GOVT. HOSPITAL IS UNDER CONSUMER PROTECTION ACT

MEDICAL NEGLIGENCE CASES

Medical Negligence is a branch of Tort. The Law of Tort is not an enacted statute. The Tort is a judge made law, based on the verdicts of Apex court.

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In V.P.Santha v. IMA, it was decided that the free treatment is not within the purview of consumer courts. Now, the issue has slowly moved to a stage that free service availed in Govt. hospitals is within the purview of Consumer Courts. The same has been affirmed by Apex Court in KRISHNAKUMAR vs. STATE OF TAMIL NADU & ORS. III (2015) CPJ 15 (Supreme Court).

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NOW, A GOVT. HOSPITAL IS UNDER CONSUMER PROTECTION ACT AND CONSEQUENTLY, A GOVT. DOCTOR IS LIABLE FOR MEDICAL NEGLIGENCE.

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The Govt. Doctors must take the utmost care while treating the patients. The patient’s welfare and safety must be given priority. Once a doctor decides that the patient needs referral to a higher institution for better treatment,  the patient should be immediately referred.

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Recommendations from anyone to treat the patients at own hospital despite patient needs higher medical care which is available at nearby Govt.’s higher institution MUST BE KEPT AWAY and the patient’s safety and welfare must be given importance by the treating Govt. doctor. It is duty of Govt. doctor to avoid medical negligence litigation against Govt. Medical Service by adhering all medical ethics  (timely referral, proper documentation, obtaining informed consent from the patient) strictly.  If the govt. doctor fails to adhere with medical ethics, then the Govt. doctor is directly liable and the Govt. hospital is vicariously liable for medical negligence and consequently the Govt. doctors and Govt. has to pay compensation, if medical negligence is proved. 

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As Apex Court clearly notified in the judgment that a concerned doctor must pay certain compensation in addition to the payment of compensation by Government, it is the duty of Govt. doctors to ensure the safety and welfare of the patients. Hence, obtaining an informed consent, proper documentation and timely referral will save the Govt. doctors and Govt. from paying compensation on medical negligence cases.

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When a Consumer Case or Writ Petition is filed against Govt. to award compensation for  medical negligence case wherein  the Govt. doctor  is not a opposite party, the concerned Govt. doctor must implead as a Opposite Party/Respondent in the case/petition.  Otherwise, the doctor may not a get a chance to put his arguments before the forum/court and ultimately, the govt. doctor may end up paying compensation.

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Earlier, the compensation in medical negligence case was ordered on lump sum basis. After, KRISHNAKUMAR vs. STATE OF TAMIL NADU & ORS. III (2015) CPJ 15, a new principle has been laid down for fixation of the compensation (calculation of loss for the whole life i.e. like Motor vehicle accident cases) and accordingly compensation of Rs.1.38 Crore was Ordered for a child who lost her vision.

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On the basis of this new principle delivered by Apex Court, all doctors (including Govt. doctors) must be very careful in treating the patients otherwise, a doctor may lose his entire life time earnings in one medical negligence case by way of paying huge compensation. 

In the new Consumer Protection Bill 2018,  the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees.