Open Access Research Article
CRITICAL ANALYSIS OF MEDICAL PROFESSION UNDER CONSUMER PROTECTION ACT
Published Paper
Article Details
CRITICAL ANALYSIS OF MEDICAL PROFESSION UNDER
CONSUMER PROTECTION ACT
AUTHORED BY
- PRAKRITI THAKUR
ABSTRACT-
The Consumer Protection Act of 1986 was
extended to the medical profession in 1995 with the historic ruling in Indian
Medical Association v. VP Shantha. This was a total game changer in the sphere
of liabilities, accountabilities and doctor patient relationship. The CPA was
put into effect in 1986 with the aim of delivering efficient and impactful results,
effective protections for consumers against different kinds
of threats of abuses and unjust actions.
This article delves into doctor patient relationship and talks about the history of samr vis-a-vis the consumer protection act. The paper discusses the various
fundamental aspects related to medical negligence, analyses the nature of liability, different legislations which are governing
medical negligence; alternate to Consumer Protection Act.
The Consumer Protection Act plays a vital
role in ensuring that those harmed by medical negligence are compensated,
offering a path for victims to seek justice
through civil lawsuits. Many individuals have benefited
from the protections this law provides. However, it's important to recognize
the delicate nature of handling medical malpractice cases. Each case not only
involves legal complexities but also the lives and well-being of both patients
and healthcare providers. The legal system must tread thoughtfully, balancing
the need for accountability with an understanding of the challenges doctors
face. Approaching these
cases with care ensures that justice is served without compromising the
integrity of medical practice. The researcher by this analysis aims to add to
the current discussion on the convergence of law, healthcare, and consumer
rights in India.
Key
words: Consumer Protection Act, 1986,
consumers, medical negligence, doctor patient relationship, law.
INTRODUCTION-
"To array a man's will against
his sickness is the supreme
art of medicine."
– Henry Ward Beecher
The medical profession is one of the most
noble professions; saving lives and curing people is respected in society and has the power to save and save
someone's life. Medical professionals are often very vigilant, but at times,
negligence might occur, which may result in severe consequences like loss of life or lifetime disability. In medicine, practitioners must offer care according to a standard skill level and dedication, as it is primarily service-centred. Nonetheless, medical
malpractice sparks substantial worries over patient well-being and the legal
consequences for healthcare professionals. The problem is made worse by the system
created by the Consumer Protection Act (CPA) that permits patients to address
complaints related to substandard medical care. The medical industry faces
profound challenges concerning negligence and liability, with reported cases
rising by 90% annually. The Consumer Protection Act (CPA) of 1986 allows
patients to seek redress for harm resulting from medical malpractice. Yet, the complexities of proving negligence, legal scrutiny, and the
consequent effects on medical practice remain significant hurdles. Under the
CPA, patients can file complaints against healthcare providers for inadequate
care. Still, concerns are mounting that the fear of litigation may deter
doctors from taking on complicated cases or push them toward overly cautious
treatments.
The number of frivolous complaints in the
medical profession under CPA has also increased. People tend to extort money
from doctors and hospitals by filing false
complaints over minor issues, naming its negligence. On
the other hand, this also affects the doctor-patient relationship as the
doctors are hesitant to use mechanisms with lower success rates, which may
result in successful remedies
sometimes. Still, they don't use medical mechanisms due to the risk and
fear of litigation.
HISTORICAL EVOLUTION OF MEDICAL
NEGLIGENCE-
Medical errors have been recognized and
addressed for numerous years. In ancient times, medical practitioners who made
harmful errors faced severe consequences according to laws
in Egypt and Rome. From ancient civilizations in India to various parts of the world, people
who embarked on a respected career in medicine were assigned particular duties
and responsibilities. History shows that the idea of medical carelessness has
moved from wrongdoing to the tort approach. In prior human advancement (code of
Hammurabi created by Babylon's top Administrator), specialists' hands were cut
off if the patient passed on during
the operation. In like manner, the issue of medicinal carelessness in Islamic
law, Mosaic law, Charaka Samhita, Sushrutha Samhita, Manusmriti, Kautilya's
Arthashastra, Yajnavalkya Smriti, where restorative carelessness was viewed
as more as a wrongdoing than as a tort.
Before this, the patients were distressed by
restorative carelessness and had no compelling adjudicative body to redress their grievances. The Indian
Medical Council Act, 1956, after its
revision in 1964, now gives that the regulation
made by the Council might indicate directs, the infringement of which should
constitute unfortunate behaviour. Also, the Council was arranged and accessible
just as the state central
command, making it scarcely agreeable to the more
significant part of gatherings who wished to look for redressal. Further, the
Council cannot honour pay to the patients for the harm maintained due to the
carelessness of the therapeutic experts. In this way, it does not
straightforwardly change the loss of the patients by granting compensation to
the distressed victims or complainants.
1.
Negligence Under Tort Law-
By virtue of providing his service to the
patient, the doctor is burdened
with this duty of care by tort law. When the doctor agrees
to see and treat a patient, it begins forming a legal relationship between the
doctor and the patient, which results in the duty of care by the doctor. The
patient is also given rights through tort law so the doctor can provide a
proper duty of care. The basis of this legal relationship is the rule of
"reasonable reliance" by the claimant on the skills of the defendant.[1] Dealing with the question of duty to take care, the
court observed: "Where a person is so placed that others could reasonably
rely upon his judgement or his skill or upon his ability to make careful
inquiry, and a person takes it upon
himself to give information or advice to, or allows his information or advice to be passed on
to, another person who, as he knows or should know, will place reliance upon it, then a duty
of care will arise."[2]
2.
Negligence Under Criminal Law-
The most stringent and exacting system used
by communities to punish and discourage bad conduct is the criminal
law. In light
of the medical profession, the common transgressions are listed in the IPC under sections like 304A (Causing death
by negligence), 336 (Act endangering life or personal safety of others), 337
(Causing hurt by act endangering life or personal safety of others), 338
(Causing grievous hurt by act endangering life or personal safety of others),
420 (Cheating) and 471 (Forgery).
In addition to these, crimes unique to the
medical profession are covered by legislation such as the Medical Termination of
Pregnancy (MTP) Act, 1971, and the Transplantation of Human Organs and Tissues
Act (THOTA), 1994.
3.
Negligence under Constitution of india-
The Constitution of India does not provide
any special rights to the patient In fact the
patient's rights are basically indirect rights, which arise or now from
the relevant 'Articles' which can be applied to cases of medical negligence.
Fundamental Rights
Article
21. "Protection of life and
personal liberty: No person shall be deprived of his life or personal liberty except according to
procedure established by law.[3]
Article 32. 'Remedies for enforcement of rights' conferred by this Part:
(1) The
right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is
guaranteed.
(2) The Supreme
Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
(3) Without prejudice to the powers
conferred on the Supreme Court
by clauses
(1) and (2), Parliament may by law empower
any other court to exercise within the local limits of its jurisdiction all or
any of the powers exercisable by the Supreme Court under clause (2).
(4) The
right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.[4]
Therefore, Indian citizens have the ability
to defend their constitutional rights against any party, even the Indian
government.
Right to life has been interpreted
differently by the Constitutional courts to include right to health,[5] and this right implies that there is a correlating duty
on the doctor corresponding towards the patient to ensure that the medical
service provided is reasonable and not negligent
nor is it lacking, in the event it is proved that the doctor does not fulfil his duties, it can result into a violation of the
Fundamental Right, primarily Article 21.
Subsequent to the violation of Article 21,
Article 32 provides redressal, article 32 itself is a fundamental right under
Part III, which guarantees that no person can be restrained from enforcing or
ensuing their rights guaranteed under Part III. Hence the aspect of violation
of Article 21, can be a ground to seek remedy under Writ relief in the event a
medical negligence can result in
violation of Right to Life.
4.
The Medical Council Act,1956
IMC Act came into force in 1956, confers
powers to the Medical Council of India to discipline erring members of the
medical profession. However, this act does not have any provision for the award
of damages to the complainant, though it has enough powers to punish the
medical practitioners.
Section
24 of the Act, empowers the Council to remove the name of any person
enrolled on a state medical register on the grounds
of professional misconduct.[6]
Additionally, the Council mandates a code of ethics, manners,
and professional behaviour for medical practitioners. The medical councils are responsible
for overseeing the abilities and behaviour of medical
professionals as well as provide
ongoing education in order to self-regulate the industry.
EVOLUTION OF MEDICAL PROFESSION UNDER CPA-
India's Consumer Protection Act, 1986 has
given consumers of products and services access
to a new, affordable, convenient, and quasi-judicial mechanism of redress.
Section 2(1)(d) of the Act defines "service" and
"consumer" in section 2 (1) (o). Since the term "service" is not exhaustive, if
health Although the service
is not expressly stated in the agreement, it has been concluded that the offer covers
these services despite the presence of organisations that regulate professionals.
The Supreme Court in Indian Medical Association v. Shantha[7] has been the first case in which the court has included health services in the definition of services under
the Consumer Protection Act:
1. Medical
Services are treated as in ambit of “services” under Section 2(1) (o) of the Act.
· It
is not a contract of personal service as there is absence of master servant relationship.
· Contract of service in Section 2(1) (o) cannot be confined to contracts
for employment of domestic servants only. The services rendered to employers
are not covered under the Act.
2. Medical
Services rendered by hospital/nursing home free of charge are not in the purview of Section 2(1) (o) of the Act.
3. Medical Services
rendered by independent Doctors free of charge are under Section
2(1)
(o) of the jurisdiction of the Act.
4. Medical
Services rendered against payment of consideration are in the scope of the Act.
5. A
medical service where payment of consideration is paid by a third party is
treated as in the ambit of the Act.
6. Hospitals
in which some persons are charged and some are exempted from charging because
of their inability to afford such services will be treated as consumers under
Section 2(1) (d) of the Act.[8]
Medical professionals claimed that the
doctor-patient connection is akin to a master-servant relationship, which is a
"contract of personal service" and should be excluded from CPA.
However, their argument was rejected by the Supreme Court judgement. The
doctor-patient relationship, according to the court, is a "contract for personal service" rather than a master-servant one. Additionally, it is
believed that the doctor works as an independent contractor and is employed,
much like a servant, to do a certain duty.
But only the patient, as the master or principal, may decide
what has to be done and when. The independent doctor has a specific choice over
the "how." Consequently, the doctor-patient relationship cannot be exempt from CPA as it is a
"contract for personal service." Nonetheless, the Supreme Court ruled
that the same standard used in a negligence damages suit must be applied for
determining a deficit in service under the CPA.
However, services provided by a medical
professional affiliated with a hospital or nursing home that are provided
without charge are outside the purview of the CPA. The status remains unchanged
if a token payment is made only for registration purposes.
Section 9 of the Consumer Protection Act,
1986 provides for the establishment of Consumer Dispute
Redressal Agencies for the purpose of discharging their duties provided under
the Act. According to Section 9, there are three types of agencies:
1. District
Consumer Dispute Redressal Forum.
2. State
Consumer Dispute Redressal Agencies.
3. National
Consumer Dispute Redressal Agencies.
District Consumer Dispute Redressal Forum is
established by the State Government in each district of the state. The forum
consists of a member who is or has been qualified to be a district judge as
President and two other members, of which one should be a woman.[9]
When the sought compensation and the value of
the goods or services don't exceed twenty lakhs, district forums are able to
consider complaints. State Consumer Dispute Redressal Commissions are established by the
relevant State Governments. The commission consists of a minimum of two members, one of whom must be a woman,
and one member
who possesses the necessary
qualifications to hold the position of President of a High Court Judge. State
Consumer Dispute Redressal Commissions are empowered to hear complaints if the requested compensation and products and
services are valued at more than twenty lakhs but not more than one crore.
Furthermore, within
30 days of the District
Forum's judgement, anyone who feels wronged by it may very possibly file an appeal with the State Commission. Additionally, the State Commission has the authority
to request records
and issue directives in relation to any
consumer dispute that is either
pending before it or
has already been resolved by a District Forum
and comes before
it. that such District Forum
has exercised a particular jurisdiction which is not vested in it by law
or has failed to exercise a jurisdiction so vested or has irregularity.[10] Performed in the exercise of its jurisdiction illegally
or with material National Consumer Dispute Redressal Commission was legally established by the Central Government.
The commission is made up of at least four members, one of whom need to be a woman, and one member who is or has been
competent to serve as President of the Supreme Court. The National Consumer
Dispute Redressal Commission is empowered to hear complaints if the requested
compensation and the value of the products and services total more than one crore. Additionally, anybody who feels
wronged by the State Commission's ruling has the option to appeal to the National Commission. Within 30 days of the National Commission's ruling, any person
who feels wronged by the order may file an appeal with the Supreme Court of India.
The Supreme Court's ruling is definitive.
National Commission, also has the power to call for the
records and pass appropriate orders
in any consumer dispute
which is pending
before it or has been decided by any State Commission where it appears
to the National Commission that such State Commission, in question, has
exercised a jurisdiction, not vested
in it by law or has evidently failed to exercise a
jurisdiction so vested, or has acted in the exercise of its jurisdiction
illegally or with material irregularity. The Commission is also having power to
review its decision.[11]
In the past, patients who were harmed by medical misconduct lacked an effective mechanism to file complaints. The Indian Medical
Council Act, 1956 was modified
in 1964 and now states
that regulations enacted by the Council may dictate behaviour, a violation of
which may be deemed misconduct.
Second, because the Council could only be accessed at the state headquarters, the majority of
parties seeking redress had limited access to it.
Further, the council does not have
compensating powers for the negligence caused.
Therefore, it does not directly redress the loss of the patients by
awarding compensation to the
aggrieved parties. The introduction of the Consumer Protection Act had a great
impact and influence and it changed the scenario of medical services
dramatically.
5.
Deficiency in service
The word "deficiency' has been defined
by Section 2(1) (g) of the Consumer Protection Act, 1986 as follow:
"Deficiency means, any fault,
imperfection, shortcoming or inadequacy in the quality,
nature, and manner of performance that is required to be maintained by or under
any law for the time being in force or has been
undertaken to be performed
by a person in pursuance
of a contract or otherwise, in relation to any service."[12]
Consequently, it is evident from the above
definition's analysis that inadequate care given by a
medical professional is actionable and may be covered by the definition above.
6.
Reasonable Standard of Care
In common professional practice, as a general
rule, the fact that a defendant performed in accordance with the common
practice of other professionals in similar situations is strong evidence that
he has not been negligent. To follow a common practice is only evidence,
however, it is not conclusive, since the Court may find that the practice is
itself negligent. There could be many reasons such as convenience, expenditure,
or habit as to why a particular practice is commonly
followed, which has nothing to do with exercising reasonable care to avoid harming others.
Theoretically there is no reason as to why the general
approach taken by the Courts to compliance with the accepted
practice should not also apply to actions for medical negligence and it is
frequently an issue in many cases.
In
the case of Laxman Balakrishna Joshi v. Dr. Trimbak Bapu Godbole and Another[13] certain principles in determining
negligence and compensation were laid down. The Supreme Court held that a person who holds himself ready to give
medical advice and treatment when consulted by a patient owes him certain
duties viz.,
A
duty of care in deciding whether to undertake the case.
1. A
duty of care in deciding what treatment to give or duty of care in the
administration of that treatment.
A breach of any of these duties gives a right of action
for negligence to the patient.
The Supreme Court laid
down in this case also that a patient can claim compensation in cases of medical
negligence if the answers to the following three questions are affirmative.
I. Whether
there was a duty of care?
II. Whether
that duty was breached?
PROTECTION FROM FRIVOLOUS
LITIGATION-
Medical practitioners face a difficult and
drawn-out trial if they are charged. They could experience severe psychological
anguish and social shame.
Since trust is the foundation of the medical profession, any damage to one's reputation would surely have a negative impact on one's career.
Because of this, the courts have frequently
adopted a compassionate stance towards physicians, providing them with immunity
from arbitrary, hasty punishment.They were concerned with the possibility of
frivolous complaints in general, as well as the use of malicious prosecutions
by a civil complainant to force the doctor
to settle the matter.[15]Unlike the less stringent civil standard of "preponderance of the evidence," criminal law requires
the prosecution to establish medical negligence "beyond a
reasonable doubt" because of its extremely severe nature. Further safeguards for healthcare providers
have been established by the Supreme Court, which established the following rules in
the Jacob Mathew case:
? On
private complaints -the complainant must present prima facie evidence
before the private complaint
may be considered.court in the shape of a reliable judgement rendered by an
additional capable physician to back up the
accusation due to haste or carelessness on the part of the
accused physician.
? On First Information
Reports (“FIRs”)-- Before taking any further action against the physician who
is being accused of acting rashly or negligently, the investigating officer
should seek the advice of an independent, qualified medical professional. Preferably,
this professional should be employed by the government and qualified in that
particular area of medicine.
This way, the professional can be expected
to provide an unbiased,
objective assessment of the information gathered during the investigation.The
Supreme Court relied on the English case of Bolam
v Friern Hospital Management Committee[16] to place the onus to produce
independent medical opinion
on the complainant. This criteria is commonly referred to as the Bolam test.
? On
arrest -Unless the arrest of them is required to collect evidence, advance the
investigation, or satisfy the investigating officer that the medical
professional didn't make, making oneself accessible to be prosecuted unless
arrest, the arrest might not be made.
The prosecution of medical practitioners in a
regular manner has effectively been barred by the Supreme Court based only on the
charges made in a grievance. Rather, prior to filing for prosecution, Police officers need to
ensure that they at least.A
strong first argument
might be presented in
opposition to the healthcare professional and to determine doing this, they need
to have a qualified medical opinion from a physician. Thus, even to register an FIR against a medical practitioner, a preliminary
inquiry is mandatory.[17]
In Martin
F. D’Souza v Mohd. Ishfaq, the Supreme Court extended this protection to
consumer cases, holding that when a complaint is received against
a doctor or hospital by the
Consumer Fora, then notice can only be issued after a competent doctor reports
that a prima facie case of medical negligence is made out.[18]
RECOMMENDATIONS FOR FUTURE-
The following are the Suggestions which the researcher
would like to put forward:
1. The
special forum or mechanisms should be created in order to deal with only
medicinal cases, since consumer dispute redressal organisations aren't
adequately manned and qualified
to deal with such cases. This would also solve the problem of unnecessary
delays, as most cases face extensive delays by judges, who are not fully aware
of the medical complexities, which compels them to refer to specialists, a
procedure that consumes a lot of time. Therefore,
it's very important to remember that justice delayed is justice denied.
2. Otherwise,
the provisions of the Consumer Protection Act of 2019 may be used to establish
a forum that would only handle complaints involving medical negligence.
3. The Consumer
Protection Act is very silent
about the concept
of medical negligence, so the act needs to
be amended so as to widen the scope of the Act and to avoid difficulties and
confusions arising while dealing with the medical negligence cases.
4. If
establishing a separate Forum to deal with medical negligence cases proves to
be a difficult task then one member who is well versed and proficient with
principles of medical science or who is a medical practitioner himself must be
appointed to sit as a judge exclusively when cases related to medical
negligence are brought before the consumer courts.
CONCLUSION-
Life of a person is very important; everybody
has the right to life, which also includes their right to health along with the
right for the required medical facilities. It is very true that the doctors are
taken as equivalent to Gods, as they are considered as the saviours of life.
However, this does not mean that any wrongful act done by them or any breach of
duty on their past should be ignored and freely let go of. The Indian Penal
Code and Consumer Protection Act are the two important and effective pieces of
legislation that deal with remedies to any negligent acts committed by a
medical practitioner.
These laws are not so drastic to deal with
the increasing medical negligence cases
appearing before courts. Alternatively as the principles of Natural
Justice dictate, there is every likelihood of inherent bias as judges refer to
the expert opinion of other
medical experts who are likely to hide negligent acts of
doctors to protect and foster their fraternity.
Respect for the medical profession has always
been in a declining trend. Among the reasons are a deterioration in social
values, a materialist approach to life, commercialization of the profession of
medicine, greater expectations, and increasing consumer activism.
The remedy of filing a case against the
negligent doctor in civil court is not of much use for
the victims of medical negligence as it involves
heavy expenditure, rigid procedure, and time
consumption. The victim of medical negligence who is already suffering because
of the doctor's negligence has also had to suffer in getting appropriate relief
from civil courts.
Regarding holding medical practitioners
criminally liable, courts have taken a sympathetic attitude towards doctors and
restrained themselves from punishing doctors under criminal law.
In several appeal cases, the higher forums
have sent back the case to the lower forum advising
them to consult an expert or specialist due to the fact that the case involves
extraordinary circumstances which are beyond the understanding of the members
of the forum to adjudicate and
hence directions have been issued by the Supreme Court in this regard as to the
appointment of an independent authority who has prowess in the said field of medicine. Lastly, it can be concluded
that the Forums have failed to appreciate that in the field of medicine, there
is always an element of risk which the consumer must be aware of before giving
consent to any operations undertaken to be performed on the patients. The trend however,
has always been that the consumer ignores the possibility of a failure of the
treatment owing to various factors. The factors such as mental health
and psychology, bodily acceptance of the medication, diet
and proper care by the families of the parents after the surgery/diagnosis are
very much essential in rendering the treatment to be made a success.
Lastly to conclude
the inclusion of medical profession in the CPA is like a coin with two
sides with its own pros and cons, the advantages to patients for early remedy
comes at the cost of frivolous
litigation and hence creating the fear leading to lack in effective doctor
patient relationship and treatment. This can be reformed by few changes in the
statute and procedure for just and fair procedures.
[1]
Indian Law Institute, "Legal
Framework for Health Care in India", Butterworths(2002), p.p. 27
[2]
Bolam v Friern Hospital
Management Committee,1 WLR 582,1957
[3] INDIA CONST. art. 21
[4]
INDIA CONST. art. 32
[5]
Gian kaur v. st. of punjab,1996
SCC (2) 648
[6] The Medical Council Act, 1956, sec.24
[7]
Indian Medical Association
v. Shantha, 1995 (6) SCC 651
[8] Id.
[9]
Consumer Protection Act,
1986, sec.10
[10] Consumer Protection Act, 1986, sec.
17
[11]
Consumer Protection Act,
1986, sec. 21
[12] Consumer Protection Act, 1986,sec.21(1)(g)
[13]
Laxman Balakrishna Joshi
v. Dr. Trimbak Bapu Godbole and Another,1969 SCR (1) 206
[14] Laxman Balakrishna Joshi v. Dr. Trimbak
Bapu Godbole and Another,1969 SCR (1) 206
[15]
Jacob Mathew v State of
Punjab MANU/SC/0457/2005
[16]
Bolam v Friern
Hospital Management Committee,1 WLR 582,1957
[17] Lalita Kumari v Government of Uttar
Pradesh MANU/SC/1166/2013
[18]
Martin F D’Souza v
Mohd. Ishfaq MANU/SC/0225/2009
Article Information
CRITICAL ANALYSIS OF MEDICAL PROFESSION UNDER CONSUMER PROTECTION ACT
Authors: PRAKRITI THAKUR
- Journal IJLRA
- ISSN 2582-6433
- Published 2025/03/19
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.