Consumer VOICE

When can a hospital be charged for medical negligence?

  • What is the responsibility of hospital towards its patients?
  • How is a government-run hospital different from a private hospital or nursing home with regard to settlement of responsibility vis-á-vis deficiency in service?
  • What are the role and responsibilities of a doctor towards their patients?

Responsibility of Hospital

The foremost responsibility of the hospital towards the patients it is admitting is to provide an adequate environment needed for their treatment and cure. The environment includes necessary infrastructure, equipment, medicines, professionals including doctors, nurses and support staff, and of course ‘oxygen’, the loss of which killed those infants in Gorakhpur.

The ‘responsibility of hospital’ matter was discussed in detail in a case where a landmark judgement was given by the Supreme Court. While deciding the case of Harjot Ahluwalia versus Spring Meadows in 1998, where an individual had lost his life as the hospital could not provide him oxygen on time, the Supreme Court stated thus:

‘It is a case of non-availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty. Then the hospital may be liable in civil law but the accused appellant cannot be proceeded against under Section 304A IPC (causing death by negligence) on the parameters of Bolam test.’

The court further stated: ‘Cases where nurse is not trained, case is left to junior doctors without explaining case history, wrong medicine or wrong injection is given causing damage to the patient, then doctors/hospital/nursing home is negligent for medical treatment.’

On the basis of the above, a hospital can be held responsible under civil law as well as consumer law, but cannot be held under the ‘criminal negligence’ clause.

Is This Applicable to All Hospitals?

No. Government hospitals that do not charge any fee from their patients cannot be challenged in consumer forums. Further, any money paid to a government hospital cannot be considered as ‘fee’ paid. For fee consideration, three categories have been defined by the Supreme Court in a landmark judgement given in the case of V Shantha versus Indian Medical Association in 1995.  

For government hospitals

  • Government hospitals are liable if contribution from their employees’ salary is deducted as this is considered as fee paid to it for treatment.
  • When hospital has added additional ‘paid’ facilities like private rooms and charges for those facilities from some people, the users of those services are considered consumers.
  • Payment by insurance company amounts to payment made by consumers. All cashless facility cases wherein insurance company makes payment come under Consumer Protection Act.

For private nursing homes

All private nursing homes are answerable before consumer courts.

For charitable hospitable

Charitable hospitals are maintained by funds and donations received from rich individuals or organisations. The charity they receive is considered to be in lieu of the fee they may have charged its patients, and so they are answerable before consumer forums for any deficiency in service.

When Can a Doctor Be Charged with Negligence?

This became clear in the Supreme Court verdict in the case of V Shantha versus Indian Medical Association. The apex court said that a doctor shall be charged of negligence when

  • S/he is held responsible for a damage to an organ
  • S/he does wrong treatment due to wrong diagnosis
  • S/he fails to provide money receipt, prescription, discharge summary or test reports
  • Treatment S/he does is not as per accepted and established norms in medical science/medical research/available medical literature

When Can A Doctor NOT Be Charged?

A doctor is not negligent if

  • S/he has chosen one out of five methods established in medical science for treatment, regardless of the fact that the expected result or treatment were effective or not
  • S/he is not guarantor
  • S/he establishes the fact that s/he has reasonable skill and knowledge  and took a reasonable degree of care

Further, a doctor is not negligent unless s/he has done something that s/he ought not to have done or has not done something that s/he should have done.

Necessary Points to Be Observed by Medical Practitioners

While pronouncing the judgement in the case of Achuterao Haribhau Khodwa versus State of Maharashtra in 1996, the Supreme Court outlined three points to be observed by medical practitioners:

  • To decide whether s/he has to take up the case or not
  • If taken up the case, s/he is to decide what treatment is to be given
  • Whether the treatment given is as per the diagnosis made

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