Asst. Professor of Forensic Medicine, Kamineni Institute of Medical Sciences, Narketpally District Nalgonda, State Andhra Pradesh 508254, India
Negligence is an integral part of human nature and Doc’s are no exception to this9. Doctor’s were, are and will remain accountable for their professional misconduct or Medical Negligence1. Consumer protection act 1986 was enacted by parliament to provide for better protection of the interest of consumers in the background of guidelines contained in the consumer protection resolution passed by U.N. general assembly on 9th April 1985.
This act has been enacted to give better protection to the interest of the consumer and to provide speedy remedy in case of dispute between the consumer and the seller. Consumer should get goods -of standard quality from sellers, good services from agencies and should not suffer from employees of corporation, companies and government. It is a shortcut, but effective and speedy remedy provided to the people, to save them from unskilled, incompetent and negligent persons providing services4.
In the beginning, the medical practice was not covered under this act, but due to the landmark of judgement of Supreme Court in Nov 1995 (IMA vs V. P. Shantha) the medical practices, barring some minor exception came within the ambit of CPA.
The legal procedure followed by the law courts are complicated, lengthy and costly beyond the reach of common and poor people, who can easily approach and get justice with very nominal cost and in a short time in the consumer dispute redressal forum where the doctors may be required to pay large amount as a compensation depending on the degree of loss and nature of negligence.
Consumer: user of product or service by paying money
Forum: law court, place of public discussion.
Redressal: ( Redress = to remedy) compensation, reparation.
Plaint: a Statement of Grievance in court.
Plaintiff: Complainant, prosecutor in law suit.
Prosecute: To bring legal suit.
It is Quasi – judicial – Members are appointed by the government having term of 5 years or up to 65 years of age10.
1. No lawyer or court fee is required.
2. Forum should deliver its decision within 90 days (3 months).
3. Forums decision has the same legal sanctity as the verdict of civil court.
4. Provision of appeal is there to the next higher level and ultimately to the supreme court of India.
In the act itself there is no mention of medical service, but the supreme court judgement by a bench comprising of three judges have held that doctors and hospitals who renders services as medical practitioners are accountable for any act of medical negligence and ruled that they can be sued for compensation under the consumer protection act provided the service has not been rendered free.
|Short Title||Full Title||Level of Establishment||No of Members||Type of Members||Jurisdiction in term of cost of goods or services|
|District forum||Consumer dispute redressal forum||District level||3||- District Judge,
– 1 member of eminence,
– 1 lady social worker
|Dispute involving upto Rs. 20 Lacs.|
|State commission||Consumer disputes redressal commission||State level||3||- High court judge,
– 1 member of eminence,
– 1 lady social worker
|Dispute involving between Rs. 20 Lacs and 1 crore.|
|National level||5||- Supreme court judge,
- 3 members of eminence,
- 1 lady social Worker
more than Rs. 1 crore
A high court lawyer, who has fought cases on behalf of the patients in Delhi high court, believes that there are not enough safe guards for the doctors. “Bringing doctors within the purview of the consumer protection act is to deliver speedy justice. No doubt, it is a laudable objective and a long overdue need. The doctors cannot escape responsibility for their negligence. They should be held accountable, but I think there should be safe guards both for the patients and doctors”, like screening of complaints1,2.
Lawyers say that the screening process will eliminate frivolous cases at the notice stage itself besides acting as a deterrent for the ambulance chasers (a term used for lawyers soliciting patients) now we find lawyers encouraging patients to file complaints against their doctors to earn a fast duck. The scope for blackmail is immense.
Legal experts say that even if there was a screening process, the anomalies in trying a doctor in a consumer forum will not end5. The very basis for such adjudications depends on deciding the question of negligence. What is a medical negligence? And how it is distinct from an error of judgement? Legally, a doctor is liable for action for negligence if he fails to exercise that degree of care and skill which is to be expected of the average practioner of the class to which he belongs. There are certain cases where the negligence is obvious like the amputation of wrong limbs, leaving a swab or a pair of scissor in the body or removing a uterus instead of kidney or injecting penicillin instead of chloroquin. In such cases, a decision can be arrived at on the basis of documents and medical records note. The problem arises in cases of negligence which have allegedly occurred during a surgery or delivery.
Who will decide whether the surgeon has followed the standards laid down in an authorised medical textbook?
Who will decide whether the doctor’s decision to adopt the latest surgical techniques is negligence or merely an error of judgement or if a doctor continues to adopt a technique which has been found dangerous in latest researches, can he be called negligent?
If a doctor prescribes a certain medicine which is later found to be ineffective, can he be sued for negligence?
Can a retired judge heading the forum or the commission go into these fine medical distinctions and decide a case?
While each party is preparing to derive maximum possible benefit out of the apex court ruling, it is necessary to bear in mind that standard of Medicare differ from place to place.
A doctor treating an ailment in a state of the art hospital is expected to provide a higher standard of care from one practising in a rural health facility9,11.
An employer is responsible not only for his own negligence, but also for the negligence of his employees; if such acts occur in the course of the employment and within its scope:
In big Hospitals, the principal doctor becomes responsible for any negligence of his assistants. Both may be sued by the patient, even though the principal doctor has no part in the negligence act.
It is a contract under which the insurance company agrees, in exchange for the payment of premium, to indemnity the insured doctors as a result of his claimed professional negligence.
The object of Medical Indemnity Insurance:
Lawyers and consumer activist admit that there will be certainly be a large number of frivolous cases filed merely on the instigation of lawyers. It is a common knowledge among the legal fraternity that lawyers arguing fraudulent claims invariably try for an out of court settlement waving the threat of blackmail. Since established doctors and surgeons are quite sensitive about their reputation and practice, they would prefer to keep out of legal hassle and willingly pay the price for shutting up greedy complainants and lawyer. Since the insurance companies will also be heavily involved in these litigations, their lawyer will be keener on reducing the claims and getting out rather than defending the honour of their clients: The Doctors. We can appreciate what is happening in the motor accident claims tribunals7. The insurance companies are just interested in paying as low compensation as possible and the haggling is almost obscene. Same scenario can be seen in future in consumer courts too. In fact the lawyers too agree that the act itself leaves a lot of scope for abuse. The first and foremost lacuna is the absence of any screening procedure in the consumer courts. Every complaint is entertained irrespective of whether it has any substance or not. Section 13 of the act says that “the district forum shall, on the receipt of a complaint, refer a copy to the opposite party directing him to give his version of the case within a period of 30 days”. It’s a mechanical procedure; no judicial mind is applied to see whether the complaint is worth adjucating. The judges only come to know about the complaint at the stage of arguments, there also the doctor, the defendant, has to prove his innocence, bring all the records convince the judges who are not medical men and repeat the process again and again till the complainant exhaust all legal possibilities.
Since there are many grey areas in the present dispensation, a better alternative that should satisfy both doctors and patients is a medical ombudsman: (An official appointed to investigate people’s complaints against public organization) which alone can summon expertise to decide on the question of negligence.
Dr. Nishat Ahmed Sheikh
Asst. Professor of Forensic Medicine, Kamineni Institute of Medical Sciences
Narketpally District Nalgonda, State Andhra Pradesh 508254, India.
Mobile : 09390058109
E-mail: dr_nishatsheikh (at) rediffmail.com