They may be employees on payroll, on a retainer, on contract involving sharing of revenues earned or doctors paying rent for the OPD chamber and charging fees for the treatment/procedures done on the patients.
Whatever the financial arrangement the hospital may have with the consultant, to the patients the consultant is a doctor made available by the management of the hospital for treating the patient within the hospital premises.
In any case, the patients would not know the terms of contract between the doctors and the hospital management.
Therefore, for all practical purposes, a consultant would be treated like any other employee of the hospital and would be as much the responsibility of the hospital for monitoring and control of performance as any other employees.
If there is a deficiency in services due to negligence by the consultant, along with the individual liability of the consultant the hospital too may be liable.
A hospital making the plea that the consultants are not their employees and hence the hospital has no liability for their actions will not be tenable.
The only plea that the hospital may have is that they had taken due care (credentialing and privileging) while appointing the consultant and they have no control over the technical aspects (such as surgical procedure) of the performance of the consultants.
The judgment of Hon. High Court of Madras, in the case of Mrs. Aparna Dutta Vs Apollo Hospital Enterprises Ltd., Madras, the position is clarified.
Mrs. Aparna Dutta employed in Saudi Arabia developed some gynecological problem. The doctors in Saudi Arabia advised hysterectomy. She decided to have it done in India.
Mrs. Dutta was operated upon by Dr Swarna Kumari, a well known gynecologist in Apollo hospital madras. After the surgery, though Mrs. Dutta felt discomfort and pain due to a lump which she was able to feel in the abdomen she informed the doctor of the painful lump but she was discharged from the hospital.
On arrival in Saudi Arabia, she went to the Royal Commission Medical Center. The X-rays revealed a foreign object in her abdomen for which she had to undergo another surgery.
During the operation, the doctors found a big abdominal pack left inside her abdomen during the surgery by the doctors in the Apollo hospital.
Mrs. Dutta informed the chairman of the Apollo hospital, about the negligence of the gynecologist and the hospital.
On getting no satisfactory response, Mrs. Dutta filed a suit in the Madras High Court against the Apollo Hospital and the gynecologist.
The hospital argued that Dr Swarna Kumari was an independent consultant and not an employee of the hospital.
The doctor pays service charges to the hospital for availing the facilities. The hospital has no control over the consultants (doctors) and hence, the hospital was not liable for any damages.
The consultant gynecologist, who had operated on her, instead of owning her fault, also denied any liability towards the patient.
Madras High Court, while applying the doctrine of res ipse loquitur held that leaving behind the abdominal pack in the abdomen was an act of negligence as sufficient care and caution was not taken during the operation by Dr Swarna kumari.
The Hon. Court, disregarding the exact type of relationship governing the employment of the consultant, held both the doctor and the hospital guilty and liable for damages. A compensation of Rs 5 lakhs was awarded for the suffering, pain and mental agony caused and Rs 80,000, towards the expenditure incurred on the second operation and travel expenses, etc.