Case BriefsTribunals/Commissions/Regulatory Bodies

Consumer Disputes Redressal Commission, Gujarat State, Ahmedabad: Noting the fact that a patients Kidney was removed instead of the stones in the Kidney, Dr J.G. Mecwan (Presiding Member) expressing its’ opinion on medical negligence and hospital’s vicarious liability expressed that,

Hospital is liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

Facts in Nutshell

Complainant stated that the present appellant was a hospital run by a charitable trust and Dr Shivubhai Patel was working as a Medical Officer/surgeon at the KMG General Hospital.

Complainant’s case was that the husband of the complainant approached the opponent with the complaint of back pain and difficulty in urination in the K.G.M Hospital and thereafter the Surgeon examined him and advised for USG. In the USG report it was revealed that the deceased’s left kidney was maltreated and therefore he was advised to go to some higher center for operation but as the complainant was unable to go there due to his financial condition, necessary medicines were prescribed by the opponent Doctor.

Complainant visited the opponent hospital with unbearable pain and therefore, a special investigation was done and the report was suggestive of 14mm stone with obstruction at P.U.J in left kidney and the right kidney was normal.

It is further submitted by the complainant that the operation was performed for removal of the stone from the kidney but instead of stone, the Kidney was removed by Dr Patel without any consent of her husband.

After the above incident, patient’s condition worsened, and he eventually died and therefore the complainant filed a consumer complaint against the opponent for gross medical negligence and deficiency in service before the District Commission.

District Commission partly allowed the complaint of the complainant.

Being aggrieved by the impugned order of the District Commission, Nadiad the original opponent 02 has filed the present appeal against the original complainant before this Commission.

Main Consideration:

Opponent Doctor removed the Kidney instead of removing the stone from the kidney.

Opponent 3 – Insurance Company contended that Opponent 2 Hospital had taken an insurance policy for the legal liability and therefore OP-3 was not at all liable for the payment of the medical negligence for the opponent Doctor i.e. employee of the opponent 2 Hospital.

Commission noted that that the policy was taken for legal liability for the indoor patients and outdoor patients of the hospital and therefore in the opinion of this Commission when policy was taken for the legal liability of the indoor and outdoor patients and not taken for professional Indemnity then medical negligence for the opponent 01 doctor i.e. employee of the opponent 02 – Hospital, Insurance Company cannot be held liable to make payment.

Hospital’s Liability

Coram expressed that Hospital was liable with respect to medical negligence that may be direct liability or vicarious liability which means the liability of an employer for the negligent act of its employees.

An employer is responsible not only for his own acts of commission and omission but also for the negligence of its employees, so long as the act occurs within the course and scope of their employment. This liability is according to the principle of ‘respondent superior’ meaning ‘let the master answer’.

Concluding the matter, the Commission held that when Doctor is liable for the act of medical negligence then the Hospital is also vicariously liable for the act of Doctor and therefore District Commission Order was not just and proper, hence was modified as under:

“Opponent No. 02 – K.M.G. General Hospital is hereby ordered to pay Rs. 11,23,000/-(Rupees Eleven Lac Twenty Three Thousand Only), to the complainant with interest at the rate of 7.5% from the date of filing of the compliant till its realization and also ordered to pay Rs. 5000/- (Rupees Five Thousand Only) towards mental agony and cost of the complaint.”

[KMG General Hospital v. Devendrabhai K. Raval, Appeal No. 1457 of 2013, decided on 7-10-2021]


Advocates before the Commission:

Mr M.K. Joshi, L.A. for the appellants,

Mr V.K. Bhatt, L.A. for respondent no. 01, Mr M.K. Joshi, L.A. for respondent no. 02,

Mr. V.P. Nanavaty, L.A. for the respondent no. 03.

Case BriefsDistrict Court

Patiala House Courts, New Delhi: While addressing a case of medical negligence Prayank Nayak, MM-01, expressed that doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment

Complainant sought summoning of accused namely Dr Ram Manohar Lohiya, Hospital, New Delhi, CMO, Dr Ram Manohar Lohiya, Hospital and Dr Dinesh, Dr Ram Manohar Lohiya Hospital for offence punishable under Sections 270, 272, 326, 336, 338 of Penal Code, 1860.

Victim was aged about 3 months when she developed fever, cough and bronco pneumonia for which she sought treatment at OPD of RML. She was administered antibiotics and infusion intravenously. It was alleged that due to faulty administration of injection in a rash and negligent manner, victim developed gangrene.

After her examination by several doctors, her right hand had to be amputated from the wrist down. Hence it was stated that due to the negligence, commissions, and illegal omission of RML Hospital and its doctors they were liable to be punished under Sections 269, 270, 326 and 338 of the Penal Code, 1860 (IPC).

Analysis, Law and Decision

Law on Medical Negligence and Criminal Liability

Court expressed that the law of the land on the above stated was summed up in the decision of Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1,

“…To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.”

 Delhi High Court in Hukam Chand v. State, 2016 SCC OnLine Del 4129, held that:

“6. Thus to proceed against a doctor the complainant is required to, even at the stage of summoning, prima facie show that the negligence is of such a kind that either the doctor was not processed of the requisite skills which he professed to possess or the negligence and recklessness was of a high degree which could be termed as gross.”

 Hence, Court expressed those doctors can be summoned for negligence only if the negligence is gross or the doctors did not possess the requisite skill required for the treatment.

However, in the present matter, there was nothing on record to show that the treating doctors were grossly negligent while treating the victim. Even the Committee of the doctors did not mention that there was any negligence on the part of the treating doctors.

In Delhi High Court’s decision of Dr A.K. Banerji v. State, 2014 SCC OnLine Del 2322, while dealing with a criminal revision in a matter relating to medical negligence where the victim’s hand had to be amputated, held that since the Medical Council of India had opined that there was no negligence on the part of the treating doctor, summoning order of the magistrate for offence punishable under Section 338 IPC was liable to be set aside.

Bench held that since no sanction under Section 197 CrPC had been obtained, the doctors could not be summoned for the charges of medical negligence.

On finding no grounds for proceeding against the hospital and treating doctors arrayed as accused, the complaint was dismissed under Section 203 CrPC. [Gudia v. Dr Ram Manohar Lohia Hospital, CC No. 18745 of 2016, decided on 12-10-2021]

Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

The instant petition was heard along with a suo motu case registered with regard to the barbaric incident which took place in Assam’s Hojai district. According to reports[i], family members of the deceased patient brutally thrashed a young doctor following the patient’s demise at a Covid care centre.

As far as the abovementioned incident was concerned, the police had completed its investigation, charge-sheet had been filed and as many as twenty-four persons had already been arrested so far. Evidently, in its earlier order, the Court had directed the authorities concerned to ensure installation of CCTV cameras in hospitals, where no CCTV camera has been installed.  And provide compensation to the Medicare Service Persons, who may be the victims of violence during discharge of their duties.

The Court, on being informed that almost all the Government Medical Colleges and the District Government Hospitals except some government and Model Hospitals were having CCTV cameras, directed that mere installation of CCTV cameras in the hospitals concerned was not enough and the CCTV cameras have to be connected to the nearest Police Station for further monitoring.[Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529, decided on 30-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioner: S Islam

Counsel for the Respondent: D. Saikia

For the Gauhati High Court: S. Kalita, Standing counsel

[i] https://www.indiatoday.in/india/story/arrested-attack-junior-doctor-assam-hojai-ima-1809795-2021-06-02

Case BriefsCOVID 19High Courts

Punjab and Haryana High Court: Opining that extreme technicality in times of pandemic is deplorable and may lead to fatalities, the Division Bench of Jitendra Chauhan and Vivek Puri, JJ., allowed the petitioner to import the ventilators without further delay.

Noticing the urgency of the matter and the fact that the instant petition was filed on 15-06-2020 yet the grievance of the petitioner had not been addressed by the authorities, the Bench opined that,

“This extreme technicality in difficult times of Covid-19 pandemic is highly deplorable. In fact, the State ought to have facilitated import of the ventilators. Thousands of people, who are lying admitted, are not getting oxygen or ventilators, which is very vital for the treatment of Covid patients.”

The Bench stated that the oxygen and ICUs are required here and now. Any delay by the administration in providing the ventilators would definitely result into fatalities. In the circumstances, when the nation is witnessing huge number of deaths everyday and certain deaths had happened for want of ventilators, the denial of permission to import the ventilators by the administration was not in the interest of the patients. Hence, the Bench ordered that the import of ventilators in question be allowed without further delay if the same carry certification from the manufacturer.

However, in the larger interest of the patients and to ensure that the ventilators received are as per the specifications prescribed by the competent authority, the Bench directed the petitioner to inform within 24 hours after their receipt to the competent authority to inspect the same with regard to quality thereof. On receipt of such information, the competent authority was directed to depute official concerned to determine the factum that the ventilators are fit to be utilized. The Bench added, if the ventilators are found to be deficient as per the specifications laid down by the Union Government, it shall not be put to use. Further, the petitioner was directed to pay all duties admissible on such goods and to use the same only after the certification by the competent authority.[S.B. Medical Systems v. Union of India, 2021 SCC OnLine P&H 1066, Order Dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner: Adv. Sudhir Malhotra

For Union of India: ASGI SP Jain with Sr.Adv. Dheeraj Jain

For Respondent 4: Adv. Anshuman Chopra

Hot Off The PressNews

The National Human Rights Commission, India has taken suo motu cognizance of media reports that ten infants were killed in a fire that swept through the Sick Newborn Care Unit (SNCU) at Bhandara District General Hospital in Maharashtra on 09.01.2021. The fire reportedly broke out at around 1.30 am and the hospital administration could rescue only seven out of the seventeen children kept in the ward. A relief of Rs 5 lakhs has been announced by the state government from the Chief Minister’s Fund to each bereaved family and a state wide fire audit has also been announced. A case of accident has been reportedly registered and further investigation is being conducted.

The Commission has issued notices to the Chief Secretary and DGP, Government of Maharashtra calling for a detailed report in the matter within four weeks.

The Director-General of Police is also expected to inform the Commission about the outcome of the investigation being conducted by the police authorities. The report must contain the fire audit reports of various hospitals in the state as well as what measures have been taken or contemplated to be taken by the state against the erring or negligent officers/officials so that they cannot go with impurity.

Issuing the notices, the Commission has observed that the victim babies were in the custody of a state-run hospital where they lost life. Hence, the state cannot escape its responsibility. This is a serious issue of violation of human rights for which the accountability of the negligent officers/officials is required to be fixed, with retrospective effect. The monetary relief alone is not sufficient to compensate. Further, it is imperative to ensure that the support systems in various hospitals in the state must provide adequate care and attention to the patients for protection of their human rights.

According to the media reports, prima facie, the fire perhaps originated from the Air Conditioner and the victim babies died due to suffocation caused by the smoke. Reportedly, a committee headed by the Health Director will probe the incident and submit its report within three days. Electrical Department officials are reportedly investigating into the exact cause of the fire as reported by quoting the Superintendent of Police of Bhandara district.


National Human Rights Commission

[Press Release dt. 11-01-2021]

Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of C.K. Abdul Rehim and T.V. Anil Kumar, JJ. dismissed a petition seeking a writ of habeas corpus for production of petitioner’s friend – one Sumayya – ruling that there was no basis for allegations of illegal detention.

It was alleged that as per Sumayya’s facebook posts, she had been confined at a hospital by her mother and was being given unnecessary medications. When the petition came for admission, the Court directed the police to conduct a discreet enquiry into allegations of the petitioner, obtain a detailed medical report from the hospital regarding the mental status of Sumayya and also the details of treatment administered to her. Accordingly, a medical report, medical certificate and statements recorded from Sumayya were submitted to the Court.

It was diagnosed that Sumayya had a manic episode in the context of bipolar affective disorder and she was unlikely to receive treatment outside a hospital as she believed that her hospitalization was masterminded by her mother and hospital authorities were siding with her mother to “make her mentally ill”. At the time of the admission, Sumayya lacked the capacity to take an intelligent decision and faced a risk of untreated illness. However, after hospitalization, she had stabilized and regained her capacity for mental healthcare decisions. She was taking medication and had agreed to continue the same and also get psychological help.

She also stated that she has not been confined in the hospital by anyone and that she had only instructed the petitioner to file the instant petition as she intended to lead an independent life.

After interaction with Sumayya in Chambers, the Court opined that she was mentally stable and comfortable with her mother as well as with the atmosphere of the hospital where she was staying.

In view of the above, the petition was dismissed.[Manoj Joseph v. State of Kerala, 2018 SCC OnLine Ker 5265, decided on 11-12-2018]

Case BriefsForeign Courts

United Kingdom Supreme Court: A five-judge bench comprising of Lady Hale, Lord Reed, Lord Kerr, Lord Hodge, and Lord Lloyd-Jones while hearing an appeal pertaining to breach of duty held that the scope of the duty of care of a hospital extends to not providing misleading information.

The appellant was assaulted in the year 2010 on the back of his head by an unknown assailant post which his friend took him to Accident and Emergency Department (A&E department) at Mayday Hospital, Croydon which was managed by the respondent NHS Trust. Despite informing the receptionist about his head injury and the resultant severe headache, he was informed that there would be a wait of four to five hours before he could see a doctor. The appellant told the receptionist that he could not wait that long as he felt that he was about to collapse; to which the receptionist replied that if he did collapse, he would be treated as an emergency. After waiting for sometime, the appellant left the hospital but one hour later his condition worsened and he was taken to hospital again where it was revealed that he had suffered permanent brain damage.

The appellant brought proceedings against the respondent NHS Trust alleging breach of duty concerning the information he was given about the time he would have to wait before being seen by a doctor. It was brought on record that usually in such cases the waiting time is thirty minutes. The trial court held that it would be unfair to impose liability upon the respondent for harm arising as a result of the failure of the receptionist staff because the decision to leave was ultimately that of the appellant. Appeal against the said order was also dismissed on the ground that neither the receptionist nor the health trust acting by the receptionist owed any duty to advise about waiting times. Giving of incorrect information by the receptionist was not an actionable mis-statement and as such there was no causal link between any breach of duty and the injury. The present appeal arises against the order of the appellate court.

The court relied on judgment in Kent v. Griffiths, [2001] QB 36 and held as soon as the appellant had attended at the respondent’s A&E department seeking medical attention, provided the information requested by the receptionist and had been “booked in”, he had entered into a relationship of patient and health care provider, with the respondent which had a duty to care towards him. The scope of this duty extended to not provide misleading information which may foreseeably cause physical injury. While the actual position was that head injury complaints receive attention within thirty minutes, the appellant was told that he would have to wait for up to four or five hours to see a doctor. This information was incomplete and misleading and as such there was a negligent breach of duty.

On the aforesaid holding, the appeal was allowed and the case was remitted back to Queen’s Bench division for assessment of damages. [Darnley v. Croydon Health Services NHS Trust,[2018] 3 WLR 1153, decided on 10-10-2018]

Advance RulingsCase Briefs

Kerala Authority for Advance Ruling (Goods and Services Tax): The Authority for Advance Ruling (AAR), GST Department, Kerala comprising of B.G. Krishnan, Joint Commissioner of Central Tax and B.S. Thyagarajababu, Joint Commissioner of State Tax ruled that supply of medicines and allied items by a hospital through its pharmacy to the in-patients, being a part of composite supply of health care treatment, is not separately taxable.

The aforesaid ruling came on an application filed by Ernakulam Medical Centre (applicant), which sought clarification on GST liability on medicines supplied through hospital pharmacy to both in-patients and out-patients. The applicant is rendering medical services with professionals like doctors, nursing staff, lab technicians etc. Under the GST regime, health care services provided by a clinical establishment authorized medical practitioner or para-medics is exempted vide S.No.74 of Notification No.12/2017-CT (Rate) dated 28-06-2017. Since medicines supplied through the pharmacy to in-patients and out-patients under the prescription of the doctors is incidental to health care services rendered in a hospital, thus the applicant understood it to be beyond the ambit of taxation. However, for the sake of clarity, the applicant sought for an advance ruling on the liability of hospital for the supply of medicines and allied items through the pharmacy.

The Authority observed that until an in-patient is discharged, a hospital is expected to provide lodging, care, medicine, and food as part of treatment to him under its supervision. Such patients receive medical facility as per the scheduled procedure and have a strict restriction to ensure quality/quantity of items for consumption. Hence, the medicines or allied goods supplied to in-patients, being indispensable items and a composite supply for facilitation of health care services, is not taxable.

It was further noted that in case of an out-patient, a hospital only gives him a prescription which is only advisory in nature. The patient has absolute freedom to follow the prescription or not. Similarly, he has the freedom to procure the medicines or allied items prescribed, either from the pharmacy run by the hospital or from medicine dispensing outlets. The hospital reserves no control over his continuous treatment. Therefore, supply of medicines by a hospital run pharmacy to out-patients would be liable to be treated as an individual supply of medicine and hence it would not be covered under the ambit of health care services. Therefore, such supply of medicines and allied goods would be taxable.

On the aforesaid reasoning, the Authority held that supply of medicines and allied items by a hospital through pharmacy to in-patients would be exempted from tax, but supply of medicines to out-patients would be subject to taxation under the GST regime. [Advance Ruling No. Ker/16/2018, in the application filed by Ernakulam Medical Centre Private Limited, decided on 19-09-2018]