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LAW MANTRATHINK BEYOND OTHERS

(National Monthly Journal, I.S.S.N 2321-6417)




MEDICAL NEGLIGENCE AND CONSUMER RIGHTS: AN ANALYSIS
Dr. Madhuri Irene. M

Anita Yadav

*
INTRODUCTION
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. But majority of healthcare
services in India are provided by the private sector.
The highly respectable, honourable and noble is medical services. Greater sanctity and
respect is attached to that profession. But now days, it has become commercialization. Many of
them are not adhering to their professional ethics and code of the conduct. With increasing day
by day professional misconduct and negligence in the field of the medical profession has been
raised various issues in this concern. 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.

WHAT IS PROFESSIONAL NEGLIGENCE?

Asst.professor, School of Law Christ University, Bangalore. Reach the author at madhuri.irene@christuniversity.in

*Asst.professor, School of Law Christ University, Bangalore reach the author at anita.yadav@christuniversity.in

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In the law of negligence, professionals such as lawyers, doctors, architects and others are
included in the category of persons professing some special skill or skilled persons generally.
Any task which is required to be performed with a special skill would generally be admitted or
undertaken to be performed only if the person possesses the requisite skill for performing that
task.Judged by a certain standard, a professional may be held liable for negligence on one of two
findings:
1. either he was not possessed of the requisite skill which he professed to have possessed, or
2. He did not exercise, with reasonable competence in the given case, the skill which he did
possess.
These are two standards upon which a pro can be held liable.
Also, these grounds have to be proved without any reasonable doubt.

CONSUMER PROTECTION ACT AND MEDICAL NEGLIGENCE :
One of the important milestones in the area of the consumer protection in the country has
been the enactment of the Consumer protection Act in the year of the 1986. 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 definition of the consumer defined in the Act is wide enough to encompass
not only the goods but also the services. The Consumer Protection Act of 1986 was enacted with
an objective to provide better protection of the interests of the Consumers, to make provision for
the establishment of Consumer Councils and other authorities for the settlement of consumer
disputes. This is indeed a very unique and highly progressive piece of Social Welfare
Legislation. The provisions of this Act are intended to provide effective and efficient safeguards
to the consumers against various types of exploitations and unfair dealings. Unlike other laws,
which are basically punitive or preventive in nature, the provisions of the Act are compensatory.
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
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accepted standard of practice in the medical community and this treatment results in injury to the
patient or in extreme cases, death of the patient.
There are four vital elements in a case of medical negligence. They are-
1. A duty was owed: It is necessarily important to show that the doctor or medical
practitioner owed a duty of care to the plaintiff where the latter opted for the medical
treatment.
2. The duty was breached: The plaintiff must prove that the health provider did not
comply to the required and standard care, thus breaching his/her duty.
3. The breach caused an injury: There was a breach of duty and this breach was an
immediate cause to the injury to the plaintiff.
4. 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.

As it is already, mentioned that patient is consumer under the consumer protection act and the
services provided to the patient will fall under the definition of the service defined under the
consumer protection act. Therefore, there is need to analyse definition of the consumer, services
and deficiency provided under the Consumer protection act, 1986.
WHO IS A CONSUMER?:
consumer
1
means any person who
(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

1
2(d) of Consumer Protection Act, 1986
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(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 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 purposes;
By this definition, it can be clearly documented that, definition of the consumer is wide enough
to cover the patient who promises to pay medical expenses.
Now another definition which needs to analyse is definition of service to understand the properly
medical services.
service
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means service of any description which is made available to potential users
and includes 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;
Analysis of the above definition provides list of the certain category of the services. This list is
not an exhaustive one; therefore, it can include any kind of the services belong to ant sector.
Hence, medical services will also fall within the purview of this definition. However, in order to
bring the service within the purview of the definition following criteria need to satisfy:
1. Services should not be free of charge
2. It should not be under a contract of personal service
Therefore, medical services render free of the charge or under the contract of personal services
will be outside the scope of the definition of the services itself.
WHAT IS DEFICIENCY OF SERVICE?:

2
Section 2(1) (o) of Consumer Protection Act, 1986

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The word deficiency has been defined by Section 2(1)(g) of the Consumer Protection Act, 1986
as follow:
Deficiency means, any fault, imperfection, shortcoming or inadequacy in the quality,
nature, and manner of performance that 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. Therefore, from the analysis of the above
definition it can be clearly documented that, deficient service provided by medical practitioner is
actionable and it can be fall under the purview of the above definition.
INDIAN JUDICIARY AND MEDICAL NEGLIGENCE :
The Supreme Court in Indian Medical Association v. V.P Shantha and Others
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Case
has clearly reiterated that, services rendered to a patient by a medical practitioner (except where
the doctor render services free of charge to every patient or under a contract of personal service)
by way of consultation, diagnosis and treatment, both medical and surgical, would fall within the
ambit of service as defined in section 2(1) (o) of the Consumer Protection Act 1986.
The judgement has faced a lot of opposition from the people involved in the medical
field. However, this judgement has come as a wave of relief for all the consumers. With rampant
increase in commercialisation of services which also includes medical services, the patient has
now become a mere consumer. This definitely causes deterioration in the fiduciary relationship
between a doctor and his/her patient. This judgement which extends the arms of the Consumer
Protection Act, 1986 to the medical profession will surely enable to keep a check on the doctors
so that they perform their duties diligently, for it is always the patients life that is at stake. It will
make the process of treatment and surgery more transparent. One negative aspect about this
judgement is that it does not prescribe any relief or compensation who avail free medical
services. As a consequence, only doctors who work in paid hospitals come under the scanner
while those who work in hospitals offering free medical services will go scot-free if they commit
any blunder. Also the burden of proof is on the patient to prove that there was negligence on part

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AIR 1996 SC 550.
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of the doctor. Instead, the burden of proof should be shifted onto the doctor to prove that he was
diligent enough while performing his duties.
Whatever is upheld by the Supreme Court in the case of V. P shantha case not followed
in the case of Achutrao Haribhau Khodwa v. State of maharastra
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.
In instant case court refused to hold either doctor or government liable for death caused due to
the negligence on the part of the doctor. In such case doctor left towel inside abdomen while
conducting the operation. The court held that neither the doctor nor the government is liable
unless it is proved that the death was caused due to leaving towel inside the abdomen. It is
humble submission with great respect that, leaving a towel itself amount to the negligence on the
part of the doctors.
However, The Supreme Court took a very progressive view in the case of Spring Meadows
Hospital v. HarjotAhluwalia
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In instant case Court held that, when a young child was taken to a private hospital by parents and
treated by the doctors, and then not only the child but his parents also treated as consumer under
the Consumer protection Act. Hence, parent can claim the Compensation under the Consumer
protection Act.
Hence, court, ruled in favour of the parents of the child, and the child who was the
beneficiary of the service. The hospital argued that sufficient care had indeed been taken, and
therefore would not be entitled to pay compensation for the mental agony the parents went
through. They contended that the parents would not come under the definition of consumer, in
the consumer protection act. The court rightly pointed out that this contention was false since the
definition of consumer under the act does clearly include parents as well.
Jacob Mathew v. State of Panjab and another
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In instant case SC court upheld that, the jurisprudential concept of the negligence differs in civil
and criminal law. What may be negligence in civil law may not be necessarily be negligence in

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(1996) 2 SCC 634
5
(1998) 4 SCC 39.
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AIR 2005 SC 3180
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criminal law. For negligence to amount an offence, the element of mensrea must be shown to
exist. For an act to amount to criminal negligence , the degree of the negligence would be much
higher i.e. gross or of a very high degree negligence, which is neither gross nor of a higher
degree may provide a ground for action in civil law but cannot from the basis of the prosecution
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.
In Dr. Suresh Gupta case
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Supreme court of India in year 2004 upheld that, the legal position
on medical negligence is quite clear and well settled that whenever a patientdied due to the
medical negligence the doctor was liable in civil law for paying the compensation. Only when
the negligence was so gross and his act was so res and his act was so recklessas to endanger the
life of the patient, then criminal law for offence under section 304A of Indian Penal Code, 1860
will apply
In Kurban Hussein Mohamedalli Rangawalla v. State of Maharashtra while dealing with
section 304A of IPC, the following statement was cited with approval :- To impose criminal
liability under section 304 A, IPC, it is necessary that the death should have been the direct result
of a rash and negligent act of the accused, and that the act must be proximate and efficient cause
without the intervention of anothers negligence. It must be the causa causans ; it is not enough
that it may have been the causa sine qua non.
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These are some few cases which display the dynamic role of the judiciary to interpret the
Consumer protection Act, 1986 to do the justice with the consumer.

SOME RECENT INSTANCES
Recently, Supreme Court of India awarded Rs. 5.96 crore compensation, payable by the
Kolkata based AMRI hospital and three doctors to a US based doctor of the Indian origin for
medical negligence which led to the death of his wife in 1998. Further court has observed across
the country, dozens of the people die because of the gross negligence and lack of the medical

7
Y.V Rao, commentary on the Consumer protection Act, 1986, Asia law House, Hyderabsd, 3
rd
ed. (2013) page
351.
8
Dr. Suresh Gupta vs. Government of N.C.T. of Delhi, 4, 2004, Supreme Court of India, AIR 2004 SC 4091
available at http://pbtindia.com/wp-content/uploads/2011/10/Medical-Negligence
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Asia Law house Hyderabad, Law relating to Medical Negligence, YetukuriVenkateswaraRao, 1st ed. 2005,pp-32.
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care on the part of the doctors
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, but only few use to take the matters to the court because of
various reasons, some are because of expensive, lack of the awareness, and long procedure for
the disposal of the cases.
Further, court upheld that at present, the medical Council of India or the State Medical Council
look into such cases but the process is long winding, and there has been no instances of a
doctors registration being cancelled for negligence.
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The present observation of the court itself
shows the great loopholes in implementation machinery.
Recently another issue come up regarding endorsement of the commercial; products and drugs
by the doctors against the Code of medical ethics regulations
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.
These all are instances and current situation itself display plight of the victim of the medical
negligence
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:
(i) Delay, which, in medical negligence cases, tends to be greater;
(ii) The cost of bringing an action, which is notoriously high in relation to the sums recovered in
damages;
(iii) limited access to the courts ;
(iv) 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;

10
Kolkata, hospital 3 doctors told to pay Rs. 5.96 Crore for negligence, The Hindu, 25 October, 2013, Bangalore
1111
Kolkata, hospital 3 doctors told to pay Rs. 5.96 Crore for negligence, The Hindu, 25 October, 2013, Bangalore

12
Doc bodies out of MCIs ethics code, Times of India, 22 February, 2014.Page 13, Bangalore.
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(i) To entertain any complaint from the patient;
(ii) To take action against the Medical Practitioner in case any negligence has been committed;
(iii) To award any compensation, etc. in case the negligence is proved.

NEED FOR THE AMENDMENT:
After observation of the increasing cases of the medical negligence case, now the time
has been come to make a amendment in Consumer protection Act itself. By excluding the
government medical services from the purview of the Act, we are failing to accomplish the main
purpose behind the Consumer protection Act. Government doctors may feel that they are
rendering the medical services free of the costs so there is no duty to take care in case of the poor
people who all are not capable to borne the medical expenses. Now adays government doctors
openly demanding huge amount from the poor patient for performing the operation and surgery
at their own private hospital or at the government hospital which is not legally allowed.
Further, payment of the consideration is essential in order to sue the doctor under the medical
profession. One justification for inclusion of government services under the consumer protection
act can be given that, consideration for their services to the patient has moved from the
government. Therefore, services at the government hospital cannot be called and should not be
treated as free services.
CONCLUSION/SUGGESTIONS:
As it is very mush evident from the preamble of the consumer Protection Act and various
Supreme Court judgments that Consumer protection Act is one of the social welfare legislation
enacted to protect the common people. Therefore, to do the justice with the consumer, the law
should to adapt itself to the need of the changing society; it must be flexible and adaptable to do
the justice with the consumer. With the rapid expansion of population and shortages of
healthcare facilities in government hospitals, private hospitals in the society have been playing a
vital role. Even though there are many government hospitals which are providing health services
to the populace of the region, the services rendered is inadequate in terms of quantity and quality.
Medical negligence is a very crucial aspect. Its very difficult to conclude if the doctor is
liable under medical negligence or not. There is a very thin border to differentiate if they are
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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 doctors 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.
Same time it is also not right on the part of the people to blame the doctors for every human life
lost during the treatment of the patient. A doctor wouldnt purposely kill someone for vengeance.
Doctors perform the most sacred act of curing a human and it does no good to the society by
blaming a doctor for the life lost. Hence proper rules and principles should be looked after before
filing a case of medical negligence against a doctor.


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