Medical Services Laws Under Consumer Protection Act, 1986
Medical Services Laws Under Consumer Protection Act, 1986 | Overview Introduction Medical Services Contract of Service Deficiency In Service Conclusion In India, health becomes a problem, as the state cannot provide medical services for all the people. Besides the Government Hospitals, the private sector has also established hospitals, and some of the rich people have taken upon establishing… Read More »
Medical Services Laws Under Consumer Protection Act, 1986 | Overview
In India, health becomes a problem, as the state cannot provide medical services for all the people. Besides the Government Hospitals, the private sector has also established hospitals, and some of the rich people have taken upon establishing corporate hospitals. Getting treatment in private hospitals has become more expensive and luxurious. When the corporate bodies entered into the medical profession, the age-old principle of humanitarianism, service motto disappeared in the service field, and this has become a burning problem for poor middle-class.[3]
Introduction
In India, the right to health care and protection has been recognized since early times. A number of laws have been enacted to protect the health interests of the people such as the Indian Penal Code, 1860, the Fatal Accidents Act, 1855, the Indian Medical Degree Act, 1916, etc. Complaints of medical negligence have assumed a wider dimension as the incidents have increased due to the opening of nursing homes, central government health services dispensaries and employee’s state insurance hospitals, etc.
Though the parliament has passed the Indian Medical Council Act in 1956 and other corresponding legislation governing various branches of medicine, these legislations only provide for the registration and regulation of the conduct of doctors, hospitals and nursing homes, and have failed to protect the interests of persons who have suffered on account of negligence or deficiency on the part of medical practitioners. This field which remains untouched by the Medical Council Act(s) is covered by the law of tort in general, and now by the Consumer Protection Act, 1986.[1]
The definition of service given under Section 2(1) (o) of the Consumer Protection Act, 1986 can be split into three parts – the main part, the inclusionary part, and the exclusionary part. The main part is explanatory in nature and defines services to mean services of any description which is made available to potential users. The inclusionary part expressly includes the provisions of facilities in connection with banking, financing, insurance, transport, processing, etc. The exclusionary part excludes two types of services, i.e. any service rendered free of charge and services rendered under a contract of personal services.[2]
Medical Services
The medical services include the service rendered by the hospitals both government and private, nursing homes, Health Centers, clinics, medical practitioners, chemists, Diagnostic centres, paramedical staff, nursing staff, and other allied staff.
These services have not been expressly and categorically included or excluded within the definition of Services as defined under section 2(1)(o) of Consumer Protection Act, 1986. Regarding the medical service, the inclusive part of the definition of service is not applicable and only the main part and exclusionary part is applicable.
The expression ‘which is made available to potential user contained in Section 2(1)(o) is not indicative of the legislative intent to cover only a service of an institutional type, which is really a commercial enterprise, and open and available to all who seek to avail thereof. From the use of the word potential user it cannot therefore, be inferred that the services rendered by medical practitioners are not contemplated by the Parliament to be covered within the expression services as contained in Section 2(1)(o).[5]
Thus, the services rendered to a patient by a medical practitioner (except where the doctor render services free of charge or under a contract of personal service) by way of consultation, diagnosis and treatment, would fall within the ambit of service as defined in section 2(1)(o) of the Act.[6]
Contract of Service
There was some misunderstanding about the nature of medical services. The question was about the nature of the doctor-patient relationship, and whether rendering medical services is excluded by the exclusionary part of the definition of service as defined in section 2 (1) (o) of the Act.
A patient approaching a doctor expects medical service treatment with all the knowledge and skill that the doctor possesses to bring relief to his medical problem. The legal relationship takes the form of a contract retaining the essential elements of the tort. A doctor owes certain duties to his patient and a breach of any of these duties gives a cause of action for negligence against the doctor.
The doctor has a duty to obtain prior informed consent from the patient before carrying out diagnostic tests and therapeutic management. The relationship between physician and his patient is not covered by the provision of the law of employment contract because it is a relationship that revolves around the completion of a one-off piece of work and is not such a continuous relationship and the duty of care, arising from occupier’s liability. Patient as the employer is generally not liable for the vicarious acts of independent contractors.
So, it is not a contract for service but it is a contract of service. A contract may be express or implied. An express contract is one, whose terms are stated in words. An implied contract is one, the existence and terms of which are manifested by conduct. A unilateral contract is one in which there is a promise to pay other consideration in return for actual performance. A bilateral contract is one in which a promise is exchanged for a promise.
In most cases, contracts can be either written or oral but oral contracts are more difficult to prove and in most jurisdictions, the time to sue on the contract is shorter. In common law, to be legally binding as a contract, a promise must be exchanged for adequate consideration, as an exchange of promises is not an element of a contract according to contract law.
Adequate consideration is a benefit or detriment that a party receives and which reasonably and fairly induces them to make the promise contract in common law but contract law does not consider the adequacy of consideration an essential to a contract. It is covered by the contractual privacy area.
Contracts are agreements that are legally enforceable. A contract may involve a duty to do or refrain from doing something and the failure to perform such duty is called a breach of contract. The law provides remedies if a promise is breached, aiming to restore the person wronged to the position they would occupy if the contract had not been breached and rather punish the breaching party.
Generally, Employer-employee relationship is governed by labor law. This applies to every enterprise or establishment of industry, mining, commerce, crafts, agriculture, non-religious, whether they are of professional education or charitable characteristic as well as the liberal profession, associations, or groups of any nature whatsoever. This law governs relations between employers and employees resulting from employment contracts.
An employee within the meaning of the law is a person who has signed an employment contract in return for remuneration under the direction and management of another person, whether that person is a natural person or legal entity, public or private. To clearly determine the characteristics of an employee, one shall not take into account the jurisdictional status of the employer or that of the Employee, as well as the amount of remuneration.
It is no doubt that the relationship between a medical practitioner and a patient carries within it a certain degree of mutual confidence and trust and, therefore, the services rendered by the medical practitioner can be regarded as services of personal nature but since there is no relationship of master and servant between the doctor and the patient the contract between the medical practitioner and his patient cannot be treated as a contract of personal service but as a contract for services and the service rendered by the medical practitioner to his patient under such a contract is not covered by the exclusionary part of the definition of service contained in section 2 (1) (o) of the Act.
The expression contract of personal service contained in section 2(1)(o) of the Act has to be confined to the employment of domestic servants only. We do not find any merit in this submission. The expression of personal service has a well-known legal connotation and has been construed in the context of the right to seek enforcement of such a contract under the Specific Relief Act.
For that purpose, a contract of personal service has been held to cover a civil servant[7], the managing agents of a company[8] and a professor at the University.[9] There can be a contract of personal service if there is a relationship of master and servant between a doctor and the person availing his services and in that event, the services rendered by the doctor to his employer would be excluded from the purview of the expression service under section 2 (1)(o) of the Act by virtue of the exclusionary clause in the said definition.[10]
Deficiency In Service
Deficiency means inadequacy to the quality or state of being deficient, an amount that is lacking or inadequate, a shortage of substances necessary to health. For example, the disease may be caused by nutritional deficiencies. There are several deficiencies in his plan. The accident was caused by deficiencies in the engine.
In consumer law terminology deficiency means any fault imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
The health service has been influenced over the last few years by the need for quality care as part of the clinical governance structure. At the same time, public confidence in the quality of care delivered by healthcare practitioners has been diminished by a series of events.
A doctor, qualified in one form of medicine, cannot practice another, and anyone who does that would be held guilty of negligence per se, and there is no need for any further proof of negligence. The law may be an effective scrutinizer and regulator, but it also has its limitations in determining what is quality care and good practice because of the complex multifaceted nature of medical decision making.
Healthcare practitioners owe a duty of care to their patients and, if they break that duty and harm results, then liability may accrue in the tort of negligence. Indian law does not only impose obligations in negligence upon the individual medical practitioner but, in addition, the organization may itself be held liable in the tort of negligence through direct liability for failure to provide a safe system.[11]
Deficiency in medical services gives the patient as a consumer the right to claim compensation.[12] Section 2 (f) defines deficiency as follows;
Deficiency means any fault imperfection short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
The legal standard of care in India which healthcare practitioners owe to their patients has been rooted in professional practice, the well-known Bolam test, which as stated by Justice MC Nair, provides that a doctor is not guilty of negligence if he has acted in accordance with a practice accepted as proper by a responsible body of medical men.[13]
This approach was followed over several years in other areas of healthcare litigation such as consent to treatment.[14] Nonetheless, today there is greater judicial willingness to scrutinize the opinion expressed by the body of professional practice. In particular, where there are questions of assessment of the relative risks and benefits of adopting a particular medical practice, a reasonable view necessarily presupposes that the relative risks and benefits have been weighed by the experts in forming their opinions.
But if in a rare case, it can be demonstrated that the professional opinion is not capable of withstanding logical analysis, the judge is entitled to hold that the body of opinion is not reasonable or responsible. The judge, however, emphasizes that in my view it will be very seldom right for a judge to reach the conclusion that views genuinely held by a competent medical expert are unreasonable.[15]
The negligence of medical professionals comes within the expression of deficiency in service. In view of the law on the subject, as the doctors have performed their duties to the best of their liability and with due care and caution, it cannot be held that there is a deficiency in service.
Conclusion
The current legal standard of care imposed upon doctors, hospitals nurses and other medical professionals is one where the medical practitioner exercising and professing to have a particular skill, becomes an issue. The relevant standard and the level of skill should be the ones that are practiced and accepted by a responsible body of medical persons skilled in a particular area of medicine in question. It is the medical profession that, in effect, determines the standard of care among medical practitioners. The definition of reasonable standard of care, or a duty of care, however, presents complications in its own right.
[1] Thakur Shweta and Jaswal Vikram Singh, Medical Negligence in India, (2013) 72.
[2] Barowali, J.N., Commentary on the Consumer Protection Act, (2008) 482.
[3] Dr. Myneni, S.R., Consumer Protection Law, (2010) 238.
[4] Ibid
[5] Thakur Shweta and Jaswal Vikram Singh, Medical Negligence in India, (2013) 74-75
[6] Ibid
[7] The High Commissioner of India v. I.M. Lall, (1948) L.R. 75 I.A. 225.
[8] Ram Kissendass Dhanuka v. Satya Charan Law, (1949) L.R. 77 I.A. 128
[9] S.B. Dutt v. University of Delhi, 1958 AIR 1050, 1959 SCR 1236.
[10] Indian Medical Association v. V.P. Santha, AIR 1995 SC 530.
[11] Spring Meadows Hospital v. Harjot Singh Ahluwalia, AIR 1998 SC 1801.
[12] Poonam Verma v. Ashwin Patel (1996) 4 SCC 332.
[13] Bolam v. Friern Hospital Management Committee, (1957) 1 WLR 582.
[14] Maynard v. West Midlands Regional Health Authority,(1985) 1 All ER 635 (HL).
[15] Bolitho administratrix of the estate of Bolitho v. City and Hackney Health Authority (1997) 4 AllER 771.