CONSUMER PROTECTION ACT & MEDICAL NEGLIGENCE

CONSUMER PROTECTION ACT&MEDICAL NEGLIGENCE ACT AND PRACTICE OF PATHOLOGY

Know thy law • Tort • Contract • Consumer Protection Law • Civil Courts • Tribunal – Consumer Fora

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

Consumer Protection ActService Provider & Consumer Legal Aspects

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

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

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

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

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

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

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

Where patient has not followed doctor’s 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’

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.’

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.

……………….. 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.’

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.

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.

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

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

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 treatmentimpliedly 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 carein 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.

Lakshman Joshi v/s Dr.Trimbak…….. continued A breach of any of these dutiesgives 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.

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.”

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.

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.

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.

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”

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 patient’s death.

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:

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.

Prashanth S. Dhananka v. Nizam Institute of Medical Science & Ors Hon’ble 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.,

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”.

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

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.

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 appellant’s 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 Respondent’s Hospital in which the Appellant was found to be HIV(+ve).

Dr. Tokugha Yepthomi .. continued Since the marriage had been settled but was subsequently called off, several people including members of the Appellant’s 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.

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.

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.

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”

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.

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!!!

CONSUMER PROTECTION ACT & MEDICAL NEGLIGENCE