2010 August - Note 9

Consumer courts granting compensation in case of doctor’s failure to provide emergency care — Need to reconsider the judgment - H. S. Bhullar, Advocate Supreme Court of India

In the case of Dr. A. K. Manocha v/s Mrs. Savita Gulyani & Ors. (a95, j 265), the Delhi State Consumer Redressal Commission has held a pediatrician liable to pay compensation, as he failed to provide medical help to a patient who was in an emergency but admittedly outside his expertise.

The decision of the Commission is based on the law laid down by the Supreme Court in the case of Pandit Parmanand Katara v/s Union of India. In this case the Supreme Court had directed doctors and hospitals to provide all possible help to emergency patients. In case of patients who are outside the expertise and qualifications of the treating doctor, a duty was cast to organize and ensure safe transfer of the patient to an appropriate facility. Undoubtedly, the law laid down by the Supreme Court is the law of the land and everyone has to follow it.

However, the present judgment, empowering the consumer courts to penalize doctors failing to follow this law is clearly erroneous. This extension of the law is jurisprudentially impermissible. 

The Consumer Protection Act, 1986, is a special enactment. Hence, according to the laws of the interpretation of statutes, its application must be strictly construed. The consumer courts can hear such cases only if there is an agreement between the consumer and the service provider, explicit or implicit, or the statute specifically makes provisions for situations, circumstances or persons who will be covered by the Consumer Act.

The Consumer Act does not have any provision that brings emergency patients within its jurisdiction. The agreement between an emergency patient and a doctor who refuses to treat is also completely absent. Therefore, in such cases neither is the patient a consumer nor is the doctor a service-provider, and hence, the consumer courts cannot entertain such cases.

The proper forum to try such cases would be the ordinary civil courts and not the consumer courts.

Editor’s note
Our readers must remember that as of now, the view expressed by the court in the judgment of Dr. A. K. Manocha v/s Mrs. Savita Gulyani & Ors. is the ‘law’ and you must follow it.

There is a possibility that in future a higher court may reverse this finding and agree with the views expressed herein. It is equally possible, that this view may be patently erroneous and the law laid down in this case may be continued and upheld as ‘good law’. However, as of now, the law is fairly well settled and clear — a doctor / hospital not attending an emergency patient can be directed to pay compensation by the consumer court also.

If any change in this law comes, you can rest assured that as usual we will bring it to you at the earliest, discussing all the aspects relevant to medical practice. the rule that delivery patients must be managed only by qualified gynecologists will not be applicable. On the contrary if a doctor fails to respond appropriately in such a situation, it will be illegal.

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