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Whether negligent services offered by doctors and hospitals free of charge can be a ground for medical negligence under the Consumer Protection Act?

THE CONSUMER PROTECTION ACT, 2019 received its assent by the President on the 9th August, 2019. The purpose of this enactment is to protect the interests of consumers, and for the said purpose establishes authorities for timely and effective administration and settlement of consumers’ disputes. Considering the scope of the topic it is paramount to first holistically understand the meaning of medical negligence before dwelling on the aspects related to the Consumer Protection Act.

Medical negligence is an irregular conduct by any member of the profession or any related services during the discharge of professional duties. Negligence is the breach of legal duty of care.

In the case of Jacob Mathew v. State Of Punjab And Another ((2005) 6 SCC 1) the Supreme court held that Negligence was a breach of a duty caused by the omission to do something which a reasonable man, guided by considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do. The apex court further states that negligence consists the neglect of the use of ordinary care or skill towards a person.

Through this we can understand that the key ingredients for negligence are, the legal duty to exercise due care, breach of the said duty and consequential damage by such action. Cause of action for negligence arises only when damage occurs as damage is a necessary ingredient as well. In simpler terms Medical negligence is the improper or unskilled treatment of a patient by a medical practitioner. This including negligence in taking care from a nurse, physician, surgeon, pharmacist, or any other medical practitioner. Medical negligence leads to ‘Medical malpractices’ where the victims suffer some sort of injury from the treatment given by a doctor or any other medical practitioner or health care professional as mentioned above.

Improper administration of medicines, performing the wrong or inappropriate type of surgery, not giving proper medical advice, leaving any foreign object in the body of the patient such as a sponge or bandage, etc. after the surgery etc. are few instances of negligence by the medical professional. In this spirit, negligence caused can be categorized as follows:

  • Wrong/false diagnosis: Diagnosis is the preliminary and the most influential step in administering medical care and treatment. Diagnosing symptoms correctly requires proper care and attention. If a patient is not treated properly due to any mistake in diagnosis, the doctor can be made liable for any further injury or damages caused as a result of the wrong diagnosis.
  • Delay in diagnosis: This can be argued as medical negligence where a different doctor would have reasonably given proper diagnosis in a timely fashion against the delay of the current doctor. A delay in diagnosis not only extends the suffering but it also causes the problem to worsen with time. Any delay in the identification and treatment of an injury drastically reduces the chance of recovery of a patient.
  • Error in surgery: Surgical procedures requires enormous level of skill and precession. Due care and established standard procedures are to be followed essentially. Wrong-site surgery, lack of treatment of lacerations of any internal organ, severe blood loss, or a foreign object being left in the body of the patients, all comes under surgical errors.
  • Errors in the administration of anesthesia: Anesthesia is a risky part of any major medical operation and requires a specialist (anesthesiologist) to administer and monitor its effect on the patient. The anesthesiologist prior to any medical procedure is required to review the patient’s condition, history, medications, etc. in order to determine the most suitable medicine and dosage of anesthesia to use. Anesthesia malpractice can happen even during the pre-operation medical review or during the procedure itself.
  • Childbirth and labor malpractice – Childbirth is an exhaustive and physically intensive process to the mothers. It causes further difficult if not handled properly by the doctors and nurses. There are several instances of negligence during childbirth including the mishandling of a difficult birth, complications with induced labor, misdiagnosis of a newborn medical condition, etc.
  • Long-Term negligent treatment – Medical treatment is a long process. Observations have to be drawn by the doctors timely by noticing the effects of the treatment. If not this has hazardous effects to the condition of the patients.
  • Unnecessary surgery: This is a subset of error in diagnosis. Unnecessary surgery without proper consideration of other options or risks causes great harm to patients.  

Res ipsa loquitur

The Latin maxim “res ipsa loquitur” means “the thing speaks for itself.” In terms of medical negligence, it refers to the cases where the doctor’s treatment was far below the set standards of care hence assuming that negligence was present. If the injury so caused is of a nature which could not have occurred without negligence then it is assumed that negligence had occurred.

Consumer Protection Act, 1986 and Consumer Protection Act, 2019

The Consumer Protection Act, 1986 was repealed and hence facilitating the new and current enactment of 2019 for protecting the rights of the Consumers. For the purpose this article it is important to understand the meaning enumerated of the terms “consumer” and “deficiency” (as medical negligence results from service).

Consumer

Section 2 (1)(d) of The Consumer Protection Act, 1986 defines “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.”

The 1986 enactment also provides an explanation for “commercial purpose” under this clause. It states that it does not include the use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.

The new enactment of 2019 defines “consumer” in section 2 (7) and mentions the same principles enshrined in its predecessor enactment and enhances it by providing further explanation to the expressions “buys any goods” and “hires or avails any services” . It is stated that these includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing.

Deficiency

Section 2 (1) (g) of The Consumer Protection Act, 1986 defines “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

The new enactment of 2019 defines “deficiency” in section 2 (11) and mentions the same principles enshrined in its predecessor enactment and enhances it by further stating that expression deficiency includes any act of negligence or omission or commission which causes loss or injury to the consumer and deliberate withholding of relevant information to the consumer affecting the consumer.

 

Medical negligence and Consumer laws

Indian Medical Association vs. V.P. Shantha

The landmark judgement of the Supreme Court in Indian Medical Association vs. V.P. Shantha (1995 SCC (6) 651) made all the medical services fall under the purview of the Consumer Protection Act.

Here the Hon’ble Mr. justice Kuldip Singh, Hon’ble Mr. justice S.C Agrawal and Hon’ble Mr. justice B.L Hansaria discussed the important question of medical negligence i.e. if a medical practitioner could be said to rendering services under Section 2(1)(o) of the Consumer Protection Act. 

Section 2(1)(o) states the definition of “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

The apex court stated that Medical Services should be treated as “services” within the ambit of Section 2(1) (o) of the Consumer Protection Act, 1986. Medical services was stated not to be a contract of personal service as there is no master-servant relationship between them. The Court further stated that medical services rendered against payment of consideration were also within the scope of the Act. The payment of consideration of a medical service by some third party and is also treated under the ambit of this Act. The Court also mentioned that 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 as well.

The most important precedence of this case for our consideration is the aspect of free services. Here in this case it was stated that, Medical Services which are free of charge are not considered under the purview of Section 2(1) (o) of the Act. 

Dr Vijil v. Ambujakshi T.P (WP(C) NO. 970 OF 2022)

The Kerala High Court recently expressed that the medical services would be covered under Section 2(42) of the Consumer Protection Act, 2019, unless they were provided for free or under a personal service contract. Such were the words of the Hon’ble Mr. Justice N. Nagaresh. 

As per Section 107 of the consumer protection act, 2019, The Consumer Protection Act, 1986 was repealed and hence facilitating the new and current enactment of 2019 for protecting the rights of the Consumers. Section 2 (42) of the 2019 enactment defines “service” as, “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, telecom, boarding 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

The current enactment enhances the scope of the term “service” but still retains the philosophy of free service i.e. the act does not cater to any free service. Hence making the precedence set in Indian Medical Association vs. V.P. Shantha still valid.

As established, the services offered by the doctor or the hospital don’t fall within the definition of ‘services’ under Consumer Protection Act when rendered free of cost. Therefore in case of free services a ground for medical negligence cannot be established under the Consumer Protection Act. At such situations patients can claim compensation under the tort law. Thus, it can be stated that where the Consumer Protection Act ends, the tort law begins.

Conclusion

As seen in the recent times of the pandemic, our medical professionals shed their blood, sweat and tears to save lives but situations can definitely arise where due to the neglect of a professional a patient suffers profusely. Such negligence is a mark on the medical community. But it is also important to note that the intention of this article is not to discount the efforts and toil of our esteemed medical professionals. In cases of free medical treatment, the power lies with the judiciary to form principles and make way for the development of tort laws in the nation.

References:

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Article by ADITYA G S

 

 

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