it shall have the power to direct
for production of material object producible as evidence, reception of
evidence on affidavit; requisitioning of the report of the concerned analysis
or test from the appropriate laboratory or from any other relevant source;
issuing of any commission for the examination of any witness and any other
matter which may be prescribed. Sub-section (5) says that every proceeding
before the District Forum shall be judicial proceeding within the meaning of
sections 193 and 228 of the Indian Penal Code and the District Forum shall be
deemed to be a Civil Court for the purposes of section 195 and Chapter XXVI
of the Code of Civil Procedure. Sub-section (6) says that when there are more
than one consumer, then one of them can sue as required under Order 1, Rule 8
of the Code of Civil Procedure. Therefore, if there are number of consumers,
one of them can represent the interest of all. Therefore, as far as the
Commission is concerned, the provisions of the Code of Civil Procedure are
applicable to the limited extent and not all the provisions of the Code of
Civil Procedure are made applicable to the proceedings to the National Forum.
Rules have also been framed under the Act, known as the Consumer Protection
Rules, 1987, where Rule 14 has prescribed the procedure to be followed by the
Commission. Rule 14 says that the name, description and the address of the
complainant and the opposite parties, as the case may be, so far as they can
be ascertained, should be given. Clause (b) of sub-section (1) which is
relevant for our purposes reads as under:
“(b) the
name, description and address of the opposite party or parties, as the case
may be, so far as they can be ascertained.”
8. Therefore,
according to the procedure laid down by the Rules a complainant has to give
the name, description and address of the opposite party or parties so far as
they can be ascertained.
9. So far as the
filing of complaint directly before the Commission because of higher
valuation, the procedures laid down in Rule 14 of the Rules have to be
followed and in that case, the name of the opposite party has to be given so
far as they can be ascertained. In the present case, the appellant filed
original petition impleading the Institute where her husband was admitted as
a party but she did not implead the treating doctors and nurses who were attending
on her husband. Though the Commission directed that necessary parties may be
impleaded and it appears that no effort was made to implead the treating
Surgeon or the nursing staff as a party. Therefore, the question is whether
non-impleading the treating Surgeon or a nursing staff can be said to be
necessary party and if they are not impleaded then in that case, the original
petition can result into dismissal on account of non-joinder of necessary
party. So far as the law with regard to the non-joinder of necessary party
under Code of Civil Procedure, Order 1, Rule 9 and Order 1, Rule 10 of the
CPC there also even no suit shall fail because of mis-joinder or non-joinder
of parties. It can proceed against the persons who are parties before the
Court. Even the Court has the power under Order 1, Rule 10(4) to give
direction to implead a person who is a necessary party. Therefore, even if
after the direction given by the Commission the concerned doctor and the
nursing staff who were looking after the deceased A.K. Garg have not been
impleaded as opposite parties it cannot result in dismissal of the original
petition as a whole.
10. The Consumer
Forum is primarily meant to provide better protection in the interest of the
consumers and not to short circuit the matter or to defeat the claim on
technical grounds. Reverting back to the facts of the present case, whether
non-joinder of the treating doctor, nursing staff can result into dismissal
of the claim petition. As a matter of fact, when a patient is admitted to the
highly commercial hospital like the present institute, a thorough check up of
the patient is done by the hospital authorities, it is the Institute which
selects after the examination of the patient that he suffers from what malady
and who is the best doctor who can attend, except when the patient or the
family members desire to be treated by a particular doctor or the surgeon as
the case may be. Normally, the private hospitals have a panel of doctors in
various specialities and it is they who chooses who is to be called. It is
very difficult for the patient to give any detail that which doctor treated
the patient and whether the doctor was negligent or the nursing staff was
negligent. It is very difficult for such patient or his relatives to implead
them as parties in the claim petition. It will be an impossible task and if
the claim is to be defeated on that ground it will virtually be frustrating
the provisions of the Act, leaving the claimant high and dry. We cannot place
such a heavy burden on the patient or the family members/relatives to implead
all those doctors who have treated the patient or the nursing staff to be
impleaded as party. It will be a difficult task for the patient or his
relatives to undertake this searching enquiry from the Hospital and sometimes
hospital may not co-operate. It may give such details and sometimes may not
give the details. Therefore, the expression used in Rule 14(1)(b), “so far as
they can be ascertained”, makes it clear that the framers of the Rules
realized that it will be very difficult specially in the case of medical
profession to pinpoint that who is responsible for not providing proper and
efficient service which gives rise to the cause for filing a complaint and
specially in the case like the one in hand. The patients once they are
admitted to such hospitals, it is the responsibility of the said hospital or
the medical institutions to satisfy that all possible care was taken and no
negligence was involved in attending the patient. The burden cannot be placed
on the patient to implead all those treating doctors or the attending staff
of the hospital as a party so as to substantiate his claim. Once a patient is
admitted in a hospital it is the responsibility of the Hospital to provide
the best service and if it is not, then hospital cannot take shelter under
the technical ground that the concerned surgeon or the nursing staff, as the
case may be, was not impleaded, therefore, the claim should be rejected on
the basis of non-joinder of necessary parties. In fact, once a claim petition
is filed and the claimant has successfully discharged the initial burden that
the hospital was negligent, as a result of such negligence the patient died,
then in that case the burden lies on the hospital and the concerned doctor who
treated the patient that there was no negligence involved in the treatment.
Since the burden is on the hospital, they can discharge the same by producing
that doctor who treated the patient in defence to substantiate their
allegation that there was no negligence. In fact it is the hospital who
engages the treating doctor thereafter it is their responsibility. The burden
is greater on the Institution/hospital than that of the claimant. The
institution is private body and they are responsible to provide efficient
service and if in discharge of their efficient service there are couple of
weak links which has caused damage to the patient then it is the hospital
which is to justify the same and it is not possible for the claimant to
implead all of them as parties.
11. In this
connection, learned counsel appearing for the respondent ably tried to make a
distinction between 'contract for service' and 'contract of service'. He
submitted that those persons who are on contract for service are different
from those persons who are on contract of service. He submitted that in a
contract for service there is a contract whereby one party undertakes to
render service e.g. professional or technical service, to or for another in
the performance of which he is not subject to detailed direction and control
but exercises professional or technical skill and uses his own knowledge and
discretion. A 'contract of service' implies relationship of master and
servant and involves an obligation to obey orders in the work to be performed
and as to its mode and manner of performance.
12. By this learned
counsel submitted that so far as the permanent staff of the hospital is
concerned, there is a contract of service and negligence thereof the hospital
can be made liable and for that they need not be impleaded as parties in
respect of any negligence of service but the doctors who come on visit, they
are on contract for service over which the hospital has no control and
therefore, unless they are impleaded as parties, no relief can be given. He
also based his submission with reference to some of the English decisions
given in the case of Gold and others vs. Essex County Council, reported in
(1942) 2 All ER 237 and Collins vs. Hertfordshire County Council and Anr.,
reported in (1947) 1 All ER 633. So far as Gold and others vs. Essex County
Council is concerned, in that case, the infant plaintiff was treated by a
radiographer, an employee of the respondents at one of their county
hospitals. By reason of his failure to provide adequate screening material in
giving Grenz-ray treatment the infant plaintiff suffered injury to her face.
It was proved that the radiographer was fully competent to administer the
treatment given to the infant plaintiff. However, it was held that as the
radiographer was under a contract of service of the respondents, they were
liable for his negligence under the doctrine of respondeat superior. It was
further held that if a local authority had exercised power under the Public
Health Act, 1936, the obligation undertaken is an obligation to treat and the
authority is liable if the person employed by it to perform the obligation on
its behalf acts without due care. This was a case is which the radiographer
was under regular employment with the county council. This is a case in which
a person was on contract of service and not on contract for service.
Therefore, this case does not provide any assistance to the present case.
13. In the case of
Collins vs. Hertfordshire County Council and Anr, while undergoing an
operation, a patient in a county council hospital was killed by an injection
of cocaine which was given by the operating surgeon in the mistaken belief
that it was procaine. The operating surgeon had ordered procaine on the
telephone, but the resident house surgeon (who was then unqualified) had
mis-heard 'procaine' as 'cocaine', and had told the pharmacist to dispense a
mixture which was, in fact, lethal. The pharmacist dispensed the mixture
'without making further inquiry and without requiring the written instruction
of a qualified person, and the operating surgeon had given the injection
without checking that it was what he had ordered. The operating surgeon, the
house surgeon, and the pharmacist were all three in the full-time or
part-time employment of the council. In an action by the patient's widow
against the county council and the operating surgeon alleging that the death
was the result of (a) the council's negligence in the conduct of their
hospital, and (b) the operating surgeon's failure to exercise reasonable care.
It was held as follows:
“(i) The
county council, in managing the hospital, was permitting a dangerous and
negligent system to be in operation, and the operating surgeon and the house
surgeon had failed to exercise reasonable skill and care.
(ii) the
council were able to control the manner in which the resident medical officer
performed her work and, therefore, the acts of the house surgeon done in the
course of her employment were acts for which the council was responsible.
(iii)
although the operating surgeon was a part-time employee on the staff of the
council, the council could not control how he was to perform his duties and
was not responsible for his want of care.”
14. Learned counsel
submitted that in view of the above decisions since the doctor was on
part-time employment, as such he was not responsible. With respect this
distinction which is tried to be advanced by learned counsel for the
respondent, does not find favour in subsequent decision rendered by the
English Court in the case of Cassidy vs. Ministry of Health, reported in
(1951) 2 KB 343. In this case, the earlier decision in the case of Gold and
others vs. Essex County Council, reported in (1942) 2 All ER 237, came up for
consideration. Lord Denning, J. speaking for himself observed that a hospital
authority is liable for the negligence of doctors and surgeons employed by
the authority under a contract for service arising in the course of the
performance of their professional duties. It was observed as follows:
“The
hospital authority is liable for the negligence of professional men employed
by the authority under contracts for service as well as under contracts of
service. The authority owes a duty to give proper treatment- medical,
surgical, nursing and the like- and though it may delegate the performance of
that duty to those who are not its servants, it remains liable if that duty
be improperly or inadequately performed by its delegates.
The
plaintiff entered a hospital for an operation on his left hand, which
necessitated post-operational treatment. While undergoing that treatment he
was under the care of the surgeon who performed the operation, who was a
whole-time assistant medical officer of the hospital, the house surgeon and
members of the nursing staff of the hospital, all of whom were employed under
contracts of service. At the end of the treatment it was found that his hand
had been rendered useless. The trial Judge dismissed his action for damages
for negligent treatment which he brought against the hospital on the ground
that he had failed to prove any negligence. On appeal it was held that in the
circumstances, the doctrine of res ipsa loquitur applied, and the onus lay on
the hospital authority to prove that there had been no negligence on its part
or on the part of anyone for whose acts or omission it was liable, and that
onus had not been discharged.”
15.Therefore, as per
the English decisions also the distinction of 'contract of service' and
'contract for service', in both the contingencies the Courts have taken the
view that the hospital is responsible for the acts of their permanent staff
as well as staff whose services are temporarily requisitioned for the
treatment of the parties. Therefore, the distinction which is sought to be
pressed into service so ably by learned counsel cannot absolve the hospital
or the institute as it is responsible for the acts of its treating doctors
who are on the panel and whose services are requisitioned from time to time
by the hospital looking to the nature of the diseases. The hospital or the institute
is responsible and no distinction could be made between the two classes of
persons i.e. the treating doctor who was on the staff of the hospital and the
nursing staff and the doctors whose services were temporarily taken for
treatment of the patients. On both, the hospital as the controlling authority
is responsible and it cannot take the shelter under the plea that treating
physician is not impleaded as a party, the claim petition should be
dismissed. In this connection, a reference may be made to a decision of this
Court in the case of Indian Medical Association vs. V.P. Shantha and others,
reported in AIR 1996 SC 550. There the question had come up
before this Court with regard to the provisions of the Consumer Protection
Act, 1986 vis-a-vis the medical profession. This Court has dealt with all
aspects of medical professional from every angle and has come to the
conclusion that the doctors or the institutes owe a duty to the patients and
they cannot get away in case of lack of care to the patients. Their Lordships
have gone to the extent that even if the doctors are rendering services free
of charge to the patients in the Government hospitals, the provisions of the
Consumer Protection Act will apply since the expenses of running the said
hospitals are met by appropriation from the Consolidated Fund which is raised
from the taxes paid by the tax payers. Their Lordships have dealt with regard
to the definition of 'service' given in Section 2(1)(o) of the Consumer
Protection Act, 1986 and have observed as follows:
“The
service rendered free of charge to patients by doctors/hospitals whether
non-Govt. or Govt. who render free service to poor patients but charge fee
for services rendered to other patients would, even though it is free, not be
excluded from definition of service in S. 2(1)(o). The Act seeks to protect
the interests of consumers as a class. To hold otherwise would mean that the
protection of the Act would be available to only those who can afford to pay
and such protection would be denied to those who cannot so afford, though
they are the people who need the protection more. It is difficult to conceive
that the Legislature intended to achieve such a result. Another consequence
of adopting a construction, which would restrict the protection of the Act or
persons who can afford to pay for the services availed by them and deny such
protection to those who are not in a position to pay for such services, would
be that the standard and quality of services rendered at an establishment
would cease to be uniform. It would be of a higher standard and of better
quality for persons who are in a position to pay for such service while the
standard and quality of such service would be inferior for person who cannot
afford to pay for such service and who avail the service without payment.
Such a consequence would defeat the object of the Act. All persons who avail
the services by doctors and hospitals who give free services to poor patients
but charge fee for others, are required to be treated on the same footing
irrespective of the fact that some of them pay for the service and others
avail 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 overall consideration of the objectives and the scheme of the Act
it would not be possible to treat the Government hospitals differently. 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'. Service rendered by the doctors and
hospitals who render free service to poor patients and charge fees for others
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.”
16.Therefore, the
distinction between the 'contract of service' and 'contract for service' has
been very elaborately discussed in the above case and this Court has extended
the provisions of the Consumer Protection Act, 1986, to the medical
profession also and included in its ambit the services rendered by private
doctors as well as the Government Institutions or the non-Governmental
institutions, be it free medical services provided by the Government
Hospitals. In the case of Achutrao Haribhau Khodwa and others vs. State of
Maharashtra and others, reported in (1996) 2 SCC 634, Their Lordships observed that
in cases where the doctors act carelessly and in a manner which is not
expected of a medical practitioner, then in such a case an action on torts
would be maintainable. Their Lordships further observed that if the doctor
has taken proper precaution and despite that if the patient does not survive
then the Court should be very slow in attributing negligence on the part of
the doctor. It was held as follows:
“A
medical practitioner has various duties towards his patient and he must act
with a reasonable degree of skill and knowledge and must exercise a
reasonable degree of care. This is the least which a patient expects from a
doctor. The skill of medical practitioners differs from doctor to doctor. The
very nature of the profession is such that there may be more than one course
of treatment which may be advisable for treating a patient. Courts would
indeed be slow in attributing negligence on the part of a doctor if he has
performed his duties to the best of his ability and with due care and
caution. Medical opinion may differ with regard to the course of action to be
taken by a doctor treating a patient, but as long as a doctor acts in a manner
which is acceptable to the medical profession and the Court finds that he has
attended on the patient with due care, skill and diligence and if the patient
still does not survive or suffers a permanent ailment, it would be difficult
to hold the doctor to be guilty of negligence. But in cases where the doctors
act carelessly and in a manner which is not expected of a medical
practitioner, then in such a case an action in torts would be maintainable.”
Similarly,
our attention was invited to a decision in the case of Spring Meadows
Hospitals and Anr. vs. Harjol Ahluwalia through K.S. Ahluwalia and another,
reported in (1998) 4 SCC 39. Their Lordships observed as
follows:
“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. In the former case a Court can accept that
ordinary human fallibility precludes the liability while in the latter the
conduct of the defendant is considered to have gone beyond the bounds of what
is expected of the skill of a reasonably competent doctor.”
Therefore,
as a result of our above discussion we are of opinion that summary dismissal
of the original petition by the Commission on the question of non-joinder of
necessary parties was not proper. In case, the complainant fails to
substantiate the allegation, then the complaint will fail. But not on the
ground of non-joinder of necessary party. But at the same time the hospital
can discharge the burden by producing the treating doctor in defence that all
due care and caution was taken and despite that patient died. The hospital/
Institute is not going to suffer on account of non-joinder of necessary
parties and Commission should have proceeded against hospital. Even otherwise
also the Institute had to produce the concerned treating physician and has to
produce evidence that all care and caution was taken by them or their staff
to justify that there was no negligence involved in the matter. Therefore,
nothing turns in not impleading the treating doctor as a party. Once an allegation
is made that the patient was admitted in a particular hospital and evidence
is produced to satisfy that he died because of lack of proper care and
negligence, then the burden lies on the hospital to justify that there was no
negligence on the part of the treating doctor/or hospital. Therefore, in any
case, the hospital which is in better position to disclose that what care was
taken or what medicine was administered to the patient. It is the duty of the
hospital to satisfy that there was no lack of care or diligence. The
hospitals are institutions, people expect better and efficient service, if
the hospital fails to discharge their duties through their doctors being
employed on job basis or employed on contract basis, it is the hospital which
has to justify and by not impleading a particular doctor will not absolve the
hospital of their responsibilities.
17. In the result,
we allow this appeal, set aside the order dated 6-2-2003 passed by the
National Consumer Disputes Redressal Commission, New Delhi in Original
Petition No. 121 of 1995 and remit back the original petition to the National
Consumer Disputes Redressal Commission to be decided in accordance with law.
No order as to costs.
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