Consumer protection act Medical Profession

1. Consumer Protection Act in
Medical Profession
DR HAR ASHISH JINDAL
JR

2. Contents
• Rights of a Consumer
• Where can a Consumer complain??
• Definitions
• Laws in Medical profession
• Consumer Protection Act – 1986 (CPA)
• Who is liable and Who is not?
• Duties of a doctor
• Prevention is better
• SWOT Analysis

3. • The Consumers International (CI), former International
Organisation of Consumer Unions (IOCU), the umbrella body,
for 250 organisations in over 120 countries has endorsed 8
rights.
• 1. Safety
2. Choose
3. Information
4. Heard
• The Consumer Rights No. 1 to 6 are also enshrined in the
Consumer Protection Act, 1986.
Rights of a consumer
5. Consumer Education
6. Redress
7. satisfaction of basic needs
8. Healthy Environment

4. What if the doctor
does not treat me
right??
PatientDoctor

5. When a consumer
has any complaint /
grievance against a
Doctor/ Hospital
(either Government
or Private Hospital)
Complaint the
Medical
Superintendent of
the concerned
Hospital with copy
to Chief Medical
Officer of his area
not satisfied with the
reply of the concerned
official then he should
send his complaint to
the State Medical
Council of his area.
not satisfied then he
can send his
complaint to the
Medical Council of
India.
Criminal type complaint -
effected consumer can file
complaint with the local Police
Station- the expert opinion will
be required to register any police
complaint.
File a case with the Consumer Forum,
Civil Court and Criminal Court for
seeking compensation for damages
arising out of wrong treatment or
removal of sensitive body parts during
operation.

6. Laws in Medical Profession
• Doctors have been liable under laws such as Civil Procedure Code,
Indian Penal Code, Law of Contractors, Law of Torts and other
specific Legislation.
• under Section 304-A of the Indian Penal Code (IPC), the doctor
who commits criminal liability is punishable with imprisonment for
a term which may extend upto two years, or with a fine, or both.
• Civil liability- arises in case of medical service rendered on payment
of fee, under section 73 and 74 of the Indian Contract Act 1986
• Under the Law of Torts (a wrong that is independent of contract)
civil liability is applicable to doctors on the Grounds of professional
misconduct.

7. Need for CPA
Drawbacks Indian Penal Code, Law of Contracts, Law of Torts
and other specific Legislation:
• (i) Delay to decisions ;
• (ii) High cost of bringing an actions;
• (iii) limited access to the courts ;
• (iv) Difficult to prove both negligence and causation.
No provisions in the Indian Medical Council Act, 1956 ;
• (i) to entertain any complaint from the patient ;
(ii) to award any compensation, etc. in case the negligence is
proved

8. Definitions
Who is a Consumer in medical profession..
• A patient who pays to get services of doctor /hospital,
• Any person who pays for the patient, legal heirs /
representatives of such patients,
• In case of death of patient who is a consumer, legal heirs
(representatives) of the deceased will be considered as
"consumer".
• If the payment has been made by any person who is not a legal
heir of the deceased he too will be considered as "consumer.

9. What is a Complaint?
• Any allegation, in writing made by a complainant that the services
hired or agreed to be hired or availed of by him suffer from
deficiency in any respect.
Who is a Complainant?
• Complainant means -
(i) a consumer ; or
(ii)the Central Government or any State Government
(iii) any registered voluntary consumer association
(iv) one or more consumers, where there are numerous
consumers having the same interests ; who or which makes a
complaint.
Definitions

10. Definition
• Service means
any description which is made available to potential users and
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 but DOES NOT INCLUDE THE
RENDERING OF ANY SERVICE FREE OF CHARGE
OR UNDER A CONTRACT OF PERSONAL SERVICES.

11. Negligence
• Professional negligence - the breach of a duty caused by the
omission to do something which a reasonable man guided by
those considerations would do or doing something which a
prudent and reasonable man would not do.
• Medical negligence or malpractice - lack of reasonable care and
skill or willful negligence on the part of a doctor in the treatment
of a patient whereby the health or life of a patient is endangered.
Example : If a junior doctor is involved as part of a surgery, then his duty, as far as the
exercise of the specialist skill is concerned, is to seek the advice or help of a senior
doctor. He will have discharged his duty once he does this and will not be liable even if
he actually commits the act which causes the injury ,anything apart from his duty has
a liability of negligence .

12. Consumer Protection Act(CPA)
• The CPA, 1986 is a benevolent social legislation that lays
down the rights of the consumers and also provides means for
their promotion and protection.
• In 1993, the Supreme Court brought the medical profession
under the Section 2(1) (o) of CPA.
Features:
• safeguard and protect the interest of consumers.
• simplification of procedures for seeking redressal of
grievances of patients or their relatives.
• less expensive
• within a limited time frame

13. How doctors are included in CPA??
• The National Consumer Disputes Redressal Commision’s
order decreed that the doctor - patient relationship is a contract
for personal service and it is not master - servant relationship.
• The doctor-patient relationship is a contract for personal
service and could not contract of personal service
• Hence patients who had sustained injuries in the course of
treatment can sue doctors in consumer protection courts for
compensation.

14. Administration
Consumer
Protection
Councils
Central
Councils
Chairperson: Minister in-
charge of the Department of
Consumer Affairs in the
Central Government
State
Councils
Chairperson: Minister in-
charge of the Consumer
Affairs in the State
Governments
District
Councils
Chairperson:
District
Collector
AIM:
promoting
consumer aware
Resolution passed by
these Councils are be
recommendatory in
nature.

15. 3 tier system of CPA
State
Commission
District forum
National Commission

16. Where is a complaint filed?
District Forum
• if the value of
services and
compensation
claimed is
less than Rs.
20 lakh
State
Commission
• if the value of
the services
and the
compensation
claimed does
not exceed
more than
Rs.1 crore.
National
Commission
• if the value of
the services
and the
compensation
exceeds more
than Rs 1
crore .

17. District Forum
• Chairman : a
person who is
qualified to be a
District Judge
• Two or more
members who
have adequate
knowledge or
experience in
dealing with
problems relating
to various fields,
one of whom is a
woman
State Commission
• Chairperson: a
person who is or
has been judge of
a High Court,
appointed by the
State Government
• two other
members with
qualifications and
experience (as for
District Forum)
within the State
National Commission
• Chairperson: a
person who is or
has been a judge
of the Supreme
Court to be
appointed by the
Central
Government.
• 4 or more other
members ,one of
whom shall be a
woman
Chair person and Members

18. Location
District Forum
• Rohtak District
Consumer
Court/Consumer
Forum
• 3rd Floor Court No. 14
• New Judicial Complex
Mini Secretariat
• Rohtak,Haryana-
124001
• Ph: 01262-245550
State
Commission
• Haryana State
Consumer
Disputes
Redressal
Commission, Bays
No3-6, Sector 4
Panchkula –
134112
• Ph:0172-2567601
National
Commission
• National
Commission
Upbhokta Nyay
Bhawan,'F'
Block, GPO
Complex, INA,
New Delhi-110
023
• Telephone Nos.
011-24608801

20. Who is liable?
• All medical/dental practitioners doing independent
medical/dental practice unless rendering only free service.
• All Private hospitals charging patients.
• All hospitals having free as well as paying patients and all the
paying and free category patients receiving treatment in such
hospitals.
• Medical/dental practitioners and hospitals paid by an insurance
firm for the treatment of a client or an employment for that of
an employee.

21. When is the doctor liable?
Wrong
Judgement
Mere error in Judgement
When a doctor takes a
decision that turns out
to be wrong but in
that situation it
seemed correct-
inadvertent death
All aspects covered
but in retrospect
highlights the cause of
error
Negligence
Not all the
scenarios
were covered

22. How does adjudication of liability take
place?
Complainant files a written complaint
the forum/ Commission, admits the
complaint
sends a written notice to the opposite party
asking for a written version to be submitted
within 30 days.
proper scrutiny either filing of an affidavit or
production of evidence in the form of
interrogatories, expert evidence, medical
literature, and judicial decisions.

23. How does adjudication of liability take
place?
The Forum/ Commision is satisfied that any of the
allegations contained in the complaint about the
services are proved
Issue an order to the opposite party
directing him
compensation to the
consumerFee waiver
To remove the
deficiency in the
services

24. I am innocent
Where should I
go?????

25. Provision of appeal !!!
Within 30
days
• An appeal against the decision of the District
Forum can be filed before the State
Commission.
Within 30
days
• An appeal against the decision of the State
Commission to the National Commission
Within 30
days
• An appeal against the decision of the National
Commission to the Supreme Court

26. TIME SCHEDULE FOR DISPOSAL
OF COMPLAINTS/APPEALS
• Every complaint  decided within  90 days from the date
of receipt of notice by opposite party, where there is no
requirement for testing of sample etc. In the event of such a
requirement, the prescribed time is 5 months.
• Appeals disposed of within a period of 90 days.
• If a complaint/appeal is disposed of after the specified period,
then the Forum/Commission records the reasons for the
delay in writing.

27. FEE FOR FILING A COMPLAINT
[Section 12(2)]

28. FEE FOR FILING A COMPLAINT
[Section 12(2)]

29. Conditions of CPA
Limitation Period
• File the complaint within 2 years from the date on which the
cause of action has arisen.
Dismissal of frivolous or vexatious complaints
• the case found to be frivolous or vexatious, the complaint is
dismissed and an order is made that the complainant pays a
cost , not exceeding 10,000 rupees, to the opposite part.

30. Conditions of CPA
Penalties
• Where the defendant or the complainant fails to comply, then it
may be punishable with imprisonment for a term which is not
be less than one month but which may extend to three years, or
with fine which is not be less than Rs 2,000 but which may
extend to Rs 10,000 or with both

31. Doctor - Innocent or guilty ????
• In order to achieve success in an action for negligence, the
consumer must be able to establish to the satisfaction of the
court that :
– the doctor (defendant) owed him a duty to conform to a
particular standard of professional conduct ;
– the doctor was derelict and breached that duty ;
– the patient suffered actual damage
– the doctor’s conduct was the direct or proximate cause of
the damage.
• Failure to provide substantialize evidence on any one element
may result in no compensation.

32. When is their a
breach of duty
??

33. Duties of a doctor
On the basis of Codes of Ethics (MCI, 2002) and Declarations, the
duties of a doctor are -
• 1. Duties to the Patient: These are : Standard Care, Providing
Information to the Patient /Attendant , Consent for Treatment, and
Emergency Care.
2. Duties to the Public.
3. Duties towards Law Enforcers.
4. Duties not to violate Professional Ethics.
5. Duties not to do anything illegal or hide illegal acts.
6. Duties to each other.

34. When does a question of duty arise?
• Duty towards a patient begins the moment a doctor agrees to
take on the case. He must not, therefore, abandon his patient1
• Supreme court ruling “every doctor, at the governmental
hospital or elsewhere, has a professional obligation to extend
his services with due expertise for protecting life”- restricted to
situations where there is danger to the life of the person.2
1.Laxman Joshi v Babu Godbole, AIR 1969 SC 128
2.Parmanand Kataria vs. Union of India[1996]

35. Doctor - patient Contract
• The doctor-patient contract is almost always of the implied type,
except where a written informed consent is obtained.
• An implied contract is where one person renders services under
circumstances indicating that he expects to be paid and the other
person knowing such circumstances, avails himself of benefit of
those services
Express consent
• Express oral consent is obtained for relatively minor examinations
or therapeutic procedures, preferably in the presence of a
disinterested third party.

36. Informed Consent.
• Express written consent is to be obtained for : (i) all
major diagnostic procedures and surgical operations, (ii)
general anesthesia, (iii) intimate examinations, (iv)
examination for determining age, potency and virginity,
and in medico-legal cases
• Must be explained in comprehensible non-medical terms
preferably in local language about the (a) diagnosis, (b)
nature of treatment,(c) risks involved, (d) prospects of
success, ( e) prognosis if the procedure is not performed,
and (f) alternative methods of treatment.

37. Reasonable Care
• It means that the degree of care and competence that an
“ordinary competent member of the profession who professes
to have those skills would exercise in the circumstance in
question.”
• Generalist and specialist are expected to take reasonable care
but what amounts to reasonable care with regard to the
specialist differs from what amount of reasonable care is
standard for the generalist.
• The law expects the specialist to exercise the ordinary skill of
his speciality and not of any ordinary doctor.

38. Treat according to Reasonable Skill - Not to
undertake any procedure beyond his skill
I should go to
a specialist!!!!
MD
TAKE HELP in
• Any complicated cases
• Performing an operation which may
be dangerous to life or requiring
amputation
• Operating on a case in which there
has been a criminal assault,
• Performing an operation which may
affect the intellectual or reproductive
functions of a patient.
MD

39. Professional Secrets
• A professional secret is one which a doctor comes to learn in
confidence from his patients, on examination, investigations or
which is noticed in the ordinary privacies of domestic life.
• A doctor is under a moral and legal obligation not to divulge
any such secret except under certain circumstances.
• Privileged communication is defined as a communication
made by a doctor to a proper authority who has corresponding
legal, social and moral duties to protect the public.

40. Duty not to violate Professional Ethics
1..
2
3. Not.
Not to run a medical store / open shop for sale
of medical and surgical instruments.
Not to indulge in self-advertisement
Not to associate with
unregistered medical
practitioner and not
allow them to practice
Not to issue false certificates and bills
India

41. Not to attend patient when
under the effect of alcohol
No fee sharing
Not to talk loose about colleagues
Not to refuse professional service on
grounds of religion, nationality, race,
party politics or social status.

42. Duty not to do anything illegal or hide illegal acts
1. Perform illegal abortions / sterilization’s
2. Issue death certificates where cause of death is
not known.
3. Not informing police a case of accident, burns,
poisoning, suicide, grievous hurt, gas gangrene.
4. Not calling Magistrate for recording dying
declaration.
5. Unauthorized, unnecessary , uninformed
treatment and surgery or procedure.
Sex determination

43. Prevention
• PREVENTION AT PERSONAL LEVEL
• PREVENTION AT PRACTICE
• PREVENTION BY PROFESSIONAL INDEMNITY
• PREVENTION BY PEOPLE SUPPORT GROUPS

44. PREVENTION AT PERSONAL LEVEL
• True and M.C.I. approved qualification, training &
experience of recognized centers are the primary safeguards
against any litigation.
• Refrain from claims of guarantee of results.

45. PREVENTION AT PERSONAL LEVEL
• Communication: This is the key to doctor-patient
relationship.
• Increasing crowds of patients and improper communication to
patient about diagnostics and treatment procedures, complications
and claims of guarantee success are main reasons for patient
dissatisfaction.
• Answer all queries of the patients/relative without getting irritated
and patiently.
• Do not be averse of any demand/suggestion for second opinion by
patient/relatives.
• Keep empathy

46. PREVENTION AT PERSONAL LEVEL
Interpersonal behaviour
• The whole system of medical establishment should be made
courteous, and polite.
• The special training should be imparted to experts about
dealing with patients/relatives under grievous mental stress
due to some loss/injury.
Academic & technical up gradation
• To keep pace with fast changing scenario of technical
advancement, one should regularly attend CME’s, workshops
and other academic sessions should also be organized to
upgrade our junior staff and nursing team.

47. PREVENTION AT PERSONAL LEVEL
• A thorough knowledge of medical
ethics and laws is essential for all
medical professionals.
GET A FEEDBACK
>>>>IMPROVE

48. PREVENTION AT PRACTICE
• The key steps are exercising reasonable skill and care in
diagnosis and treatment, documentation and legally valid
informed consent.
• The reasonable skill & care
• There are 3 aspects of reasonable skill and care
1. Medical
2. Social
3. Legal

49. PREVENTION AT PRACTICE
• Medical aspect
First and foremost it is imperative for every
doctor/hospital/nursing home to exercise reasonable skill and
care expected of an average person with equivalent qualification
and experience in similar circumstances.
• Social aspect
We should always exhibit our reasonable skill and care to the
patient/attendants/relatives, through expressions, body
language, actions and discussions. These must be visibly
palpable

50. • Make good clinical notes of findings on examination and
treatment given with specific dates and time.
• Negative records act as important tool while defending the cases
in court of law.
• Please make sure that your handwriting is legible.
PREVENTION AT PRACTICE(Legal aspects)
DOCUMENTATION!!! DOCUMENTATION!!!DOCUMENTATION!!.

51. PREVENTION BY PROFESSIONAL
INDEMNITY
• " indemnity " means reimbursement, to compensate.
Insurance cover
• Provides the claim of compensation awarded against
doctor/hospital
• Gives a sense of mental security (even in cases of
same negligence).
• Arrange advocates for the legal help

52. PREVENTION BY PEOPLE SUPPORT
GROUPS
• Societies –
– Provides social security
– regular fellowship that prohibit the doctors speaking foul
against their own colleague.
• Acts as an update as time to time discussions about various
provisions of acts, cases fought and their results and the
lessons learnt from them.
• Acts as a pressure group on the dissatisfied patient on moral
and emotional grounds.

53. SWOT ANALYSIS

54. • Highly technical orientation of the
Medical field
• Declining credibility of medical
Profession.
• Professional jealousy.
• Lack of objectivity and empirical
nature of several regimens
• Commercialization of medical
profession.
• Inept medical record keeping
• Lack of staff
• Pending cases
• Corrupt lawyers
• Valued as noble profession
• Giant strides in the medical
profession
• Significant proportion of doctors
committed to protect the Rights
of the Consumers.
• Strong consumer movement in
the country.
• Revives the Hippocratic Oath
• Vigilant press.
Strengths Weaknesses

55. • Low level of awareness among
patient and doctors.
• Illiteracy and low socio-
economic status of patients.
• Exaggerated claims encouraged
by lawyers.
• Tendency of insurance
companies to opt for out of
court settlements.
• Growing urge to practice
defensive medicine
• Growing patient
consciousness for quality care.
• Successful application of the
CPA to other services/goods.
• Possibility of strengthening of
MCI Agreeing to the
application of CPA
• Realisation of need for regular
CME programmes.
• Clinicopathological meets in
instances of medical
negligence.
ThreatsOpportunities

57. Final verdict
With CPA medical profession may seem
vulnerable, but it forces the medical personnel's
to be more responsible , accountable and
remain upto date to serve the society in a more
effective and an efficient way, though a legal
assurance, ensuring protection from
unnecessary and arbitrary complaints, is the
need of the hour.

60. References:
1. Smreeti Prakash A comparitive analysis of various legal
systems regarding medical negligence: Criminal Consumer &
Torts law 2005
2. http://ncdrc.nic.in/
3. Dr. Mukesh Yadav, "Criminal Negligence by Doctors-A
Scenario of Aggressive Patients, Confused Doctors and
Divided Judiciary!", IIJFMT 2(4) 2004.
4. N.Satyanarayana, G. Vijaya Kumar, "Consumer Protection
Act and the Medical Profession", IndMedica, 2006.
5. Talha Abdul Rahman, "Medical negligence and doctors'
liability", Indian Journal of Medical Ethics, April-June, 2005