Medical negligence and the liability under the Consumer Protection Act

BY Shreya Sahoo

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.

Therefore, it is quite inevitable that the medical profession which is perceived as the noblest profession is miserably failing to acknowledge its duty to serve the people properly.

What is Medical Negligence?

The definition of ‘Medical Negligence’ has remained unchanged over the time- “Failure to exercise reasonable skill as per the general standards and the prevalent situation is termed as medical negligence.”

Medical Negligence is the tort which takes cognizance of the following:

1. A legal duty either express or implied to treat patient must exist.
2. Breach of such legal duty, if any, in comparison to the expected conduct and performance of the people from the same profession.
3. Presence of damage caused by such breach which must result in injury which needs to be compensated.

The remarkable statement of law propounded in the famous Bolam’s case has been extensively accepted as decisive for the standard of care necessary for both, professional men generally and medical practitioners specifically. The two things which are vital before hearing any case relating to medical negligence have been noted below:

1. When evaluating the standard of care as adopted in the practice by the medical practitioner, the standard of care is assessed bearing in mind the knowledge obtainable at the time contemporary to the occurrence of the incident, and not at the date of trial.
2. At the time of emergence of medical negligence caused due to failure to use some particular medical equipment, the charge will not be successful if the medical equipment was not present or accessible at that moment of time on which it is recommended as must have been employed.

What is not Medical Negligence?

• It is imperative to quote Lord Denning’s judgment in Roe vs. Minister of Health, where he has tried to explain an act that would not amount to medical negligence: “But we should be doing a disservice to the community at large if we were to impose liability on hospitals and doctors for everything that happens to go wrong. Doctors would be led to think more of their own safety than of the good of their patients. The initiative would be stifled and confidence shaken. A proper sense of proportion requires us to have regard to the conditions in which hospitals and doctors have to work. We must insist on due care for the patient at every point, but we must not condemn as negligence that which is only a misadventure.”
• Without a second thought, the doctor has complete autonomy in choosing and administering the appropriate therapy or treatment which he considers fit for the particular patient and puts forward to give to his patient and such autonomy is relatively higher in instances of emergency.
• Hence, any default to cure, complication, an occurrence of an infection, or even death, cannot be considered in segregation and labelled as being an act of medical negligence. Failure of operation and side effects cannot always be said to be due to medical negligence.

Medical Services Within the Purview of Consumer Protection Act

It was only after the judgment of Supreme Court in Indian Medical Association vs. VP Shantha, that medical profession has been brought under the purview of Consumer Protection Act,1986 vide Section 2(1)(o), 1986 of the act.

What Can Be Considered As ‘services’

1. Contract of Service – It connotes a relationship between a master and servant which involves complete obedience of a just and reasonable order provided by the master to the servant with respect to the mode and manner of performance of the order. This does not come within the purview of COPRA.
2. Contract for Service – It refers to a contract in which one party accepts to render services, for example, professional or technical services to or for some other person in the discharge or conduct of which, he is not bound by any control or direction but employs his professional skills and exercises his own knowledge and comprehension.

In order to bring the ‘service’ within the purview of the definition of services provided in Section 2(1)(o) of COPRA following basis needs to be adhered to:

1. Service(s) should not be free of charge
2. Service(s) under a contract of personal service is not covered under the Consumer Protection Act.

Therefore, medical services under the contract of personal services or rendered free of cost will not be within the scope of the definition of the services itself provided under Section 2(1)(o) of COPRA.

“Free” Medical Services Covered Under Consumer Protection Act

In the judgment rendered in Indian Medical Association vs. VP Shantha, the court chose to assume a narrow approach for cases pertinent to ‘free medical care’. It differentiated between the following circumstances-

1.Services which are rendered free of cost to everyone availing them;

2.Services which must be availed by payment by everyone availing of them;

3.Services which are availed usually by payment, however, are made available free of cost to the persons who cannot afford to pay for them.

The Apex court in this landmark judgment found that services rendered by doctors and hospitals which fall in the second and third category will be covered within the ambit and definition of a “service” as defined in Section 2(1)(o) of COPRA. Therefore, persons who avail free service are “beneficiaries” and as such are covered within the ambit of definition of “consumer” under Section 2(1)(d) of the Act.

Additionally, any forum trying a case involving an issue of medical negligence in any jurisdiction must take into consideration at least the following three considerations before coming down to a decision. These are that:

1. legitimate and disciplinary method must be strictly initiated on firm, virtuous and scientific grounds.
2. patients will be better treated if the actual causes of harm are correctly recognized and befittingly acted upon.
3. numerous incidents include a contribution from more than one person, and it is more likely to hold accountable the last discernible element in the chain of causation and mainly accuse this person of holding the ‘smoking gun’.

Burden of Proof

The patient or relatives have the burden of proof to prove the negligence, except in cases where relatives have no access, for example in a nursery, intensive care unit, operation theatre, etc. Res ipsa loquitur is a state of gross negligence where things speak for themselves and hence there is no need to prove.

In Fardon v.Harcourt Rivington, the court set out the ‘reasonable man test’ for foreseeable ability. “If the possibility of danger emerging is reasonably apparent, then to take no precautions is negligence; but if the possibility of danger emerging is only a mere possibility which would never occur to the mind of reasonable man, then there is no negligence in not having to take extraordinary precautions.”

A study demonstrated that the majority of cases are from:

• Gynaecology
• Obstetrics
• Surgery branches

In a writ petition, Mr. R Raheja vs. The Maharashtra Medical Council the High Court of Bombay has given a landmark judgment that the patient or his legal heir have the privilege to acquire copies of the entire medical record on payment of reasonable costs.

Defenses for Medical Negligence

There are several defenses which are available to a medical professional accused of medical malpractice which has been enumerated below-

1. Known complications
2. Difference of opinion
3. Unexpected or unforeseen results
4. Contributory negligence
5. Emergency care

Where to seek Redressal

Consumer disputes redressal agencies which are popularly called as Consumer Forums or Consumer Courts have been created under the act at national, state and district level. In India, the COPRA, 1986 envisages three-tier grievance redressal mechanisms:

1. National Consumers Dispute Redressal Commission
2. State Consumers Dispute Redressal Commission
3. District Consumer Disputes Redressal Commission

There is a particular time limit provided for the disposal of cases under the Act. A notice is sent to the respondent after the complaint is registered. The respondent compulsorily has to reply within a time period of 45 days, failing which ex parte hearing can be held. An appeal can be filed in the higher commission, within 30 days from the date of the decision.

An appeal can be filed before the State Commission against the decision of the district forum. An appellate jurisdiction has been provided with the National Commission for a further appeal against the decision of the State Commission. Any verdict rendered by the National Commission can be challenged in the Apex Court of India as well.

It is worthwhile to note that a total of 44,47,487 out of 48,85,877 cases have been disposed of since the inception of the Consumer Protection Forums all over the nation, striking a disposal percentage of 91.03%.

Sl. No.	Name of Agency	Cases filed since inception	Cases disposed of since inception	Cases Pending	% of total Disposal
1	National Commission	124418	105070	19348	84.45%
2	State Commissions	812044	696466	115578	85.77%
3	District Forums	3949415	3645951	303464	92.32%
	TOTAL	4885877	4447487	438390	91.03%

Total number of consumer complaints filed /disposed since inception under COPRA

Procedure for Filing a Case

1. Consumer Complaint as is provided under Section 21(a)(i) of COPRA, 1986, is to be filed with the Registry of this Commission within a time span of two years from the date on which the cause of action has arisen,where the value of the goods or services and compensation, claimed, is more than Rs.10,00,000.

1. First Appeal as is provided under Section 19 of COPRA, 1986 – Any person distressed by an order rendered by the State Commission in application of its powers granted by Section 17(a)(i) may consider an appeal against such order before this Commission within a time frame of 30 days, beginning from the date the order was received.
2. Revision Petition as is provided under Section 21(b) of the COPRA, 1986 can be filed to ask for the records and advance suitable orders in any consumer dispute which is lying unresolved or has been determined by any State Commission,within a time frame of  90 days beginning from the date the order was received, be filed with the Registry of this Commission.
3. Transfer Application as is provided under Section 22(b) of COPRA, 1986 – The National Commission may, on the application of the aggrieved party or of its own will, at any juncture of  the proceeding, in the best interest of equity, transfer any complaint lying unresolved before the District Forum of one State to a District Forum of another State or before one State Commission to another State Commission.

How to File a Consumer Complaint

1. The grievance can simply be filed on a plain paper.
2. There is no requirement of stamp paper for any declaration.
3. The complaint should have all the details of the aggrieved party and the party against whom the complaint is being filed.
4. The complainant can register the complaint, in person or through his/her authorized agent or by post to be sent to the Redressal Agency.
5. Engaging a lawyer is not mandatory to file a case under COPRA.
6. The fees charged will depend upon the value of the claim and is generally low.

Where to File a Complaint

According to the Consumer Protection Act, 1986 a complaint can be filed in:

1. If the value of the claim is more than one crore – National Consumer Disputes Redressal Commission
2. If the value of the claim is more than 20 lakhs but is within one crore – State Consumer Disputes Redressal Commission
3. If the value of the claim is up to 20 lakh – District Consumer Disputes Redressal Forum

Fee for Filing Complaint

Every grievance filed shall be accompanied by a fee in the form of crossed Demand Draft drawn on a national bank or via a crossed Indian Postal Order drawn in favour of the Registrar of the State Commission and payable at the respective place where the State Commission or the National Commission is based.(Table)

Guidelines Issued by Supreme Court – Case to Be Referred to an Expert Body

Whenever a Consumer Forum whether it is a National, State, District forums or a criminal court receives a complaint against a doctor or then it must refer the issue to a competent doctor or a committee of doctors and get the allegations confirmed.

After the confirmation by the aforementioned parties, if it is prima facie found that medical negligence has taken place, then only a notice can be sent to the doctor or the hospital.
According to the criterion laid down in Jacob Mathew case, the police officials were warned not to arrest or harass doctors, otherwise, they will have to face legal action.

Frivolous Litigation

Section 26 has been provided to keep a check on the tendency of filing false and trivial or vexatious complaints. Where the Consumer Disputes Redressal Forum is satisfied that the complainant had approached the Forum without adequate justification, and frivolously, it provides for the following actions to be taken:

• Dismissal of the frivolous and vexatious complaints.
• Orders while dismissing the complaint that the complainant shall compensate the opposite party such costs, not surpassing ten thousand rupees, as may be specified in the order.

Frivolous lawsuits have been the major reason for increasing healthcare cost.

Impact of Consumer Protection Protection Act on Healthcare Services

Hereunder are the negative impact on the medical sector:

• Administration and prescription of defensive medicines by doctors
• Increase in the cost of healthcare services
• Filing of frivolous lawsuits leading to unnecessary litigation

Hereunder are the positive impact on the medical sector:

• Quick grievance redressal
• Quality of healthcare services has become better
• Training of medical practice
• Improvement in introspection by the medical practitioners about their profession

Conclusion

• Under the Consumer Protection Act, the goods bought and used for commercial purposes or activities dedicated to the extraction of profit are not covered under the purview of COPRA. This particular provision needs to be amended since it keeps out all medical equipment used in hospitals from the scrutiny of the act.

Usage of defective equipment and medical tools in health care can be pernicious and lead to injury to the consumer resulting in a complaint against the doctors. Yet, as per this provision, the manufacturers of such unfit equipment will go scot-free.

Another concern is that the services which are rendered free of charge are excluded from the scope of COPRA. This at one stroke denies recourse for those aggrieved persons who have availed such free medicare.

It is necessary for the medical profession to undertake some serious introspection. The Medical Sector needs to accept the fact that it has failed miserably in self-governance. It needs to organize various ethical forums so as to revitalize and serve with complete righteousness.