MEDICAL NEGLIGENCE AND CONSUMER PROTECTION

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THIS ARTICLE WAS WRITTEN BY BREGITHA PG, A STUDENT OF NATIONAL UNIVERSITY OF ADVANCED LEGAL STUDIES.

ABSTRACT

In the law of negligence, professionals such as lawyers, doctors, architects. In the category are persons professing some special skill. A doctor owes certain duties to the patient who consults him for illness. A deficiency in this duty results in negligence. The Consumer Protection Act 1986 provides protection to the rights of consumers and redressal of consumer disputes. Medical profession was included within its ambit in 1995. Since then large number of patients and consumer organizations are approaching the consumer courts for the redressal of their grievances against doctors and hospitals.

Keywords: Consumer protection act, negligence, reasonable care

INTRODUCTION

A person engaged in some particular profession is supposed to have the requisite knowledge and skill needed for the purpose and he has the duty to exercise reasonable degree of care in the conduct of his duties. A patient approaching a doctor expects medical treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The relationship takes the shape of a contract retaining the essential elements of tort. A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor. The doctor has a duty to obtain prior informed consent from the patient before carrying out diagnostic tests and therapeutic management. The services of the doctors are covered under the provisions of the Consumer Protection Act, 1986 and a patient can seek redressal of grievances from the Consumer Courts. Case laws are an important source of law in adjudicating various issues of negligence arising out of medical treatment.

REVIEW OF LITERATURE

Medical negligence claims are instituted for a number of reasons, Such as lack of communication between doctor and patient. Birth related claims are instituted most frequently. This contribution investigates the possible reasons behind the increase in both the value and the number of the medical negligence claims.

To study the implications of different issues in the implementation of the Consumer Protection laws, medical negligence and also to identify the areas already investigated, the Researcher has referred to important studies already undertaken on consumer protection.

Dr.RK Bangia (2013), book describes about the medical as well as the professional negligence. It also introduces the various doctrines of medical negligence (Res Ipso Loquitur).On the other half of book exclusively deals with consumer protection laws in accordance with The Consumer Protection Act of 1986.

Virandar Pal Singh, Amit Bery, Gautam Biswas and Akashdeep Aggarwal (2014) has revealed about the medical negligence among medical and surgical specialists working in Private Medical and Govt. Medical Colleges through an empirical method of study. Present study showed that there is no significant difference in the marks scored by the faculty members of the medical specialties of the Private and Government Medical College. Similarly, the scores of the faculty members of the surgical specialties of the Government and Private Medical College were also not significantly different. However, the awareness score of the faculty members of the surgical specialties was significantly higher than the members of the medical specialties of both Private and Government Medical College. This difference could be due to the fact that surgical specialists encounter more medical negligence cases as compared to medical specialists. In a study carried out on 464 dental and medical specialists showed that awareness about CPA was higher among the medical professionals than dental professionals. In a survey carried out on 120 faculty members from clinical departments of KIMS, Bhubaneswar, Orissa it was found that in spite of an increasing trend of litigations and compensation suits against the practitioners, only 35% of the participants had insured themselves and 16% of them were ignorant about the self-insurance in practice. Public awareness about CPA and medical negligence has increased in the last decade. Malpractice lawsuits have become a major concern in patient care. The current study shows the awareness about CPA and medical negligence among the medical as well as surgical specialists is unsatisfactory and lack of updating knowledge by professionals (medical and surgical), there is increased risk of litigation especially in cases with poor outcomes. It concluded by recommending that doctors must update their understanding on Consumer Protection Act and medical negligence so as to be legally safe.

ARC Rynek (2009), has carried out a survey on awareness of consumer rights and analysis of barriers preventing consumers from safe and satisfactory participation in the market.The report states that the consumer appears in the market in a triple role: as the target of the company’s promotional activity (in particular advertising), purchaser of manufactured goods and provided services, and the user of purchased goods. He/she should be protected in each of these respects because in each of them the consumer’s interests can be threatened or infringed by application of specific market methods or practices by manufacturers or service providers. Therefore in market economy countries consumer protection is normally a most important area of active state involvement and has to enter more and more new areas.

Sikka, Anup, Aradhya, Peter and Acharya (2011), has carried out the questionnaire survey to assess and compare the awareness about Consumer Protection Act among medical professionals. Awareness (> 75%) about rules and regulations of Consumer Protection Act was found to be low. It concluded by stating that there is a need to raise the awareness of health professionals about such laws so that their increased professional concern and practice conforms to welfare of patients.

Rajib Bhattacharya (2014), went on with the an analysis on the various aspects of consumer protection in India in which it gave an overview of consumer protection issues from various aspects and perspectives and also provided with some remedial or suggestive measures which are helpful for the promotion and protection of consumer protection and rights.

MS Pandit and Shobha Pandit (2009) presents an overall coverage of the professional negligence from a legal perspective by quoting relevant case laws and citing the professional ethics.

Sonika Snekar(2018), has examined the concept of and the need for the consumer protection. The concept of consumer protection and there rights has been analysed with CPA reference to the sections from Consumer Protection Act (CPA).

SV Joga Rao (2009), has reviewed the judicial persceptive of the medical negligence liability under the Consumer Protection Act (CPA).It provided with various definitional aspects of medical negligence and judicial interpretation on medical negligence liability.

Letitia Pienaar (2016), presented the reasons behind the increasing claims on the medical negligence through an investigating method. It also went on discussing with the patient centred legislations and there needs in the current scenario.

Vayuna Gupta (2020), has established the increase of criminal medical negligence in times of COVID 19.It highlighted the provisions of the IPC for criminal medical negligence and states how the tortious liability of medical negligence can be differentiated from criminal medical liability.

OBJECTIVES

To create awareness about the consumer protection laws.
To evaluate the current rate of medical negligence cases and law suits.
To know the causes of medical negligence.
To open new vistas for further research

HYPOTHESIS FORMATION

Hypothesis is a proposition, condition or principle which is assumed perhaps without belief, in order to draw out its logical consequences by this method to test its accord with facts which are known or may be defined in a research. The basic presumptions on the basis of which I venture on the research work on this field may be summed up within the following points:

To find out the relation between the increasing rate of medical negligence and the knowledge of consumer protection law among the professionals.

H01 : It states that there is a need to raise the awareness of health professionals about consumer protection laws so that their increased professional concern and practice conforms to the welfare of patients

RESEARCH QUESTION

This research paper covers the questions:

Will patients come under the definition of consumer?
Why the rate of medical negligence has been drastically increasing day by day?
Is the medical professionals are well aware about consumer protection laws?

RESEARCH METHODOLOGY

The research method used was qualitative method through data analysis. The measures were standardized through the computation of reliability and validity. The secondary data have also been collected from books, journals, newspaper, magazines etc, M.Phil. and Ph.D. thesis on the subject and so on. The research on this topic has done by adopting the conceptual research method as well as doctrinal research.

PROPOSED CHAPTER

The thesis is divided in to four chapters which includes:

The Chapter 1 presents consumer protection and medical negligence problems and prospects and include conceptual framework of Consumer rights awareness, statement of problem, objective of the study, hypothesis and review of related studies. It also deals with scope of the study. Lastly this chapter highlights the research methodology.
The chapter 2 discusses the definitions of consumer and who constitutes consumers and also whether patients can be considered as consumers or not
The chapter 3 highlights the need of the consumers as well the consumer protection laws in the present scenario by discussing the negligence by professionals and doctor’s duty of care
The chapter 4 it deals with scope of study in this area and research methodology used by the researcher by citing relevant case laws and discusses the consumers whom that will not come under the definition of the CPA.

Lastly, Conclusion and Suggestions deals with the finding of the study and suggests some measure which should be taken by the part of consumer law reform by governmental agencies.

CHAPTER IN DETAIL

Consumers play a vital role in the development of a nation. Mahatma Gandhi said, “A consumer is the most important visitor on our premises. He is not dependent on us, we are on him. He is not an interruption to our work; he is the purpose of it. We are not doing a favour to a consumer by giving him an opportunity. He is doing us a favour by giving us opportunity to serve him.” The contemporary era is marked as the era of consumers. No country can knowingly or unknowingly disregard the interest of the consumers.

The Consumer Protection Act provides redress to a consumer when the goods purchased are defective or the services provided are subject to some deficiency. The doctrine of ‘Caveat Emptor’ or ‘let the buyer beware’ which came into existence in the middle ages had been replaced by the principle of ‘Consumer Sovereignty or ‘Consumer is the King’. Unfair and deceptive practices such as selling of defective or sub-standard goods, charging exorbitant prices, misrepresenting the efficacy or usefulness of goods, negligence as to safety standards, etc. became rampant. It, therefore, became necessary to evolve statutory measures, even in developed countries, to make producers more accountable to consumers. It also became inevitable for consumers to unite on a common platform to deal with issues of common concern and having their grievances redressed satisfactorily.

Who is a consumer?

A consumer is a person who hires or avails of any services for a consideration that 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 hires or avails of the services for consideration paid or promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. This definition is wide enough to include a patient who merely promises to pay. Section 2(1) (d) of the Consumer Protection Act, 1856 stresses on the nuances of the definition of a consumer of goods and services.

A patient generally approaches a doctor based on its reputation. Expectations of a patient are two-fold: doctors and hospitals are expected to provide medical treatment with all the knowledge and skill at their command and secondly they will not do anything to harm the patient in any manner either because of their negligence, carelessness, or reckless attitude of their staff. Though a doctor may not be in a position to save his patient’s life at all times, he is expected to use his special knowledge and skill in the most appropriate manner keeping in mind the interest of the patient who has entrusted his life to him.

Failure of a doctor and hospital to discharge this obligation is essentially a tortious liability. A tort is a civil wrong (right in rem) as against a contractual obligation (right in personam) – a breach that attracts judicial intervention by way of awarding damages. Thus, a patient’s right to receive medical attention from doctors and hospitals is essentially a civil right. The relationship takes the shape of a contract to some extent because of informed consent, payment of fee, and performance of surgery/providing treatment, etc. while retaining essential elements of tort.

Science and technology have progressed enormously in the last few decades, contributing to people’s improved quality and standard of life, along with an increased awareness about people’s rights. People are often misled by sellers in day-to-day purchases leading to consumer dissatisfaction. To safeguard the interests of consumers, Countries worldwide have developed Consumer protection organizations. Even in India, Consumer Protection Act was passed by the Parliament in 1986 as welfare legislation in the interest of consumers.

Health care services, whenever purchased by receivers are also expected to provide consumer satisfaction. Earlier, remedy for medical negligence was available only under law of Tort. But with, inclusion of health care services under Consumer Protection Act, a spurt in litigations arising out of breach in medical/dental profession is seen. Thus, it becomes imperative for health professionals today to be aware of such laws, which will be beneficial to patients and doctors and society as a whole.

PATIENT IS CONSUMER

In a significant ruling in Vasantha P Nair v Smt. VP Nair, the National Commission upheld the decision of the Kerala State Commission which said that a patient is a “consumer” and the medical assistance was a “service” and therefore, in the event of any deficiency in the performance of medical service, the consumer courts can have the jurisdiction. It was further observed that the medical officer’s service was not a personal service so as to constitute an exception to the application of the Consumer Protection Act.

The controversy has been set at rest and the Supreme Court in its landmark decision in Indian Medical Association v. VP Shantha and others, has held that patients aggrieved by any deficiency in treatment,from both private clinics and the government hospitals, are entitled to seek damages under the Consumer Protection Act.

People are not aware about their rights against unscrupulous practices of manufactures or traders in relation to goods and services supplied by them. Lack of awareness has its root in many things in general and in particular it lies in illiteracy. People do not know what they should do in case if they are to be subject to fraud by them. They are not aware of the resources available to them under laws provided for redressing such cause. Lack of consumer education is the root of the problem of unawareness among the people about available rights and remedies in cases anything goes against the interest of consumer, therefore no law will ever be able to provide people their due rights against such bad practices of sellers or manufacturer unless they are being educated and make aware about the available remedies in case of violation of their rights.

When a medical practitioner attends to his patient, he owes him a the duty of following duties of care as he is a consumer:

A duty of care in deciding whether to undertake the ease
A duty of care in deciding what treatment to give and
A duty of care in the administration of the treatment

A breach of any of the above mentioned duties gives a right of action for negligence to the patient. Explaining the nature of duty of care in the medical profession, the Punjab and Haryana High court observed in Dr.Lakshman Balkrishna Joshi v Trimbak Bapu Godbole[1] as “ The petitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care.Neither the very highest nor a very low degree of care and competence judged in the light of the particular circumstances of each case is what the law requires.The doctor, no doubt ,has a discretion in choosing treatment which he proposes to give to the patient and such discretion is relatively ampler in cases of emergency.”

In the above mentioned case, the son of the respondent, aged about 20 years, met with an accident on a sea beach, which resulted in the fracture of the femur of this left leg. He was taken to the appellant’s hospital for treatment. What the appellant did was to reduce the fracture, and in doing so, he didn’t dive an aesthetic to the patient but contented himself with a single dose of morphia injection. He used excessive force in going through this treatment, using three of his attendants for pulling the injured leg of the patient. He then put this leg in plaster of paris splints .The treatment resulted in shock, causing the death of the patient. The doctor was held guilty of negligence by the Supreme Court.

In the case of Dr. Laxman Balkrishna Joshi vs. Dr. Trimbark Babu Godbole and Anr., and A.S.Mittal v. State of U.P[2].,it was laid down that when a doctor is consulted by a patient, the doctor owes to his patient certain duties which are: (a) duty of care in deciding whether to undertake the case, (b) duty of care in deciding what treatment to give, and (c) duty of care in the administration of that treatment. A breach of any of the above duties may give a cause of action for negligence and the patient may on that basis recover damages from his doctor. In the aforementioned case, the apex court inter-alia observed that negligence has many manifestations – it may be active negligence, collateral negligence, comparative negligence, concurrent negligence, continued negligence, criminal negligence, gross negligence, hazardous negligence, active and passive negligence, willful or reckless negligence, or negligence per se.

There are different types of medical negligence’s found in our daily lifes as showed in the above diagram. In the case Jacob Matthew v. State of Punjab and Ors[3]., an FIR for negligence cannot be registered unless the police authorities obtain an expert opinion. It is stated that the police authorities are following a procedure, whereby they seek such opinion from the Delhi Medical Council/MCI before proceeding to register any FIR against a doctor for criminal negligence”. The High Court further observed in Jacob Matthew (supra), the Supreme Court had directed that before registering an FIR, the opinion of an expert and a competent doctor, preferably one who is in Government service, be obtained.

The Parliament passed the Consumer Protection Bill, 2019 on 06.08.2019 to replace the Consumer Protection Act, 1986 (“1986 Act”). The President of India gave its assent to the Consumer Protection Act, 2019 (“2019 Act”) on 09.08.2019 and the same will come into force on the date it is notified by the Central Government. The 2019 Act has been enacted for the purpose of providing timely and effective administration and settlement of consumer disputes and related matters. The 2019 Act expands the scope of the definition of Consumer so as to include the consumers involved in online transactions and it now squarely covers the E-commerce businesses within its ambit. The 2019 Act has also widened the definition of Unfair Trade Practices as compared to the 1986 Act which now includes within its ambit online misleading advertisements; the practice of not issuing bill/memo for the goods and services; failing to take back defective goods or deactivate defective services and refund the amount within the stipulated time mentioned in the bill or memo or within 30 days in the absence of such stipulation; and disclosing personal information of a consumer unless such disclosure is in accordance with law.

Who isn’t a consumer?

Free services

In Paramjit Kaur v State of Punjab[4], the complainant was operated upon in the Punjab Government Hospital free of charge for family planning (Tubectomy).Subsequently, she gave birth to a female child. She filed a complaint against the state of Punjab and the doctor, who performed the operation, to claim compensation of 2 lakhs for the negligence in performing the operation. The complaint was dismissed as she was not a consumer because the service was offered free of charge.

Beneficiary of Central Government Health Scheme(CGHS) is not a consumer

In additional director of CGHS ,Pune v. Dr. RL Bhutani[5], the complainant was a retired government servant ,he paid Rs.9/- towards CGHS and hence he and his family was beneficiary of the CGHS .His wife was suffering from some ailment for which surgery was performed in a private hospital. Her condition could not improve and she became paralytic. He claimed reimbursement of the amount paid for treatment in the private hospital. Reversing the decision of the state commission, Maharashtra at Bombay held that complainant was not a consumer as defined in section 2 (1) (d) of the CPA because the service under CGHS is rendered free of charge under a contract of service.

FINDINGS

Medical negligence claims have increased significantly over the last number of years. The trend is still ongoing and concerns have been raised about the impact of this increase on the medical industry. Medical practitioners are increasingly practising defensive medicine in an attempt to limit the risk of medical negligence claims being instituted against them. The majority of medical negligence cases are brought against obstetricians and gynaecologists for birth related claims. Plastic surgeons often face extremely high claims in value, although they are not sued as frequently as gynaecologists.

Doctors are depicted as Gods in tradition but over the time this doctor-patient relationship was altered.There has been a rise in the medical negligent cases with the development of technology and convolution of medical procedures.In such circumstances the possibility of increase in petition of medical negligent cases in this COVID 19 is unforseenable.

Medical negligence litigation is often the result of poor communication between the medical practitioner and the patient, pertaining to the risks involved in a procedure. There are, however, other factors that contribute to the significant rise in medical negligence claims. Various reasons have been advanced for the increase in both the number and value of medical negligence claims. The most prominent of these will be the decline of the professionalism among the health care practioner’s and may also be the fact that the lawyers litigating for aggrieved patients advertising to represent the maltreated patients. If we accept that the eagerness of lawyers to represent the victims of alleged medical negligence is a reason for the increase in the number of the medical negligence claims, this alone is not sufficient to explain the extent of the increase in these types of claims.

Patients are also becoming more aware of their rights and are enforcing their rights through the litigation. It has been pointed out that this is a good development as it ensures that aggrieved patients, who have indeed suffered harm as a result of the failure of the health care system are compensated. Patient centred legislations (for example : CPA, National Health Act etc) and the case laws also plays a prominent role in the increase of medical negligence rate. Looking for filing a claim for medical negligence against your baby’s operation visit “chaffinluhana.com”

CONCLUSION

The protection of consumers is not only a responsibility of the State but also a mandate against commercial and business entities. A satisfied consumer base is essential for the successful existence of commercial enterprises. At the same time consumer matters must be taken care of by the use of Information and Communication Technology in India. Even though the medical practitioners face astronomical claims for medical negligence today, much harsher punishments were taken in the past by various countries. The Consumer Protection Act, 1986 ensures the protection of consumers by including all the aspects of goods and services. It has an efficient redressal machinery spread across all the districts of the country, delivering speedy justice and no fee. The District Forum, the State Commission and the National Commission function with autonomy to judge the complaints and are linked to one another through the system of appeal. The Act ensures the grant of compensation of the aggrieved, for his physical or emotional loss. The Act checks unfair and restrictive trade practices. It also monitors defects and deficiencies in goods and services. All in all, the Consumer Protection Act, 1986 has been a success for the aforesaid reasons.

REFERENCES

Bangia, R K., (2013 ) ,Law Of Torts, Allahabad law Agency,pp.259-278.
Virendar,Pal,Singh., Amit,Bery., Gautam,Biswas. & Akashdeep,Aggarwal.(2014), Awareness about Consumer Protection Act and Medical Negligence among Private and Government Medical College and Hospital Faculty Members, J Indian Acad Forensic Med.,36(2),pp.150-155.
Rajib,Bhattacharyya.(2014), An Analysis on the Various Aspects of Consumer Protection in India, International Journal of Research (IJR).,6(1),pp.10-22.
ARC,Rynek.(2009) , Awareness of consumer rights and analysis of barriers preventing consumers from safe and satisfactory participation in the market – survey report, Warsaw,pp.10-12.
Priyanka and Dr,A,Sreelatha. (2018), Recent trends in consumer protection in India, International Journal of Pure and Applied Mathematics,120(5),pp.1645-1656.
Divjot,Singh,Bhatia.(2019), The Consumer Protection Act, 2019: An Overview, Kanth & Associates,pp.1-5.
Sikka,M.,Anup,N.,Aradhya,S.,Peter,S.,Acharya,S.(2011),Consumer Protection Act – Awareness?,pp.1
Letitia,Pienaar. (2016), Investigating the reasons behind the increase in medical negligence claims,Editor Prof.AA ,Plessis.,19,pp.5-8.
Sonika,sekhar.(2018), The Concept of and need for Consumer protection.
Shobha,Pandit and MS,Pandit.(2009) ,Medical negligence: Coverage of the profession, duties, ethics, case law, and enlightened defense – A legal perspective, Indian J Urol,25(3),pp.372–378.
David, Goguen.,https://www.alllaw.com/articles/nolo/medical-malpractice/negligence.html, Medical Negligence,pp.1.
SV,Joga,Rao.(2009),Medical negligence liability under the consumer protection act: A review of judicial perspective, Indian J Urol , 25(3),pp.361–371
Vayuna,Gupta.(2020),Establishing the criminal medical negligence in times of covid 19,livelaw.