MEDICAL NEGLIGENCE UNDER CONSUMER PROTECTION Act, 1896
One of the most famous and high profile case of Medical negligence Balram Prasad v. Kunal Saha & Ors[1] in which the highest compensation was given to the plaintiff i.e. 59.6 million till date. This case has led the doctors to be more careful while dealing with the patients.
This article will focus on medical negligence and why it comes under consumer protection act and in which landmark judgment it got decided.
Negligence of different types- civil negligence, criminal negligence and Negligence under consumer protection act, 1896.
Negligence by Professionals is when someone who has the full knowledge and is an expert in that particular field does an act which an person belonging from that particular field would not do and cause the death or harm by his carelessness behavior or by his non- performance of duty.
WHAT IS MEDICAL NEGLIGENCE ACCORDING TO OXFORD LEARNER’S DICTIONARY?
“The failure to give someone or something enough care or attention”
Medical negligence is a non-performance of duty which a doctor does while dealing with the patients. Doctors being in such a position and treated like god who saves life should not be careless with their patients and if they do then we says that it is a medical negligence. When a patient comes under the guidance of the doctor it also comes with some duties that a doctor owes to the patient. The duty of care is as follows-
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Duty of care whether to undertake the case.
This the initial stage which a doctor goes with, it is the responsibility of the doctor in deciding whether he can take that particular case under his observation or does it fall under his expertise. If the said case does not fall in his specialty then to as a reasonable doctor he should guide the patient.
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Duty of care in examining the patient and how it should be treated.
Once the doctor has taken the case it is now solely his responsibility take all the care and measure while treating the patient.
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Duty of care to patient after the treatment.
The third duty a doctor owes to the patient which is the most important and curial is administering the patient once the treatment is over and providing all the care to the patient he wants at that time.
If the above mentioned duties are not taken care of then it gives right of action for negligence to the patient.
These are the duties which a doctor owes to the patient while administrating him and if any of these duties are breached it will considered as Medical Negligence. Negligence of Medical Professional in his duty of care in explained Dr. Laksham balkrishna joshi v. Trimbak bapu godbole.[2] Medical negligence cases were used to fall under the category of tort law but Supreme Court in a landmark judgment decided that cases of medical negligence will be covered under Consumer Protection Act, 1896.
WHEN DOES LIABILITY ARISE?
The liability does not arise when a person suffered any injury but only when there is misconduct on the part of the doctor. When a doctor has not taken a reasonable care while performing his duties he will face consequence for breach of duty. The doctor is not responsible for every injury faced by the patient but only those injury which has led by the act of the Doctor by not taking due care. The burden of proof lies on the sufferer that because of the negligence of the doctor the person has suffered. To proof breach of duty, the burden on the plaintiff is first to show what was required at that moment and doctor has acted below that degree.
MEDICAL NEGLIGENCE UNDER CONSUMER PROTECTION ACT
Consumer Protection Act in lay man language means to conserve the right of the consumer. Any person who avails the services for consideration is known to be a Consumer.
The reason why medical negligence is covered in the ambit of consumer protection act is marked in the case –
Indian Medical Association v. V.P. Shanta and Ors.[3] The three-judge bench of the apex court, dealt with the difference between ‘Profession’ and ‘Occupation’ focusing on performance of duties and how negligence occurs. The court marked this judgement as ‘all patients who comes to the hospitals even if there treatment is free they all are considered as consumers’ a professional man should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties[4]. The judgment of the case were –
- Medical services are to be considered as ‘services’ under section 2(1) (o) of the act[5].
- All the medical services given by hospitals and nursing homes which are free of charge does not constitute in the section 2(1) (o) of the act[6]
- Medical Services rendered by independent Doctor free of charge are under Section 2(1) (o) of the jurisdiction of the Act.[7]
- Medical Services rendered against payment of consideration are in the scope of the Act.
- Payment which is paid by the third party comes under the purview of the act.
- Hospital in which some person are charged and some are exempted from charging because of their inability of affording such services will be treated as consumer under of Section 2(1) (d) of the Act.
This landmark judgment has changed the concept of medical negligence as it now treats the relationship of a doctor and patient as provider and consumer. It has made easier for the sufferer to sue for his loss. This act has made doctors to be more careful if any misshaping occurs.
[1] Balram Prasad v. Kunal Saha & Ors
[2] A.I.R. 1989 P. & H. 183, at 185
[3] (1995) 6 S.C.C. 651.
[4] Jackson v. powell on professional negligence
[5] Consumer protection act, 1896
[6] Ibid
[7] Ibid
Author: Sweksha Beniwal,
vivekananda institute of professional studies 2nd year B.A.LLB