Legal Aspects of Management Consumer Protection Act

Group 9
Sourav Das Shreemant Sunil Kamal Sunil Kumar Taniya Tarun Titikshu Vinay Vaibhav

Should consumer protection act be applicable for medical professionals? Consumer Protection Act - 1986 is applicable for medical professionals under the Section 2(d)(1)(o). There is a lot of mixed opinion about this in the medical fraternity as well as outside it. A few people argue that medical profession is a noble profession and is based on the patent's faith on the doctor. It is said that in most illnesses, it is the faith that heals. The other school of thought says that a doctor is also a human being and human beings make mistakes. When mistakes are made due to negligence then even doctors are punishable. What was the 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; (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. A medical professional can be sued under Consumer Protection Act 1986 for his or her professional negligence resulting in damage to patient. Section 2 (d) in defining a consumer in Clause (ii) uses the expression 'hires and avails of". The word "hire" means employ of wages or fees". Secondly the words "any service" in s. 2 (d) (ii) in Consumer Protection Act. A eloquent to bring the delinquent medical practitioners within the ambit of Consumer Protection Act. Thirdly, s. 2 (o), Consumer Protection Act which defines service exempts only two types of services, one "service free of charge" and another "contract of personal service" postulates a relationship of master and servant. A medical man whose service is requisitioned for a patient answers the clause contract of service" but never "a contract of personal service". So, a negligent medical professional can be proceeded under the Consumer Protection Act 1986.

Pros of having CPA: 1. Highly technical orientation of the Medical field 2. Declining credibility of medical Profession. 3. Highly prevalent professional jealousy. 4. Lack of objectivity and empirical Nature of several regimens 5. Growing commercialization of medical profession. 6. Inept medical record keeping 7. Lack of sufficient staff in the consumer Forums. 8. Attitude of lawyers in frequently asking for adjournments. 9. Huge back log in clearing medical cases in consumer forums

Cons of having CPA: 1. 2. 3. 4. 5. 6. 7. 8. 9. Valued as noble profession Professional pride that doctors have Giant strides in the medical profession Significant proportion of doctors Government commitment to protect the Rights of the Consumers. Strong consumer movement in the country. Influence of international consumer Movement. The Hippocratic Oath that doctors Take at the time of Graduation. Vigilant press

The Indian Courts have been very careful not to hold qualified physicians criminally (instances of quacks for criminal negligence are there) liable for patients' deaths that are the result of a mere mistake of judgment in the selection and application of remedies and when the death resulted merely from an error of judgment or an inadvertent death C.J. LAWRENCE v. APOLLO HOSPITALS (Tamilnadu SCDRC O.P. No. 8/94 Decided on 05.08.1998) The complainant was admitted in a private hospital for pain in the neck on the right shoulder. Investigations revealed that he was a diabetic and had right hydronephrosis with obstruction at right ureterovesical junction. The complainant underwent surgery by retroperitoneal approach. The affected portion of the ureter was removed and ureteric reimplantation was done. During the postoperative period, the complainant developed high fever and further investigations showed that a stapler pin was seen in the gastrointestinal tract. The complainant got discharged against medical advice. The allegation was that the pin was left there during the operation. The surgeon stated that the surgical staplers are V or U shaped and used in clusters in surgeries involving large intestine. The stapler pin seen in the x-ray is not a stapler pin. It resembles the stapler pins used in food packets. Evidently, this stapler pin should have been swallowed. The State Commission held that there is no negligence or deficiency of service on the part of the hospital and dismissed the complaint without costs. In the case of R. Lalitha V. M. Jeeva, [ 1992 (2) CPR 409 (Tamil Nadu State Commission )], the complaint was regarding negligence of a private doctors hospital which the complainant attended for prenatal treatment, etc. Her uterus got ruptured on account of delayed labour and the male child, who was born, died. The State Commission observed: "Here is a case where the opposite party who is merely a nurse and mid-wife, has taken upon herself, the management of a situation pregnant with dire consequences as this was a case of second caesarean operation and her management has ultimately led to the rupture of the uterus, removal of it and to the death of her male child .. The opposite party has acted rashly, recklessly and with culpable negligence," It held the opposite party guilty of gross negligence and awarded compensation of Rs. 2, 50,000 as under: 1. Rupees one lakh for rupture and removal of the uterus which is a permanent injury of a grave character. 2. Rupees one lakh for the pain and agony suffered. 3. Rupees fifty thousand for the death of a male child.