Introduction:
The consumer protection act was passed in the year 1986.“In order to better protect consumer interests, the Consumer Protection Act of 1986 makes provisions for the creation of consumer councils and other agencies for timely and effective administration and settlement of consumer disputes”.The act also aims to provide adequate protection and safeguard the rights of the consumer. Hon’ble Supreme Court in the case of Kusum Sharma and Ors. V. Batra Hospital and Medical Research Centre and Ors. gave a definition of medical negligence which states that any person who gives medical advice or treatment to anyone, implicitly accepts that he/she possesses the required skills and knowledge in order to undertake that action. Such a person will be under the obligation to owe some duties to his/her patients which would constitute a duty of care to weigh the merits of taking the case, a duty to weigh the pros and cons of the patient’s treatment options, and an obligation while providing that care. Existence of a legal obligation, breach of that obligation, and damage to the patient from that breach are the three key components of medical negligence. Now liability can be of both civil and criminal nature under medical negligence but this article specifically talks about civil liability.
Remedies under the consumer protection act in cases of medical negligence:
In the case of Indian Medical Association v. VP Shantha&Ors, the Hon’ble Supreme Court rendered a decision and determined that the definition of service in section 2(1)(o)—which specifies that a service of any sort that is made available to potential customers—would apply to the medical profession., including the provision of facilities for entertainment, amusement, housing construction, insurance, processing. Transport, supply of electrical or different energy or dissemination of news or any other information. However, it excludes the provision of any services under a contract of personal service or those that are provided for free. The definition of service mentioned is very wide in nature and would also include the medical profession under it. Two prerequisites must be met for any service to fall under the purview of section 2(1)(o) of the Consumer Protection Act of 1986:
- Free services shouldn’t be offered.
- The Consumer Protection Act does not apply to services provided under a contract for personal services.
Therefore it can be deduced from the above discussion that medical services which are administered free of cost won’t come under the purview of section 2(1)(o) of the consumer protection act 1986.
Indian Medical Association v. V.P. Shantha and Others is a case in point. The Hon’ble court made another observation pertaining to the definition of service and the medical profession, in that it was observed that ‘Services that are often availed by the payment of money but are given for free in exceptional circumstances because the consumer is unable to afford it’ would also come under the purview of the definition of service. Thus it can be said that any patient availing medical treatment for free would be considered a beneficiary and would come under the definition of section 2(1)(d) of the consumer protection act which gives the precise definition of who is a consumer. In order to ascertain whether there was a deficiency of service on the part of a medical practitioner, Section 2(1)(g) has defined ‘deficiency’ “as any flaw, defect, shortcoming, or deficiency in the calibre, character, and manner of performance that must be maintained by or pursuant to any law currently in force or has been undertaken to be performed by a person in accordance with a contract or otherwise, in regard to any service.”
In cases of medical negligence, it is always the patient’s responsibility or that of his family and legal heirs to provide evidence, only in certain exceptional circumstances it can be waived off. But if the act of the medical practitioner was grossly negligent The principle of “Res ipsa loquitur,” which states that “the objects speak for themselves,” would be in effect, and then there would be no need to prove that the act of the medical practitioner was negligent.
Now in order to seek redressal in the cases of consumer disputes there are consumer forums or courts at the national, state and district level. There is 3 tier grievance redressal model in place which include:
- National Consumer Dispute Redressal Commission
- State Consumer Dispute Redressal Commission
- District Consumer Dispute Redressal Commission
The appeals pertaining to the orders passed by any of these forums can be filed within 30 days after the order has been passed. The appeals will be filed in the superior commission in the following manner:
- If an appeal of the district forum’s decision must be made, it will be made to the state commission.
- The national commission must receive appeals against the state commission’s decision.
- And the supreme court must be consulted to submit challenges against the national commission’s decision.
There are some other judgements which helped in expanding the scope of the Consumer Protection Act and bringing Medical Negligence under its purview as well as gave us the crystal clear differentiation of civil and criminal liability under medical negligence:
- Jacob Mathew Vs. State of Punjab. In this instance, the SC court upheld the distinction between the criminal and civil definitions of carelessness. It’s possible that carelessness in criminal law doesn’t always correspond to carelessness in civil law. In order for negligence to be considered an offence, the element of mens rea must be established. Criminal negligence, which cannot serve as the basis for a prosecution, is carelessness that is neither egregious nor of a higher degree. A civil lawsuit may be based on negligence that isn’t overt or of a higher calibre.
- Dr. Suresh Gupta vs Govt. Of N.C.T. Of Delhi &Anr, In this instance, the Supreme Court of India ruled in 2004 that when a patient passed away as a result of medical malpractice, the practitioner was obligated by civil law to make up for the patient’s losses. It is widely established and pretty obvious what the law says about medical malpractice. Criminal law for an offence under section 304A of the Indian Penal Code, 1860, only applies when the patient’s life was in danger as a result of the perpetrator’s egregious carelessness, conduct, and neglect.
Conclusion:
The Consumer Protection Act is one of the social welfare laws established to safeguard the general public, as is abundantly clear from its preamble and numerous Supreme Court rulings. As a result, in order to treat consumers fairly, the law must change to meet the demands of a rapidly evolving society; it must be adaptable and flexible.
Accidental medical treatment is not actionable where medical negligence is. Using the argument of the accident, a doctor frequently escapes responsibility. Inadequate medical malpractice laws in India are a powerful tool used by incompetent doctors to escape responsibility. Even while the idea of medical negligence may be recognised by a number of laws, separate legislation is still required. The more substantial the damages alleged, the more the court cost would be for using the civil court’s jurisdiction to obtain justice. The petitioner’s suffering will be made worse by the unreasonable delay and demanding verification of evidence, even if victims of medical negligence can afford to pay. The Consumer Protection Act of 1986 established the District Forum, State Commission, and National Commission. The Act does not, however, mandate that members in these Forums have a fundamental understanding of medical issues. The medical sector is a scientific one, and there are many technological aspects to it. The members of the redressal authorities might not comprehend some really technical instances. As a result, a thorough redressal procedure is required to handle cases of medical negligence. Thus similar gaps that are still persistent in the consumer protection act 1986 needs to be filled in order to make the act more effective and efficient.
Author(s) Name: Tanishq Bhonsle (National Law University Nagpur)
