CONSUMER PROTECTION ACT & MEDICAL NEGLIGENCE

1
CONSUMER PROTECTION ACTMEDICAL NEGLIGENCE


2
Know thy law

• Tort
• Contract
• Consumer Protection Law
• Civil Courts
• Tribunal Consumer Fora

3
CONSUMER PROTECTIN ACT

• AN ADDITIONAL REMEDY
• A BENEFICIARY LEGISLATION
• A CONSUMER IS A PERSON WHO BUYS GOODS OR AVAILS
  SERVICES FOR CONSIDERATION
• PROVIDES SPEEDY AND INEXPENSIVE REMEDY
• SERVICE RENDERED BY MEDICAL PROFESSIONAL IS
  COVERED UNDER THE ACT AND DEFICIENCY IN SERVICE
  IS ACTIONABLE

4
Consumer Protection ActService Provider
Consumer

• Legal Aspects

5
Service

• S.2(1)(o) Service means service of any
  description
• Including the provision of facilities in
  connection with banking, financing, insurance,
  transport, processing, electrical or other
  energy, board or lodging or both, housing
  construction, entertainment, amusement, purveying
  of news or other information, but
• Does not include rendering of service free of
  charge or under a contract of personal service

6
Complaint

• S. 2 (c ) Any allegation in writing made by a
  complainant in regard to following for obtaining
  relief under the Act
• UTP / RTP
• Defect in Goods
• Deficiency in services
• Excess Price
• Hazardous goods being offered for sale
• Nominal fee is prescribed

7
RELIEF THAT MY BE AWARD BY
CONSUMER FORUM

• AWARD COMPENSATION FOR LOSS OR INJURY SUFFERED
  DUE TO NEGLIGENCE AND/OR ORDER OPPONENT TO
• REMOVE DEFICIENCY IN SERVICE
• DISCONTINUE THE UNFAIR TRADE PRACTICE
• PAY SUM TOWARDS LOSS OR INJURY SUFFERED BY LARGE
  NUMBER OF PEOPLE
• PROVIDE FOR ADEQUATE COST TO PARTIES

8
MEDICAL NEGLIGENCERequirements what to take
care of

• Medical Negligence is a shortcoming in the
  service agreed to be rendered by Medical
  Professional deficiency in service
• Medical Negligence is also a tort which calls
  for a reasonable degree of care expected of a
  professional like doctor or pathologist
• Valid Consent Informed Consent
• Record keeping Limitation ? S.29 r.w R.9 -
  format (D,E,F H and consent), period, medico
  legal cases, printed and duly authenticated copy

9
INDIAN MEDICAL COUNCIL

• Indian Medical Council formed under the IMA
  Act,1956 has the responsibility of Registration,
  Removal of name from Medical Register and
  Maintenance of Register
• Recognition and non recognition of Medical
  qualifications and also withdrawal of recognition
  
• Minimum standards of Medical Education
• A physician to uphold dignity of profession
  medical ethics and follow IMC regulations
• A physician has duty towards profession, fellow
  professionals and most importantly to patients

10
UNETHICAL ACTS, MISCONDUCT AND PUNIHSMENT

• Unethical acts include advertising, printing of
  self photograph, running a medical shop
  generally, rebate/commission, practice of
  euthanasia etc.
• Misconduct includes violation of regulations,
• Adultery and improper conduct
• Conviction by Court of law
• Sex determination
• Giving false Medical Certificate
• Disciplinary action may be taken by IMC
  Punishment includes suspension and removal from
  register for infamous acts

11
Duty to furnish Case Papers

• The Bombay High court in Raghunath Raheja v/s.
  Maharashtra Medical Council Ors. Reported in
  AIR 1996 Bombay 198 held that when a patient or
  his near relatives demand the copies of the case
  papers it is necessary for the hospital
  authorities and doctors concerned to furnish
  copies of such case papers

12
Where patient has not followed doctors advice

• In Md. Aslam v/s Ideal Nursing Home and Ors.,
  1986-99 Consumer 4233 (NS) National Commission
  held as follows Death of a patient due to
  infection after operation and Medical Negligence
  was alleged. No negligence on the part of the
  Nursing Home or the Doctors attending the
  patient-patient did not follow the advice given
  to her-appeal dismissed

13
Medical Record

• In Akhil Bharatiya Grahak Panchayat Anr. v/s
  Dr. Jog Hospital, III (1993) CPJ 1447 State
  Commission Maharashtra held as follows the
  Complainant failed to establish that the Opposite
  Party was negligent in performance of the
  operation on 21.11.91. In our view in the absence
  of necessary material on record, we cannot accept
  the allegations of the Complainant that the
  Opposite Party was negligent in his service.

14
Unexpected death and unable to come to
conclusion-Medical Negligence?

• In Smt. Archana 4 Ors. v/s Chaudhari
  Chest Hospital Ors., 1998(1) CPR 556, State
  Commission Maharashtra held as follows Medical
  Negligence-Deceased husband of Complainant was
  operated for hip bone fracture and he passed away
  in same evening. Complainant alleged no proper
  post operative care and patient had excessive
  bleeding. Negligence attributed to massive
  outflow of blood to the extent of 2500 ml.

15
.. unable to come to conclusion-Medical
Negligence?

• Medical evidence and Panchanama did not
  support that conclusion..... Pathological report
  showed that deceased had no diabetes, mellitus,
  ischaemic heart disease and therefore no blood
  clotting test was required under such
  circumstances. As per medical literature in case
  of hip fracture risk of embolism could develop at
  the time of fracture and not at surgery.
  Unexpected death could occur on account of
  pulmonary embolism. In post mortem report,
  doctors were unable to arrive at definite opinion
  regarding cause of death. Possibility of
  pulmonary embolism being cause of cardiac shock
  leading to death could not be ruled out which
  does not make any case of negligence on the part
  of doctor.

16
Dr. Ganesh Prasad Anr. V. Lal Janamajay Nath
Shahdeo, I(2006) CPJ 117 (NC),

• In this case a 4 ½ years old child suffering from
  cerebral malaria was admitted in hospital. Life
  saving injection was given. As opined by child
  specialist, doses were safe and treatment was
  proper. Though death of the child is unfortunate,
  it can not be said that there was negligence on
  the part of the doctor.

17
Dr. Ganesh Prasad Anr. V. Lal Janamajay Nath
Shahdeo ..contd

• National Commission reiterated the principle that
  where proper treatment is given, death occurred
  due to process of disease and its complication.
  It can not be held that doctors and hospitals are
  negligent and orders of lower fora upholding the
  claim and awarding a compensation of Rs. 5 lakhs
  were set aside.

18
Narasimha Reddy Ors. v. Rohini Hospital Anr.
I(2006) CPJ144(NC)

• National Commission held that where a patient
  could not be operated due to critical condition,
  doctor can not be held guilty of negligence if
  proper course of practice is adopted and
  reasonable care is taken in administration of
  treatment. Consequently the Revision petition
  filed by Complainant was dismissed

19
Degree of Care expected of a doctor

• Bolam v. Friern Barnet Hospital Management
  Committee (1957) 1 WLR 582 lays down the test to
  determine the liability of a doctor. The test is
  the standard of the ordinary skilled man
  exercising and professing to have that special
  skill. It is expected of a professional man that
  he should show a fair, reasonable competent
  degree of skill. Neither he is expected of a
  higher degree of skill of a person who has higher
  education and greater advantages nor is he
  expected to guarantee cure. Medical men would
  not be found negligent simply because one of the
  risks inherent occurs or because in a matter of
  opinion he legitimately took a view which
  unfortunately happened to produce an adverse
  result in particular circumstances as held in
  White House v. Jordan (1981) 1 WLR 246

20
in Lakshman Joshi v/s Dr.Trimbak AIR 1969 SC 128,

• Supreme Court inter alia held as follows
• The duties, which a Doctor owes to his
  patient, are clear. A person who holds himself
  out ready to give medical advice and treatment
  impliedly undertakes that he is possessed of
  skill or knowledge for the purpose. Such a
  person, when consulted by a patient, owes him
  certain duties, namely a duty of care in deciding
  whether to undertake the case, a duty of care in
  deciding what treatment to give or a duty of care
  in administration of that treatment.

21
Lakshman Joshi v/s Dr.Trimbak..
continued

• A breach of any of these duties gives a right
  of action for negligence to the patient. The
  petitioner must bring to his task a reasonable
  degree of skill and knowledge and must exercise
  reasonable degree of care.

22
INDIAN MEDICAL ASSOCIATION V/S V P SHANTA ORS

• Held The definition of service in Section
  2(1) (o) of the Act can be split into three parts
  the main part, the inclusionary part and the
  exclusionary part. The main part is explanatory
  in nature and defines service to mean service of
  any description which is made available to the
  potential users. The inclusionary part expressly
  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. The
  exclusionary part excludes rendering of a service
  free of charge or under a contract of personal
  service.

23
INDIAN MEDICAL ASSOCIATION V/S V P SHANTA ORS
.. continued

• Further held Medical Practitioners, though
  belonging to the medical profession are not
  immune from a claim for damages on the ground of
  negligence. The fact that they are governed by
  the Indian Medical Council Act and are subject to
  the disciplinary control of the Medical Council
  of India and/or State Medical Council is no
  solace to the person who has suffered due to
  their negligence and the right of such person to
  seek redress is not affected.

24
INDIAN MEDICAL ASSOCIATION V/S V P SHANTA ORS
.. continued

• Free Service
• The order further says that the Medical
  Practitioners, Govt. hospitals/ nursing homes and
  private hospitals/nursing homes broadly fall in
  three categories
• a) Where services are rendered free of charge to
  everybody availing the said services
• b) Where charges are required to be paid by
  everybody availing the services and
• c) Where charges are required to be paid by
  persons availing the services but certain
  categories of person who cannot afford to pay are
  rendered service free of charge.

25
Negligence per se

• Absence of a basic qualification for a
  homeopathic doctor to practice a system of
  medicine (allopathy) in Poonam Verma V/s Ashwin
  Patel Ors., (1996) CPS, (SC). Supreme Court
  held that a person who does not have knowledge of
  a particular system of medicine but practices in
  that system is a quack. Where a person is guilty
  of negligence per se, no further proof is needed.

26
Roe and Woolley v. The Ministry of Health and An
Anaesthetist, (1954) 2 All ER 131

• Lord Denning Every Surgical operation is
  attended by risks. We can not take the benefits
  without taking the risks. Every advance in
  technique is also attended by risks. Doctors like
  the rest of us, have to learn by experience and
  experience often teaches in a hard way

27
Res-ipsa Loquitur

• In Nihal Kaur v/s Director, P.G.I.M.S.R. III
  (1996) CPJ 112 where a patient died a day after
  surgery and the relatives found a pair of
  scissors utilized by the surgeon while collecting
  the last remains, a compensation of Rs. 1.20
  lakhs was awarded by the State Commission,
  Chandigarh on the grounds that negligence was
  writ large on record in handling the case though
  it was argued that arterial forceps and sponges
  were left behind in an attempt to save the life
  of the patient and (the said things were to be
  later removed, but could not be done as the
  patient died) the same did not contribute to
  patients death.

28
SPRING MEDOWS HOSPITAL ANR. ETC V/sHARJOL
AHLUWALIA

• In a landmark case, on 5.5.1998, the Supreme
  Court of India confirmed the order of the
  National Commission, which awarded a compensation
  of Rs. 12.5 lacs (out of the said amount Rs.
  12,37,500/- is to be paid by the Insurance
  Company) as compensation to a minor and Rs. 5
  lacs as compensation to the parents. The case,
  which attracted a great deal of public attention
  was

29
Sethuraman Subramaniam Iyer V/s Triveni Nursing
Home and Anr

• National Commission in considered the question
  of Medical Negligence considering the fact that
  there was no EXPERT EVIDENCE on behalf of the
  complainant. This is a very important case
  particularly for the medical fraternity because
  the value of expert evidence was recognized in
  this case.

30
Prashanth S. Dhananka v. Nizam Institute of
Medical Science Ors

• Honble National Commission deliberated on
  important issues such as what constitutes medical
  negligence, duty of a hospital to engage a
  specialist when a specialist is available,
  vicarious liability of a hospital for omissions
  and commissions of doctors and staff,
  compensation for mental and physical torture etc.,

31
Bhimrao Kashinath Dhaware V/s Dr. Viraj Lokur

• Hydronephrosis is a chronic disease with
  excess accumulation of water in the kidney. It is
  usually caused by the blockage of the ureter
  leading from the kidney. In early stages it may
  be possible to unblock the ureter, but in later
  stages removal of the kidney itself may be
  necessary.

32
Bhimrao Kashinath Dhaware .. continued

• As the Complainant did not succeed by
  pressurizing the Opponent doctor, he lodged a
  CRIMINAL COMPLAINT OF THEFT on the Opponent
  doctor at Miraj Police Station. Opponent doctor
  was called to the police station for
  interrogation when all relevant papers were
  produced in police station. The police department
  then admitted the complainant to Civil Hospital,
  Sangli, had a panel of doctors investigate him,
  and a report was submitted to the Superintendent
  of the Police of Sangli. Complainant did not stop
  his coercive tactics even at this stage but
  persisted with harassment of the doctor

33
Dr. Tokugha Yepthomi V/s Apollo Hospital
Enterprises Ltd. Anr

• Code of Medical ethics and right to life,
  a fundamental right
• The Appellant after obtaining MBBS degree from
  Jawaharlal Institute of Post Graduate Medical
  Education and Research, Chandigarh, completed his
  internship and junior residency at the same
  college. Later he joined the Nagaland State
  Health services as Assistant Surgeon Grade -1.
  One Itokhu Yepthomi who was ailing from a disease
  that was provisionally diagnosed as Aortic
  Aneurysm was advised to go to the Apollo Hospital
  at Madras and the Appellant was directed by the
  Government of Nagaland to accompany the said
  patient to Madras for treatment.

34
Dr. Tokugha Yepthomi .. continued

• The appellant and one Yehozhe who was the driver
  of Itokhu Yepthomi were asked to donate blood for
  the latter. Their blood samples were taken and
  the results showed that appellants blood group
  was HIV(ve). In August, 1995 the Appellant
  proposed marriage to one Ms. Akali which was
  accepted and the marriage was proposed to be held
  on December 12th, 1995. But the marriage was
  called off on the ground of blood test conducted
  at the Respondents Hospital in which the
  Appellant was found to be HIV(ve).

35
Dr. Tokugha Yepthomi .. continued

• Since the marriage had been settled but was
  subsequently called off, several people including
  members of the Appellants family and persons
  belonging to his community became aware of
  Appellants HIV () status. This resulted in
  severe criticism of the Appellant and he was
  ostracized by the community.

36
Dr. Suresh Gupta v. Govt. of NCT of
Delhi Anr., (2004)6SCC422

• When Medical Negligence may lead to criminal
  prosecution and arrest?
• Supreme Court of India declared while
  reviewing an order made by another bench of the
  apex court in Dr Suresh Gupta's Criminal Petition
  that extreme care and caution should be exercised
  while initiating criminal proceedings against
  medical practioners for alleged medical
  negligence.

37
Smt. Savita Garg v/s Director, National Heart
Institute, IV(2004)CPJ40(SC)

• Supreme Court did not favour dismissal of
  consumer cases filed against a hospitals on
  technical grounds.
• Dr. J.J.Merchant and Ors. V. Shrinath
  Chaturvedi, 2002(4) ALL MR 605 (S.C) the Apex
  Court inter alia dealt with the procedure
  relating to conduct of matters before the
  Consumer Fora, delay in disposal of complaints
  and whether a complicated matter has to be
  necessarily dismissed by the Consumer Redressal
  Agency with liberty to approach the civil court

court.
38
Pravat Kumar Mukherjee v. Ruby General Hospital
and Ors, II(2005)CPJ35(NC),

• National Commission called for qualitative
  change in the attitude of the hospitals. National
  Commission called upon the hospitals to provide
  service to the human beings as human beings. The
  Commission felt human touch is necessary. The
  Commission observed that is their code of
  conduct that is their duty and that is what is
  required to be implemented. In emergency or
  critical cases let them discharge their
  duty/social obligation of rendering service
  without waiting for fee or for consent
  Commission

39
Mrs. Shantaben Muljibhai Patel Ors. v. Breach
Candy Hospital and Research Centre Ors. I(2005)
CPJ 10 (NC)

• National Commission held that doctors are
  required to take risk while performing their job
  and merely because a patient dies to certain
  accidental eventualities does not establish
  deficiency in service or negligence on the part
  of a doctor or a hospital.

40
The relationship between Doctor/Hospital and
Patients is a relationship of trust doctors are
still known as healers!There is no real
alternative!!Let not commercialization destroy
the edifice of medical practice!!!