Consumer Protection Act

in Medical Profession

DR HAR ASHISH JINDAL

JR

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

Rights of a consumer
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.
5. Consumer Education
1. Safety
6. Redress
2. Choose
7. satisfaction of basic needs
3. Information
8. Healthy Environment
4. Heard
The Consumer Rights No. 1 to 6 are also enshrined in the
Consumer Protection Act, 1986.

What if the
doctor does
not treat me
right??

Doct
or

Patien
t

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

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.

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.

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.

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

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.

Definitions
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.

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.

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

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

How doctors are included in CPA??

The National Consumer Disputes Redressal Commisions
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.

Administration
AIM:
promoting
consumer aware

Consumer
Protection
Councils

Resolution passed by
these Councils are be
recommendatory in
nature.

Central
Councils

State
Councils

Chairperson: Minister incharge of the Department of

Consumer Affairs in the
Central Government

Chairperson: Minister incharge of the Consumer

Affairs in the State
Governments

District
Councils

Chairperson:
District
Collector

3 tier system of CPA

National Commission

State
Commissio
n
District forum

Where is a complaint filed?

District Forum
if the value of
services and
compensation
claimed is
less than Rs.
20 lakh

State
Commission

National
Commission

if the value of
the services
and the
compensation
claimed does
not exceed
more than
Rs.1 crore.

if the value of
the services
and the
compensation
exceeds more
than Rs 1
crore .

Chair person and Members

District Forum

State Commission

National Commission

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

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

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

Location
District Forum
Rohtak District
Consumer
Court/Consumer
Forum
3rd Floor Court No. 14
New Judicial Complex
Mini Secretariat
Rohtak,Haryana124001
Ph: 01262-245550

State
Commission
Haryana State
Consumer
Disputes
Redressal
Commission,
Bays No3-6,
Sector 4
Panchkula
134112
Ph:01722567601

National
Commission
National
Commission
Upbhokta
Nyay
Bhawan,'F'
Block, GPO
Complex,
INA, New
Delhi-110
023
Telephone
Nos. 011-

CPA!!
!!

CPA
wh !! So
at?
??

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.

When is the doctor liable?

Wrong
Judgeme
nt

Mere error in Judgement

When a doctor takes a
decision that turns out
to be wrong but in
that situation it
seemed correctinadvertent

All aspects
covered but in
retrospect
highlights the
cause of error

Negligen
ce
Not all the
scenarios
were
covered

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.

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

Fee waiver

compensation to the
consumer

To remove the
deficiency in the
services

I am
innocent
Where
should I
go?????

Provision of appeal !!!

Within 30
days

Within 30
days

Within 30
days

An appeal against the decision of the District

Forum can be filed before the State Commission.

An appeal against the decision of the State

Commission to the National Commission

An appeal against the decision of the National

Commission to the Supreme Court

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.

FEE FOR FILING A COMPLAINT

S.No

Value of goods or
services and the
compensation claimed

Amount of fee
payable

1.

Up to 1 lakh Rs.

Rs. 100.00

2.

>=1 Lakh Rs. but < 5 lakh Rs. 200.00

Rs.
>=5 Lakh Rs. but < 10
Rs. 400.00
lakh Rs.

3.
4.
[Section 12(2)]

>=10 Lakh Rs. but < 20

lakh Rs.

Rs. 500.00

FEE FOR FILING A COMPLAINT

S.No

Value of goods or
services and the
compensation claimed

Amount of fee
payable

1.

Above Rs20 50 lakhs

Rs. 2000.00

2.

> Rs 50 Lakh and upto 1

crore.
> Rs 1 crore.

Rs. 4000.00

3.

[Section 12(2)]

Rs. 5000.00

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.

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

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 doctors conduct was the direct or proximate cause of
the damage.
Failure to provide substantialize evidence on any one element
may result in no compensation.

When is
their a
breach of
duty ??

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.

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]

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.

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.

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.

Treat according to Reasonable Skill - Not to

undertake any procedure beyond his skill
I should go to
a specialist!!!!

MD
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.

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.

Duty not to violate Professional

Ethics
1..
2
3. Not.

Not to associate with

unregistered medical
practitioner and not
allow them to practice
Not to indulge in self-advertisement

India

Not to run a medical store / open shop for sale

of medical and surgical instruments.

Not to issue false certificates and bills

Not to attend patient when

under the effect of alcohol

Not to talk loose about colleagues

No fee sharing

Not to refuse professional service on

grounds of religion, nationality, race,
party politics or social status.

Duty not to do anything illegal or hide illegal acts

1. Perform illegal abortions / sterilizations
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

Prevention

PREVENTION AT PERSONAL LEVEL

PREVENTION AT PRACTICE
PREVENTION BY PROFESSIONAL INDEMNITY
PREVENTION BY PEOPLE SUPPORT GROUPS

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.

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

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 CMEs, workshops and other academic sessions
should also be organized to upgrade our junior staff and nursing team.

PREVENTION AT PERSONAL LEVEL

A thorough knowledge of medical

ethics and laws is essential for all
medical professionals.

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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

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

PREVENTION AT PRACTICE(Legal aspects)

DOCUMENTATION!!! DOCUMENTATION!!!DOCUMENTATION!!.

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 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

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.

SWOT ANALYSIS

Strengths

Weaknesses

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.

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

Opportunities
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.

Threats
Low level of awareness among
patient and doctors.
Illiteracy and low socioeconomic 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

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.

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