“Professional negligence”, also known as “medical negligence”, is defined as a lack of a reasonable standard of care or knowledge, or deliberate recklessness by a medical practitioner in the treatment of patients with whom a partnership of expert attendant has been established, resulting in significant harm or injury. Consumerism is now well established in medical practise, and the concept of crediting and remunerating fault is in high demand. The medical system is highly regarded in social structure, and professionals strive to offer the best possible medical treatment to their clients. Many medical malpractice claims are heard in Consumer Tribunals, as well as civil or criminal courts. Medical malpractice cases are all now regulated by the “Consumer Protection Act, 1986”. (CPA) was created by the Lok Sabha to defend consumer interests, in accordance with UN recommendations intended to protect people’s interests, particularly in developing nations. Consumer tribunals were created to resolve consumer issues and other relevant issues. CPA defends a customer’s rights not just when purchasing products or services for everyday use, but also while seeking medical attention from a medical expert. There had been a lot of uncertainty and discrepancies in the judicial and professional community over the applicability of the Act in the instance of professional error in the immediate aftermath of its enactment, but the Supreme Court cleared all the uncertainties through different judgements in which it explained the meaning of services, and consumer.
MEDICAL PROFESSION AND CONSUMER PROTECTION ACT
Medical profession was brought under the Consumer Protection Act under the definition of “service” in “Indian Medical Association v. V P Shantha”[1]. This established a “contractual” link amongst patients and health care personnel. Consumers who were injured during medication might now challenge physicians for reimbursement in “procedure-free” consumer protection tribunals. Even if the healthcare professionals’ operations are of a personal nature, the Court concluded that they cannot be regarded as personalized service contracts. They are services agreements, and a physician can be challenged in Consumer Rights Tribunal as well.
Under CPA[2], a customer is also a person who “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 and includes any beneficiary of such services other than the person who ‘hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes;”
This interpretation obviously demonstrates that the term “customer” is broad enough to include a patient who commits to pay for healthcare bills.
Another concept that must be examined is the concept of services in order to fully comprehend healthcare care.
“Service”[3] means “service of 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 service;”
The examination of the above description yields a number of specific service categories. This right is not absolute; thus, it could include any type of service related to the ant industry. As a result, healthcare services will be included in this description. Nevertheless, the accompanying requirements must be met in order for the services to be included in the definition:
Services must not be made freely available.
It should not be covered by an individual service agreement.
As a result, hospital facilities provided free of charge or under the terms of an individual contract agreement will fall beyond the range of the description of service.
DEFICIENCY OF SERVICE
The meaning of deficiency as explained under the CPA[4] is;
“Any flaw, imperfection, shortcoming, or inadequacy in the quality, nature, or manner of performance that is required to be maintained by or under any law currently in force or that has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service is referred to as a ‘deficiency.’”
As a result of the study of the aforementioned description, it can be firmly established that inadequate health professional service is punishable and falls within the scope of the above description.
IMPORTANCE OF THE CONSUMER PROTECTION ACT
This is the first question that arises in the minds of healthcare workers. This requirement arose as a result of the present customs which must be followed, which allow for activity in cases of medical carelessness under the Law Of torts and the IPC.[5] These consist of the following:
- Latency, which tends to be more noticeable in circumstances of medical negligence;
- The expense of filing suit, which would be notoriously high in relation to the amount of penalties received;
- Accessibility to the tribunals is constrained;
- Proof of both carelessness and culpability is required for success (which can be particularly bothersome in cases of medical carelessness).
As a result of the necessity to integrate an alternative framework that is easily accessible, quick, and inexpensive, the CPA was enacted. Because the “Indian Medical Council Act”, 1956, makes no provisions for specialists, this Act was enacted to address their needs.
- To listen to the customer’s complaints;
- To pursue legal action against the Medical Professional if he or she has been negligent;
- In the event that carelessness is shown, to give any recompense or other relief.
MISUSE OF THE CONSUMER PROTECTION ACT
The CPA was enacted primarily to serve the welfare of its customers. However, the Act’s ease of use and speedy resolution of matters has led to an increase in its abuse. Today, it appears that unethical individuals have begun to use it to intimidate medical practitioners. Health professionals, on the other hand, should be concerned because the law protects their interests as well. According to the CPA, “if a complaint is judged to be frivolous or vexatious, the Consumer Forum will dismiss it and require the complainant to pay the opposing party costs in the amount of ten thousand rupees.”[6]
[1] Indian Medical Association v. V P Shantha , 1996 AIR 550, 1995 SCC (6) 651
[2] Consumer Protection Act, 1986, § 2(D).
[3]Consumer Protection Act, 1986, §2(1) (o).
[4] Consumer Protection Act, 1986, §2(1) (g).
[5] David Annoussamy, “Medical Profession And The Consumer Protection Act.” 3 JOURNAL OF THE INDIAN LAW INSTITUTE, 460 (1999). http://www.jstor.org/stable/43953343.
[6] Consumer Protection Act, 1986, §26.
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