What is Medical Negligence ?

Kindly Know the Difference Between Contract of Service and Contract for Service, and Whether Esi Hospitals Render Free Services? Can an Employee File a Case Against Esi in Consumer Redressal Forum for Deficiency in Medical Services?

[The article below is based on citation: Kishore Lal Vs. Chairman, Employees State Insurance Corporation]

In the following case , several useful points under Consumer Protection Act are discussed which is a very useful precedent for such future disputes.

Mr. Kishori lals wife was admitted in the ESI dispensary at Sonepat for her treatment for diabetes. However the condition of his wife continued to deteriorate. As alleged by him, there were instances when the doctors were not available even during emergencies. Later, the appellant got his wife medically examined in a private hospital.The tests done revealed that his wife had been diagnosed incorrectly in the ESI dispensary and that the deterioration in the condition of his wife was a direct result of the wrong diagnosis.

Mr. Kishori lal filed a Complaint under the Consumer Protection Act before the District Consumer Disputes Redressal Forum seeking (i) Compensation towards mental agony, harassment, physical torture, pains, sufferings and monetary loss for the negligence of the authorities(ii) direction for removal of deficiencies and (iii) direction for payment of interest on the amount of reimbursement bills.
The Employees State Insurance Corporation through its officers entered appearance and raised certain preliminary objections, namely,(i) that the Complaint filed is not maintainable in the District Consumer Forum and is liable to be dismissed as the wife of Mr.Kishorilal was treated in the ESI dispensary, Sonepat, which is a government dispensary and he cannot be treated as a Consumer and (ii) that Mr.Kishorilal is not a Consumer within the definition of Consumer in the Consumer Protection Act and he is not entitled to file a Complaint against the ESI dispensary. It was also contended that the facility of medical treatment in government hospital cannot be regarded as a Service hired for consideration, apart from the other defenses raised in the written statement.

And the Corporation contended that by virtue of Section 75 of the ESI Act the dispute raised by Mr.Kishorilal is covered and is to be decided by the Employees Insurance Court established under section 74 of the ESI Act and it being a special Act the jurisdiction of the Consumer Forum is ousted.

Dear Readers, just look at the real fight/great ordeal the poor Complainant had!

The District Consumer Forum relied on the decision in Birbal Singh V/s ESI Corporation 1993 II CPJ 1028, wherein on a Complaint filed for compensation for being aggrieved by poor medical attention received by the late wife of the Complainant at an ESI hospital, the Haryana State Commission had held that the Complainants did not come within the ambit of the definition of Consumer under the Consumer Protection Act because of the gratuitous nature of the medical services provided. On this basis, the District Forum held that the services rendered by the ESI dispensary are gratuitous in nature and therefore, out of the purview of the Consumer Protection Act.

Appeal was preferred by Kishori lal to the Haryana State Consumer Disputes Redressal Commission and it was urged by the appellant that ESI is a scheme of insurance and hence the service rendered by the Corporation was not gratuitous. The State Commission relying on the judgment in Birbal Singh(supra) and relying on one more citation Indian Medical Association V/s V.P.Shantha and Others,(1995) 6 SCC 651 held that free Medical services were not covered by the Consumer Protection Act and upheld the judgment of the District Forum.
The Appellant Mr. Kishorilal preferred a revision before the National Consumer Disputes Redressal Commission, but the same was also dismissed in limine.

HENCE, this appeal by special leave ( SUPREME COURT) by Mr.Kishorilal:
The Hon’ble Supreme Court felt: From the decisions rendered by the District Forum, the State Commission and the National Commission and the questions raised by the appellant(Mr.Kishori lal) and the respondent(ESI Corporation), the question that falls for our consideration is two fold: Whether the service rendered by an ESI hospital is gratuitous or not, and consequently whether it falls within the ambit of service as defined in the Consumer Protection Act 1986 ?

Whether Section 74 read with Section 75 of the Employees State Insurance Act 1948 ousts the jurisdiction of the consumer forum as regards the issues involved for consideration?

Court felt it would be appropriate to refer to certain statutory provisions of the Consumer Protection Act 1986.Consumer is defined in clause (d) and service? in clause (o) of Section 2(1) of the CP Act:Consumer in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services bought or hired for consideration. Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment and includes any beneficiary of such person other than the person who hires the services for consideration.The Act being a beneficial legislation aims to protect the interests of a consumer as understood in the business parlance. The important characteristics of goods and services under the Act are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services.The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services. However, by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded, but the service unambiguously indicates in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein.However a service hired or availed, which does not cost anything or can be said free of charge, or under a contract of personal service, is not included within the meaning of service for the purpose of the CP Act. The Court while considering whether the service rendered by the doctors of ESI corporation would fall within the purview of the CP Act it being a service rendered for the charges and whether the patients, who are treated by the doctors areConsumers as defined in Section 2(1)(d) of the CP Act, Court observed There is a distinction between a contract of service and a contract for service. A Contract for service implies a contract whereby one party undertakes to render service eg. Professional or technical service, to or for another in the performance of which he is not subject to detailed direction and control and exercises professional or technical skill and uses his own knowledge and discretion, whereas 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. A contract of service is excluded for consideration from the ambit of definition of service in the CP Act, whereas a contract for service is included. The Court held that the relationship between a medical practitioner and a patient carried within it a certain degree of mutual confidence and trust and therefore the service rendered by the medical practitioners can be regarded as a service of personal nature, and it is a contract for service. The service rendered at a government hospital/health center/dispensary where no charges whatsoever are made from any person and they are given free service, which would not be a service under Section 2(1)(o) of the C P Act. The payment of a token amount for registration purposes only would, however not alter the position in respect of such doctors and hospitals. Further where the service is rendered at a government hospital/health center/dispensary on payment of charges and also rendered free of charge, then it would fall within the ambit of the expression service. And if a patient or his relation availed of the service of a medical practitioner or hospital/nursing home where the charges for consultation, diagnosis and medical treatment are borne by the insurance company, then such service would fall within the ambit of service. And whereas a part of the conditions of service the employer bears the expenses of medical treatment of an employee and his family members dependant on him, then the service rendered by a medical practitioner or a hospital/nursing home would not be treated to be free of charge and would constitute service under Section 2(1)(o) of CP Act. The service rendered by the medical practitioners of hospitals/nursing homes run by the ESI Corporation cannot be regarded as a service rendered free of charge.The person availing of such service under an insurance scheme of medical care, where under the charges for consultation, diagnosis and medical treatment are borne by the insurer, such service could fall within the ambit of service as defined in Section 2(1)(o) of the CP Act. We shall now proceed to consider the second question raised that by virtue of Section 74 read with Section 75 and particularly Section 73(e) of the ESI Act, the claim made by the appellant would exclusively fall for decision within the jurisdiction of the Employees Insurance Court and that being the position the consumer forum has no jurisdiction to adjudicate upon the issue. It has been held in numerous cases of this Court that the jurisdiction of a Consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. The Court speaking on the jurisdiction of the consumer Fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the Fora under the CP Act have jurisdiction to entertain a Complaint despite the fact that other Fora/Courts would also have jurisdiction to adjudicate upon the lis(litigation). The trend of the decisions of the Court is that the jurisdiction of the consumer forum should not and would not be curtailed unless there is an express provision prohibiting the consumer forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated. A bare perusal of the provisions of clauses (a) to (g) of Section 75(1) of ESI Act clearly shows that it does not include claim for damages for medical negligence, like the present case which we are dealing with. Although the question does not directly arise before us, we shall consider what in the ordinary course shall constitute negligence. Negligence is the breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. Actionable negligence consists in the neglect of the use of ordinary care or skill towards a person to whom the defendant owns the duty of observing ordinary care and skill, by which neglect the plaintiff has suffered injury to his person or property.

The definition involves three constituents of negligence :
1) a legal duty to exercise due care on the part of the party complained of towards the party complaining the former’s conduct within the scope of the duty
(2)breach of the said duty and
(3) consequential damage, Cause of action, for negligence arises only when damage occurs for damage is a necessary ingredient of this sort.
Cause of action for negligence arises only when damage occurs and thus the claimant has to satisfy the court on the evidence that three ingredients of negligence, namely(a) existence of duty to take care(b) failure to attain that standard of care and (c) damage suffered on account of breach of duty are present for the defendant to be held liable for negligence. Therefore the claimant has to satisfy these ingredients before he can claim damages for medical negligence of the doctors and that could not be a question which could be adjudicated upon by the Employees Insurance Courts which have been given specific powers of the issues, which they can adjudicate and decide. Claim for damages for negligence of the doctors of the ESI hospital/dispensary is clearly beyond the jurisdictional power of Employees Insurance Court. Finally the Court held that: Having considered all these aspects, we are of the view that the appellant Mr.Kishori lal is a Consumer within the ambit of Section 2(1)(d) of the Consumer Protection Act, 1986 and the medical service rendered in the ESI Hospital/dispensary by the ESI Corporation falls within the ambit of Section 2(1)(o) of the Consumer Protection Act and therefore the consumer forum has jurisdiction to adjudicate upon the case of the appellant. We further hold that the jurisdiction of the Consumer Forum is not ousted by virtue of Sub-section (1) or (2) or (3) of Section 75 of the Employees State Insurance Act,1948. The appeal is allowed. Impugned order of the lower court has been set aside. And the matter is remitted back to the District Consumer Disputes Redressal Forum, Sonepat for decision in accordance with law laid down herein.

Hope my above article helps the common man to understand certain essential points which helps him/her to approach a Consumer Forum. Do give some feedback.

For information about Medical Negligence Cases in UK:
http://www.thompsons.law.co.uk/ltext/l0820001.htm#types_clinical_negligence

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