LAW MANTRATHINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

The Consumer Protection Act and Medical Services

Introduction

The Consumer Protection Act Was enacted to enable the consumers to fight against the

malpractices which were rising with the rise of consumerism. The act was successful in dealing

with these problems but as anything cannot be perfect at the first instance, the COPRA was not

an exception. Though the act was comprehensive enough to deal with almost all the problems,

the act found some specific problems in dealing with the medico-legal cases. The very first

problem was related to the issue that whether the act was competent enough to deal with the

medical cases. There were many more problems which emerged with the rise of medico-legal

cases.

The consumer of the health care industry cannot be excluded from the act for it is not only

doctors who are involved in the health care delivery but, the pharmaceutical industry, the

medical equipment companies and other ancillary industries who are involved. If the patient is

not taken as a consumer then the other sectors involved in health care can also escape the

provisions of COPRA.1

The Supreme Court in the case of Charan Singh vs Healing Touch Hospital & Ors2, has

observed that Consumer Protection Act is one of the benevolent pieces of legislation intended

to protect a large body of consumers from exploitation. The Act provides for an alternative

system of consumer justice by summary trial. The authorities under the Act quasi-judicial

powers for redressal of consumer dispute and it is one of the postulates of such a body that it

arrive at a conclusion on reason.

1 Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993) 2 AIR 2000 SC 3138

Defining Medical Negligence

The definition of medical negligence has not changed over decades. Failure to exercise

reasonable skill as per the general standards and prevalent situation is termed as medical

negligence. Therefore failure to cure, occurrence of infection, complication, even a death,

cannot be taken in isolation and termed as medical negligence. The doctor-patient relationship

cannot be termed as personal service. The doctor-patient relationship is a contract for service.

A patient seeks a doctors service for professional reasons.3

However in the matter of professional liability professions differ from other occupations for the

reason that professions operate in spheres where success cannot be achieved in every case and

very often success or failure depends upon factors beyond the professional mans control.

While discussing the scenario in which Consumer protection Act was enacted, The Supreme

Court in the case of M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia4 observed

that- The United Nations had passed a resolution in April, 1985 indicating certain guidelines

under which the Government could make law for better protection of the interest of the

consumers. Such laws were more necessary in the developing countries to protect the

consumers from hazards to their health and safety and make them available speedier and

cheaper redress. Consumerism has been a movement in which the trader and the consumer find

each other as adversaries. Till last two decades in many developed and developing countries

powerful consumer organizations have come into existence and such organizations have been

instrumental in dealing with the consumer protection laws and in expansion of the horizon of

such laws. In our country the legislation is of recent origin and its efficacy has not been

critically evaluated which has to be done on the basis of experience. Undoubtedly the Act

creates a framework for speedy disposal of consumer disputes and an attempt has been made to

remove the existing evils of the ordinary court system.

The first few legal pronouncements In Dr. A.S. Chandra v. Union of India5, a Division Bench of Andhra Pradesh High Court has

held that service rendered for consideration by private medical practitioners, private hospitals

and nursing homes must be construed as service for the purpose of Section 2(1)(d) of the Act 3 Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993) 4 AIR 1998 S.C. 1801 5 (1992) 1 Andhra Law Times 713

and the persons availing such services are consumers within the meaning of Section 2(1)(d)

of the Act.

In Dr.C.S. Subramanian v. Kumarasamy & Anr6, a Division Bench of the Madras High Court

has, however, taken a different view. It has been held that the services rendered to a patient by

a medical practitioner or by a hospital by way of diagnosis and treatment, both medicinal and

surgical, would not come within the definition of service and a patient who undergoes

treatment under a medical practitioner or a hospital by way of diagnosis and treatment, both

medical and surgical, cannot be considered to be a consumer within the the Act but this does

not applies to paramedical services.

In the case of Indian Medical Association v V.P. Shantha & Ors.7, The Apex Court further

cleared the position by discussing the position of unpaid service.

The court held 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.

Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home

or a medical officer employed in a hospital/Nursing home where such services are rendered

free of charge to everybody, would not be "service". The payment of a token amount for

registration purpose only at the hospital/nursing home would not alter the position but if

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 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.

Need for including medical negligence in COPRA

In recent days there has been increasing pressure on hospital facilities, falling standard of

professional competence and in addition to all, the ever increasing complexity of therapeutic

and diagnostic methods and all this together are responsible for the medical negligence. The

Supreme Court has also highlighted the need of inclusion of medical negligence in the purview

of the act. The Apex court held that we are dealing with a problem which centres round the 6 (1994) 1 MLJ 438 7 1996 AIR 550

medical ethics and as such it may be appropriate to notice the broad responsibilities of such

organizations who in the garb of doing service to the humanity have continued commercial

activities and have been mercilessly extracting money from helpless patients and their family

members and yet do not provide the necessary services.

It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied

patient. It is indeed very difficult to raise an action of negligence. Not only there are practical

difficulties in linking the injury sustained with the medical treatment but also it is still more

difficult to establish the standard of care in medical negligence of which a complaint can be

made. All these factors together with the sheer expense of bringing a legal action and the denial

of legal aid to all but the poorest operate to limit medical litigation in this country.

In the case of Lakshmi rajan v malar hospital ltd.8, the complainant noticed development of a

painful lump in her breast for which she consulted a Physician Dr. P.K. Srinivasan, from

wherein she was referred to the second respondent Malar Hospital. She was examined by a

physician of the hospital. The painful lump was diagnosed to be "Fibro Adenoma" of the left

breast and the complainant was advised mammogram and excision biopsy. The mammogram

was done on which showed two well defined nodules in the left breast with features of Fibro

Adenoma. The complainant was again admitted in the Malar Hospital and an ultrasound study

of the ultra abdomen was done. While it revealed other things to be normal but it revealed the

uterus of the complainant to be anteverted and ovaries normal and there was no indication of a

Pro-lapsed or descended uterus. The complainant was operated upon on and when she regained

consciousness she was shocked to be told by the appellant that her uterus has also been

removed. In this case compensation was awarded by the court.

In the case of M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia9

The patient (minor) was admitted in a hospital and the doctor made the diagnosis that the

patient was suffering from typhoid and intimated the parents that medicines have been

prescribed for the treatment of the typhoid fever.

The injection In Lariago was administered intravenously to the minor patient. No sensitive test

to find out whether there would be any adverse reaction on the patient before administering the

injection was done. 8 Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993) 9 Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993)

The child was admitted in the Pediatric Intensive Care Unit of the All India Institute of

Medical Science. In the Institute the doctors examined the minor child thoroughly and

informed the parents that the child is critical and even if he survives, he would live only in a

vegetative state as irreparable damage had been caused to his brain and there was no chance of

revival of the damaged parts.

The complainant alleged that the child on account of negligence and deficiency on the part of

the hospital authorities suffered irreparable damages and could survive only as a mere

vegetative and accordingly claimed compensation to the tune of Rs. 28 lacs.

On behalf of the other party objection was filed before the commission taking the stand that no

payment having been made it cannot be said that the services of the hospital having been

availed for consideration and as such the complainant is not a consumer within the definition of

Consumer in the Consumer Protection Act.

The learned counsel appearing for the hospital contended that the complaint having been filed

by the minor child who was the in-patient in the hospital through his parents the said minor

child can only be the consumer and the parents cannot claim any compensation under the

Consumer Protection Act for the mental agony they have suffered. The learned counsel then

urged that under the Consumer Protection Act the consumer to whom services has been

provided can make a complaint and in the case in hand the services having been provided to

the minor patient, he becomes the consumer and consequently no compensation can be

awarded in favour of the parents of the consumer. The learned counsel lastly contended that

under Section 14(1) (d) of the Act the Commission would be entitled to pay such amount as

compensation to the consumer for any loss or damage suffered by such consumer and in the

case in hand the minor child being the consumer the Commission was not competent to award

compensation to the parents for the mental agony they have suffered.

Therefore there were three major issues before the Honorable Court-

1. The minor child being the patient who was admitted into the hospital for treatment can the

parents of the child be held to be consumers so as to claim compensation under the provisions

of the Consumer Protection Act?

2. Is the commission under the Act entitled to award compensation to the parents for mental

agony in view of the powers of the commission under Section 14 of the Act?

3. Even if the child as well as the parents of the child would come under definition of the

'consumer' under Section 2(1) (d) of the Act whether compensation can be awarded in favor of

both the consumers or compensation can be awarded only to the beneficiary of the services

rendered, who in the present case would be child who was admitted into the hospital?

The court answered these questions in the following way-

The section 2(1)(d) of the act states that

a consumer would mean a person who hires or avails of the services and includes any

beneficiary of such services other than the person who hires or avails of the services. Therefore

in the present case both the child and the parents are consumers and therefore there is nothing

which can prevent the court/commission from awarding compensation to the parents for the

mental agony suffered by them.

There is an array of cases where adequate compensation has been awarded to the consumers

In the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr.10, the patient, a young

man with no history of any heart ailment, was subjected to an operation performed by Dr.

Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The

patient died. On investigation, the cause of death was found to be "not introducing a cuffed

endotracheal tube of proper size as to prevent aspiration of blood from the wound in the

respiratory passage". The Bench formed an opinion that this act could be described as an act of

negligence as there was lack of due care and precaution.

In the case of Laxman Balkrishna Joshi vs Trimbak Bapu Godbole And Anr11, the person

suffered a fracture of the femur of his left leg. First aid was given by a local physician though

the leg was not fully or properly immobilized, and, he was taken to the appellant's hospital 200

miles away, in a taxi after a journey of about eleven hours. The appellant directed his assistant

to give two injections of morphed but only one injection was given. The patient was then given

some treatment in the operation theatre and a little later the patients condition deteriorated and

he died. It was found that the death was caused due to shock resulting from reduction of the

fracture attempted by the appellant without taking the elementary caution of giving anesthetic

to the patient and therefore the doctor was made liable.

The court also observed that, A person who holds himself out ready to give medical advice

and treatment impliedly holds forth that he is possessed of skill and knowledge for the purpose. 10 (2004) 6 SCC 422 11 1969 AIR 128

Such a person when consulted by a patient owes 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 the administration of that treatment. A breach of any of these duties gives a

right of action of negligence against him. The medical practitioner has discretion in choosing

the treatment which he proposes to give to the patient and such discretion is wider in cases of

emergency, but, he must bring to his task a reasonable degree of skill and knowledge and must

exercise a reasonable degree of care according to -the circumstances of each case.

In the case of Martin F. D'Souza v Mohd. Ishfaq12, the Apex court has observed that a

medical practitioner is not liable to be held negligent simply because things went wrong from

mischance or misadventure or through an error of judgment in choosing one reasonable course

of treatment in preference to another. He would be liable only where his conduct fell below

that of the standards of a reasonably competent practitioner in his field. For instance, he would

be liable if he leaves surgical gauze inside the patient after an operation or operates on the

wrong part of the body, and he would be also criminally liable if he operates on someone for

removing an organ for illegitimate trade.

The professional is one who professes to have some special skill. A professional impliedly

assures the person dealing with him (i) that he has the skill which he professes to possess, (ii)

that skill shall be exercised with reasonable care and caution.

Judged by this standard, the professional may be held liable for negligence on the ground that

he was not possessed of the requisite skill which he professes to have.

In the case of Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors13, the patient

was admitted to the government hospital where she delivered a child and had a sterilization

operation on. This operation is not known to be serious in nature and in fact was performed

under local anesthesia. Complications arose thereafter which resulted in a second operation

being performed on her. She did not survive for long and died. The patient had had a minor

operation and due to the negligence of the doctors a mop (towel) was left inside her peritoneal

cavity. It is true that in a number of cases when foreign bodies are left inside the body of a

human being either deliberately, as in the case of orthopedic operations, or accidentally no

harm may befall the patient, but it also happens that complications can arise when the doctor

acts without due care and caution and leaves a foreign body inside the patient after performing

an operation and it suppurates. Pus was formed inside the body and it gave rise to many

12 AIR2009SC2049 13 1996 SCC (2) 634

difficulties to the patient and she ultimately died. The formation of pus leaves no doubt that the

mop left in the abdomen caused it, and it was the pus formation that caused all the subsequent

difficulties. The Court held that, There is no escape from the conclusion that the negligence in

leaving the mop in abdomen during the operation led, ultimately, to her death.

In the case of Dr. Tokugha v. Apollo Hospital Enterprises Ltd.14 , a Doctor in interest of the

girl revealed the secret that his fianc is being tested positively in a HIV test, the boy filed a

suit that the Doctor has ruined his life by making his secret open to the world.

In this case it was then held that rule if confidentiality is subject to certain exception when the

circumstances demand disclosure of the patients health in public interest especially in cases of

where it s for save other from immediate harm and future health risks. And it was duly added

as well that the right of privacy of a person is not an absolute right as principally when the fact

of a persons health condition would be violating the right to life of another person.

In the case of Smt. Jahira v. Govt. of Uttar Pradesh15 it was held that a person not paying any

amount as a compensation for the medical services rendered to him is not entitled for any

compensation at all form the other side, as in this case a lady went under MTP ( Medical

Termination of Pregnancy) and the operation was done in a Government hospital and free of

cost, the appellant just paid only the amount for prescription, room rent and for the Glucose

nothing else was charged from her and not a single Rupee regarding the surgery.

Then it was held by the court that a patient does not remain consumer if he is not being charged

any amount monetarily and cost for the incidental charges would not be making any difference

to the status quo.

Conclusion

Therefore we can now come to the conclusion that the Consumer Protection Act is competent

enough to deal with the medico-legal cases and it is also clear that the consumers of medical

services can claim compensation for the irresponsible behavior of the doctors. However it is

also clear that each and every mistake cannot be attributed to the doctors as they are humans

and they cannot be made liable for the situations that may arise despite due care and diligence.

14 A.I.R. 1999 S.C. 495 15 II (2001) C.P.J. 354

By:- Jagjeet Vashishtha , Student , Semester VI

Institute of law Nirma University

Harsh Sharma, Student , Semester IV

Institute of law Nirma University