The Allergy That Was on File: Hospital Liability, 'Free' Treatment and Delay
A 58-year-old patient was admitted to a 200-bed private hospital for a laparoscopic cholecystectomy. The hospital quoted a package of ₹1,40,000, of which ₹40,000 was waived under a state health scheme; the patient paid ₹1,00,000. The anaesthetist, Dr N, is a visiting consultant who bills through the hospital's consolidated invoice and works only in that hospital's theatre on its scheduled lists; the hospital describes him as an 'independent contractor' in its records. The hospital's own pre-operative form recorded a documented allergy to a muscle relaxant, but Dr N administered it anyway and the patient suffered cardiac arrest, dying six days later. The family filed a complaint before the District Commission two years and three months after the death, seeking ₹50 lakh. The hospital raises three objections: the treatment was not a 'service' for consideration because ₹40,000 was waived; Dr N was an independent contractor; and the complaint is time-barred.
1. Does the partial waiver of ₹40,000 destroy the family's status as consumers, and who is competent to file?
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Consideration is not negated by a subsidy. Under section 2(7)(ii) of the Consumer Protection Act, 2019, a consumer includes any beneficiary of a service availed of for consideration. The patient here paid ₹1,00,000 directly; the balance of ₹40,000 was borne under a state scheme, which is still payment for the service, not a free service. The hospital's argument confuses a discount with gratuity.
Distinguish personal service. Medical treatment is a 'contract for service', not a 'contract of personal service' - the patient hires an institution to provide a result, and the institution holds itself out as capable of providing it. The definition of 'service' in section 2(42) is wide enough to cover hospital care, and 'deficiency' in section 2(11) covers negligence in the manner of performance.
Who files. The patient is dead, but section 2(5) defines 'complainant' to include the legal heir or representative of a deceased consumer, so the family is competent. The claim for compensation for death is maintainable under section 2(11) read with the Commission's power to award compensation under section 39(1)(d). Note that the ₹40,000 waiver would matter only if the entire treatment had been free and no consideration flowed from any source, which is not the case.
2. Can the hospital escape liability by labelling Dr N an independent contractor?
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The label does not decide the question. The test is functional: who controlled the manner in which the work was done, who held out the service to the patient, who billed for it, and on whose premises and schedule it was performed. Here the hospital fixed the theatre lists, supplied the team, issued a consolidated invoice that included the anaesthetist's fee, and presented itself as the provider of the package. That points strongly to the hospital being the service provider and Dr N its agent in fact.
Independent duty of the institution. Even where a consultant is genuinely independent, a hospital owes non-delegable duties to the patient: to maintain accurate records, to select and credential practitioners, to communicate known risks - including documented allergies - to the treating team, and to operate a safe system. The allergy was recorded on the hospital's own pre-operative form; the failure to act on its own record is the hospital's failure, not merely the doctor's.
Evidential position. Where a patient under anaesthesia suffers an injury that does not ordinarily occur without negligence, the doctrine of res ipsa loquitur shifts the burden of explanation to the provider. A signed consent form disclosing general risk does not waive negligent administration of a contraindicated drug.
Result. The hospital is liable for the deficiency; it may claim contribution or indemnity from Dr N in separate proceedings, but that does not affect the consumer's claim.
3. The complaint was filed two years and three months after the death. Is it necessarily dead on limitation?
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The period. Section 69 of the Consumer Protection Act, 2019 prescribes two years from the date on which the cause of action arises. The proviso empowers the Commission to entertain a complaint after that period if the complainant satisfies it that there was sufficient cause for the delay, and requires the Commission to record its reasons for condonation.
When does time start? For a claim based on negligent treatment culminating in death, the cause of action arises on the date of death (or, on some analyses, when the deficiency is first known). Taking the death as the trigger, the two-year period expired three months before the filing, so the complaint is on its face time-barred.
But it is not necessarily fatal. The family should file an application for condonation explaining the delay - for example, that they were awaiting the post-mortem report, the hospital's internal enquiry or the medical records, and that they were pursuing the matter in good faith. The Commission must consider the application, and must record reasons in either case; a bald rejection without reasons is itself a ground of appeal.
Practical point. Unlike section 5 of the Limitation Act, which governs appeals and applications but not suits, the consumer statute expressly confers a condonation power. The family's case is therefore arguable rather than hopeless, though the safer course was to file within two years and seek adjournments thereafter.