Medical profession and the

Consumer laws
NAME ROLL NUMBER
Purva Alankrita B-001

Yash Bhandari B-002

Rushit Chhadwa B-003

Dhun Chhawchharia B-004

Zalak Dagha B-005

“No doctor knows everything. There's a reason why it’s called “practicing” medicine.”
By John Austin
1.Important Definitions
 Consumer - (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 8 [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 purpose].

 Service means service of any description which is made available to potential [users and includes, but not limited to, 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.

 Defect means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the
time being in force or [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods.

 Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which 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.

 Consumer Rights – 6 Rights : Right to be protected, Right to be informed, Right to be assured, Right to be heard, Right to redressal, Right to consumer awareness .
2.Origin & Need of CPA, 1986
 With the objective of ensuring effective protection to the rights of the buyer, the Consumer Protection Bill 1986 was first discussed in the Lok Sabha on
5th December 1986. Consequently, both the Houses of Parliament passed the Consumer Protection Bill, 1986. It received the assent of the President on
24th December 1986. Thus, the Consumer Protection Act (COPRA) came into effect in 1986.

 It was milestone legislation since it was the first of its kind when it came to consumer protection. Instead of the acts enacted since 1950 and before 1986
which were singular in nature in terms of the product or service they were dealing with, this act sought to bring various goods and services within its
ambit. The 1986 Act was drafted as to create an additional layer of protection for consumers and not the derogation of the laws that existed prior to it.

 It also created a different platform for redressal by mandating a separate series of Courts. The framework of the Consumer Courts.

 In order to grant quick and effective relief to the aggrieved customer, the courts declare their verdict within three months from the date of receiving the
notice sent by the opposing litigant. The statutes include both monetary compensation as well as correctional damages. Either or both can be awarded to
the aggrieved customer.

 This Act gave tranquil and quick advantages to consumer complaints and helped safeguard their rights. Consumers could address insufficiency and
imperfections in various goods and services and gain compensation for the same. It covered goods and services in public, private, or cooperative sectors
and provided a platform for any consumer to file a complaint which would be redressed by the Consumer Forums. 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.
1. to entertain any complaint from the patient;
2. to take action against the Medical Practitioner in case any negligence has-been committed ;
3. to award any compensation, etc. in case the negligence is proved.
3.Indian Medical Association v. VP Shantha

Name of the Case Indian Medical Association vs V.P. Shantha & Ors
Citation 1996 AIR 550, 1995 SCC (6) 651
Bench/Judges Justice S.C. Agrawal Justice Kuldip Sigh Justice B.L. Hansaria
Acts Involved Indian Medical Council Act, 1956 Consumer Protection Act, 1986
Important Sections Section 2(1)(o), Section 2(1)(d) of the Consumer Protection Act, 1986

 In 1995, the Supreme Court delivered a historic decision in Indian Medical Association v VP Shantha which brought the medical profession within the
ambit of a ‘service’ as defined in Section 2(1)(o) of the Consumer Protection Act, 1986, and clarified earlier conflicting decisions regarding this issue
given by various High Courts and Consumer Forums. This decision redefined the relationship between patients and medical professionals as contractual
and recognized the right of patients to file a complaint under the Consumer Protection Act for injuries sustained in the course of medical treatment. Patients
were provided with an alternative, inexpensive and speedy remedy for adjudication of medical negligence claims.

 Neither does the definition expressly include or does it exclude medical services. In the exclusionary part of the definition, an interpretation could be
adopted which brought medical services not rendered free of charge under the ambit of ‘service’. Another question to be considered was whether such
services are provided under a ‘contract of personal service’ to be excluded or not.

 Holding that the definition of ‘service’ is wide enough to include services rendered by medical practitioners, the Supreme Court proceeded to consider the
exclusionary part of Section 2(1)(o). The exclusionary part excludes services rendered (i) free of charge; or (ii) under a contract of personal service.
4.Contract of Service and Contract for Service
 In both the contract of service and contract for service there is transfer of property in goods but the difference is of degrees

 Contract of Service
1. A “contract of service” implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its
mode and performance. It covers the medical insurance and life insurance.
2. By affixing the adjective “personal” to the word “service” the nature of the contracts which are excluded is not altered. The said adjective only
emphasizes that what is sought to be excluded is personal service only. The expression “contract of personal service” in the exclusionary part of
Section 2(1)(o) must therefore be construed as excluding the services rendered by an employee to his employer under the contract of personal service
from the ambit the expression “service”.
3. The court held that the contract between the medical practitioner and his patient cannot be treated as a contract of personal service as a master-servant
relations are absent. It would be a contract for services and therefore, will not be covered by the exclusionary part.
4. The Court finally concluded that “Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to
every patient or under a contract of personal service), by way of consultation, diagnosis, and treatment, both medicinal and surgical, would fall
within the ambit of ‘service’ as defined in Section 2(1)(o) of the Act.”

 Contract for Service

1. A ‘contract for service’ implies a contract whereby one party undertakes to render services (such as professional or technical services) to another, in
which the service provider is not subjected to a detailed direction and control. The provider exercises professional or technical skill and uses his or her
own knowledge and discretion.
2. e.g. professional or technical services to or for another in the performance of which he is not subject to detailed direction or control but exercises
professional or technical skill and used his own knowledge and discretion
5.Just after COPRA, 1986 reaction
 Unwillingness on the part of doctor to take urgent cases.
 Rise in cost on account of insurance.
 Over investigation resulting in high cost lastly being borne by the patient.
 Relationship of trust being broken.
 Question on capacity of adjudicating bodies.
 In case of RP Gopinath Vs SKC medical foundation can a case involving such complicated issues be tried in CPA course or sent to civil courts.
 Already lots of technical cases are pending due to delay in acquiring inputs to resolve this and the present ones are adding more to it.
 National commission held that they have to be tried.
 SC said that in public interest cases with question on complex issues requiring to acquire evidence by expert people can be asked to approach civil courts.

 NEGLIGENCE OR DEFICIENCY

Deficiency defined but negligence followed as mentioned in tort law. Supreme courts take on this -

1. In all negligence deficiency will be there but not vice versa.

2. Deficiency may be result of inability whereas negligence caused by carelessness.
3. Deficiency may be caused in absence of a doctor but negligence cannot be.
4. Deficiency may be gathered easily but negligence is hard to find.
6.Origin & Need of COPRA,2019
 On 6th August 2019, the Consumer Protection Bill was passed by the Parliament. The President granted his assent on 9 th August 2019. Consequently,

the Consumer Protection Act of 2019 came into effect. It replaced the earlier legislation- the Consumer Protection Act, 1986.

 The 2019 Act aims to manage consumer grievance in a quick and efficient manner. The intent of the legislature in creating a new act altogether,

instead of simply initiating further amendments in the 1986 Act, was to grant a higher degree of security to the interests of the consumer.

 In the drafting of this act, the government took into account the progress of the e-commerce industry and the new ways of selling and consuming

of goods and services. For instance, online purchase and macro-level marketing are a relatively new phenomenon, witnessed only in the last

couple of decades.

 It can be concluded that the Consumer Protection Act 2019 provides a greater degree of security to the rights and interests of the consumer than the

1986 Act. It significantly helps overcome the imbalanced power structure between the consumer and seller. However, for the 2019 Act to be truly

effective in ensuring the protection of consumers, the implementation of the legislation is the fundamental determining factor.
Key Changes
NEW ACT
KEY POINTS OLD ACT
 

District forum (up to 20 lacs) State commission (from 20 lacs District forum (up to 1 crore) State commission (from 1 crore to 10
PECUNIARY JURISDICTION
to 1 crore) National commission (from 1 crore and above) crore) National commission (from 10 crore and above)

MRP/PURCHASE PRICE Earlier MRP was a criterion to decide pecuniary jurisdiction Now discounted price/ actual purchase price is criteria

TERRITORIAL JURISDICTION Where seller has office Where complainant resides or works
REGULATOR  No such provision Central Consumer protection authority to be formed
MEDIATION  No such provision Court can refer for settlement through mediation (Section 80)
Earlier 30 days period for appeal against the order of District
APPEAL forum (Section 15) Earlier 50% or 25,000 whichever is less is Now it is 45 days (Section 41) Now 50% of award amount.
to be deposited.
Now all provision applicable to direct seller has been extended to e-
E-COMMERCE Earlier no specific mention
commerce
REVIEW Earlier DCF did not have the power to review Now DCF has power to review

Section 49(2) and 59(2) of the new acts gives power to the State
UNFAIR TERMS AND CONDITIONS No such provision Commission and NCDRC respectively to declare any terms of
contract, which is unfair to any consumer, to be null and void

District consumer forum State consumer forum National District commission State commission National Consumer Dispute
AUTHORITY
Consumer Dispute Redressal Commission Redressal Commission

COMPOSITION OF STATE
President and 2 other members President and 4 other members
COMMISSION
7.Why Consumer Protection needed for Medical Profession?
 The famous Latin Maxim, “ubi jus ibi remedium” means “where there is a wrong, there is a remedy”. This maxim shows that a corresponding remedy for
the infringement should be given if the statute has laid down a right.

 Commercialization and manipulation of the medical industry, however, has made it like every other enterprise and the medical profession is being gradually
motivated by the motive for benefit rather than that of service. Such a circumstance has given rise to immoral and negligent activities. Medical negligence is
a mixture of two words i.e. Medical and Negligence. The word Negligence has not been adequately defined, but it can be seen as an act that a person
carelessly commits, resulting in foreseeable harm to the other.

 A study shows that there is a 110% rise in the number of medical negligence cases that are reported every year. The study also brings out the fact that 12% of
the cases decided by the consumer protection forum are related to medical negligence out of which 90% are the cases involving hospitals. Between 60 to 66
percent of the cases filed are because hospitals do not take proper consent from relatives before performing certain procedures or changing hospitals, or due
to improper documentation throughout the course of diagnosis and treatment. [SOURCE]

 The CPA provides a forum to safeguard the rights of the consumers and establishes guidelines for the speedy redressal of their grievances against unethical
medical practices. All service rendered to a patient by a medical practitioner is covered under the CPA except when the service is provided free of cost,
especially in charitable or governmental dispensaries and hospitals, and primary health centers. If a patient or the relations of a patient feel that the suffering
or death of a patient is because of either negligence by the concerned doctor or the health facility, they can complain to the Medical Council of India or to the
Consumer Court.

 The Act covers all the medical practitioners and does not limit itself to the allopathic system in order to ensure accountability and keep a check on quackery
by non‑allopathic practitioners. Similar sorts of acts has even been implemented across the world and has shown encouraging results in the field of medical
care.
8.Reaction & Opinion
 The relationship between doctor and patient is not that of a buyer and seller as it is typically understood but goes beyond it and disclosure of information about
the illness and treatment makes it a relationship of trust.

 Most of the provisions under the Consumer Protection Act, 2019 have come into force on 20 June. Section 2(42) of the Act states services that are covered
under the Act. The term ‘healthcare’ has been dropped from the definition which was present in earlier Bills presented before Parliament, perhaps for political
reasons.

 However, it is submitted that healthcare can be included under this definition because of its inclusive nature. It categorically stated that the definition is not
limited to the services stated therein. The term negligence has also been inserted in the definition of ‘deficiency’ under the Act. By no specific exclusion and
inclusive nature of the definition, the legislature has created ambiguity with regards to the status of healthcare services.

 Reason to keep it out-

 Firstly, medicine is treated as a profession of nobility and not business and often is not looked at as science as much depends on the judgement of the doctor
treating the patient. Every individual’s body reacts differently, and the doctor can only treat the illness or the problems on the available and disclosed facts.
There is no blanket rule as to the treatment of all diseases and although the expected standards of reasonableness are higher in this profession, even after going
by the book and years of practice, there are cases which are complex in their own way.

 Secondly, the degree of risk and complexity of problems is higher and there is a direct linkage to person’s health, life, and death. Unlike other professions, the
treatment must be immediate and fault proof according to the judgement of the doctor. If the doctors are dragged to the court or the consumer forum for no
actual fault, it will create immense hardship for the doctors who have worked day and night trying to cure that patient. The relationship between doctor and
patient is not that of a buyer and seller as it is typically understood but goes beyond it and disclosure of information about the illness and treatment makes it a
relationship of trust. The doctors are already exposed to both criminal and civil liability and they are not exclusive but complimentary. Under Section 304A of
the Indian Penal Code a doctor can be charged for medical negligence resulting in the death of a person and on the other hand monetary compensation or
 Thirdly, the change in establishment of jurisdiction, both pecuniary and territorial, is to the disadvantage of the medical professionals. Earlier, the case could
be filed only where the cause of action arose or where the defendant resided, but now it can be filed even where the complainant resides. So a medical
professional could be dragged to the consumer forum of some other state, and this would create a lot of practical problems for the professionals. Further the
pecuniary jurisdiction has been revised and has been enhanced for the district forum to ₹1 crore which will have an adverse effect on the claims made in the
forum.

 Fourthly, services such as that of advocates is kept out of the ambit of the Act which raises important questions with regards to the nature of services so
rendered. There are similarities between the two professions to the extent that the communications are privileged, and relationship is that of trust. In some
cases, it may be a matter of life and death in both scenarios. Advocates are governed by Bar Council of India. Similarly, there is Medical Council of India and
different State Councils which are professional bodies which govern the conduct of medical professionals. Lawyers are not treated as part of conducting trade,
commerce or industry and in the similar manner medical professionals should also not be covered under the same.

 It is not contended that medical professionals do not commit any act of negligence or gross negligence. They should be made liable for any such conduct.
However, a tribunal and an act covering and dealing with medical negligence and ethics should be passed by the legislature to provide for adequate safeguards
against the patients being treated unfairly or wrongly. The Medical Council of India should also be given wider powers to prosecute the guilty medical
professionals. These would be more appropriate authorities to deal with such specialized cases and deliver speedy and proper justice to both the parties.
Needless to say, the bench of the tribunal should comprise both judicial and technical members.

 This will also reduce the burden on the consumer forums which have to decide on technical matters and there is delay of justice because of that. Consumer
Forums today have lakhs of pending cases involving technical issues. Mediation has been introduced as an alternative dispute resolution technique under the
new Act and without proper rules which are not adequate and regulations which have not been notified yet, it will only add to the ambiguity of technical
matters such as these.
9.What is Medical Negligence?
 While considering the issue, the Hon’ble Supreme Court in Kusum Sharma & Ors. v. Batra Hospital & Medical Research Centre and Ors placed
reference to the Halsbury's Laws of England, 4th Edn., Vol. 26 pp. 17-18, wherein it was defined as “22. Negligence. - Duties owed to patient. A
person who holds himself out as ready to give medical advice or treatment impliedly undertakes that he is possessed of skill and knowledge for the
purpose. Such a person, whether he is a registered medical practitioner or not, who is consulted by a patient, owes him certain duties, namely, a duty
of care in deciding whether to undertake the case; a duty of care in deciding what treatment to give; and a duty of care in his administration of that
treatment. A breach of any of these duties will support an action for negligence by the patient.”[1]

Thus, there are 3 components of medical negligence:

 Existence of legal duty

 Breach of legal duty

 Damage caused by such breach

 Around 52 lakh medical injuries are recorded every year in India out of which 98,000 people in the country lose their lives in a year because of
medical negligence. It is really a serious concern for the entire nation that 10 people fall victim to medical negligence every minute and more than 11
people die every hour in the country due to this medical error. (Source:https
://www.indiamedicaltimes.com/2016/05/25/98000-people-lose-their-lives-because-of-medical-negligence/)

 When it comes to medical negligence it was decided in a land mark judgement In the case Indian Medical Association vs. V.P. Santha III (1995) CPJ
1(SC), service provided by almost every doctor is covered under this act. After this judgement an aggrieved person can claim damages for medical
negligence against a doctor or a hospital. The remedy under this act is an alternative in addition to that already available to the aggrieved person by
way of a civil suit under a consumer forum. The consumer forum consist of a 3-Tire structure of the National and state commission and district
forums.
10.Defense under the Act:
 A doctor is not liable in all cases where a patient has suffered an injury. He might have a valid defense that he has not breached the duty of care. The error of
judgment can be of two types: 

 An error of judgment – In such cases, it has been recognized that it doesn’t amount to a breach of duty. Merely because a doctor’s decision turned out to be
wrong, we cannot make him liable for medical negligence.

 In Kusum Sharma v. Batra Hospital, it was held by the Supreme Court that a doctor often adopts a procedure which involves a higher element of risk, but in
doing so he honestly believes that it will provide greater chances of success for the patient. If a doctor has taken a higher risk to redeem the patient out of
his/her suffering and it did not yield the desired result, this may not amount to medical negligence.

 If a patient has suffered an injury the doctor might not be held liable for negligence. In case of error of judgement by the doctor, he shall not be charged
against any such actions. Even doctors are humans and, hence are prone to make mistakes, and therefore, they shall be allowed some relief. Merely based on
the fact that the decision of the doctor did not turn out to be favorable, he cannot be held against such error in judgement. The Courts have observed that
merely because the doctor choose an different procedure/ treatment to cure the problem and it did not work as expected, will not make him liable. One must
prove that there was breach of duty on his part. A doctor performing his duty with due care and caution could not be held liable for negligence. However,
where error in judgement was due to a negligent act, it shall then be termed breach of duty and the doctor shall be held liable for his actions.

 Under Criminal law when it is proved that the negligent act is performed with Mens Rea (guilty mind) he shall be punished under the criminal law now
because of Code of Criminal Procedure (C.C.P.) amendment - 1973, patient may get compensation too. The intention to behave in such negligent way shall
be proved to make a doctor liable under criminal law under section 304(A) of IPC – Cause Death by Negligence.
11.Standard of Care & Duty of Care:
 The Hon'ble Supreme Court in Dr. Laxman Balkrishna Joshi Vs. Dr. Trimbak Bapu Godbole[2] had observed that every doctor must exercise reasonable
"standard of care" that are set out in the profession. Any breach towards these duties shall hold him liable for medical negligence. A doctor is required to
exercise a reasonable degree of care that is set for this profession.

 A standard of care specifies the appropriate treatment and medication procedure as per the requirements that should be taken into account by a doctor
while providing the treatment to his patients. The care should not be of the highest degree nor the lowest.

 Here, the degree means the level of care an ordinary health care professional, with the same training and experience, would render in similar
circumstances in the same community. This is the critical question in medical malpractice cases and if the answer is “no,” and you suffered injury as a
result of the poor treatment, you may file a suit for medical malpractice.

 A “duty of care” in cases of medical negligence is an obligation on one party (doctor) to take care to prevent harm being suffered by another (patient).
Generally, doctors owe an obligation to take care of their patients. 

 The burden of proof of negligence generally lies with the complainant. The law requires a higher standard of evidence to support an allegation of
negligence against any doctor. In cases of medical negligence, the patient must establish a claim against the doctor in order to succeed.

 In Calcutta Medical Research Institute vs Bimalesh Chatterjee, it was held that the onus of proving proofs against negligence and deficiency in service
was clearly on the complainant. 
12.How to Prove Medical Negligence?
 A medical professional or hospital shall be held liable for all actions against the patients where they have not taken proper standard of care and it has
resulted in suffering on part of the patient. The burden of proof shall lie on the complainant to prove a case of negligence. They have to first establish that
there was a duty of care on part of the accused and that, there was breach of such duty.

 However, in some case the courts use the principle of “res ipsa loquitur" which means things speak for itself. In such a scenario, it is presumed that the
medical professional has acted beneath the set standard of care causing negligence. Under this principle it is presumed that the injury could not have
been caused from anything but the negligence on part of the medical professional. In practice, the use of this principle by the judge would mean that the
negligence has already ensued. Here the burden shifts onto the doctor to prove the case otherwise. The doctrine assumes the following:

 Nature of injury gives the clue that without negligence it could not have happened.  

 There was no involvement of the patient himself in the injury in any way.  

 The injury happened under the circumstances which were under the supervision and control of the doctor.

 It means that by applying the principle the judge has accepted that the negligence has occurred. After this, the doctor will have to rebut this thing and if
he fails to do so then the patient would be considered as successful in the case of medical negligence. Some common scenarios of res ipsa loquitor cases
like leaving some object inside the body of the patient after surgery, if a wrong patient gets operated or if the wrong part of the patient gets operated etc.

 The injured party must prove that the physician breached the duty of care by failing to adhere to the set standards of care a doctor must follow. The
breach must be demonstrated by an expert’s attestation. In res ipsa negligence cases expert declaration about the standard of care is not really required. 
 In order to prove a res ipsa liqiuotor case, the following must be done: 
 It is well known to everyone that if a case seems like it could never happen without negligence on the part of the doctor then this directly proves that it falls under
the category of res ipsa cases.
 The equipment or manner of treatment that caused the damage was under the doctor’s control at all times.
 The injury was the one which the injured person couldn’t assume voluntarily.
 Being in a noble profession the practitioner must take a reasonable degree of skill and care and must exercise a reasonable degree of care. The law requires neither
the very highest nor a very low degree of care and skill and is different for different cases. If he fails to do so then a complaint can be filed against him.
 A complaint is an allegation made by a complainant. It must be in written form. It consists of the statements and some important facts to establish a case that a
consumer has suffered loss or damage due to deficiency of any service. 
 When a complaint against medical negligence is filed, the forum sends a notice to the opposite party to submit its version of the case within 30 days after
admitting the complaint. After doing proper scrutiny the forum will ask either for filing an affidavit or for producing evidence in the form of judicial precedents,
expert opinion, etc.
 The collection of evidence should be like this:
 Collect all the medical records.
 As per the guidelines of the Medical Council of India, the patient should get all the medical records within 72 hours from the date and time of the appointment.
 Challenges faced by the victims of Medical Negligence
 These are some of the challenges that are faced by a complainant in medical negligence cases:
 If is a time-taking process to decide medical negligence cases. So, sometimes it leads to the de-motivation of the complainant.
 Sometimes, due to the reputation of the hospital, the doctor has more chances of winning the case.
 There are some cases in which the doctor already knows that they have been negligent so they remove all the necessary evidence which creates a problem for the
complainant. 
 You need to know about your insurance policy limits because sometimes the insurance company itself rejects the case.
13.Necessary test to determine Medical Negligence

 Custom Test:
 In this test, it must be proved that the hospital or any of its staff weren’t negligent in performing its duties. 
 The next thing which should be proved is the method adopted by the concerned doctor was not ethical.
 In most of the cases, the burden of proof lies upon the Complainant but sometimes it shifts to the doctor if there is no proper management done on
his part.

 Bolam Test:
 The concept of Bolam test arrived from the case Bolam Vs Friern Hospital Management Committee [4]. Medical negligence cases are briefly
decided under the basis of Bolam Test. The bolam test talks about the exercise of ordinary skill of an ordinary competent man exercising that
particular art. In simple words it means that the person who procures the ordinary skill of performing the activity can perform such activity there is
no necessity to have an expert knowledge. The Bolam test usually favors the professionals. Let’s understand this by an example -
 A patient, suffering from depression was admitted to a mental hospital advised ECT but doctor did not warn about slight risk of bone fracture
involved in accordance with normal practice the doctor did not administer relaxant or apply any form of manual restraint patient suffered bilateral
fracture of acetabula. Complaint Alleged that the Doctor 1. Failed to administer, a suitable relaxant 2. Failing to warn the patient of the risk involved
in ECT 3. Failing to provide sufficient manual control. Experts witnessed both the sides. The defendant witness provides that witness testified that
there was a large body of competent medical opinion opposed to use relaxant, the more restraint there was more like hood there was of a fracture - it
was not desirable to warn, unless asked. It was observed that: a man need not possess the highest expert skill, it is well established law that it is
sufficient if he exercises the ordinary skill of an ordinary competent man exercising that particular art. A doctor is not guilty of negligence if he has
acted in accordance with a practice accepted as proper by reasonable body of medical men skilled in that particular art. A doctor is not negligent if
he is acting in accordance with such a practice merely because there is a body of opinion that takes a contrary view. If proper practice requires some
warning to be given, the second question is, if a warning had been given, would it have made any difference.
14.Compensation & Remedy :
 In Civil liability, the claim for damages is suffered in the form of compensation. If there is any breach of the duty of care while operating or under the
supervision of the hospital or any doctor. They are vicariously liable for such wrong committed and are liable to pay damages in the form of compensation. If
someone is an employee in a hospital then it is the responsibility of the hospital if an employee causes harm to a patient by acting negligently.
 All the medical services fall under the purview of the Consumer Protection Act, 1986. After the judgment of the Supreme Court in  
Indian Medical Association vs. V.P. Shantha, this medical profession and services have been brought under the purview of the Act.
 In this case, the court discussed the important question of medical negligence i.e. whether a medical practitioner could be said to rendering services under 
Section 2(1)(o) of the Consumer Protection Act, 1986. The following points were laid down:
 Medical Services should be treated as the “services” under Section 2(1) (o) of the Consumer Protection Act, 1986. It is not a contract of personal service as
there is no master-servant relationship between them. 
 Contract of service in Section 2(1) (o) cannot be confined to contracts for the employment of domestic servants only. The services rendered to the employer
are not covered under the Act.
 Medical Services which are free of charge are not considered under the purview of Section 2(1)(o) of the Act.

 Medical Services which are rendered by independent doctors and are free of charge are under the jurisdiction of Section 2(1)(o) of the Act.

 Medical Services rendered against payment of consideration are also within the scope of the Act.

 The payment of consideration of a medical service is paid by some third party and is treated under the ambit of this Act.

 Hospitals in which some persons are exempted from charging because of their inability to afford or any other financial problems will be treated as a consumer.

 Section 2(1)(o) of the Consumer Protection Act defines the ‘deficiency of service’ which means any fault, imperfection, etc. in the quality or manner of
performance that is required to be maintained by or under any law or it has been undertaken to be performed by a person in pursuance of a contract or
otherwise.

The below mentioned can file a complaint;
 A consumer or 
 Any recognized consumer association whether the consumer is a member of such association or not, or 
 The central or state government.
 A “Recognized consumer association” is a voluntary consumer association, the one i.e., registered under the Companies Act, 1956 or any
other law for the time being in force.
 Forums in which one can file a complaint
 The complaints under the Consumer Protection Act for medical negligence can be filed at: 
 Forum/Commission  Pecuniary jurisdiction

 The District Forum   Less than 1 crore rupees

 The State Commission   More than 1 crore but less than 10 crores

 The National Commission  More than 10 crores


Compensation claim
 The Indian Medical Council Act, 1956 as amended in the year 1964, provides that the Medical Council of India may prescribe standards of
professional conduct and etiquette and a code of ethics for medical practitioners. The regulations so made may specify which violations
thereof shall constitute infamous conduct in any professional respect, that is to say, professional misconduct.
 The CPA will not be able to help the patients who availed a doctor’s service free of charge or if he has paid only a nominal registration fee.
 However, if a patient did not pay because of some  financial problems or incapacity to pay, they will still be covered under the Act and will
be considered to be consumers and can sue under the Consumer Protection Act.
Medical negligence disposed under COPRA
Total Number of Consumer Complaints Filed / Disposed 
since inception Under Consumer Protection Law
(Updated
on
30.06.2021
)
Cases
Cases filed
Sl. disposed of Cases % of total
Name of Agency since Remarks
No. inception since Pending Disposal
inception
1 National Commission  138334 116174 22160 83.98%  
2 State Commissions 968791 844568 124223 87.18%  
3 District Forums 4457165 4050672 406493 90.88%  
  TOTAL 5564290 5011414 552876 90.06%  

 It is worthwhile to note that a total of 55,64,290 out of 50,11,414 cases have been disposed
of since the inception of the Consumer Protection Forums all over the nation, striking a
http://ncdrc.nic.in/stats.html disposal percentage of 90.06%.
15.Landmark Cases
 Kishan Rao v. Nikhil Super Speciality

 In this landmark judgement the Supreme Court stated that “there cannot be a mechanical or straitjacket approach that each and every medical negligence
case must be referred to experts for evidence.” The court further makes it clear that in these matters no mechanical approach can be followed by these fora.
Each case has to be judged on its own facts. If a decision is taken that in all cases medical negligence has to be proved on the basis of expert evidence, in
that event the efficacy of the remedy provided under this Act will be unnecessarily burdened and in many cases such remedy would be illusory. From this
landmark judgement we can infer that the Consumer forums in the country would not be obliged to refer the cases of medical negligence to an expert
committee before they could issue a notification to the doctor or the particular hospital that is suspected of medical negligence.
 Jacob Mathew vs. State of Punjab & Ors

 The Supreme Court gave the guidelines on how to prosecute a doctor in medical negligence case. The Police & the Investigating officer might not possess
the necessary knowledge of medical science require to investigate or carry out an arrest in such a case.
 Kunal Saha v. AMRI (Advanced Medical Research Institute)

 Popularly known as Anuradha Saha case. The case was filed back in 1998. The Apex Court (Supreme Court) gave the final verdict of the case in the year
2013 and also compensated the victim with 6.08 crore. This particular case expanded the scope of medical negligence in India and took it to a whole new
level. The landmark ruling is supposed to remind doctors, hospitals, and nursing homes that they will be dealt with strictly if they do not maintain their
standard of care
 Achutrao Haribhau khodwa and Ors v. the State of Maharashtra

 The Supreme Court noticed that in the very nature of the medical profession, skills differ from doctor to doctor, and there is more than 1 admissible course
of operation. Therefore, negligence cannot be attributed to a doctor so long as he is performing his duty with due care, caution, and attention. Merely
because the doctor chooses one course of action over other, he won’t be liable.
16.Loopholes/Issues
 Error of sloppy or ill-legible handwriting.

 Hygiene and Sanitation issue, mostly in government hospital. Infrastructure and technological issue is well known.

 In India, there are 1 Doctor for 1456 people and 1.7 nurses for 1,000 population and 0.5 hospital beds for 1000 people and this gap is far more in rural area.

 There are 1 hospital for 20,000 people in India, out which every 2 out of 3 hospitals are private, located mostly in urban area and could be avail by very few
people due to exorbitant high prices.

 Only 37 out of 100 people in India have health insurance.

 Brain Drain of medical profession from India.

 Critical Health Centers don’t have any controls and has huge communication gap with Primary Health Centers.

 Many people still avoid going to doctors until issue is serious or made serious by delaying doctor visits, usually go there instinct and self research (usually
google).

 There is no confirmation/assurance whether less experience/educated doctor or small clinics are suggesting/giving right remedy for the medical issues.

 Information and service integrity, effective payment model discovery and implementation, protection of devices that protects public health, medical research
are lacking or if available than at very few case.

 Even if many of the above issues are solved, yet people are not aware of what symptoms there are going through, what medicines are they taking, what
policy and rights they have, basic or common knowledge of medical field, etc. And this is the case not only of poor and deprived section of society but even
middle class and elite section.
17. Are Doctors doing Welfare Service or
Commercialization Hub
 Hospital sector may see 12-14% revenue growth over 5 years: ICRA

 Pandemic to shave off 40% operating profit of private hospitals: Report

 There is a famous proverb that Doctors don’t suffer losses, but just loss in profit i.e. making less money. Commercialization of HealthCare means
goods hospital with having better facilities, nursing care and technology, provide better accessible, for people.

 Whatever may be the issue arising out of inclusion of medical negligence in CPA there is no doubt the service sector is increasingly becoming
commercialised and doctors becoming a businessman rather than professionals. The cost of treatment is exorbitantly high and considerable cases are
being decided against doctors and about which fraternity has not been able to do anything.

 In a country like India where a doctor is treated as a God and where being a medical practitioner is considered to be one of the noblest profession,
one cannot be astonished to find out that medical negligence is appallingly common. 
A study shows that medical litigation is on the rise by 400% in India.  

 But after all this one should not forget that only medical professional are the one who can give life both to child under mother’s womb or person at
stage of dying. In today’s days calling this sector welfare sector is wrong but calling it as service for money will also be wrong. It’s a service of care
and if by giving you life or re-life if one earns some bucks then what’s wrong. Calling Medical profession a commercialisation service is like calling
solider serving for country a money minded person.

 Medical profession is somewhere between welfare center and commercialisation hub, where one gives life and get pay for his services.
17.Lesson & Remedies
 Not merely going by the version of the patient regarding his symptoms, but also making own analysis including tests and investigations where
necessary.

 Not experimenting unnecessarily.

 And even then should ordinarily get a written consent from the patient.

 No prescription should ordinarily be given without actual examination.

 Full record of the diagnosis, treatment, communications with patient, etc. Should be maintained throughout and up to 4 years after discharge of
patient.

 Ensure presence of female attendant while examining lady patients.

 Regular rating of doctors and staff by the patient and attendants and maintenance of these records.

 Familiarizing themselves with the Indian medical council (professional conduct, etiquette and ethics)

 Due diligence in writing prescription.

 Checks by authorities on private or government or NGO hospitals.

 Regular meetings with the patient and attendant to ensure that they do not have any grievances regarding the treatment or attending staff and doctors.
18.Conclusion
 Though the doctors are seen as God and patients believe that they will get better after the treatment and that they would be healed by the treatment
provided. But sometimes it so happens that even the doctors make mistakes which cost a lot to the patients in so many ways. Also, in some instances the
mistakes made by them are so dangerous that the patient has to face problems and undergo immense sufferings.

 The usage of equipment and medical tools in health care sector should be made  with due care and caution as it can lead to an injury to the consumer
which may further result in the filing of a complaint against the doctors and the other authorities involved. Yet, there is no provision which can make the
manufacturers of such unfit equipment liable for the damages.

 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.

 Another important concern is that the services which are rendered free of charge are excluded from the scope of the Consumer Protection Act, 1986. This
creates a problem for patients who suffer damages.

 People are losing faith in the medical profession due to some serious medical negligence cases which have made them disabled for their remaining
lives. Some serious introspection and analysis are required to be done for the Medical profession. It has utterly failed in self-governance. The medical
ethics need to be reformed and developed so as to serve with complete righteousness.

 We end with this quote by Chael Sonnen “All medicine is made to make you better. If it did the opposite, it would be malpractice.”
 THANK YOU!!

 For listening us patiently; any questions are welcome:)

https://www.youtube.com/watch?v=9Tsqy2Fn4NQ
https://health.economictimes.indiatimes.com/news/industry/consumers-awareness-has-given-a-rise-in-medical-negligence-cases-dr-b-c
-gupta/71798798

Video & Article is attached for further analysis.