A STUDY ON MEDICAL NEGLIGENCE IN RELATION WITH CONSUMER PROTECTION ACT By: ARCHITHA ASHOK & MADHUMITHA KARTHIKEYAN

A STUDY ON MEDICAL NEGLIGENCE IN RELATION WITH CONSUMER PROTECTION ACT[1]

Authored By: ARCHITHA ASHOK

(3rd Year Bcom LLB Hons, Sastra Deemed To Be University)

Co-author: MADHUMITHA KARTHIKEYAN

(3rd Year Bcom LLB Hons, Sastra Deemed to be University)

ABSTRACT:

We in our article discuss about medical negligence and its relation with the Consumer Protection Act. The article gives a brief understanding about medical negligence, how it is treated under various acts of the nation and specifically under the Consumer Protection Act. It discusses about how a patient is considered as a consumer, how medical negligence amounts to deficiency of

service and the liability of medical practitioners under the act.

INTRODUCTION:

The idea of Consumer Protection is directly in relation to the concept of Consumer Rights. The Consumer Protection Act was enacted to protect the rights of the consumers. Consumer Rights have been acknowledged even during the ancient times. The ancient Hindu text Arthasastra by Kautilya addresses Consumer Rights and the protection of it.

In the modern era, the consumer rights were initially specified by the US President John.F. Kennedy and the International Organisation of Consumers Union in 1983.It discussed about eight consumer rights, In India, the Consumer Protection came into light by the enactment of the Consumer Protection Act of 1986 which prescribed six rights of consumers. The concept of medical negligence was brought under the purview of service only after the judgment of the Supreme Court in the Indian Medical Association v VP Shantha.

The relationship between a doctor and patient falls under the purview of service under the act and the patient is eligible to file a complaint as a consumer under the act.

The exception to the provision under the act does not include services availed free of cost but the apex court in the case of IMA v VP Shantha stated that the services availed by persons who cannot afford them fall under the category of beneficiaries and thus can file a complaint against medical negligence as a consumer under the Consumer Protection Act.

Negligence is the mere failure to exercise due care. The important ingredient to be involved in medical negligence include the duty of care owed by the medical practitioner, there was breach of such duty and an injury was caused to the patient as a result of such breach.

The reasonable duty of care is defined as the ordinary skill, knowledge and care exercise by any ordinary competent of such profession.

Therefore, a medical practitioner is only liable for the injury caused due to the breach of his exercise of due care.

Dr Vijil v. Ambujakshi T.P[2]

The court upheld the decision of the District Consumer Disputes Redressal Commission and the State Consumer Disputes Redressal Commission that all services made available to potential users would be covered by section 2(42), with the exception of those rendered for no charge or under a contract of personal service.

Mohit Jain v. M/S Max Super Specialty Hospital

The Commission stated that the consumer must establish the four D’s which are Duty, Dereliction or Deviation, Direct that is the proximate cause and Damages, in order to prove the medical negligence against the doctor or the hospital.

According to the National Consumer Disputes Redressal Commission, the Consumer Protection Act shouldn’t be used to “halter” the medical practitioners and prevent them from making important crucial decisions.

Spring Meadows Hospital v. Harjot Ahluwalia

In this case, the parents admitted their child in the hospital and the child was not given proper treatment. The hospital contested that the definition of consumer as set out in the Consumer Protection Act did not apply to parents. It was held that the parents of a minor child have the right to claim compensation under the act.

V. Krishan Rao v Nikhil Super Speciality Hospital

In this case, a woman who was supposed to be treated for malaria fever was instead given treatment for typhoid fever. They sued the hospital administration for medical negligence. The husband was given compensation by applying the principle of res Ipsa loquitor.

Poonam Verma vs Ashwin Patel & Others

According to the Supreme Court, medical professionals employed in either government or private clinics are responsible for compensating the patients who are considered "consumers" as a result of the negligence of the medical practitioner.

LEGISLATIONS IMPLEMENTED FOR MEDICAL NEGLIGENCE[3]

Indian Penal Code, Civil Procedure Code, Law of Contracts , Law of torts and other legislations makes the doctors liable for the negligence.

According to section 304-A of IPC (Indian Penal Code) if the doctor has committed criminal liability, he/she is punishable with imprisonment for a term upto two years or fine or both.

Whereas section 73 and section 74 of Indian Contracts Act, 1986 provides for the civil liability committed by the doctors.

On the grounds of professional misconduct civil liability is applicable to doctors under Law of Torts

THE NEED FOR IMPLEMENTING CONSUMER PROTECTION ACT

The above said legislations had various drawbacks which lead to the implementation of the Consumer Protection Act.The drawbacks include Decisions were delayed Bringing actions required high costs Negligence and causation were difficult to prove In 1993 Supreme Court brought medical profession under section 2(1)(o) of Consumer Protection Act, 1986.

WHAT IS MEDICAL NEGLIGENCE[4]

Any irregular conduct by any member of the profession or any related services during the discharge of professional duties is called medical negligence.

There are three components of medical negligence There must an existence of legal duty

There must be a breach in legal duty

Such breach must have resulted in causation of damages

Some examples of medical negligence include unnecessary surgeries, labor malpractises , negligent treatment for a long term and deffered diagnosis.Complainants for unfair or restrictive trade practises comes under the ambit of section 2(c) of the Consumer Protection Act. For medical negligence, misrepresentation about the facilities available or the qualifications could be considered as unfair trade practises.

WHO IS A CONSUMER IN MEDICAL PROFESSION?

A patient who pays to avail the services of a doctor Any person who pays in behalf of the patient If the patient who was a consumer died, then legal heirs of the patient would be considered as consumers If any person who is not a legal heir has initiated the payment, then he/she will also be considered as consumers The consumer, consumer organization which is registered or the Central or State Government, representatives or legal heirs of the aggrieved patient could sue the accused for medical negligence under the Consumer Protection Act.

If the consumer has availed free service from the medical practitioner, then such cases would not be covered under Consumer Protection Act

WHEN DOES LIABILITY ARISE?

If proper standard of care has not been taken by the hospitals or medical practitioner and it has resulted in suffering on part of the patient, then the concerned professional or the hospital would be liable for all the actions. The burden of proof lies on the complainant incase of negligence. Firstly he/she must establish that the accused had a duty of care towards the complainant and that there was breach of such duty. In Jagadish Prasad Singh v Dr A.K Chatterjee it was observed that the accused had failed to take due care to return the precise findings in the reports. Causation of harm is not the criteria for cases against negligence.

In some cases the principle of "ipsa loquitor" is used by courts."Things speak for itself" is the meaning of the principle. Here it is presumed that the injury would not have happened from anything but only from the negligence on part of medical professional. In such cases the burden of proof is shifted from the complainant to the accused doctor.

Example: If the doctor leaves an object inside the patient's body, then the principle of "ipsa loquitor" is used.

ACTS WHICH DO NOT AMOUNT TO MEDICAL NEGLIGENCE[5]

The doctor shall not be charged against any actions if he/she has committed error of judgement. Since the decisions of the doctor did not cure the patient, he might not be held liable. It must be proven that there was a breach of duty on part of the doctor which resulted in causing damage to the patient. But if the error of judgement was because of the negligent act of the doctor then it could be termed as breach of duty and he might be held liable for such actions.

PROCEDURE FOR FILING A CASE

According to section 21(a)(i) of Consumer Protection Act, 1986, a consumer complaint should be filed with the Registry of this Commission and the said complaint must be filed within two years from the date on which cause of action has arisen.

According to section 19 of Consumer Protection Act, 1986, any person who is aggrieved by the order passed by the State Commision in application of its power granted under section 17(a)(i) can file an appeal within thirty days starting from the date the order was passed.

According to section 21(b) of Consumer Protection Act, 1986, a revision petition could be filed to ask for records and advance suitable orders in any particular consumer dispute which has been unresolved, within ninty days staring from the date the order was received, be filed with Registry of this Commission

According to section 22(b) of Consumer Protection Act, 1986, the National Commission, in the best interest of equity, might transfer a case which is unresolved from one District forum of one State to District Forum of another State.

REMEDIES[6]

Any aggrieved party might claim damages through the following consumer forums 1)District forum

If the value of compensation and services claimed is less than Rs.Twenty Lakhs, then the complaint could filed with the District Forum

1. State Commission

If the value of compensation and service claimed is less than one crore but more than twenty lakhs, then the complaint could be filed with the State Commission

1. National Commission

If the value of the compensation and services claimed is more than one crore,then the complaint could be filed with the National Commission.

1. Civil liability under Consumer Forum

Any aggrieved consumer could approach the consumer courts and he/she can file a complaint against the accused medical practitioner and the hospital. In the case Indian Medical Association v V.P.Shantha, the Supreme Court observed that medical practitioners are covered under the Consumer Protection Act 1986, and services rendered by them is covered under section 2(1)(o) of the Act. Similarly under section 2(42) of Consumer Protection Act, 2019 medical service comes under the ambit of the word services. If the service provider commits any medical negligence it would be considered as deficiency under section 42(11) ofConsumer Protection Act, 2019.

1. Criminal Liability

There are provisions available in Indian Penal Code for criminal liability of a medical practitioner who has commited medical negligence

CONCLUSION[7]

We must understand that even doctors are humans and they might also commit certain mistakes and take wrong decisions, but if the said wrong decisions are taken due to the negligence of the medical practitioner then he might be made liable under Consumer Protection Act. Thereby, the aggrieved consumers can file complaints in the respective courts against the medical negligence of the doctors. However if the consumer has availed free service from the doctors, he/she will not be able to file a complaint against the medical practitioners since Consumer Protection Act does not cover such cases.

[1] Nishant Bhim Raj Barapatre https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5822974/

[2] S.V. Jago Rao, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2779962/

[3] Shrusti Parida, https://www.ijraset.com/research-paper/consumer-protection-laws-in-india-with-special-references-to-hum an-health

[4] Vinit Udernani,

https://www.ijlmh.com/paper/medical-negligence-and-consumer-protection-act/

[5] Priya Adlakha and Nihit Nagpal

https://www.mondaq.com/india/dodd-frank-consumer-protection-act/1062944/medical-negligence-india

[6] Prashant R.Dahat https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1589192

[7] Adv Priscilla Rodrigues

https://blog.ipleaders.in/challenges-proving-medical-negligence-consumer-protection-act/?amp=1