Cosumer Protection Medical Profession

7/17/2019 Cosumer Protection Medical Profession

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Consumer Protection Actin Medical Profession

DR HAR ASHISH JINDAL

JR



Contents

• Rights of a Consumer

• Where can a Consumer complain??

• Definitions

• Laws in Medical profession• Consumer Protection Act – 19! "CPA#

• Who is lia$le and Who is not?

• Duties of a doctor

• Pre%ention is $etter • &W'( Anal)sis



• (he Consumers *nternational "C*#+ former *nternational

'rganisation of Consumer ,nions "*'C,#+ the um$rella $od)+

for -./ organisations in o%er 1-/ countries has endorsed

rights0

• 10 &afet)

-0 Choose

0 *nformation

20 3eard

• (he Consumer Rights 4o0 1 to ! are also enshrined in the

Consumer Protection Act+ 19!0

Rights of a consumer

.0 Consumer 5ducation!0 Redress

60 satisfaction of $asic needs

0 3ealth) 5n%ironment



What if thedoctor does

not treat meright??

Patient

Doctor



When a consumer

has an) complaint 7grie%ance against aDoctor7 3ospital

"either 8o%ernmentor Pri%ate 3ospital#

Complaint theMedical

&uperintendent ofthe concerned

3ospital with cop)to Chief Medical

Officer of his area

not satisfied with therepl) of the concernedofficial then he shouldsend his complaint to

the State MedicalCouncil of his area0

not satisfied then hecan send his

complaint to theMedical Council of

India0

Criminal type complaint

effected consumer can file

complaint with the local Police

Station- the e:pert opinion will

$e re;uired to register an) policecomplaint0

<ile a case with the Consumer <orum+Ci%il Court and Criminal Court for

ee!in" compenation for damages

arising out of wrong treatment or

remo%al of sensiti%e $od) parts during

operation0



Laws in Medical Profession

• Doctors ha%e $een lia$le under laws such as Ci%il Procedure Code+

*ndian Penal Code+ Law of Contractors+ Law of (orts and other

specific Legislation0

• under &ection /2A of the *ndian Penal Code "*PC#+ the doctor

who commits criminal lia$ilit) is punisha$le with imprisonment for

a term which ma) e:tend upto two )ears+ or with a fine+ or $oth0

• Ci%il lia$ilit) arises in case of medical ser%ice rendered on

pa)ment of fee+ under section 6 and 62 of the *ndian Contract Act

19!• ,nder the Law of (orts "a wrong that is independent of contract#

ci%il lia$ilit) is applica$le to doctors on the 8rounds of

professional misconduct0



Need for CPA

Draw$ac=s *ndian Penal Code+ Law of Contracts+ Law of (orts

and other specific Legislation>

• "i# Dela) to decisions

• "ii# 3igh cost of $ringing an actions• "iii# limited access to the courts

• "i%# Difficult to pro%e $oth negligence and causation0

4o pro%isions in the *ndian Medical Council Act+ 19.!

• "i# to entertain an) complaint from the patient "ii# to award an) compensation+ etc0 in case the negligence is

pro%ed



Definitions

#ho i a Conumer in medical profeion$$

• A patient who pa)s to get ser%ices of doctor 7hospital+

• An) person who pa)s for the patient+ legal heirs 7representati%es of such patients+

• *n case of death of patient who is a consumer+ legal heirs

"representati%es# of the deceased will $e considered as

@consumer@0• *f the pa)ment has $een made $) an) person who is not a legal

heir of the deceased he too will $e considered as @consumer0



#hat i a Complaint%

• An) allegation+ in writing made $) a complainant that the

ser%ices hired or agreed to $e hired or a%ailed of $) him suffer

from deficienc) in an) respect0

#ho i a Complainant%

• Complainant means

"i# a consumer or

"ii#the Central 8o%ernment or an) &tate 8o%ernment

"iii# an) registered %oluntar) consumer association

"i%# one or more consumers+ where there are numerous

consumers ha%ing the same interests who or which ma=es a

complaint0

Definitions



Definition

• Ser&ice mean an) description which is made a%aila$le to potential users and

includes the pro%ision of facilities in connection with $an=ing+

financing+ insurance+ transport+ processing+ suppl) of electrical

or other energ)+ $oard or lodging or $oth+ housing

construction+ entertainment+ amusement or the pur%e)ing of

news or other information $ut DO'S NO( INCL)D' (H'

R'ND'RIN* O+ AN, S'RIC' +R'' O+ CHAR*'

OR )ND'R A CON(RAC( O+ P'RSONAL S'RIC'S$



Negligence

• Professional negligence the $reach of a dut) caused $) the

omission to do something which a reasona$le man guided $)

those considerations would do or doing something which a

prudent and reasona$le man would not do0

• Medical negligence or malpractice lac= of reasona$le care and

s=ill or willful negligence on the part of a doctor in the treatment

of a patient where$) the health or life of a patient is endangered0

Example : If a junior doctor is involved as part of a surgery, then hisduty, as far as the exercise of the specialist skill is concerned, is toseek the advice or help of a senior doctor !e "ill have discharged his

duty once he does this and "ill not #e lia#le even if he actuallycommits the act "hich causes the injury ,anything apart from his duty



Consumer Protection Act(CPA)

• (he CPA+ 19! is a $ene%olent social legislation that la)s

down the rights of the consumers and also pro%ides means for

their promotion and protection0

• *n 199+ the &upreme Court $rought the medical profession

under the &ection -"1# "o# of CPA0

<eatures>

• safeguard and protect the interest of consumers0

• simplification of procedures for see=ing redressal of

grie%ances of patients or their relati%es0

• less e:pensi%e

• within a limited time frame



How doctors are included in CPA??

• (he 4ational Consumer Disputes Redressal Commisions

order decreed that the doctor patient relationship is a contract

for personal ser%ice and it is not master ser%ant relationship0

• (he doctorpatient relationship is a contract for personal

ser%ice and could not contract of personal ser%ice

• 3ence patients who had sustained inBuries in the course of

treatment can sue doctors in consumer protection courts for

compensation0



Administration

ConsumerProtectionCouncils

CentralCouncils

Chairperson> Minister incharge of the Department of

Consumer Affairs in theCentral 8o%ernment

&tateCouncils

Chairperson> Minister incharge of the Consumer

Affairs in the &tate8o%ernments

DistrictCouncils

Chairperson>District

Collector

A*M>

promoting

consumer aware

Resolution passed $)

these Councils are $e

recommendator) in

nature0



3 tier system of CPA

$tate%ommissio

nDistrict forum

&ational %ommission



Where is a complaint filed?

District <orum

•

if the %alue ofser%ices andcompensationclaimed isless than Rs0-/ la=h

&tateCommission

•

if the %alue ofthe ser%icesand thecompensationclaimed doesnot e:ceedmore thanRs01 crore0

4ationalCommission

•

if the %alue ofthe ser%icesand thecompensatione:ceeds morethan Rs 1crore 0



District <orum

• Chairman > a person who is;ualified to $e a

District udge• (wo or more

mem$ers whoha%e ade;uate=nowledge ore:perience indealing with

pro$lems relatingto %arious fields+

one of whom is awoman

&tate Commission

• Chairperson> a person who is or

has $een Budge ofa 3igh Court+appointed $) the&tate 8o%ernment

• two other

mem$ers with;ualifications ande:perience "as forDistrict <orum#within the &tate

4ational Commission

• Chairperson> a person who is or

has $een a Budgeof the &upremeCourt to $eappointed $) theCentral

8o%ernment0• 2 or more other

mem$ers +one ofwhom shall $e awoman

Chair person and Members



Location

District <orum

• Rohta! DitrictConumer

Court.Conumer+orum

• rd <loor Court 4o0 12• 4ew udicial Comple:

Mini &ecretariat•

Rohta=+3ar)ana1-2//1

• Ph> /1-!--2.../

&tateCommission

• !aryana $tate

%onsumerDisputes'edressal%ommission,(ays &o)*+,$ector Panchkula -.)../

• Ph:0.1/*

/2+1+0.

4ationalCommission

• &ational

%ommission3p#hokta&yay(ha"an,454(lock, 6P7%omplex,I&8, &e"Delhi*..00/)

•

9elephone&os 0..*



% P 8;;;;

% P 8 ; ; $ o " h a t ? ?

?



Who is liable?

• All medical7dental practitioners doing independent

medical7dental practice unless rendering onl) free ser%ice0

• All Pri%ate hospitals charging patients0

• All hospitals ha%ing free as well as pa)ing patients and all the

pa)ing and free categor) patients recei%ing treatment in such

hospitals0

• Medical7dental practitioners and hospitals paid $) an

insurance firm for the treatment of a client or an emplo)ment

for that of an emplo)ee0



When is the doctor liable?

Wrong <udgeme

nt

=ere error in <udgement

When a doctor ta=es adecision that turns out

to $e wrong $ut inthat situation itseemed correct

inadvertent

8ll aspectscovered #ut in

retrospecthighlights thecause of error

&egligence

&ot all thescenarios

"erecovered

d d! di i f li "ili $



ow does ad!udication of lia"ilit# ta$eplace?

Complainant files a written complaint

the forum7 Commission+ admits the complaint

sends a written notice to the opposite part) as=ing for awritten %ersion to $e su$mitted within / da)s0

proper scrutin) either filing of an affida%it or production ofe%idence in the form of interrogatories+ e:pert e%idence+medical literature+ and Budicial decisions0



ow does ad!udication of lia"ilit# ta$eplace?

(he <orum7 Commision is satisfied that an) of the allegationscontained in the complaint a$out the ser%ices are pro%ed

*ssue an order to the opposite part) directing him

compensation to the

consumer 5ee "aiver(o remo%e the

deficienc) in the

ser%ices

am



aminnocentWhere

should Igo?????



Pro%ision of appeal &&&

Within )0days

• An appeal against the decision of the District<orum can $e filed $efore the &tate Commission0

Within )0days

• An appeal against the decision of the &tateCommission to the 4ational Commission

Within )0days

• An appeal against the decision of the 4ationalCommission to the &upreme Court



'M *CD+L ,-R D*P-*AL-, C-MPLAN'*.APPAL*

• 5%er) complaint decided within 9/ da)s from the date

of receipt of notice $) opposite part)+ where there is no

re;uirement for testing of sample etc0 *n the e%ent of such a

re;uirement+ the prescri$ed time is . months0• Appeals disposed of within a period of 9/ da)s0

• *f a complaint7appeal is disposed of after the specified period+

then the <orum7Commission records the reasons for the

dela) in writing0



, ,-R ,LN/ A C-MPLAN'

S.No Value of goods orservices and thecompensation claimed

Amount of feepayable

. 3p to . lakh 's 's .0000

/ >. @akh 's #ut A 2 lakh's

's /0000

) >2 @akh 's #ut A .0lakh 's

's 0000

>.0 @akh 's #ut A /0lakh 's

's 20000

[Section 12(2)]



, ,-R ,LN/ A C-MPLAN'

S.No Value of goods orservices and thecompensation claimed

Amount of feepayable

. 8#ove 's/0 - 20 lakhs 's /00000

/ > 's 20 @akh and upto .

crore

's 00000

) > 's . crore 's 200000

[Section 12(2)]



Conditions of CPA

Limitation Period

• <ile the complaint within - )ears from the date on which the

cause of action has arisen0

Dimial of fri&olou or &e/atiou complaint• the case found to $e fri%olous or %e:atious+ the complaint is

dismissed and an order is made that the complainant pa)s a

cost + not e:ceeding 1/+/// rupees+ to the opposite part0



Conditions of CPA

Penaltie

• Where the defendant or the complainant fails to compl)+ then

it ma) $e punisha$le with imprisonment for a term which is

not $e less than one month $ut which ma) e:tend to three

)ears+ or with fine which is not $e less than Rs -+/// $ut

which ma) e:tend to Rs 1/+/// or with $oth



Doctor - Innocent or "uilty %%%%

• *n order to achie%e success in an action for negligence+ the

consumer must $e a$le to esta$lish to the satisfaction of the

court that >

– the doctor "defendant# owed him a dut) to conform to a

particular standard of professional conduct

– the doctor was derelict and $reached that dut)

– the patient suffered actual damage

– the doctors conduct was the direct or pro:imate cause of

the damage0

• <ailure to pro%ide su$stantialie e%idence on an) one element

ma) result in no compensation0

h i



When istheir a

#reach ofduty ??



Duties of a doctor

'n the $asis of Codes of 5thics "MC*+ -//-# and Declarations+ the

duties of a doctor are

• 10 Duties to the Patient> (hese are > &tandard Care+ Pro%iding

*nformation to the Patient 7Attendant + Consent for (reatment+ and

5mergenc) Care0

-0 Duties to the Pu$lic0

0 Duties towards Law 5nforcers0

20 Duties not to %iolate Professional 5thics0

.0 Duties not to do an)thing illegal or hide illegal acts0!0 Duties to each other0



When does a uestion of duty arise?

• Dut) towards a patient $egins the moment a doctor agrees to

ta=e on the case0 3e must not+ therefore+ a$andon his patient1

• &upreme court ruling Ee%er) doctor+ at the go%ernmental

hospital or elsewhere+ has a professional o$ligation to e:tend

his ser%ices with due e:pertise for protecting lifeF restricted

to situations where there is danger to the life of the person0-

.@axman <oshi v (a#u 6od#ole, 8I' .B+B $% .//Parmanand Cataria vs 3nion of India.BB+



Doctor 0 patient Contract

• (he doctorpatient contract is almost alwa)s of the implied t)pe+

e:cept where a written informed consent is o$tained0

• An implied contract is where one person renders ser%ices under

circumstances indicating that he e:pects to $e paid and the other

person =nowing such circumstances+ a%ails himself of $enefit ofthose ser%ices

'/pre conent

• 5:press oral consent is o$tained for relati%el) minor e:aminations

or therapeutic procedures+ prefera$l) in the presence of adisinterested third part)0



nformed Consent!

• 5:press written consent is to $e o$tained for > "i# all

maBor diagnostic procedures and surgical operations+ "ii#

general anesthesia+ "iii# intimate e:aminations+ "i%#

e:amination for determining age+ potenc) and %irginit)+

and in medicolegal cases

• Must $e e:plained in comprehensi$le nonmedical terms

prefera$l) in local language a$out the "a# diagnosis+ "$#

nature of treatment+"c# ris=s in%ol%ed+ "d# prospects ofsuccess+ " e# prognosis if the procedure is not performed+

and "f# alternati%e methods of treatment0



Reasona"le Care

• *t means that the degree of care and competence that an

Eordinar) competent mem$er of the profession who professes

to ha%e those s=ills would e:ercise in the circumstance in

;uestion0F

• 8eneralist and specialist are e:pected to ta=e reasona$le care

$ut what amounts to reasona$le care with regard to the

specialist differs from what amount of reasona$le care is

standard for the generalist0

• (he law e:pects the specialist to e:ercise the ordinar) s=ill ofhis specialit) and not of an) ordinar) doctor 0



Treat according to Reasonable Skill - Not to

undertake any procedure beyond his skill

* should go to

a specialistGGGG

=D

(AH5 35LP in

• An) complicated cases

• Performing an operation which ma) $e dangerous to life or re;uiring

amputation

• 'perating on a case in which there

has $een a criminal assault+• Performing an operation which ma)

affect the intellectual or reproducti%e

functions of a patient0=D



Professional *ecrets

• A professional secret is one which a doctor comes to learn in

confidence from his patients+ on e:amination+ in%estigations or

which is noticed in the ordinar) pri%acies of domestic life0

• A doctor is under a moral and legal o$ligation not to di%ulge

an) such secret e:cept under certain circumstances0

• Pri%ileged communication is defined as a communication

made $) a doctor to a proper authorit) who has corresponding

legal+ social and moral duties to protect the pu$lic0



Dut# not to %iolate Professionalthics

100-

0 4ot0

4ot to run a medical store 7 open shop for sale

of medical and surgical instruments0

4ot to indulge in selfad%ertisement

4ot to associate with

unregistered medical

practitioner and not

allow them to practice

4ot to issue false certificates and $ills

India



4ot to attend patient when

under the effect of alcohol

4o fee sharing

4ot to tal= loose a$out colleagues

4ot to refuse professional ser%ice on

grounds of religion+ nationalit)+ race+

part) politics or social status0



Duty not to do anythin" ille"al or hide ille"al act

10 Perform illegal a$ortions 7 steriliations

-0 *ssue death certificates where cause of death is

not =nown0

0 4ot informing police a case of accident+ $urns+ poisoning+ suicide+ grie%ous hurt+ gas gangrene0

20 4ot calling Magistrate for recording d)ing

declaration0

.0 ,nauthoried+ unnecessar) + uninformedtreatment and surger) or procedure0

&e: determination



Pre"ention

• PR''N(ION A( P'RSONAL L''L

• PR''N(ION A( PRAC(IC'

• PR''N(ION 0, PRO+'SSIONAL IND'MNI(,

•PR''N(ION 0, P'OPL' S)PPOR( *RO)PS



PR1N'-N A' PR*-NAL L1L

• (rue and M$C$I$ appro&ed 1ualification+ training I

e:perience of recognied centers are the primar) safeguards

against an) litigation0

• Refrain from claim of "uarantee of reult0




• Communication2 (his is the =e) to doctorpatient

relationship0• *ncreasing crowds of patients and improper communication to patient

a$out diagnostics and treatment procedures+ complications and claims

of guarantee success are main reasons for patient dissatisfaction0

• Answer all ;ueries of the patients7relati%e without getting irritated and

patientl)0

• Do not $e a%erse of an) demand7suggestion for second opinion $)

patient7relati%es0• Heep empath)




Interperonal 3eha&iour

• (he whole s)stem of medical esta$lishment should $e made courteous+

and polite0

• (he special training should $e imparted to e:perts a$out dealing with

patients7relati%es under grie%ous mental stress due to some loss7inBur )0

Academic 4 technical up "radation

• (o =eep pace with fast changing scenario of technical ad%ancement+ one

should regularl) attend CM5s+ wor=shops and other academic sessions

should also $e organied to upgrade our Bunior staff and nursing team0




• A thorough =nowledge of medical

ethics and laws is essential for all

medical professionals0

85( A <55DJACH

KKKK*MPR'5



PR1N'-N A' PRAC'C

• (he =e) steps are e:ercising reasona$le s=ill and care in diagnosis

and treatment+ documentation and legall) %alid informed consent0

• (he reaona3le !ill 4 care

• (here are aspects of reasona$le s=ill and care

10 Medical

-0 &ocial

0 Legal



PR1N'-N A' PRAC'C

• Medical apect

<irst and foremost it is imperati%e for e%er)

doctor7hospital7nursing home to e:ercise reasona$le s=ill and

care e:pected of an a%erage person with e;ui%alent

;ualification and e:perience in similar circumstances0

• Social apect

We should alwa)s e:hi$it our reasona$le s=ill and care to the patient7attendants7relati%es+ through e:pressions+ $od)

language+ actions and discussions0 (hese must $e %isi$l)

palpa$le



• Ma=e good clinical notes of findings on e:amination and

treatment gi%en with specific dates and time0• 4egati%e records act as important tool while defending the cases

in court of law0

• Please ma=e sure that )our handwriting is legi$le0

PR1N'-N A' PRAC'C(Legal aspects)

D'C,M54(A(*'4GGG D'C,M54(A(*'4GGGD'C,M54(A(*'4GG0

PR1N' -N 23 PR-, -N L



PR1N'-N 23 PR-,**-NALNDMN'3

• @ indemnit) @ means reim$ursement+ to compensate0

Inurance co&er

• Pro%ides the claim of compensation awarded against

doctor7hospital• 8i%es a sense of mental securit) "e%en in cases of

same negligence#0

•Arrange ad%ocates for the legal help



PR1N'-N 23 P-PL *+PP-R'/R-+P*

• &ocieties –

– Pro%ides social securit)

– regular fellowship that prohi$it the doctors spea=ing foul

against their own colleague0

• Acts as an update as time to time discussions a$out %arious

pro%isions of acts+ cases fought and their results and the

lessons learnt from them0

• Acts as a pressure group on the dissatisfied patient on moral

and emotional grounds0



*W-' ANAL3**



• 3ighl) technical orientation of the

Medical field

• Declining credi$ilit) of medical

Profession0

• Professional Bealous)0

• Lac= of o$Becti%it) and empirical

nature of se%eral regimens

• Commercialiation of medical

profession0

• *nept medical record =eeping

• Lac= of staff

• Pending cases

• Corrupt law)ers

• alued as no$le profession

• 8iant strides in the medical profession

• &ignificant proportion of doctors

committed to protect the Rights

of the Consumers0• &trong consumer mo%ement in

the countr)0

• Re%i%es the 3ippocratic 'ath

• igilant press0

Strengths Weaknesses



• Low le%el of awareness among

patient and doctors0

• *lliterac) and low socio

economic status of patients0

• 5:aggerated claims encouraged

$) law)ers0

• (endenc) of insurance

companies to opt for out of

court settlements0

• 8rowing urge to practicedefensi%e medicine

•8rowing patientconsciousness for ;ualit)

care0

• &uccessful application of the

CPA to other ser%ices7goods0

• Possi$ilit) of strengthening

of MC* Agreeing to the

application of CPA

• Realisation of need for

regular CM5 programmes0

• Clinicopathological meets in

instances of medical

negligence0

ThreatsOpportunities





Final verdict

With CPA medical profession ma) seem

%ulnera$le+ $ut it forces the medical personnels

to $e more responsi$le + accounta$le and remain

upto date to ser%e the societ) in a more effecti%e

and an efficient wa)+ though a legal assurance+

ensuring protection from unnecessar) andar$itrar) complaints+ is the need of the hour0







#eferences$

5$ Smreeti Pra!ah A compariti%e anal)sis of %arious legal

s)stems regarding medical negligence> Criminal Consumer I

(orts law -//.

-0 http>77ncdrc0nic0in7

0 Dr0 Mu=esh Nada%+ @Criminal 4egligence $) DoctorsA

&cenario of Aggressi%e Patients+ Confused Doctors and

Di%ided udiciar)G@+ **<M( -"2# -//20

20 40&at)anara)ana+ 80 iBa)a Humar+ @Consumer Protection

Act and the Medical Profession@+ *ndMedica+ -//!0.0 (alha A$dul Rahman+ @Medical negligence and doctors

lia$ilit)@+ *ndian ournal of Medical 5thics+ Aprilune+ -//.

Documents

Cosumer Protection Medical Profession