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Medical Negligence & Consumer Rights

  Public Health and Medical Infrastructure in India is highly prone to malpractices. The over-burden of the population coupled with a lack o...


 

Public Health and Medical Infrastructure in India is highly prone to malpractices. The over-burden of the population coupled with a lack of awareness and illiteracy leaves a citizen vulnerable. Medical Negligence is a serious cause of concern as it can lead to a patient’s death and cause grievous injury.

Indian law is not patient-centric when it comes to medical negligence. Proving medical negligence is not easy and often requires acute medical expertise to prove that the Doctor administered the wrong drug or scalpel, and the long medical bills have overpriced sanitizers and injections. But, fortunately, Medical practice in India is fairly regulated through various nodal bodies set up by the Government of India. These bodies have a clear set of rules, protocols, and procedures that must be followed in every hospital and clinic. Medical negligence can lead to very minor as well as very consequences such as the death of the patient. Therefore, medical negligence can be categorized as a cause of action under Torts, Civil Law, Criminal law as well as Consumer law. The categorization depends on the nature of the consequences that followed. In this article, we will help you to understand when a claim under the Consumer Protection Act can be filed for medical negligence and the important legal aspects to keep in mind.

What is Medical Negligence?

In order to establish medical negligence, we must understand the legal object behind the concept of Medical Negligence. A mentioned earlier, every medical practice and every medical practitioner is subjected to a certain degree of ethics, professionalism, regulations, and protocols. These can be commonly termed as medical standards. Breach of these medical standards gives rise to patient’s rights, who in this case would be the consumer of medical services.

In general, the common law principles related to negligence, breach of trust, and vitiated consent (also called the absence of informed consent) come into play. In other words, carelessness, recklessness, or negligence is against medical standards in general. The degree of care in medical cases is precise and higher than day-to-day standards. The reason is two-fold:

a.    Even a small act of negligence can lead to loss of life or grievous injury.

b. Any malpractice (such as overcharging on medical-bill) seriously undermines the Right to Health, which is an essential part of Article 21 of the Constitution – Right to Life and liberty.

Simply put, medical negligence can be defined as the improper or unskilled treatment of a patient by a medical practitioner. This can include various kinds of negligence such as active, passive, non-consensual, collateral, comparative, concurrent, continued, criminal, gross, hazardous, willful, reckless, or negligence per se. When a medical practitioner fails to exercise due care and pay proper attention, he is said to be negligent. The three aspects of negligence are:

a. The defendant owes a duty of care to the plaintiff.

b. The defendant has breached this duty of care.

c. The plaintiff has suffered an injury or material loss due to this breach.

In Parmanand Kataria v. Union of India, the Supreme Court stated that every doctor at any hospital, whether government or not, has a professional obligation to extend his services with due expertise for protecting life. This doesn't mean that the doctor must be able to cure every patient that comes to him. However, he must apply a reasonable degree of care and expertise. Therefore, a doctor lying about his expertise can be held guilty of medical negligence. The phrase degree of care would also depend on the competence of the doctor. However, the standard of reasonable care remains the same throughout.

Informed Consent:

Informed consent is another crucial aspect of medical standards. A patient must be fully apprised of the consequences and effects of a medical procedure. Once the patient consents to the medical procedure after being informed completely, only then the said medical procedure can be administered.

Establishing Liability:

Any injury or loss resulting from a breach of reasonable care is liable to be compensated for. However, injury or loss must directly flow from the actions of the medical practitioner. The petitioner must establish a proper link between the injury and the cause (lack of reasonable care). Simply put, you cannot file a case in consumer court against a medical practitioner because their treatment was unsuccessful or had an unwanted side-effect (which was not a probable outcome, such as, deafness, blindness, etc.)

Thus, the burden of proof on the complainant is always extra-ordinary. A mere allegation will not make a case of negligence unless it is proved by reliable evidence and is supported by expert evidence. The commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based. Thus, it is for the patient to establish a case against the medical professional and not for the medical professional to prove that he acted with sufficient or reasonable care and skill.

The burden of proof will rest on the defendant (medical practitioner) when the doctor was solely responsible for the treatment and in general, the procedure is so small or well-established that nothing has ever gone wrong. This is a principle of torts, namely, res ipsa loquitur’ (‘the thing speaks for itself’).

Consumer Protection Act & Medical Negligence

The Hon'ble Supreme Court of India held in Indian Medical Association v. V.P. Shantha that medical professionals and services fall within the purview of Consumer Protection Act. A Medical Professional provides services as per section 2(1)(o). However, medical services provided as part of charity or free of charge will not fall within the purview of services rendered. However, in hospitals where a certain category of patients are treated free of charge fall within the ambit of COPRA.

Section 2(1)(o) of the Consumer Protection Act defines the ‘deficiency of service’ which means any fault, imperfection, etc. in the quality or manner of performance that is required to be maintained by or under any law or it has been undertaken to be performed by a person in pursuance of a contract or otherwise.

According to the Consumer Protection Act, 1986, the consumer is anyone who:

- Buys any goods or hires any services.

- Uses the goods or hires any service with the approval of any buyer or the service provider.

- Uses the goods and services to earn a livelihood.

An aggrieved consumer may file a complaint in the Consumer Court. The facts of the case may vary from person to person.

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