Every thing doctor should know about CONSUMER PROTECTION ACT

By

1. Dr. (Prof.) Mahesh Baldwa,

M.D,D.C.H, FIAP, MBA, LL.B,LL.M , Ph. D(law)

SENIOR PEDIATRICIAN & MEDICOLEGAL ADVISOR

Formerly Assistant Professor of Pediatrics at T.N. Medical College and Nair Hospital, Mumbai-400008

Ex. Asst. Professor JJ Hosp, Grant medical college

Ex.Professor, paper setter & examiner of law to postgraduate students of University Department of Law, University of Mumbai

2. Dr Namita M Baldwa, MBBS, MD,DNB, PGDML , Fellowship in pediatric anesthesiology, Assistant Professor of Pediatric medical s at T.N. Pediatric medical   College and Nair Hospital, Mumbai-400008

3. Dr Varsha M Baldwa, MBBS ,final year MD,PGDML , final year resident in department of pathology , Government medical college, Majura gate,   surat, Gujrat

Baldwa Hospital, Sumer Nagar,S.V. Road,

Borivali (West)Mumbai 400 092

drbaldwa@yahoo.com

drbaldwa@gmail.com

m_baldwa@rediffmail.com

1. CONSUMER PROTECTION ACT (CPA)

Consumer protection Act-1986[i] enacted by Indian parliament for the better protection of the interests of consumer. This was undertaken in pursuance of initiatives by United Nations to protect consumer and a report of Secretary General, International Organization Consumer Union (IOCU)[ii] It was implemented in 1986. Medical services were brought into the purview of it since 1995.

• WHAT IS CPA:

All of us are consumers of health service given by doctors. In past medical negligence cases were filed under civil law and criminal law from time immemorial. Usual law courts took usually more than 20 years for settlement of disputes. Both litigants got frustrated. Following case will make it amply clear.

Dr. J. N. Shrivastava operated upon Rambiharilal’s wife on 27.9.1958, on opening abdomen found appendix normal, hastily diagnosed inflamed gall-bladder and removed it. No consent taken from Rambiharilal waiting outside the OT. Patient was administered chloroform anaesthesia. Few hours later the patient died of hepato-renal failure. Hospital lacked basic facilities, e.g., oxygen, blood-transfusion, life-saving drugs, staff and anaesthetist. Dr. J. N. Shrivastava Should not have undertaken such a major operation under such circumstances. Nothing would have happened if the operation was postponed, since same was not a lifesaving operation. Therefore, court held Dr. J. N. Shrivastava Negligent in 1985 after 27 long years and asked him to pay Rs. 3000/- to Mr Rambhirailal. [iii]

Consumer protection Act has put the legal remedy on fast tract of justice. CPA i.e. Consumer Protection Act-1986 is applicable to the medical professionals with respect to any alleged negligence.

3. STIFF RESISTANCE POSED BY IMA & MEDICAL PROFESSION AGAINST  APPLICABILITY OF CPA:

Application of Consumer Protection Act took a lot of time before it was made applicable to the medical professionals

The application of Consumer protection Act started with decision given by justice Eradi of National Consumer Disputes Redressal Commission on April 21, 1992[iv] by which he brought all medical practitioners who charged fees under the net of consumer Protection Act. As a result of that judgment and some other subsequent judgements, the medical fraternity went into a shivers. Immediately Cosmopolitan Hospital and Dr. K. Venugopalan Nair challenged the validity of the provisions of the Consumer Protection Act in 1994 as being violative of[v] Article 14 (Equality before law) and Article 19 (1)(g) (freedom to practice any profession, or to carry on any occupation, trade or business). There followed a spate of Writ Petitions in High Courts all over the country, some even challenging the constitutional validity of the Act. Supreme Court heard all cases to give judgment in I.M.A. v. V.P. Shantha[vi] and stressed importance of better inter-personal relationship between doctor and patient, the need to look at patients with a more caring attitude and not as “poor beggars”……., but to see them as suffering fellow humans, ………

The scenario of “justice delayed” is “justice denied” quickly changed to “justice accelerated” is “justice buried”.

Thus the new scenario has changed the equation for both patient and the doctor by putting justice on fast tract. Doctors did not like the idea of fast tract justice. This is because of many false and frivolous cases may have been be lodged out of over enthusiasm of patients and consumer NGO’s against doctors, which damaged the much-cherished professional reputation by publicity in print and electronic media even though case was subjudice. Trial by media became every day affair. Media also added fuel to fire to the woes of litigant doctor out of sensationalizing the issue to sell the newspaper.

1. WHAT IS THE LATEST VERDICT FOR DOCTORS UNDER CPA FROM SUPREME COURT:

In a latest  Judgment given  by Supreme Court Of India on 10 February, 2010[vii] with Bench of Justices H S Bedi & D Bhandari is as below

The brief facts of the case are: Kusum Lata Sharma appealed to Supreme Court alleging medical negligence and claimed Rs 45 lakh from doctors of Batra Hospital. Her husband with great difficulty was diagnosed to have hypertension due to malignant tumor of left adrenal gland, which was operated and removed. Postoperatively since pancreas was damaged during surgery her husband was admitted multiple times to multiple hospital till finally he died due to “pyogenic meningitis” on October 11, 1990,which was unconnected with adrenal gland operation done earlier .

 Supreme Court Of India gave eleven point guidelines for the courts to adjudicate complaints against doctors.

They are: 
i. Negligence is a breach of duty or an act which a prudent and reasonable man will not do 

ii. Negligence to be established by the prosecution must be culpable or gross and not the negligence merely based upon an error of judgment 

iii. Medical professional is expected to bring a reasonable degree of skill and knowledge along with a reasonable degree of care but neither the highest nor the lowest degree of care and competence 

iv. A doctor would be liable only where his conduct fell below that of the standard of a reasonably competent practitioner in the field. 
v. Difference of opinion cannot be cited as negligence. 
vi. Just because a professional looking at the gravity of illness had taken a higher element of risk to redeem the patient out of his suffering which did not yield the desired result, it may not amount to negligence. 

vii. Merely because a doctor chooses one course of action in preference to the other one available, he would not be liable if the action chosen by him was acceptable to the medical profession 
viii. It would not be conducive to the efficiency of the medical profession if no doctor could administer medicine without a halter round his neck 
ix.  It is our duty not to harass or humiliate medical professionals unnecessarily so as to allow them to perform their duties without fear and apprehension 
x. Doctors at times have to be saved from such class complaints who use criminal process as a tool for pressurising them or hospitals and clinics for extracting uncalled for compensation 
xi. Doctors are entitled to get protection so long as they perform their duties with reasonable skill and competence and in the interest of the patients.

1. WHAT SHOULD A DOCTOR DO IN CASE OF LITIGATION UNDER CPA?

First and foremost doctor should not avoid answering to legal notice or case. Send a reply to legal notice or case without delay. There should be no tendency to avoid or underestimate the importance answering to legal notice or case. Always explain misunderstandings, mis-representation and all the relevant discrepancies or wrong allegations made while answering to legal notice or case. The answers should be brief, clear and comprehensive. Send such version of reply or written statement to complainant / litigant by registered post with acknowledgement due or some such similar method. Attend personally all the dates in court/forum/tribunal/commission with or without your lawyer and/ or medico-legal consultant. Produce affidavits of eye witness and affidavits of expert witness professional colleagues. Give scientific reference to support your explanation. Demand for cross-examination of complainant /litigants to support truth. Quote relevant legal case laws reported in law journals. Ask for counter compensation or file a counter suit or suit for defamation.

1. DON’TS IN CPA

Do not show antagonistic or negative attitude towards lawyers/judges. Do not  presume court/forum/tribunal/commission are on the side of the complainant/litigant. Don’t show your disrespect towards court/forum/tribunal/commission by verbal or non-verbal means. Don’t hand over unnecessary/irrelevant documents. Don’t speak unnecessary/irrelevant details about case. Don’t be panicky or frightened because you have received legal notice from court/forum/tribunal/commission related to a case.

1. DUTIES OF A DOCTOR

As per the directions of medical council of India[viii] vide regulation 2.1 to 2.5 a Registered medical practitioner has some basic things to do as he approaches a patient. Patience and delicacy should characterize the physician. He must listen attentivelycomplaints of a patient. He should take relevant and proper history and examine him carefully. A doctor has to attend to the patient and give dedicated care, once he has decided to treat the patient. He must explain the relevant facts related to the illness and take informed consent. He must prescribe only necessary and rational medicines. The doctors must have an average knowledge of the subject including recent advances. He must have a proper  knowledge of use of medical equipments in his possession. The physician should neither exaggerate nor minimize the gravity of a patient’s condition. The practitioners must be able to foresee the complications and refer the patient at proper time. A physician advising a patient to seek service of another physician is acceptable, however, in case of emergency a physician must treat the patient. No physician shall arbitrarily refuse treatment to a patient. However for good reason, when a patient is suffering from an ailment which is not within the range of experience of the treating physician, the physician may refuse treatment and refer the patient to another physician. Regulation 3.1.1 says, however, in case of serious illness and in doubtful or difficult conditions, the physician should request consultation, but under any circumstances such consultation should be justifiable and in the interest of the patient only and not for any other consideration. Doctors must also maintain a proper record of their patients.  Rights

of Doctors

1. Duties to Patient

These are : Standard Care, Providing Information to the Patient /Attendant , Consent for Treatment, and Emergency Care.

(A) Standard Care

This means application of the principles of standard care which an average person takes while doing similar job in a similar situation :

1. Due care and diligence of a prudent Doctor.
2. Standard, suitable, equipment in good repair. e.g., stethoscope ,BP instrument, thermometer, weighing machine, torch etc
3. Standard assistants : Where a doctor delegates a task to compounder / assistant or paramedical staff, he must assure himself that the assistant is sufficiently competent and experienced to do the job, and fulfills the prescribed qualifications government.
4. Non-standard drug is a poison by definition.
5. Standard indicated treatment.
6. Standard premises, e.g. clinic, must comply with all laws applicable as imposed by the State and these must be registered wherever required. e.g. shop and establishment act, biomedical waste etc.
7. Standard proper reference to appropriate specialist.
8. Standard proper record keeping for treatment given, X-ray and pathological reports.
9. Standard of not to experiment with patient
10. Anticipation of standard risks of complications and preventive actions taken in time.
11. Observe punctuality in emergency.

(B) Duty to provide information to patient / attendant

1. Regarding necessity of treatment.
2. Alternative modalities of treatment.
3. Risks of pursuing the treatment, including inherent complications of drugs, investigations, procedure, surgery etc.
4. Regarding duration of treatment.
5. Regarding prognosis. Do not exaggerate nor minimize the gravity of patient’s condition.
6. Regarding expenses and break-up thereof.

(C) Consent for treatment

Usual consent is implied consent. Written consent is necessary if doctor anticipated problems

 (D) Emergency Care

A doctor is bound to provide emergency care on humanitarian grounds. It may be noted that prior consent is not necessary for giving emergency / first-aid treatment.

2. Duties to the Public

1. Health Education
2. Medical help when natural calamities like drought, flood, earth-quakes, etc. occur.
3. Medical help during train accidents.
4. Compulsory notification of births, deaths, infectious diseases, food poisoning etc.
5. To help victims of house collapse, road accidents, fire,etc.

3. Duty towards Law Enforcers, Police, Courts, etc.

1. To inform the police all cases of poisoning, burns, injury, illegal abortion, suicide, homicide, manslaughter, grievous hurt and its natural complications like tetanus, gas-gangrene , etc. This includes vehicular accidents, fractures, etc.
2. To call a Magistrate for recording dying declaration.
3. To inform about bride burning and battered child cases.

4. Duty not to violate Professional Ethics ( Only important few given)

1. Not to associate with unregistered medical practitioner and not allow him to practice what he is not qualified for.
2. Not to indulge in self-advertisement except such as is expressly authorized by the M.C.I. Code of Medical Ethics-2002.
3. Not to issue false certificates and bills.
4. Not to run a medical store / open shop for sale of medical and surgical instruments.
5. Not to write secret formulations.
6. Not to refuse professional service on grounds of religion, nationality, race, party politics or social status.
7. Not to attend patient when under the effect of alcohol
8. No fee sharing ( Dichotomy).
9. Not to talk loose about colleagues.
10. Information given by patient /attendant to be kept as secret. Not to be divulged to employer, insurance company, parents of major son/daughter without consent of patient. Even in court this information is given only if ordered by the Court.
11. Recovering any money ( in cash or kind) in connection with services rendered to a patient other than a proper professional fee, even with the knowledge of the patient.
12. Display fees/ charges in waiting room of doctor.
13. Not to accept gifts , financial or such assistance from pharmaceutical companies

5. Duty not to do anything illegal or hide illegal acts

1. Perform illegal abortions
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 or procedure.
6. Sex determination.

6. Duty to each other

1. A doctor must give to his teachers respect and gratitude.
2. A doctor ought to behave to his colleagues as he would like them to behave to him.
3. A doctor must not entice patients from his colleagues
4. When a patient is referred to another doctor, a statement of the case should be given.
5. Differences of opinion between doctors should not be divulged in public.

DUTIES OF THE PATIENT / ATTENDANT

When a patient ( consumer ) hires or avails of services of a doctor for treatment, he has the following duties :-

1. He must disclose all information that may be necessary for proper diagnosis and treatment.
2. He must co-operate with the doctor for any relevant investigations required to diagnose and treat him.
3. He must carry out all the instructions as regards drugs, food, rest, exercise or any other relevant /necessary aspect.
4. In the case of a private medical practitioner he must compensate the doctor in terms of money and money alone. Moral considerations apart, failure on the part of the patient / attendant to do his duty : (a) will enable the doctor to terminate patient -physician contract and that would free him from his legal responsibilities, (b) will be construed as contributory negligence, and weaken the case of the patient for compensation.

RIGHTS OF A  DOCTOR:

Doctors don’t just have duties, they also have some rights. As per the directions of medical council of India[ix] vide regulation 2.1.1 and 2.4, a Registered medical practitioner is not bound to treat each and every person asking his services, he should not only be ever ready to respond to the calls of the sick and the injured. A physician is free to choose whom he will serve. He should, however, respond to any request for his assistance in an emergency. Once having undertaken a case, the physician should not neglect the patient, nor should he withdraw from the case without giving adequate notice to the patient and his family. He has a right to select the drugs from wide range of options available, supported by standard medical practice. A doctor can also select the investigations and method of treatment depending upon various factors related to disease, financial capacity of his patient. Regulation 3.1.2 says consulting pathologists/radiologists or asking for any other diagnostic Lab investigation should be done judiciously and not in a routine manner. He/she should obtain a written refusal in case the patient does not want to do as advised. He/she can delegate the powers to properly trained personnels or colleagues, usually with the willingness of patient. A doctor can decide regarding visits, fees to be charged and to maintain the patient’s record including its secrecy in certain specific situations.

1. CPA IS NOT APPLICABLE TO:

The medical practitioners, Government hospitals/nursing homes and private hospitals/nursing homes services rendered “free of charge”. Such “free of charge” Patients fall into four categories. CPA is not applicable only to category number one type of “free of charge” patients treated by medical practitioners. medical practitioners are liable under CPA for other three categories of “free of charge” patients :-

1. The medical practitioners who render medical services free of charge to each and every patient availing medical services.
2. The medical practitioners who render medical services by charging fee to everybody.
3. Where charges are required to be paid by some patients availing medical services but certain categories of persons who cannot afford to pay, are rendered service free of charges.
4. The medical practitioners who render medical services and because some complication causes death or disability and therefore they do not charge such patients.

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[i] The Consumer Protection Act, 1986(Act No. 68 of 1986) first Published in the Gazette of India, Extra., Part II, Section 1, dated 26th December, 1986  Pp. 1-12, latest amendment byAct No. 62 of 2002 assented on 17th December, 2002 – Passed by Rajya Sabha on 11.3.2002, by Lok Sabha ( with amendments) on 30.7.2002 and by the Rajya Sabha (the amendments made by the Lok Sabha) on 22.11.2002

[ii] Report of Secretary General, IOCU, International seminar on Law and the

consumer-30 (Hong Kong), January 6-10,1980 and United nations initiatives to protect consumer

[iii] Rambiharilal v. Dr. J.N. Shrivastav, AIR 1985 MP-HC 150 (DB)

[iv] Cosmopolitan Hospital v. K Vasantha Nair 1992 CPJ 302 (NC)

[v] Writ Petition no 16 of 1994 in SLP(C) Nos. 6885 and 6950/92

[vi] AIR 1996 SC 550

[vii] Civil Appeal No.1385 OF 2001 filed by Kusum Sharma  Versus Batra Hospital & Medical Research Centre.

[viii] Indian Medical Council (Professional conduct, Etiquette and Ethics) Regulations, 2002(Published in Part III, Section 4 of the Gazette of India, dated 6^th April, 2002)

[ix] Supra at viii