It is a very old saying that "Health is Wealth". A healthy person can work with efficiency to earn wealth. Good health is a great asset. It is the most valuable treasure a man could have. Healthcare has emerged as one of the largest service sectors in India. Health sector in India is the responsibility of the state, local and also the central government. Every human being is born free and equal, and endowed with certain rights and duty to take care. These are most important when one is in a noble profession of medical practice. Medical profession is the noblest social service but due to globalization, commercialization and privatization the incidence of medical negligence and ignorance have been most of the also increased. Medical practitioners and hospital management are involved in earning more and more money and becoming so negligent regarding their duties. In order to make them accountable and liable for their misconduct, as per the consumer protection Act 1986, a patient is “consumer” and the medical services provided to him/her will fall under the ambit of the definition of the services provided under the consumer protection act. And whenever there is deficiency in the services, the consumer court can take the matters within its jurisdiction subjection to the pecuniary limitation.
Medical negligence simply amounts to the absence of care on the part of a doctor in discharging his duties to his patient. In other words, breach of duty by a medical practitioner that results in an injury to a patient is what is known as “medical negligence” or “medical malpractice” in the terms of American and English laws. Medical negligence tantamount to a medical professional's "failure to exercise the skill, care, and prudence causing injury to his patient". It is an improper conduct on the part of any member of the medical profession in discharging his duties. Medical negligence assumes many forms. They are viz., failure to attend a patient with due care and caution, refusal to treat a patient in emergency cases, failure to extend post-operative treatment, error in conducting pathological tests, error in clinical judgments, conducting operation without administering proper anaesthesia or without informed consent, transfusion of mis-matching blood, leaving a foreign object in the patient's body after operating and administering wrong medicines etc.
Consumer Law and Rights of Patient In India
Consumer law is in an advanced position as compared to other countries. Doctors need scientific knowledge, technical skill and above all human understanding. Those who use these in accordance with medical ethics provide a unique service to either fellow men or women and build an enduring edifice of character within themselves. It is, therefore a noble profession. Traditionally, the family doctors were considered to be friends, philosophers and guides for the sick. The relationship between the patient and the doctors was considered to be very sacred. It was based on natural trust and faith. Increased mechanization and commercialization of the profession had brought in an element of dehumanization in medical practices.Health care has now been reduced to a business which determines the doctor-patient relationship. It is in this context that the question of consumer protection has become significant in the medical profession.
MEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT:
Consumer Protection Act is not only limited to the goods but also the services. This is the Act came into existence to provide justice and aid in various sphere of the human activity one of them is medical services.
The medical profession or medical practice is one of the dimensions of "healthcare" or "health care delivery". With the entry of corporate sector into the health care arena, a patient who avails of medical treatment in the hospital is named as a "consumer" or a "recipient". The hospital is called "service provider". The treatment (medical or surgery), diagnosis and consultation is considered a "service". Any deficiency or error in medical service may be termed as medical negligence within the meaning of the Consumer Protection Act. Medical negligence or medical malpractice entails professional negligence due to an act or omission by a health care provider in which the treatment provided by him/her falls below the 3 accepted standards of practice in the medical community and this treatment results in injury to the patient or in extreme cases, death of the patient.
The Supreme Court in Indian Medical Council vs. V.P.Shantha (1995) decisively included the Medical profession under Section 2 (1)(O) of the Consumer Protection Act (CPA) which includes in its ambit all medical services offered by the private and government doctors and hospitals. It exempts only those hospitals and the medical practitioners of such hospitals, which offer free service to all patients at all times.
There are some of the elements which are essential for the case of Medical Negligence:
Duty of care by Doctors : The doctor owes a duty to the patients to use diligence, care, knowledge, skill and caution in administering the treatment. Even if a medical man treats the patient out of moral obligation (such as accident, sudden collapse etc.) the relationship is established and the duty continues until the need for care is over or some alternative arrangement is made. This is the sense of responsibility visualized through the theory of responsibility. The concept of breach of duty needs more objective analysis.
Reasonable Care: Every person has a duty to take reasonable care to avoid foreseeable harm to his neighbor. The professional has no duty to guard against the risk, which is beyond the ambit of the professional in contemplation and as such truly unforeseeable. The question whether the risk involved in medical treatment is foreseeable, is to be judged according to the knowledge possessed by the profession at the time of accident and not by wisdom of hindsight.
The breach caused an injury: There was a breach of duty and this breach was an immediate cause to the injury to the plaintiff
Damage: Without damage, there is no basis for a claim, regardless of whether the medical provider was negligent. However, damage can also occur without any negligence. An example for it is when someone dies due to a fatal disease.
NECESSITY OF THE CONSUMER PROTECTION ACT, AND ITS APPLICATION TO THE MEDICAL PROFESSION: This is the foremost question which comes to the mind of the doctors. This necessity arose because the existing laws of the land which provide for action in cases of medical negligence under the Law of Tort and Indian Penal Code have some well documented problems. These include the following:
Delay, which, in medical negligence cases, tends to be greater;
The cost of bringing an action, which is notoriously high in relation to the sums recovered in damages;
limited access to the courts ;
Success depends on proof of both negligence and causation (which can be particularly difficult in cases of medical negligence.
Hence necessity to provide for an alternate system which would be easily accessible, speed and cheap, gave birth to the Consumer Protection Act. This Act was made applicable to the doctors because there are no provisions in the Indian Medical Council Act, 1956.
To entertain any complaint from the patient;
To take action against the Medical Practitioner in case any negligence has been committed;
To award any compensation, etc. in case the negligence is proved.
ABUSE OF THE CONSUMER PROTECTION ACT
The CPA was promulgated primarily to protect the interests of its consumers. However, the fast and rapid dismissal of cases under the Act has led to a growing abuse of the case. Today, it seems that unscrupulous patients have begun to use it as a way of blackmailing medical professionals. However, doctors need to be alarmed as the law safeguards the rights of the medical professional as well. As per section 26 of the CPA, where a complaint is found to be frivolous or vexatious, the Consumer Forum shall dismiss the complaint and order the complainant to pay the costs of the opposite party, not exceeding ten thousand rupees. There are provisions in the Act to control frivolous and speculative complaints.
In a developing country like ours, where crowded millions of poor, downtrodden and illiterate cry out for health care, there is a desperate need for making health care easily accessible and affordable. Remarkable developments in the field of medicine might have revolutionised health care, but they cannot be afforded by the common man. The griefs of the economically backward patient has been increased. The days when any patients could go to their neighbourhood & get an affordable treatment with affection and concern are gone. Now, every doctor wants to be specialist. Every doctor wan to earn money. The competition of becoming specialist & making money, have exhausted many patient both financially & Physically, by moving here and there in search of appropriate specialist. What used to be competent treatment by one general practitioner has now become multi- pronged treatment by several specialists.
Medical negligence and the rights of consumer is flimsy; hence it should be encouraged to develop fundamental and reliable understanding in the field of patients‟ rights to get compensation in the case of Medical Negligence. Hospitals serve only for a limited purpose and does not give much benefit to the patients. Patients‟ protection is a multi-faceted aspect which needs extensive studies in its various aspects. In India the law relating to medical negligence has been developed in tune with the English law. Indian Courts developed several drastic changes through the classic decisions. Several theories developed through the judicial decisions. There is a very thin border to differentiate if they are liable or not. If you look the fact sheet of this case we can see that the doctor was accused for being negligent. This can actually harm a doctor’s reputation when he is not guilty of such an act. Negligent doctors will be punished. And the court makes the point to punish the negligent doctors in a right way.
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.
Modi, A., & Karmakar R.N., (ed.), Textbook of Medical Jurisprudence & Toxicology, 3 rd ed., Academic Publishers; Kolkata, 2008, p. 21.
3rd Ed., Rai Bahadur Jaising P. Modi, Textbook of Medical Jurisprudence & Toxicology 21 (Academic Publisher, 2008)
2nd Ed., B. Prakash Rao, Law Relating to Medical Negligence: Under Civil, Criminal & Consumer Laws (Asia Law house, 2010)
Monti Gogoi, Medical Negligence under the Consumer Protection Act, 1986: the Post V.P. Shantha's Decision by the Supreme Court of India (2014)
Shreya Sahoo, Medical negligence and the liability under the Consumer Protection Act, Blog.ipleaders (Oct. 18, 2020. 11:50AM), https://blog.ipleaders.in/medical-negligence-liability-consumer-protection-act/
By Sanskar Pandey, National Law University and Judicial Academy, Assam