Free Medical treatment and the question of negligence

  • Are doctors liable for compensation when they render services free of cost?

Lata Jain

The apex court will examine if a doctor can be held liable for medical negligence if the doctor treated the patient without taking fees. The issue arose recently in a west Bengal court when a 12 year old girl was allegedly given a wrong drug to control vomiting.

Bench, comprising Justices Dipak Misra and PC Pant, was dealing with an appeal against the decision of the National Consumer Disputes Redressal Commission, which said the question of medical negligence or compensation doesn’t arise since no fees had been paid to the doctor.

lata jain

Lata Jain

The case reached the Supreme Court after three consumer forums threw out the appeals of the parents of a 12-year-old from Bengal who died after being administered an injection of what appears to have been a contra-indicated drug.

Mihir banerjee, the father of the girl claimed that he rushed his 12 year old daughter Ishitha to Dr.Abhijit Roy on May 22, 2001 after she had repeated bouts of vomiting. Dr.Abhijit Roy, Dr Roy apparently asked his helper to administer an injection of Zofer (Ondansetron), an anti-emetic for cancer patients undergoing chemotherapy, and Rantac (Rantidine), an antacid.

Within a few hours of administering the Zofer injection, the child developed further complications, including loose motions. The doctor then prescribed two other medicines, but she died soon after.

The parents filed a complaint of medical negligence against Dr. Abhijit Roy, seeking Rs 5 lakh as compensation. On October 19, 2001, the district consumer forum dismissed their plea on the ground that the girl was treated free of cost, so the case did not come within the purview of the Consumer Protection Act.

It rejected the argument that the parents had paid for the treatment. Dr.Abhijit Roy, who treated the deceased patient Ishitha had taken the stand that he treated all patients at the clinic free of cost.

On October 22, 2008, the West Bengal State Consumer Disputes Redressal Commission concurred with the district forum’s view. The family then approached the national forum (NCDRC).

On December 19 last year, the NCDRC too dismissed the family’s appeal. It said the doctor had treated the child free of cost and the family had produced no material evidence to prove that they paid Roy his fees. They had no receipt to prove that they had paid the doctor.

The council also cited a 2009 ruling by the top court – in the Malay Kumar Ganguly Vs Dr Sukumar Mukherjee case. In this case the Supreme Court of India awarded a compensation of Rs. 6,08,00,550 for Medical Negligence to Kunal Saha, a US Based Doctor who fought a 15 year long legal battle to prove the charge of medical negligence on four doctors and the AMRI Hospital of Kolkata for the death of his wife Anuradha in 1998.

The court had then held that while administration of a wrong drug amounted to gross negligence, it would also be a case of negligence if the right medicine is not given.

Senior lawyer MN Krishnamani, appearing for Mihir Banerjee, insisted that administration of a wrong drug in this case one clearly meant for cancer patients constituted gross medical negligence.

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