Question

LEGAL PRINCIPLE:
(1) Medical professional are not immune from liability in tort on ground of negligence.
(2) Services rendered to a patient by a doctor (except when given free of charge) by way of consultation, diagnosis and treatment fail in the definition of "service" under the Consumer Protection Act. In case of negligence, the doctors are liable in tort as well as under the Consumer Protection Act.
FACTUAL SITUATION:

A was the only child of his parents. Once he had high fever and his parents called a doctor at home. This doctor used to work at a respectable hospital in Delhi. the doctor administered certain medicnes and asked the nurse to stay with him for the night and administer to him a chloroquine injection. This injection was generally not suitable for young children. The nurse, without prior test, followed instructions of the doctor and gave the injection. As a result of an allergic reaction, the child died. The parents sued the nurse and the doctor.
DECIDE.

• A. Doctor was rendering a "service",; hence liable to pay compensation
• B. Doctor was not liable as he came to their home to give personal treatment and was not in the Hospital
• C. This is not a service; hence not liable
• D. Only the nurse is liable

Answer 1

Answer: (A)

Doctor was rendering a "service",; hence liable to pay compensation

• The tort of medical negligence to fix liability on erring doctors was established in the Bolam's case. Three important constituents: legal duty to exercise reasonable skill, knowledge and care, breach of that duty and consequential damage arising from this breach, establish liability on the doctors. It used the terms 'standard of an ordinary skilled man professing the special skill' must be used by the doctor. It was further established in the case of Indian Medical Association v V Shantha that medical services come within the ambit of definition of service except those services rendered free of charge.
  
• In this case, the doctor was rendering the service to the child and during that service and because of doctor's negligence, the child died. Hence the doctor and nurse who worked on his instructions shall be liable as they were rendering a service.