JUDICIAL APPROACH TO MEDICAL NEGLIGENCE LIABILITY UNDER CONSUMER PROTECTION ACT - March 2021 ISSN: 0975-9999 (P), 2349-1655(O)
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January - March 2021 ISSN: 0975-9999 (P), 2349-1655(O)
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SELP Journal of Social Science - A Blind Review & Refereed Quarterly Journal
ISSN: 0975-9999 (P) 2349-1655 (O)
Impact Factor: 3.655(CIF), 2.78(IRJIF), 2.77(NAAS)
Volume XII, Issue 47
January – March 2021
Formerly UGC Approved Journal (46622), © Author
JUDICIAL APPROACH TO MEDICAL NEGLIGENCE
LIABILITY UNDER CONSUMER PROTECTION ACT
Mr. B.JAWAHARLAL NEHRU
Ph.D. Research Scholar, (Part-Time)
Department of Business Law,
The Tamilnadu Dr. Ambedkar Law University
Chennai-600113
Abstract
Medical profession is one of the oldest – profession and most humanitarian one.
Doctors are considered as visible Gods. Doctors give life to the persons who are suffering from
various diseases and injuries. Traditionally, the family doctor was considered to be a friend,
philosopher and guide for the sick. The relationship between the patient and the doctor was
considered as very sacred, it is based on the mutual trust and faith, and it is not mercenary.
Increased mechanisation and commercialisation of the profession has brought an element of
dehumanization in medical practice. During the last few decades a number of incidents have
come to light in which the patients have suffered due to error and in advent conduct of Doctors.
Due to the increasing conflicts and legal disputes between the doctors and patients, most of the
legal systems have developed various rules and principles to deal with such inadvertent
behaviours of doctors. This has led to the development of a new branch of jurisprudence that is
Medical Negligence. The Researcher attempt to focus upon the judicial activism on medical
negligence liability under the consumer protection act through some case laws.
Keywords: Information, Communication, Technology, National Policy, Education
1. Introduction significant role in the adjudication of
The Indian Judiciary including the medico-legal cases. It play a vital and
redressal agencies constituted under important role not only in preventing and
Consumer Protection Act 1986 has made remedying of medical malpractice but also
immense contribution to the development in eliminating exploitation of innocent
of various rules, legal principles relating to patients and injustice. It has to do
medical negligence and patient’s rights. innovation in order to meet the challenges
Some of land mark decisions which have posed by the health care providers in the
in a way contributed to the development of administration of medical service.
Medical, Consumer and Patient’s rights The prime object of the medical
Jurisprudence. The judiciary plays a profession is to render service to humanity
SELP Journal of Social Science 22 Volume XII, Issue 47January - March 2021 ISSN: 0975-9999 (P), 2349-1655(O)
with full respect for the dignity of man. A available to potential users. It is true that-
doctor has a duty to use necessary skill the professional services of doctors,
care, judgment and attention in the engineers, lawyers are not specifically
treatment of his patient. Any failure to mentioned in s. 2(l)(o) of the Consumer
exercise the above mentioned duty would Protection Act The facilities of some
lead to action for medical negligence. services mentioned in s. 2(l)(o) of the
“Medical negligence is the breach of duty Consumer Protection Act are merely
owed by a doctor to his patient to exercise illustrative of the definition of service,
reasonable care and skill, which results which is wide, but not exhaustive.
in some physician, mental or a financial Naturally, the professional services of
disability”1 doctors, lawyers, engineers, architects and
Medical negligence is the failure of technical services of mechanics,
a medical practitioner to provide proper contractors, builders, fall within the ambit
care and attention and exercise those skills of s. 2(l)(o) of the Consumer Protection
which a prudent, qualified person would Act because these services are available to
do under similar circumstances. Medical potential users on payment of
negligence is a commission or omission of consideration.
an act by a medical professional which The patient can seek redressal from a
deviates from the accepted standards of Consumer Court for medical service under
practice of the medical community, the following circumstances.
leading to an injury to the patient. (i) The services should have been hired
Medical negligence may be defined as a or availed of or agreed to be hired or
lack of reasonable care and skill on the availed of by the patient.
part of a medical professional with respect (ii) The services should have been
to the patient, be it his history taking, rendered or agreed to be rendered by
clinical examination, investigation the doctor to the patient.
diagnosis and treatment that has resulted in (iii) The services of the Doctor should
injury, death or an unfavourable outcome. have been or availed of or agreed to
MEDICAL NEGLIGENCE REMEDY have been hired or availed of for
UNDER CONSUMER PROTECTION consideration.
ACT (iv) The services of the doctor so hired or
The consumer protection act aims availed of or agreed to be bird or
to see that the aggrieved or injured availed of suffer from deficiency in
consumer should not be left without any any respect.
remedy and at the same time provides a (v) The services have not been rendered
speed and inexpensive remedy through free of charge or under a contract of
quasi-judicial bodes District Consumer personal service.
form, State Consumer disputes redressal A patient who pays up for the
commission, and National Consumer treatment, or promises to do so with a
disputes redressal commission. These consideration can seek redressal in a
bodies will perform functions as custodian Consumer Court. This has been settled by
or watchdog of the rights of the the land mark judgement of the Supreme
consumers. They are like additional Court in the case of Indian Medical
judicial schemes to offer the socially Association v.V.P. Shantha& Others2.
weaker section, an efficient means of LIABILITY UNDER CONSUMER
access to the law where the regular court LAW
system fails to perform adequately. PROFESSIONAL SERVICE UNDER
The "'service" defined in 2(1) (o) of CONSUMER LAW
the Consumer Protection Act brings within The "'service" defined in 2(1) (o) of
its sweep service of any description the Consumer Protection Act brings within
SELP Journal of Social Science 23 Volume XII, Issue 47January - March 2021 ISSN: 0975-9999 (P), 2349-1655(O)
its sweep service of any description Concessions Scheme by making monthly
available to potential users. It is true that- contributions at the rate prescribed, while
the professional services of doctors, in service, has hired the tees in exchange
engineers, lawyers are not specifically for the contribution, and is, therefore, a
mentioned in s. 2(l)(o) of the Consumer consumer within the meaning of s. 2(l)(d)
Protection Act The facilities of some of the Consumer Protection 1986.4An
services mentioned in s. 2(l)(o) of the employee of the employer registered under
Consumer Protection Act are merely ESI scheme is consumer for availing of
illustrative of the definition of service, medical service from the ESI hospital.
which is wide, but not exhaustive. The two categories of services are
Naturally, the professional services of exempted from the purview the Consumer
doctors, lawyers, engineers, architects and Protection Act 1986. Section 2(l) (o) of the
technical services of mechanics, Consumer Section Act excludes service
contractors, builders, fall within the ambit rendered free of charge and contract of
of s. 2(l)(o) of the Consumer Protection personal service.
Act because these services are available to CRITERIAFORDEFICIENCY IN
potential users on payment of SERVICE
consideration. "Deficiency" which has been ted in s.
The view of the National 2(X)(g) of the Consumer Protection Act,
Commission is upheld by the Supreme means, imperfection, shortcoming, or
Court which has arrived at the conclusion inadequacy in the quality, nature and
that service rendered to a patient by a manner of performance which is required
medical practitioner (except where the to be maintained any law for the time
doctor renders service free of charge to being in force or has been undertaken to be
every patient or under a contract of performed by a person in pursuance of a
personal service), by way of consultation, contract or otherwise relation to any
diagnosis and treatment, both medicinal service"6The deficiency of service under
and surgical, would fall within the ambit consumer jurisdiction undoubtedly
of "service" as defined in s. 2(l) (o) of the includes what is negligence in the law of
Consumer Protection Act. The fact that torts but is somewhat wider.7 The doctor
medical practitioners belong to the medical may personally liable or the hospital may
profession and are subject disciplinary be vicariously liable for the deficiency of
control of the Medical Council of India or professional service rendered on payment.
State Councils constituted under the It is held by the Supreme Court 8 that a
provisions of the Indian Medical Council determination about deficiency of service
Act would not exclude the services for the purpose of s. 2(l) (g) of the
rendered by them from the ambit of the Consumer Protection Act has to be made
Consumer Protection Act. by applying the same test as is applied in
The hospital is liable to take an action for damages for negligence.
reasonable care about the treatment of the The State Commission, Bombay9
patient, if the services of the hospital are awarded compensation of Rs. 2 lakhs
hired by the patient. When a patient is against the surgeon whose indifferent
admitted to the hospital on payment and attitude to the patient during post-
put in of a doctor, what really takes place operational complicacies caused serious
is hiring of the service of the doctor by the mental and physical distress to the patient
patient. If the hospital provides other who was operated for coronary artery
services, the patient is really hiring these bypass graft surgery in Bombay Hospital.
services.3A pensioner who avails of the However, the National Commission
facility of free supply of medicines under reversed the decision of Bombay State
the Rajasthan Pensioners' Medical Commission by holding that the private
SELP Journal of Social Science 24 Volume XII, Issue 47January - March 2021 ISSN: 0975-9999 (P), 2349-1655(O)
doctor who performed the operation for a obesity for "uterine fibromyometosis"
fee in the hospital, could not be expected without 'making arrangement for blood
to undertake and provide post-operative and artificial respirator, by prolonging the
care and treatment to the hospital’s patient. duration of operation up to seven hours,
Where the operation is performed in a and by shifting the patient from well-
hospital i.e. an institution, it is the duty of equipped hospital to ill-equipped hospital
the institution to render postoperative care for monetary gain, amounts to deficiency
and treatment. The State Commission, in service on the part of the attending
Delhi10 by its majority judgment held the doctor. Similarly, the fact of leaving
hospital exclusively responsible for the critically ill patient under the care of
negligent by not providing the required unqualified compounder, particularly
intensive care unit facilities to patient and when the situation demands constant
directed the hospital to pay compensation monitoring of the patient, amounts to
of Rs. 1 though the minority opinion was deficiency in service on the part of the
in favour of awarding compensation doctor.18Whenever sample is taken for any
against the hospital to the tune of Rs. laboratory test and charges for test are
80,000 and against the surgeon to the tune collected, it is implied that delivery of test
of Rs. 20,000. However, this decision of report will be completion of "service”
Delhi State-Commission was set aside by hired for charges paid. When samples were
the National Commission11which did not collected two times for corean biopsy and
hold the surgeon and the hospital authority the samples got spoiled for the delay in
negligent. The National Commission12 sending the same to the laboratory,
affirmed the decision of Kerala State deficiency in service was attributed to the
Commission which held the hospital hospital authority.19
authority liable for deficiency in service The National Commission20 also
rendered on payment to the patient who held one dentist negligent for preparing
expired while undergoing treatment. The and supplying defective dentures to the
decision of National Commission was also patients. The National Commission21 field
upheld by the Supreme Court.13The the hospital authority vicariously liable for
National Commission14 also affirmed the negligence of the doctor whose deficiency
decision of the Madras State Commission of service caused the death of the mother
which laid down that the hospital and baby in a case of high risk pregnancy.
authorities could be made liable to the The Supreme Court 22 upheld the decision
patient for injury caused to him by the of National Commission. The State
negligence or other fault of the doctors, Commission, Delhi23 held the Blood Bank
surgeons, nurses, anaesthetists and other liable for supplying contaminated blood
members of the hospital in course of their which caused the patient suffer from viral
work. Hepatitis-B. It was held by the State
The State Commission, Gujarat 15 Commission, Bombay24that the defendant
held the individual doctor liable for hospital was liable for deficiency of
negligence in performing operation of the service in operational care to the patient.
neck of femur of the patient in a nursing Conclusion
home. Similarly, the State Commission, The Consumer Protection Act
Chandigarh16 held the doctor deficiency in provides simplified procedure for
service, when the patient suffered post resolving the consumer’s grievances. This
injection nerve palsy consequent upon act protect their interest of the consumers.
injection administered by the doctor. It is This act provides a forum to victims of
held by the National Commission17 that negligence in medical services.
the act of carrying out the operation of a
patient with rare blood group and morbid
SELP Journal of Social Science 25 Volume XII, Issue 47January - March 2021 ISSN: 0975-9999 (P), 2349-1655(O)
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