Consumer Protection And Medical Negligence: An Analysis Of Judicial Pronouncements

LAW MANTRATHINK BEYOND OTHERS (National Monthly Journal, I.S.S.N 2321 6417)

“The Consumer Protection Act and Medical Services” Introduction The Consumer Protection Act Was enacted to enable the consumers to fight against the malpractices which were rising with the rise of consumerism. The act was successful in dealing with these problems but as anything cannot be perfect at the first instance, the COPRA was not an exception. Though the act was comprehensive enough to deal with almost all the problems, the act found some specific problems in dealing with the medico-legal cases. The very first problem was related to the issue that whether the act was competent enough to deal with the medical cases. There were many more problems which emerged with the rise of medico-legal cases. The consumer of the health care industry cannot be excluded from the act for it is not only doctors who are involved in the health care delivery but, the pharmaceutical industry, the medical equipment companies and other ancillary industries who are involved. If the patient is not taken as a consumer then the other sectors involved in health care can also escape the provisions of COPRA.1 The Supreme Court in the case of Charan Singh vs Healing Touch Hospital & Ors2, has observed that Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act quasi-judicial powers for redressal of consumer dispute and it is one of the postulates of such a body that it arrive at a conclusion on reason.

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Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993) 2 AIR 2000 SC 3138

Defining Medical Negligence The definition of medical negligence has not changed over decades. “Failure to exercise reasonable skill as per the general standards and prevalent situation is termed as medical negligence. Therefore failure to cure, occurrence of infection, complication, even a death, cannot be taken in isolation and termed as medical negligence. The doctor-patient relationship cannot be termed as personal service. The doctor-patient relationship is a contract for service. A patient seeks a doctor’s service for professional reasons.3 However in the matter of professional liability professions differ from other occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man’s control. While discussing the scenario in which Consumer protection Act was enacted, The Supreme Court in the case of M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia4 observed that- “The United Nations had passed a resolution in April, 1985 indicating certain guidelines under which the Government could make law for better protection of the interest of the consumers. Such laws were more necessary in the developing countries to protect the consumers from hazards to their health and safety and make them available speedier and cheaper redress. Consumerism has been a movement in which the trader and the consumer find each other as adversaries. Till last two decades in many developed and developing countries powerful consumer organizations have come into existence and such organizations have been instrumental in dealing with the consumer protection laws and in expansion of the horizon of such laws. In our country the legislation is of recent origin and its efficacy has not been critically evaluated which has to be done on the basis of experience. Undoubtedly the Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system.”

The first few legal pronouncements In Dr. A.S. Chandra v. Union of India5, a Division Bench of Andhra Pradesh High Court has held that service rendered for consideration by private medical practitioners, private hospitals and nursing homes must be construed as ’service’ for the purpose of Section 2(1)(d) of the Act 3

Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993) 4 AIR 1998 S.C. 1801 5 (1992) 1 Andhra Law Times 713

and the persons availing such services are ’consumers’ within the meaning of Section 2(1)(d) of the Act. In Dr.C.S. Subramanian v. Kumarasamy & Anr6, a Division Bench of the Madras High Court has, however, taken a different view. It has been held that the services rendered to a patient by a medical practitioner or by a hospital by way of diagnosis and treatment, both medicinal and surgical, would not come within the definition of ’service’ and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment, both medical and surgical, cannot be considered to be a ‘consumer’ within the the Act but this does not applies to paramedical services. In the case of Indian Medical Association v V.P. Shantha & Ors.7, The Apex Court further cleared the position by discussing the position of unpaid service. The court held thatService rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical, would fall within the ambit of ’service’. Service rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody, would not be "service". The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position but if services are rendered on payment of charges and also rendered free of charge to other persons availing such services would fall within the ambit of the expression ’service’ irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.

Need for including medical negligence in COPRA In recent days there has been increasing pressure on hospital facilities, falling standard of professional competence and in addition to all, the ever increasing complexity of therapeutic and diagnostic methods and all this together are responsible for the medical negligence. The Supreme Court has also highlighted the need of inclusion of medical negligence in the purview of the act. The Apex court held that we are dealing with a problem which centres round the 6 7

(1994) 1 MLJ 438 1996 AIR 550

medical ethics and as such it may be appropriate to notice the broad responsibilities of such organizations who in the garb of doing service to the humanity have continued commercial activities and have been mercilessly extracting money from helpless patients and their family members and yet do not provide the necessary services. It is a great mistake to think that doctors and hospitals are easy targets for the dissatisfied patient. It is indeed very difficult to raise an action of negligence. Not only there are practical difficulties in linking the injury sustained with the medical treatment but also it is still more difficult to establish the standard of care in medical negligence of which a complaint can be made. All these factors together with the sheer expense of bringing a legal action and the denial of legal aid to all but the poorest operate to limit medical litigation in this country. In the case of Lakshmi rajan v malar hospital ltd.8, the complainant noticed development of a painful lump in her breast for which she consulted a Physician Dr. P.K. Srinivasan, from wherein she was referred to the second respondent Malar Hospital. She was examined by a physician of the hospital. The painful lump was diagnosed to be "Fibro Adenoma" of the left breast and the complainant was advised mammogram and excision biopsy. The mammogram was done on which showed two well defined nodules in the left breast with features of Fibro Adenoma. The complainant was again admitted in the Malar Hospital and an ultrasound study of the ultra abdomen was done. While it revealed other things to be normal but it revealed the uterus of the complainant to be anteverted and ovaries normal and there was no indication of a Pro-lapsed or descended uterus. The complainant was operated upon on and when she regained consciousness she was shocked to be told by the appellant that her uterus has also been removed. In this case compensation was awarded by the court. In the case of M/S. Spring Meadows Hospital & Anr vs Harjol Ahluwalia9 The patient (minor) was admitted in a hospital and the doctor made the diagnosis that the patient was suffering from typhoid and intimated the parents that medicines have been prescribed for the treatment of the typhoid fever. The injection In Lariago was administered intravenously to the minor patient. No sensitive test to find out whether there would be any adverse reaction on the patient before administering the injection was done. 8

Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993) 9 Arun Bal, Consumer Protection Act and Medical Profession, Economic and Political Weekly, Vol. 28, No. 11 (Mar. 13, 1993)

The child was admitted in the Pediatric Intensive Care Unit of the All India Institute of Medical Science. In the Institute the doctors examined the minor child thoroughly and informed the parents that the child is critical and even if he survives, he would live only in a vegetative state as irreparable damage had been caused to his brain and there was no chance of revival of the damaged parts. The complainant alleged that the child on account of negligence and deficiency on the part of the hospital authorities suffered irreparable damages and could survive only as a mere vegetative and accordingly claimed compensation to the tune of Rs. 28 lacs. On behalf of the other party objection was filed before the commission taking the stand that no payment having been made it cannot be said that the services of the hospital having been availed for consideration and as such the complainant is not a consumer within the definition of ‘Consumer’ in the Consumer Protection Act. The learned counsel appearing for the hospital contended that the complaint having been filed by the minor child who was the in-patient in the hospital through his parents the said minor child can only be the consumer and the parents cannot claim any compensation under the Consumer Protection Act for the mental agony they have suffered. The learned counsel then urged that under the Consumer Protection Act the consumer to whom services has been provided can make a complaint and in the case in hand the services having been provided to the minor patient, he becomes the consumer and consequently no compensation can be awarded in favour of the parents of the consumer. The learned counsel lastly contended that under Section 14(1) (d) of the Act the Commission would be entitled to pay such amount as compensation to the consumer for any loss or damage suffered by such consumer and in the case in hand the minor child being the consumer the Commission was not competent to award compensation to the parents for the mental agony they have suffered. Therefore there were three major issues before the Honorable Court1. The minor child being the patient who was admitted into the hospital for treatment can the parents of the child be held to be consumers so as to claim compensation under the provisions of the Consumer Protection Act? 2. Is the commission under the Act entitled to award compensation to the parents for mental agony in view of the powers of the commission under Section 14 of the Act?

3. Even if the child as well as the parents of the child would come under definition of the 'consumer' under Section 2(1) (d) of the Act whether compensation can be awarded in favor of both the consumers or compensation can be awarded only to the beneficiary of the services rendered, who in the present case would be child who was admitted into the hospital? The court answered these questions in the following wayThe section 2(1)(d) of the act states that “ a consumer would mean a person who hires or avails of the services and includes any beneficiary of such services other than the person who hires or avails of the services. Therefore in the present case both the child and the parents are consumers and therefore there is nothing which can prevent the court/commission from awarding compensation to the parents for the mental agony suffered by them. There is an array of cases where adequate compensation has been awarded to the consumers In the case of Dr. Suresh Gupta v. Govt. of NCT of Delhi and Anr.10, the patient, a young man with no history of any heart ailment, was subjected to an operation performed by Dr. Suresh Gupta for nasal deformity. The operation was neither complicated nor serious. The patient died. On investigation, the cause of death was found to be "not introducing a cuffed endotracheal tube of proper size as to prevent aspiration of blood from the wound in the respiratory passage". The Bench formed an opinion that this act could be described as an act of negligence as there was lack of due care and precaution. In the case of Laxman Balkrishna Joshi vs Trimbak Bapu Godbole And Anr11, the person suffered a fracture of the femur of his left leg. First aid was given by a local physician though the leg was not fully or properly immobilized, and, he was taken to the appellant's hospital 200 miles away, in a taxi after a journey of about eleven hours. The appellant directed his assistant to give two injections of morphed but only one injection was given. The patient was then given some treatment in the operation theatre and a little later the patient’s condition deteriorated and he died. It was found that the death was caused due to shock resulting from reduction of the fracture attempted by the appellant without taking the elementary caution of giving anesthetic to the patient and therefore the doctor was made liable. The court also observed that, “A person who holds himself out ready to give medical advice and treatment impliedly holds forth that he is possessed of skill and knowledge for the purpose. 10 11

(2004) 6 SCC 422 1969 AIR 128

Such a person when consulted by a patient owes certain duties, namely, a duty of care in deciding whether to undertake the case, a duty of care in deciding what treatment to give, and a duty of care in the administration of that treatment. A breach of any of these duties gives a right of action of negligence against him. The medical practitioner has discretion in choosing the treatment which he proposes to give to the patient and such discretion is wider in cases of emergency, but, he must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care according to -the circumstances of each case.” In the case of Martin F. D'Souza v Mohd. Ishfaq12, the Apex court has observed that a medical practitioner is not liable to be held negligent simply because things went wrong from mischance or misadventure or through an error of judgment in choosing one reasonable course of treatment in preference to another. He would be liable only where his conduct fell below that of the standards of a reasonably competent practitioner in his field. For instance, he would be liable if he leaves surgical gauze inside the patient after an operation or operates on the wrong part of the body, and he would be also criminally liable if he operates on someone for removing an organ for illegitimate trade. The professional is one who professes to have some special skill. A professional impliedly assures the person dealing with him (i) that he has the skill which he professes to possess, (ii) that skill shall be exercised with reasonable care and caution. Judged by this standard, the professional may be held liable for negligence on the ground that he was not possessed of the requisite skill which he professes to have. In the case of Achutrao Haribhau Khodwa vs State Of Maharashtra And Ors13, the patient was admitted to the government hospital where she delivered a child and had a sterilization operation on. This operation is not known to be serious in nature and in fact was performed under local anesthesia. Complications arose thereafter which resulted in a second operation being performed on her. She did not survive for long and died. The patient had had a minor operation and due to the negligence of the doctors a mop (towel) was left inside her peritoneal cavity. It is true that in a number of cases when foreign bodies are left inside the body of a human being either deliberately, as in the case of orthopedic operations, or accidentally no harm may befall the patient, but it also happens that complications can arise when the doctor acts without due care and caution and leaves a foreign body inside the patient after performing an operation and it suppurates. Pus was formed inside the body and it gave rise to many 12 13

AIR2009SC2049 1996 SCC (2) 634

difficulties to the patient and she ultimately died. The formation of pus leaves no doubt that the mop left in the abdomen caused it, and it was the pus formation that caused all the subsequent difficulties. The Court held that, “There is no escape from the conclusion that the negligence in leaving the mop in abdomen during the operation led, ultimately, to her death. In the case of Dr. Tokugha v. Apollo Hospital Enterprises Ltd.14 , a Doctor in interest of the girl revealed the secret that his fiancé is being tested positively in a HIV test, the boy filed a suit that the Doctor has ruined his life by making his secret open to the world. In this case it was then held that rule if confidentiality is subject to certain exception when the circumstances demand disclosure of the patient’s health in public interest especially in cases of where it s for save other from immediate harm and future health risks. And it was duly added as well that the right of privacy of a person is not an absolute right as principally when the fact of a person’s health condition would be violating the right to life of another person. In the case of Smt. Jahira v. Govt. of Uttar Pradesh15 it was held that a person not paying any amount as a compensation for the medical services rendered to him is not entitled for any compensation at all form the other side, as in this case a lady went under MTP ( Medical Termination of Pregnancy) and the operation was done in a Government hospital and free of cost, the appellant just paid only the amount for prescription, room rent and for the Glucose nothing else was charged from her and not a single Rupee regarding the surgery. Then it was held by the court that a patient does not remain consumer if he is not being charged any amount monetarily and cost for the incidental charges would not be making any difference to the status quo.

Conclusion Therefore we can now come to the conclusion that the Consumer Protection Act is competent enough to deal with the medico-legal cases and it is also clear that the consumers of medical services can claim compensation for the irresponsible behavior of the doctors. However it is also clear that each and every mistake cannot be attributed to the doctors as they are humans and they cannot be made liable for the situations that may arise despite due care and diligence.

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A.I.R. 1999 S.C. 495 II (2001) C.P.J. 354

By:- Jagjeet Vashishtha , Student , Semester VI

Institute of law Nirma University

Harsh Sharma, Student , Semester IV Institute of law Nirma University