MEDICAL NEGLIGENCE

UNDER THE CONSUMER PROTECTION ACT

 CHAPTER 1

INTRODUCTION

It is a very old saying that "Health is Wealth". A healthy person can work
with efficiency to earn wealth. Good health is a great asset. It is the most valuable
treasure a man could have. Healthcare has emerged as one of the largest service
sectors in India. Health sector in India is the responsibility of the state, local and
also the central government. But majority of healthcare services in India are
provided by the private sector. The highly respectable, honourable and noble is
medical services. Greater sanctity and respect is attached to that profession. But
now days, it has become commercialization. Many of them are not adhering to
their professional ethics and code of the conduct. And whenever there is deficiency
in the services, the consumer court can take the matters within its jurisdiction
subjection to the pecuniary limitation. In the early nineteenth century it was indeed
unusual act for patients to sue their doctors in the court of law.

Doctors are considered to be visible gods who can renew the life of persons
who languishing from diseases, injuries and defects. They are trustworthy persons.
A patient who consults a doctor will presume that he is skilful and competent to
heal his disease. Practice of medicine is capable of rendering noble service to
humanity provided due care, sincerity, efficiency and professional skill is observed
by the doctors. In the area of patient-doctor relationship two important models
dominate namely one is based on Paternalism and other is founded on the doctrine
of informed consent. In UK, the paternalistic model of the physician patient
relationship has been a dominant feature in the medical profession since its
inception. This has been duly recognized in the English law a doctor is not liable in
negligence medical claim when he acted “in accordance with a practice accepted
as proper by a responsible body of medical men, skilled in the particular art”. In
the United States, the doctor patient relationship is based on the doctrine of
informed consent. A patient must be given all the required information about the
nature of treatment, risks involved and the feasible alternative, so as to enable him
her to make a rational and intelligent choice whether to proceed with treatment or
surgery or not. In informed consent of the patient concerned is not obtained, then,
the doctors will be liable. However, today, the patient-doctor relationship has
almost diminished its fiduciary character; medical service has become a
purchasable commodity and this business attitude has given an impetus to more
and more medical malpractices and instances of clinical negligence. In this
context, the question of patient protection has become highly significant in the
medical profession. This chapter deals with various legal provisions in respect of
enforcement of liability of health care providers.

Statement of the problem

With increasing day by day professional misconduct and negligence in the

field of the medical profession has been raised various issues in this concern. In
order to make them accountable and liable for their misconduct, as per the
consumer protection Act 1986, a patient is “consumer” and the medical services
provided to him/her will fall under the ambit of the definition of the services
provided under the consumer protection act. So the problem is stated as “An
Analysis on Medical negligence under consumer Protection Act
 SCOPE AND SIGNIFICANCE OF THE STUDY

SCOPE

The present study is confined to kanyakumari district in order to find out to

suit the conditions of patients who are aware of medical negligence . The present
research is very vital to bring to the notice of state government the importance of
bringing the awareness about medical negligence cases.

LIMITATION

The investigator has made every attempt to make the study as perfect one,
but unavoidable limitations have crept into the study. It was beyond the control of
the investigator to conduct the survey in all the districts in Tamil Nadu. So the
sample selected for the study was confined to only 50 samples in Nagercoil Town.
 OBJECTIVES OF THE STUDY

1. To study the extent of the need for checks and balances on the exercise of
rights and duties of patients and doctors.

2. To study the causes of various problems of Medical negligence cases.

3. To study the level of awareness among people of different age groups

regarding medical negligence under consumer protection act

4. To study the impact of the maintenance and protection of people who are
unaware about medical negligence under consumer protection Act.
 RESEARCH METHODOLOGY

Source of data

The current study of medical negligence is based on both primary and

secondary data. Primary data can be collected through an interview schedule and
Secondary data can be collected through various websites journals and
publications

Tools for data collection

Primary data was collected through

 Personal discussion
 Questioniare

Secondary data was collected through

 Journals
 Websites
 publications

Analytical tools

Percentage analysis and pie diagram is used for representing our study

Percentage = number of respondents ÷ total number of respondents × 100.

 CHAPTER 2

WHO IS A CONSUMER?

“consumer” means any person who— (i) buys any goods for a
consideration which has been paid or promised or partly paid and partly promised,
or under any system of deferred payment and includes any user of such goods
other than the person who buys such goods for consideration paid or promised or
partly paid or partly promised, or under any system of deferred payment when
such use is made with the approval of such person, but does not include a person
who obtains such goods for resale or for any commercial purpose; or 2(d) of
Consumer Protection Act, 1986 (ii) hires or avails of any services for a
consideration which has been paid or promised or partly paid and partly promised,
or under any system of deferred payment and includes any beneficiary of such
services other than the person who ‘hires or avails of the services for consideration
paid or promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of the first
mentioned person but does not include a person who avails of such services for
any commercial purposes; By this definition, it can be clearly documented that,
definition of the consumer is wide enough to cover the patient who promises to
pay medical expenses.

Now another definition which needs to analyse is definition of service to

understand the properly medical services. “service” means service of any
description which is made available to potential users and includes the provision of
facilities in connection with banking, financing, insurance, transport, processing,
supply of electrical or other energy, board or lodging or both, housing
construction, entertainment, amusement or the purveying of news or other
information, but does not include the rendering of any service free of charge or
under a contract of personal service; Analysis of the above definition provides list
of the certain category of the services. This list is not an exhaustive one; therefore,
it can include any kind of the services belong to ant sector. Hence, medical
services will also fall within the purview of this definition. However, in order to
bring the service within the purview of the definition following criteria need to
satisfy:

1. Services should not be free of charge .

2. It should not be under a contract of personal service Therefore, medical
services render free of the charge or under the contract of personal services
will be outside the scope of the definition of the services itself.

WHAT IS DEFICIENCY OF SERVICE?:

Section 2(1) (d) of Consumer Protection Act, 1986 5 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.” Therefore, from the analysis of the above definition it can be clearly
documented that, deficient service provided by medical practitioner is actionable
and it can be fall under the purview of the above definition.
NECESSITY OF THE CONSUMER PROTECTION ACT, AND ITS
APPLICATION TO THE MEDICAL PROFESSION :

This is the foremost question which comes to the mind of the doctors. This
necessity arose because the existing laws of the land which provide for action in
cases of medical negligence under the Law of Tort and Indian Penal Code have
some well documented problems. These include the following:

i. Delay, which, in medical negligence cases, tends to be greater;

ii. The cost of bringing an action, which is notoriously high in relation to the
sums recovered in damages;

iii. limited access to the courts ;

iv. Success depends on proof of both negligence and causation (which can be
particularly difficult in cases of medical negligence). Hence necessity to
provide for an alternate system which would be easily accessible, speed and
cheap, gave birth to the Consumer Protection Act. This Act was made
applicable to the doctors because there are no provisions in the Indian
Medical Council Act, 1956;

NEED FOR THE AMENDMENT:

After observation of the increasing cases of the medical negligence case,

now the time has been come to make a amendment in Consumer protection Act
itself. By excluding the government medical services from the purview of the Act,
we are failing to accomplish the main purpose behind the Consumer protection
Act. Government doctors may feel that they are rendering the medical services free
of the costs so there is no duty to take care in case of the poor people who all are
not capable to borne the medical expenses. Now a day’s government doctors
openly demanding huge amount from the poor patient for performing the operation
and surgery at their own private hospital or at the government hospital which is not
legally allowed. Further, payment of the consideration is essential in order to sue
the doctor under the medical profession. One justification for inclusion of
government services under the consumer protection act can be given that,
consideration for their services to the patient has moved from the government.
Therefore, services at the government hospital cannot be called and should not be
treated as free services

DOCTOR ACTING IN A NEGLIGENT MANNER

It is well accepted that in the cases of gross medical negligence the principle
of res ipso loquitur is to be applied.The principle of res ipso loquitur is said to be
essentially an evidential principle and the said principle is intended to assist the
claimant. Res Ipso loquitur means things speaks for itself; while deciding the
liability of the doctor it has to be well established that the negligence pointed out
should be a breach in due care which an ordinary practitioner would have been
able to keep.  Latin for “the thing speaks for itself,” a doctrine of law that one is
presumed to be negligent if he/she/it had exclusive control of whatever caused the
injury even though there is no specific evidence of an act of negligence, and
without negligence the accident would not have happened. A doctor is not an
insurer for the patient, inability to cure the patient would not amount to negligence
but carelessness resulting in adverse condition of the patient would.
 INSTANCES OF MEDICAL NEGLIGENCE

1. PREMATURE DELIVERY:

In Poonam Mangla V Prem Nath Hospital the complainant gave birth to a

premature child of seven months in the respondant hospital. The child’s condition
was not improving. That is why the baby was shifted to another hospital .The
complainant alleged negligence on the part of the hospital that there was not even
an incubator for maintaining the temperature so that her child had to be shifted to a
better hospital. The state Commision rejected the complaint because the
complainant was not regular in antenatal check-up and consulted for only one
month before the actual delivery of the baby and she was admitted in labour with
high blood pressure in such circumstances no negligence could be attributed to the
opposite party.1

NEGLIGENCE IN SURGERY

In Ghanta Mohan Lakshmi V C.V.Ratnam after the operation,there was no

sensation below the left knee on the operation side. Toes became totally cold.
Gangrene developed. The left leg above knee had to be amputated. There was
proof of negligence and deficiency in service.The State commission allowed
reimbursement of medical expenses with interest and also damages in the amount
of Rs 1,50,000. An appeal against the order was found to be barred by limitation. 2

1
.[2002] 3CPJ 353[NC]
2
[2003] 4CPJ 12[2] [NC]
LIABILITY

The liability of the person committing the wrong can be of three types
depending on the harm or the injury suffered by the injured person they are

Civil Liability–

Civil liability usually includes the claim for damages suffered in the form of
compensation. If there is any breach of duty of care while operating or while the
patient is under the supervision of the hospital or the medical professional they are
held to be vicariously liable for such wrong committed. And are liable to pay
damages in the form of compensation. At times the senior doctors are even held
vicariously liable for the wrongs committed by the junior doctors. If someone is an
employee of a hospital, the hospital is responsible if that employee hurts a patient
by acting incompetently. In other words, if the employee is negligent (is not
reasonably cautious when treating or dealing with a patient), the hospital is on the
hook for any resulting injuries to the patient.

Criminal Liability- 

There may be an occasion when the patient has died after the treatment and
criminal case is filed under Section 304A of the Indian Penal Code for allegedly
causing death by rash or negligent act. According to S. 304A of the IPC, whoever
causes the death of any person by a rash or negligent act not amounting to culpable
homicide shall be punished by imprisonment for up to two years, or by fine, or
both. Hospitals can be charged with negligence for transmission of infection
including HIV, HBsAg, etc. if any patient develops such infection during the
course of treatment in the hospital and it is proved that the same has occurred on
account of lapse on part of the hospital then the hospital can be held liable for lack
of reasonable duty to care. My very own grandmother passed away due to the
negligence of the doctors. Due to the carelessness of the doctor that he was in so
hurry to rush for his next operation that he forgot to sterilize the equipments and as
a result there was this transmission of some infection into her blood which infected
her entire system and ultimately resulted in her death.

Liability for Breach of Warranties:

To hold a professional for the breach of contract, primarily depends on an

agreement between the parties and includes express terms in the written contract.
Terms as to payment, the provision of facilities, specify who is to be the treating
doctor, and staff will be depending upon the circumstances. A point for the
consideration is, whether a doctor is contractually guarantees the outcome of the
treatment. Hence a patient might be able to bring an action when the treatment
does not effect cure or produce the intended result.It is pointed out that a doctor
may enter into a contractual guarantee, but in order to do so, he must use explicit
and unequivocal words such as “I guarantee you will be cared; I will assure 100%
success etc,” In the absence of words of this nature forming part of the contract,
the courts will not construe contractual terms as amounting to a guarantee of
success.

Damages and Award of Compensation Once the plaintiff has proved that
breach of duty and has shown that damage has resulted from that breach, the court
will proceed with examining the award of damages. However, not every type of
loss and expense will be recoverable. If the court arrives at the conclusion that the
risk of damage which has occurred was too remote and it can not reasonably
foreseeable, such damages are not recoverable. The assessment of damages is
based upon the principles and methods of calculation evolved in the laws of
contract and tort. However, there is vital difference in the principles applied to the
assessment of damages in actions for tortious or contractual liability.

Purpose of damages

The basic purpose is awarding compensation is to put the plaintiff in the

position that he would have been if the tort or breach had not been occurred. He is
entitled to be compensated for all of his losses in terms of payment of money. In
contract the plaintiff is entitled to be restored to the position that he would have
been in had the contract been performed. Granting of compensation for personal
injury upon the establishment of liability of the defendant-medical
practitioner/hospital, is neither punishment or nor reward. The principle or
rationale on which damages are assessed is that they should not be treated as
punishment for a wrong inflicted.

Types of damages

In a case for personal injuries, damages are divided into two categories:

i) Special damages and

ii) General damages

Where inexact or unliquidated losses are compensated by an award of

damages what is known as ‘general damages.’ This includes the non-pecuniary
losses which are compensated under the heads of pain and suffering, loss amenity ,
future losses of income or profits and future expenses such as care and
accommodation. Whereas, ‘Special damages’ are those losses and expenses that
have actually been incurred and which can be calculated with reasonable precision
at the date of trial, they normally comprises specific losses of income such as loss
of earnings or profits which arise as a result of the plaintiff being unable to work
because of the injury and also specific expenses that have been incurred because of
the tort or breach such as medical expenses, travel expenses, the cost of nursing
care and attention. It has been suggested that classification of damages are
important for pleading and procedural purposes and for the purpose of determining
the appropriate rate of interest only.
iii) Aggravated and exemplary damages:

Often a question which arises in the issue of medical negligence is, whether
the court can award aggravated and exemplary damages for the injuries caused by
the doctor’s conduct. Where the conduct of the defendant is so outrageous and
motivated by malice, additional compensation of what is known as aggravated
damages can be awarded. In Kralj Vs Mc Grath the court indicated its reluctance
to include an element of punitive damages in awarding damages to the injure-
plaintiff and rejected the plaintiff’s claim for aggravated damages as horrific and
totally unacceptable3. In the case of Barbara Vs Home Offices wherein the plaintiff
who was forcibly injected by the defendant claims aggravated and exemplary
damages for trespass to the person. The court granted aggravated damages by
rejecting the claim for exemplary damages on the ground that mere neglect act
does not give rise to such a remedy even if the victim treats it as oppressive 4 .

The Scope of applicability of the Consumer Protection Act vis-à-vis health care
provider:

Indian Medical Association Vs V.P Shanta178 For the applicability of CPA,

National Commission has observed that the services rendered by the private health
carer for consideration are services while the services rendered by the government
hospital/nursing home, would not be services within the purview of the CPA. In
this context, he patients may be classified into two groups,

a) The patient of the government hospital

b) The patient of the private hospital

This construction was challenged before the SC in the aforesaid case where
the petitioners assailed the validity of the provisions of the Act so far as they are
held to be applicable to the medical profession being violative of Article 14 and
Article 19(1) (g) of the Constitution. The Hon’ble Supreme Court after a very

33
. (1986)1 All ER 54.
4
. (1984) 134 NLJ 888.
thorough and exhaustive consideration laid down the following proposition of law
in relation to the applicability of the CPA to the medical practitioners.

Remedies for Medical Negligence

Service for consideration:

Service rendered to a patient by a medical practitioner (except where the

doctor render service free of charge to every patient or under a contract of personal
service) by way of consultation, diagnosis or treatment, with medicinal and
surgical, would fall within the ambit of ‘service’ as defined in section 2(1) (d) of
the Act.

Professional law does not exclude CPA:

The fact that medical practitioners belong to the medical profession and are
subject to the disciplinary control of the Medical Council of India and/or State
Medical Councils constituted under the provisions of the Indian Medical Council
Act would not exclude the services rendered by them from the ambit of the Act.

Contract of personal service and contract for personal service distinction :

A ‘contact of personal service’ has to be distinguished from a ‘contract for

personal service.’ In the absence of a relationship of Master and servant between
the patient and medical practitioner, the service rendered by a medical practitioner
to the patient cannot be regarded as service rendered under a ‘contract of personal
service.’ Such service is service rendered under a ‘contract for personal service’
and is not covered by exclusionary clause of the definition of ‘service’ contained
in section 2(1) (c) of the Act.

Contract of personal service:

The expression contract of personal service cannot be confined to contacts

for employment of domestic servants only and the said expression would include
the employment of a medical officer for the purpose of rendering medical service
to the employer. The service rendered by a medical officer to his employer under
the contract of employment would be outside the purview of ‘service’ as defined
the section 2(1) (d) of the Act.

Service rendered free of charge:

Service rendered free of charge by a medical practitioner attached to a

hospital nursing home where such services are rendered free of charge to
everybody, would not be “service” as defined in section 2(1)(d) of the Act. The
payment of a token amount for registration purpose only at the hospital/nursing
home would not alter the position.

Free service rendered at Non-government hospital:

Service rendered at a non-government hospital/nursing home where no

charge whatsoever is made from any person availing the service and all patients
(rich and poor) are given free service – is outside the purview of the expression
‘service’ as defined in section 2(1)(d) of the Act. The payment of a taken amount
for registration purpose only at the hospital favoring home would not alter the
position.

Service for charge at Non-government hospital:

Service rendered at a non-government hospital/nursing home where charges

are required to be paid by the persons availing such services falls within the
purview of the expression ‘service’ as defined in section 2(1) (d) of the Act.

Service rendered free of charge and for charge at Non-governmental hospital:

Service rendered at a non-government hospital/nursing home where charges

are required to be paid by persons who are in a position to pay and persons who
cannot afford to pay are rendered service free of charge would fall within the ambit
of the expression ‘service’ as defined in section 2(1) (d) of the Act irrespective of
the fact that the service is rendered free of charge to persons who are not in a
position to pay for such services. Free service would also be “service” and the
recipient a “consumer” under the Act.

Free service at Government hospital:

Service rendered at a Government hospital / health centre / dispensing

where no charge whatsoever is made from any person availing the services and all
patients (rich and poor) are given free service – is outside the purview of the
expression ‘service’ as defined in section 2(1)(d) of the Act. The payment of a
token amount for registration purpose only at the hospital/nursing would not alter
the position.

Free service and service for charges at Government hospital:

Service rendered at a government hospital/health centre/dispensary where

services are rendered on payment of charges and also rendered free of charge to
other persons availing such services would fall within the ambit of the expression
‘service’ as defined in section 2(1)(o) of the Act irrespective of the fact that the
service is rendered free of charge to persons who do not pay for such service. Free
service would also be “service” and the recipient a “consumer” under the Act.

Free service upon insurance policy:

Service rendered by a medical practitioner or hospital/nursing home cannot

be regarded as service rendered free of charge, if the person availing the service
has taken on insurance policy for medical care where under the charges for
consultation, diagnosis and medical treatment are borne by the insurance company
and such service would fall within the ambit of ‘service’ on defined in section 2(1)
(o) of the Act.
110% rise in number of medical negligence cases in India every year: Study

Nagpur: A study by Supreme Court advocate Mahendra Kumar Bajpai, who

specialist in medical law, shows a 110 per cent rise in number of medical
negligence cases in India every year.

The study also reveals that 90 per cent of all cases in medical negligence
involve hospitals, and 12 per cent of all the cases decided by consumer courts are
on medical negligence.

Between 60 to 66 per cent of the filed cases are because of hospitals taking
improper consent from relatives before performing certain procedures or switching
hospitals, or improper documentation throughout the course of diagnosis and
treatment.

Medical expenses met by employer:

Similarly, where, as a part of the conditions of service, the employer bears

the expenses of medical treatment of an employee and his family members
dependent on him, the service rendered to such an employee and his family
members by a medical practitioneror a hospital or a hospital/nursing home would
not be free charge and would constitute ‘services’ under section 2(1)(d) of the Act.
 CHAPTER 3

Data analysis and interpretation

The chapter deals with analysis and interpretation of collected data.

The study is on the basis of 50 people from town area. The analysis is as
follows

Table 3.1

Age wise classification of sample respondents

Category Respondents Percentage (%)

<20 10 20%

20 - 30 15 30%

30 - 40 12 24%

>40 13 26%

Total 50 100%

From the table 3.1 shows that 30% of the respondents comes under the age
group of 20 - 30 and 26% of the respondents comes under the age of 40 above.

There is only 24% of respondents are come under the category of 30 -40 .

There is only 20% of respondents are come under the age of less than 20 .

Figure 3.1
 Percentage of respondents

<20
20 - 30
30 - 40
>40

Table 3.2

Distribution based on Sex

Category Respondents Percentage(%)

Male 27 54%

Female 23 46%

Total 50 100%

From the table shows that 54% of respondants are male and remaining 46%
of respondents are female.

Figure 3.2
 Diribution based on sex

Male

Table 3.3

Distribution based on marital status

Category Respondants Percentage(%)

Married 28 56%

Single 22 44%

Total 50 100%

From the above table shows that 56% of the respondents are married and
the remaining 44% are single.

Figure 3.3
 Distribution based on marital status

Married
Single

Distribution based on patients

Category Respondents Percentage (%)

Patients 26 52%

Non patients 24 48%

Total 50 100%

This study revealed that 52% of respondents are patients and remaining
48% are non patients.

Figure 3.4
 Distribution based on patients

patient
Non patients

Table 3.5

Distribution based on knowledge of medical negligence as a crime

Category Respondents Percentage

Aware 15 30%

Unaware 35 70%

Total 50 100%

This study revealed that 30% respondents knows that medical negligence is
a crime and remaining 70% respondents are unaware of it.
Figure 3.5

Percentage of respondents

Aware
Unaware
 CHAPTER 4

FINDINGS, SUGGESTIONS AND CONCLUSIONS

Major Findings of the Study

1. Majority of the respondents are come under the age group of 20-30.

2. As per the analysis 56% of respondents are married and remaining 44% are
single.

3. This study shows that 54% of respondents are male and remaining 46% are
female.

4. As per the study 52% of respondents are patients and remaining 48% are non
patients.

5. Depending on the awareness of medical negligence 70% of respondents are

unaware of medical negligence as a crime and remaining 30% are aware of it.

Suggestions:

1. Patients should have awareness on the medicine manufacturing date and

expiry date.

2. The patients should verify whether the medical practioner has registered
under Indian Medical Council.

3. Before going to procedure treatment,the treatment and diagnosis should be

explained to the patients.

4. There should be appropriate staffs to deal with cases.

5. There should be all equipments necessary to treat the patients.

6. Awareness should be created in schools and educational institutions regarding

Medical negligence.
Conclusion

It is not stated that doctors are negligent or irresponsible but while

performing the duty which requires a lot of patience and care, often many
practitioners fail or breaches their responsibility towards the patient. Medicine
which is one of the noblest professions requires setting a realm which can benefit
the victims of various diseases. Many doctors even the specialist sometimes
neglects small things to be taken care of while practicing which may result in
damages to the patients that could have been avoided or sometimes even the death
of the patients. This type of professional negligence needs more focus than to
include it in other laws or statutes. People in our country are already victims of
many diseases and are dying due to same, let’s make efforts to reduce these deaths
and focus on improvising the profession so that people do not die in the place
where they come to get healed.
 APPENDIX –I

QUESTIONAIRE

Dear Sir/Madam

This survey is carried out as a part of my LLB curriculum. Kindly answer

the questions by putting (√) tick mark in space provided. Your response will be
used only for the survey purpose.

I will be thankful to you for taking time to help me.

1. Gender

Male Female

2. Your age
Under 20

20-30

30-40

40 Above

3. Marital status

Single Married

4. Do you regularly visit a doctor for treatment ?

Yes No

5. What is your opinion about the service of doctor, which you visit?
Good

Satisfactory

Not satisfactory
6.Are you aware about medical negligence amounts to a crime ?

Yes No

7.which hospital do you prefer

Govt hospital

Private hospital

8.Do you think that is it necessary to give awareness about Medical negligence to
common people?

Necessry

Not necessary

9.What is your opinion about Medical services in India?

Good

Satisfactory

Not satisfactory

10.Do you know where to file a case if Medical negligence happens?

Yes

NO
BIBLIOGRAPHY