Medical negligence and consumer protection law

1. Shelley
Anandhavalli. E

2. Negligence is the breach of a legal duty to care.
Negligence is the breach of a duty caused by
omission to do something which a reasonable
man guided by those considerations which
ordinarily regulate the conduct of human affairs
would do, or doing something which a prudent
and reasonable man would not do.

3. Constituent elements
 Duty to meet a particular standard of care
 Breach/ failure to perform the duty;
 a casual connection between Defendant’s failure
and Plaintiff’s injury/Consequent damage
Injury itself

4. CONSUMER
Section 2 (d) (ii) in defining a consumer uses the
expression 'hires and avails of".
CONSUMER
 hires or avails of any services
for a consideration which has been paid or promised or partly paid and
partly prom­ised, or under any system of deferred payment
 includes any beneficiary of such services other than the person who 'hires
or avails of the services
the words "any service" in s. 2 (d) (ii) in Consumer Protection Act
aims to bring the delinquent medical practitioners within the ambit of
Consumer Protection Act.

5. SERVICE
s. 2 (o), Consumer Protection Act defines
service.
service of any description
 does not include the rendering of any service free
of charge or under a contract of personal service
exempts only two types of services:
service free of charge
Contract of service

6. Contract of/for service
Contract of service
a relationship of master and servant
it is beyond the ambit of the Consumer Protection Act, 1986,
under Section 2(1)(o) of the Act.
Contract for service
a contract whereby one party undertakes to render services
(such as professional or technical services) to another, in
which the service provider is not subjected to a detailed
direction and control.
The provider exercises professional / technical skill and uses
his or her own knowledge and discretion.

7. Indian Medical Association v. V.P. Shantha and Ors
[AIR 1996 SC 550]:
SC – ‘whether a medical practitioner renders 'service' and can be
proceeded against for 'deficiency in service' before a forum u/the
Act?
HELD :
medical professionals do not enjoy any immunity from being sued in
contract or tort (i.e. in civil jurisdiction) on the ground of negligence.
even though services rendered by medical practitioners are of a
personal nature they cannot be treated as contracts of personal
service (which are excluded from the Act). They are contracts for
service, under which a doctor too can be sued in Consumer
Protection Courts.
THUS
 A doctor, when consulted by a patient owes him a duty of care
in
deciding to undertake the case;
the administration of that treatment

8. Application of Bolam Test
‘Bolam Vs. Frien Hospital Management’
set three criteria for the safety of the medical
professional:
must possess adequate skill in that area of medical practice;
exercises reasonable care while performing his skill.
Mere negligence will not make out a case for compensation
against him but that negligence should have a direct nexus
with the injury caused to the complainant. If the injury does
not have a direct link towards negligence, no award of
compensation exists.

9. Lakshman Balkrishna Joshi
“the practitioner must bring to his task
 a reasonable degree of skill and knowledge
must exercise a reasonable degree of care
 Neither the very highest nor a very low degree of care
and competence judged in particular circumstances of
each case is what the law requires.
The doctor, no doubt, has discretion in choosing
treatment which he proposes to give to the patient and
such discretion is relatively ampler in cases of
emergency”

10. Burden of proof and chances of error
Lies with the complainant.
Higher standard evidence (to support an
allegation of negligence against a doctor)
Establish claim against the doctor.

11. Calcutta Medical Research Institute vs
Bimalesh Chatterjee
held that the onus of proving negligence and the
resultant deficiency in service was clearly on the
complainant.
In Kanhaiya Kumar Singh vs Park Medicare
& Research Centre, it was held that negligence
has to be established and cannot be presumed.

12. Some acts that amounts to medical
negligence
Failure to attend the patient
Non attending complicated delivery
Not revealing HIV positive status
Denture : unfitting
Injections wrongly given
Foreign matter in the abdomen
Failed tubectomy operation
Forceps delivery
Perforation of uterus
Contaminated blood transfusion
Dispensing wrong drugs

13. INFORMED CONSENT:
Information about
Diagnosis
Nature of treatment
Risks involved
Prospects of success/prognosis
Alternative methods of treatment

14. Jasbir Kaur v State of Punjab, AIR 1995
P&H 278
In Shri Guru Teg Bahadur Hospital, Amritsar –
newlyborn baby was missing from the bed
 Later on the child was found in profusely
bleeding condition and with one eye totally
gouged out with the eyeball, near the wash basin
of the bathroom –
hospital authorities contended the mischief of cat,
which caused damage
defendants were held liable

15. THANK YOU