In India, all medical services fall under the purview of the Consumer Protection Act 1986. The interests of the consumers are protected against the deficiency of services. As per section 2 (1) of the Consumer Protection Act, 1986 the deficiency of service means any default, imperfection or inadequacy in the nature, quality, or manner of performance that should be maintained by any law for the time being in force. It shall be undertaken to be performed by a person in pursuance of a contract or the service provided. It is comprehensive legislation implemented to promote and safeguard the concerns of the consumers. To establish a relation between the CPA and the medical profession, it is essential to understand whether the patient can be considered a 'consumer' as per the definitions of CPA.
In order to deal with this uncertainty, the courts clarified that the medical treatment rendered to a patient for a certain amount of consideration is a service as described under the CPA. Hence it can be stated that medical professionals who render services are liable to the patient for injury caused due to negligence on his part.
For instance, in Indrani Bhattacharjee v. Chief Medical Officer and Ors, the doctor failed to advise the patient to consult cardiologist as the ECG of the patient was not normal. Instead of that doctor gave him medicines for the gastric problem which amounted to deficiency in service as per the Consumer Protection Act.
In the case of Kusum Sharma v. Batra Hospital and Medical Research Center and Ors, the court states that if the medical practitioner fails to maintain the standards of reasonable care, then they will be held liable for medical negligence, which gives appearance of deficiency in medical service as per Section 2 (1) (g) of Consumer Protection Act.
The District Consumer Forum has laid the order to refund the amount with interest in case of Kidney Stone Center v. Khem Singh, where the patient was suffering from the problem of stone in the urethra. The defendant promised to remove the stone without surgery by paying ten thousand rupees but failed to do so.
When doctors do the treatment or give their services without charging the patients, they are not held liable either individually or vicariously. Therefore, the free treatment at government or non-government hospital, dispensary or a nursing home, health care centre cannot be considered as service defined under Section 2 (1) (o) of the Consumer Protection Act, 1986. Therefore, the contract of providing the service is beyond the ambit of the Consumer Protection Act. The Act cannot rescue the patients, where they take free services or are paying only a nominal fee for the registration purpose. However, if the medical practitioner or doctors waive the charges due to the incapability of patients to pay the costs, then they are considered as consumers and can sue under the Act.
In Indian Medical Association v. P Santha, it is observed that the doctors or medical practitioners will be held liable for their services unless the exceptions mentioned in this case are not followed. The court states that the patients cannot be treated as a contract of personal services.
The complaints under the Consumer Protection Act can be filed at the District Forum, State Commission and National Commission.
- If the value of compensation and services claimed is less than 20 lakh rupees, then the matter will be filed before the District Forum.
- If the value of the goods or services and the compensation claimed is below one crore rupees, then the matter will be referred to the State Commission.
- And if the value of the goods or services and the compensation exceeds more than one crore rupees, the matter is referred to the National Commission. There is a minimal fee for filing a complaint before the District Consumer Redressal Forums, State Commission and National Commission.
By: Admin
Date: Jul 23rd 2019
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