DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY, LUCKNOW

2021-2022

HEALTH AND MEDICINE LAW

FINAL DRAFT

TOPIC- “Understanding Medical Negligence vis-a-vis

Consumer Protection Act”

SUBMITTED TO- SUBMITTED BY-

DR. PREM KUMAR GAUTAM ANIKET SACHAN
ASSISTANT PROFFESOR ROLL NO- 170101028
DR. RMLNLU, LUCKNOW. B.A.LLB (HONS.), SEM VIII

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 ACKNOWLEDGEMENT

I am obliged to Assistant Professor, Dr Prem Kumar Gautam, who has given me golden chance for
this research project. I would also like to thank the almighty and my parents for their moral support
and my friends who are always there to extend the helping hand whenever and wherever required.
I further extend my thanks to library staff of DR. RAM MANOHAR LOHIYA NATIONAL LAW
UNIVERSITY who helped me in getting all the materials necessary for the project.

Aniket Sachan
170101028

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 TABLE OF CONTENT
ACKNOWLEDGEMENT ................................................................................................................................... 2

INTRODUCTION ............................................................................................................................................... 4

WHAT IS PROFESSIONAL NEGLIGENCE? .................................................................................................. 4

CONSUMER PROTECTION ACT AND MEDICAL NEGLIGENCE: ............................................................ 4

WHO IS A CONSUMER? .................................................................................................................................. 5

WHAT IS DEFCIENCY OF SERVICE? ............................................................................................................ 6

INDIAN JUDICIARY AND MEDICAL NEGLIGENCE : ................................................................................ 6

NECESSITY OF THE CONSUMER PROTECTION ACT, AND ITS APPLICATION TO THE MEDICAL
PROFESSION : ................................................................................................................................................... 8

NEED FOR THE AMENDMENT: ..................................................................................................................... 8

CONCLUSION/SUGGESTIONS: ...................................................................................................................... 9

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 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. 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. And whenever there is deficiency in the services, the
consumer court can take the matters within its jurisdiction subjection to the pecuniary
limitation.
WHAT IS PROFESSIONAL NEGLIGENCE?
In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted to
be performed only if the person possesses the requisite skill for performing that task. A
professional may be held liable for negligence on one of two findings:

1. either he was not possessed of the requisite skill which he professed to have possessed.
2. He did not exercise, with reasonable competence in the given case, the skill which he
did possess.

These are two standards upon which a professional can be held liable and these must be proved
without any reasonable doubt.
CONSUMER PROTECTION ACT AND MEDICAL NEGLIGENCE:
The Consumer protection Act, 1986 came into existence to provide justice and aid in various sphere
of the human activity one of them is medical services. The definition of the consumer defined in the
Act is wide enough to encompass not only the goods but also the services. The Consumer
Protection Act of 1986 was enacted with an objective to provide better protection of the interests of
the Consumers, to make provision for the establishment of Consumer Councils and other authorities
for the settlement of consumer disputes. This is indeed highly progressive piece of Social Welfare
Legislation. The provisions of this Act are intended to provide effective and efficient safeguards to
the consumers against various types of exploitations and unfair dealings. Unlike other laws, which
are basically punitive or preventive in nature, the provisions of the Act are compensatory.
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Patient is consumer under the consumer protection act and the services provided to the patient will
fall under the definition of the service defined under the consumer protection act. Medical
negligence or medical malpractice entails professional negligence due to an act or omission by a
health care provider in which the treatment provided by him/her falls below the accepted standard
of practice in the medical community and this treatment results in injury to the patient or in extreme
cases, death of the patient.

There are four vital elements in a case of medical negligence. They are-
1. A duty was owed: It is important to show that the doctor or medical practitioner owed
a duty of care to the plaintiff where the latter opted for the medical treatment.
2. The duty was breached: The plaintiff must prove that the health provider did not
comply to the required and standard care, thus breaching his/her duty.
3. The breach caused an injury: There was a breach of duty and this breach was an
immediate cause to the injury to the plaintiff.
4. Damage: Without damage, there is no basis for a claim, regardless of whether the
medical provider was negligent. However, damage can also occur without any
negligence. An example for it is when someone dies due to a fatal disease.
WHO IS A CONSUMER?
“Consumer”1 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
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.
Whereas service under Consumer Protection Act, 1986 means, 2 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

1
Section 2(d) of Consumer Protection Act, 1986
2
Section 2(1) (o) of Consumer Protection Act, 1986
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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;

This definition provides list of the certain category of the services. However it is not an exhaustive.
Hence, medical services 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 DEFCIENCY OF 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.”
Therefore 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.
INDIAN JUDICIARY AND MEDICAL NEGLIGENCE :
The Supreme Court in Indian Medical Association v. V.P Shantha and Others3 Case has clearly
reiterated that, services rendered to a patient by a medical practitioner (except where the doctor
render services free of charge to every patient or under a contract of personal service) by way of
consultation, diagnosis and treatment, both medical and surgical, would fall within the ambit of
service as defined in section 2(1) (o) of the Consumer Protection Act 1986. The judgment has faced
a lot of opposition from the people involved in the medical field. However, this judgment has come
as a wave of relief for all the consumers.
With rampant increase in commercialization of services including medical services, the patient has
now become a mere consumer. This definitely causes deterioration in the fiduciary relationship
between a doctor and his/her patient. This judgment which extends the arms of the Consumer
Protection Act, 1986 to the medical profession will surely enable to keep a check on the doctors so
that they perform their duties diligently. It will make the process of treatment and surgery more
transparent. One negative aspect about this judgment is that it does not prescribe any relief or
compensation who avail free medical services. As a consequence, only doctors who work in paid
hospitals come under the scanner. Also, the burden of proof is on the patient to prove that there was
negligence on part of the doctor. Instead, the burden of proof should be shifted onto the doctor to

3
Indian Medical Association v. VP Shantha, AIR 1996 SC 550.
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prove that he was diligent enough while performing his duties.

However in Achutrao Haribhau Khodwa v. State of Maharastra,4 Supreme Court gave

diverging judgement then that rendered in V. P Shantha case. In the instant case, court refused to
hold either doctor or government liable for death caused due to the negligence on the part of the
doctor. Doctor left towel inside abdomen while conducting the operation but neither the doctor nor
the government is liable unless proved that the death was caused due to leaving towel inside the
abdomen. However, leaving a towel itself amount to the negligence on the part of the doctors.

Supreme Court took a very progressive view in the case of Spring Meadows Hospital v.
HarjotAhluwalia,5 and held when a young child was taken to a private hospital by parents and
treated by the doctors, and then not only the child but his parents are also to be treated as consumer
under the Consumer protection Act. Hence, parent can claim the Compensation under the
Consumer protection Act. Court ruled in favour of the parents of the child who was the beneficiary
of the service. The hospital argued that sufficient care had indeed been taken and they not entitled
to pay compensation for the mental agony the parents went through as parents would not come
under the definition of consumer. The court rightly pointed out that this contention was false since
the definition of consumer under the act does clearly include parents as well.
In Jacob Mathew v. State of Punjab6, Apex Court upheld that jurisprudential concept of the
negligence differs in civil and criminal law. Negligence in civil law may not be necessarily be
negligence in criminal law. For negligence to amount an offence, the element of mensrea must be
shown to exist. For an act to amount to criminal negligence , the degree of the negligence would be
much higher i.e. gross or of a very high degree negligence.7

In Dr. Suresh Gupta case8 Supreme court of India upheld that legal position on medical
negligence is quite clear and well settled. Whenever a patient died due to the medical negligence
the doctor was liable in civil law for paying the compensation. Only when the negligence was so
gross and his act was so res and his act was so reckless to endanger the life of the patient, then
criminal law for offence under section 304A of Indian Penal Code, 1860 will apply. In Kurban
Hussein Rangawalla v. State of Maharashtra, it was held, to impose criminal liability under
section 304 A, IPC, it is necessary that the death should have been the direct result of a rash and
negligent act of the accused and that the act must be proximate and efficient cause without the
intervention of another’s negligence. It must be the causa causans.9

Supreme Court of India in 2015 awarded Rs. 5.96 crore compensation, payable by the Kolkata

4
Achutrao Haribhau Khodwa v. State of Maharastra, (1996) 2 SCC 634.
5
Spring Meadows Hospital v. HarjotAhluwalia, (1998) 4 SCC 39.
6
Jacob Mathew v. State of Punjab, AIR 2005 SC 3180.
7
Y.V Rao, Commentary on the Consumer protection Act, 1986, Asia law House, Hyderabsd, 3rd ed. (2013) page 351.
8
Dr. Suresh Gupta v. Government of NCT of Delhi, AIR 2004 SC 4091
available at http://pbtindia.com/wp-content/uploads/2011/10/Medical-Negligence.
9
Asia Law house Hyderabad, Law relating to Medical Negligence, YetukuriVenkateswaraRao, 1st ed. 2005,pp-32.
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based AMRI hospital and three doctors to a US based doctor of the Indian origin for medical
negligence which led to the death of his wife in 1998. Further court has observed across the
country, dozens of the people die because of the gross negligence and lack of the medical care
on the part of the doctors10, but only few use to take the matters to the court because of various
reasons- expensive, lack of the awareness, and long procedure for the disposal of the cases. Further,
court upheld that at present, the medical Council of India or the State Medical Council look into
such cases but the process is long winding, and there has been no instances of a doctor’s
registration being cancelled for negligence.11 The present observation of the court itself shows the
great loopholes in implementation machinery. The new issue which is rising related to endorsement
of the commercial products & drugs by the doctors against the Code of medical ethics regulations12.
NECESSITY OF THE CONSUMER PROTECTION ACT, AND ITS
APPLICATION TO THE MEDICAL PROFESSION :
The necessity of CPA in Medical Profession 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 action is notoriously high in relation to the recovery as damages;
(iii) limited access to the courts ;
(iv) Success depends on proof of both negligence and causation.

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;
(i) To entertain any complaint from the patient;
(ii) To take action against the Medical Practitioner in case negligence is committed;
(iii) To award any compensation, etc. in case the negligence is proved.
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 days 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

10
Kolkata, hospital 3 doctors told to pay Rs. 5.96 Crore for negligence, The Hindu, 25 October, 2013, Bangalore.
11
Kolkata, hospital 3 doctors told to pay Rs. 5.96 Crore for negligence, The Hindu, 25 October, 2013, Bangalore.
12
Doc bodies out of MCI’s ethics code, Times of India, 22 February, 2014.Page 13, Bangalore.
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profession. justification for inclusion of government services under the consumer protection act
can be 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.
CONCLUSION/SUGGESTIONS:
As it is very mush evident from the preamble of the consumer Protection Act and various
Supreme Court judgments that Consumer protection Act is one of the social welfare legislation
enacted to protect the common people. Therefore, to do the justice with the consumer, the law
should to adapt itself to the need of the changing society; it must be flexible and adaptable to do
the justice with the consumer. With the rapid expansion of population and shortages of
healthcare facilities in government hospitals, private hospitals in the society have been playing a
vital role. Even though there are many government hospitals which are providing health services
to the populace of the region, the services rendered is inadequate in terms of quantity and quality.
Medical negligence is a very crucial aspect. It’s very difficult to conclude if the doctor is liable
under medical negligence or not. There is a very thin border to differentiate if they are liable
or not. If you look the fact sheet of this case we can see that the doctor was accused for being
negligent. This can actually harm a doctor’s reputation when he is not guilty of such an act.
Negligent doctors will be punished. And the court makes the point to punish the negligent
doctors in a right way.
Same time it is also not right on the part of the people to blame the doctors for every human life
lost during the treatment of the patient. A doctor wouldn’t purposely kill someone for vengeance.
Doctors perform the most sacred act of curing a human and it does no good to the society by
blaming a doctor for the life lost. Hence proper rules and principles should be looked after before
filing a case of medical negligence against a doctor.

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