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TMI Blog2004 (10) TMI 637X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Therefore, as a result of our discussion we are 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 evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ical Engineer in I.D.P.L, Vir Bhadra (Rishikesh). The deceased was drawing a salary of Rs. 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's on 4.7.1994 and a sum of Rs. 14,000/- was deposited for his treatment. He was discharged on 5.7.1994 after angiography's. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings. 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 whe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort 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 Section 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) & (6) of Section 13 lay 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 hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ough 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 can not result in dismissal of the original petition as a whole. 10. The Consumer Forum is primarily meant to provide better protection in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 that 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondents, they were liable for his negligence under the doctrine of respondent 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 in 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 v. 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 misheard "procaine" as "cocaine", and had told the pharmacist to dispense a mixture which was, in fact, lethal. The pharmacist dispensed the mixture without making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 medial 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 serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m definition of service in Section 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 to 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 service to p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able 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 Hospital and Anr. v. Harjol Ahluwalia through K.S. Ahluwali ..... X X X X Extracts X X X X X X X X Extracts X X X X
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