‘BMC not liable under consumer law for free services’

MUMBAI: The Maharashtra State Consumer Disputes Redressal Commission recently held the BMC was not liable for medical negligence under the Consumer Protection Act for a service provided free of cost. The commission made the observation while dismissing the complaint filed by a Mahim resident whose 45-day-old son died in 1999, after he swallowed a needle that broke while he was being given the BCG vaccine at a BMC hospital medical camp in Sion.

Clarifying that the woman can pursue justice at other courts, the commission said, "In absence of the proof that the complainant (mother) as recipient of the service rendered by the opponent (BMC), the charges have been paid, it is difficult to impose liability on the opponents to pay compensation. The State Commission has full sympathy with complainants as mother of child and grandmother."

The commission further observed that the death of the child, if proved was due to the negligence of the BMC nurse, would have made both jointly and severally liable to pay compensation. "But to invoke the jurisdiction of this commission, it shall be proved on record that service rendered was not free of charge. The payment of token amount for registration purposes only would not alter the position," the commission observed.

The commission further said that in law, all kinds of services rendered by medical practitioners, except where services are rendered free of charges, are brought within the purview of term 'service' mentioned in the Consumer Protection Act.

The infant's mother Shazia filed the complaint in 2001. She alleged the incident took place on July 20, 1999. Shazia said as the child moved abruptly, a needle from the syringe separated and entered into its mouth and down the throat. The same day a surgery was performed and the needle removed from stomach of the child. However, against medical advice, the parents took the infant to a private hospital. On August 8, 1999, another surgery was required to be performed under general anesthesia for removal of adhesions formed in the intestine. However, the child died after about a month in the hospital as it suffered cardiac arrest brought on by the septicemia.

The BMC filed its reply and argued on the point of jurisdiction while pointing out that there was no service provider and customer relationship between the mother and them. Further it said the nurse was not negligent and the incident was accidental.

Besides the aspect of jurisdiction, the commission pointed out to the fact that the entire burden of negligence could not be imposed on the nurse. "The mother and grandmother of the child, who might be present, must have been holding the child at the time of administering the injection of vaccine to the child," the commission said. It also said a criminal court had acquitted the nurse of negligence charges.

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