Medical Negligence and the Consumer Protection Act: Issues and challenges

Public awareness of medical negligence in India is growing. The lucky doctors of past were treated like god and people revered and respected them. We witness today the fast pace of commercialization and globalization on all spheres of life and the medical profession is no exception to these phenomena. The medical profession has reached new horizons, facing many ethical and legal challenges in the practice of profession. Doctor patient relationship is changing swiftly and adversely. Commercialization of medical practice, ignorance towards medical ethics, zero tolerance and high expectation of patients, inclusion of health care service within the ambit of Consumer Protection Act, has created a vicious circle which is manifesting as ever increasing incidents of litigation against doctors and hospitals.

In the last decades, technical advances in medical field have meant a better quality of life. But it is sad to mention that there has not been a corresponding shift in the standard of medical profession. This article focuses on medical negligence and the Consumer Protection Act in India and its implication on whole of the medical profession.

More and more cases relating to medical negligence are being filed in India after the passing of the Consumer Protection Act, 1986 but then this has also resulted in number of frivolous complaints against innocent doctors. Thus judging the negligence of doctors has become a technical issue. There is an urgent need for the transformation in the doctor-patient relationship to the advantage of patient, doctors and the society at large.

The doctor patient relationship is one of the most unique and privileged based on mutual trust and faith. But presently there is a great decline in the doctor patient relationship. The reason may be communication gap, commercialization of health service, raising expectation from doctors or increased consumer awareness.

Concept of Medical Negligence

Negligence is the breach of duty caused by omission to do something which a reasonable and prudent person guided by those considerations which ordinarily regulates human affairs would do or doing something which a prudent and reasonable person guided by similar considerations would not do.[1] But the dictionary meaning is ‘Lack of Proper Care’. It means carelessness in a matter in which law mandates carefulness. 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.

Medical negligence pictureAny reasonable man entering into a profession which requires a particular level of learning to be called a professional of that branch impliedly assures the persons dealing with him that the skill which he professes shall be exercised with reasonable degree of care and caution.

Judged by this standard, a professional including medical professional may be held liable for negligence on one of two findings: either he was not possessed of the requisite skill which he professed to have possessed or he did not exercise, with reasonable competence in the given case, the skill which he did possess.

Deficient system of remedies in cases of Medical Negligence

After VP SHANTHA’S[2] case it was believed that by providing remedy through consumer forums, availing damages for the injury caused, would become easier for the patients to seek remedy for the wrong done to them. It was considered that this will deter the careless doctors and would thus help in improving the general standards of health services in India. However, the current scenario presents a complete different picture. The numbers of medical negligence suits have grown up by several times in the last 10 years. Considering the objects of COPRA to provide speedy, less expensive, more accessible and simple remedy, it would be difficult to conclude that the act has failed in achieving its goals.

The Complex Procedure for claiming Medical Negligence

In every complaint of medical negligence the complainant is expected to furnish in the forms of exhibits certain documents to establish a prima facie case. However the patients rarely have access to these medical documents and are generally not delivered to patients especially in cases where something goes wrong on pretext of confidentiality. Thus at this stage it becomes difficult for the patients to establish their case and many cases are dismissed summarily. The procedure that is followed afterwards is equally complex and unnecessarily lengthy involving submission of evidence, examination, cross examination of witnesses and other formalities.

Apart from these complexities the trickiest part is proving the negligence of doctor. The test applied for determining liability is the Bolam test, which apart from ‘reasonable care ‘standard also validates the ‘generally accepted practice’ argument. Further there is very little scope for applicability of judicial mind and the direct bearing of this is that the law of medical negligence has not evolved and the principles applicable remain the same irrespective of the fact that medical negligence has progressed in leaps and bounds in this time.

Even the functioning of consumer courts has not been very commendable. This was admitted by Supreme Court in Dr.J.J Merchant v. Shrinath Chaturvedi[3], where the PIL questioning the functioning of the consumer courts was filed and the Supreme Court commented that even after the enactment of the CPA, appropriate steps have not been taken by the government for ensuring that the National Commission or the State Forums can function properly. Also the consumer dispute redressal agencies have not been fast enough in disposing cases.

Medical Negligence beyond Compensation

Merely providing of compensation is not enough to deal with the issue of medical negligence. What is required is a proper mechanism to check to check the cases of medical negligence. One cannot forget that the purpose of law is not just to punish a wrongful act and give remedy to the adversely affected party but also to ensure that such deeds are not repeated again. A complete consumer care system should include steps for prevention of such incidents.

There is lack of effective implementation of the act. The undecided cases have already crossed the statutory limit. The overall performance of judicial and quasi judicial bodies can be concluded in one sentence i.e. “Justice delayed is justice denied”. This shows that judiciary has not shown proper concern to cases of medical negligence filed under the CPA.

Though CPA covers broad area of consumer rights but it failed to define service in proper way and failed to give way out to medical negligence cases. Thus there is a strong need of separate act to regulate medical negligence cases and special separate courts for speedy as well as proper justice.

Article by-

Preeti Singh

Sources:

Bag RK., “ (2001), Law of medical negligence and compensation, Calcutta: Eastern Law House.

Ratanlal and Dhirajlal (2002), Law of torts, India: LexisNexis.

Consumer Protection Act,1986

Singh Shobha. (2004), “Consumer redress of medical negligence in India: A critical analysis”, Allahabad Law Journal, 102: 25-30.

References:

[1] Ratanlal and Dhirajlal (2002), Law of Torts, India: LexisNexis.

[2] Indian Medical Association v. VP Shanta & Ors AIR 1996 SC 550

[3] (2002) 6 SCC 635

By Preeti Singh on March 27, 2013 · Posted in Consumer Protection, Informative, Law of Torts, Legal Issues, Simplified concepts

1 Comment | Post Comment

p. c.jain says:

Certainly C.P. Act.is not in expensive to get justice.I have been fighting a case of medical negligence, for last 10 years without any success.The CDRF found the doctor ‘grossly negligent’ and MCI has revoked the license of doctor to practice, but State Commission allowed the doctor to go Scot free & NCDRC not willing to grant ‘Right to be heard’ and stonewalling efforts to dispose the matter for last 2 years perhaps due to ‘Judge Uncle Syndrome’.Any one to steer my case?

Posted on March 28th, 2013