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Consumer protection act in Medical Profession

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Consumer protection act Medical Profession
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Consumer Protection Act in Medical Profession DR HAR ASHISH JINDAL JR
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Page 1: Consumer protection act in Medical Profession

Consumer Protection Act in Medical Profession

DR HAR ASHISH JINDAL

JR

Page 2: Consumer protection act in Medical Profession

Contents

• Rights of a Consumer

• Where can a Consumer complain??

• Definitions

• Laws in Medical profession

• Consumer Protection Act – 1986 (CPA)

• Who is liable and Who is not?

• Duties of a doctor

• Prevention is better

• SWOT Analysis

Page 3: Consumer protection act in Medical Profession

• The Consumers International (CI), former International

Organisation of Consumer Unions (IOCU), the umbrella body,

for 250 organisations in over 120 countries has endorsed 8

rights.

• 1. Safety

2. Choose

3. Information

4. Heard

• The Consumer Rights No. 1 to 6 are also enshrined in the

Consumer Protection Act, 1986.

Rights of a consumer

5. Consumer Education

6. Redress

7. satisfaction of basic needs

8. Healthy Environment

Page 4: Consumer protection act in Medical Profession

What if the doctor does not treat me

right??

PatientDoctor

Page 5: Consumer protection act in Medical Profession

When a consumer has any complaint / grievance against a Doctor/ Hospital

(either Government or Private Hospital)

Complaint the Medical

Superintendent of the concerned

Hospital with copy to Chief Medical

Officer of his area

not satisfied with the reply of the concerned official then he should send his complaint to

the State Medical Council of his area.

not satisfied then he can send his

complaint to the Medical Council of

India.

Criminal type complaint -

effected consumer can file

complaint with the local Police

Station- the expert opinion will

be required to register any police

complaint.

File a case with the Consumer Forum,

Civil Court and Criminal Court for

seeking compensation for damages

arising out of wrong treatment or

removal of sensitive body parts during

operation.

Page 6: Consumer protection act in Medical Profession

Laws in Medical Profession

• Doctors have been liable under laws such as Civil Procedure Code,

Indian Penal Code, Law of Contractors, Law of Torts and other

specific Legislation.

• under Section 304-A of the Indian Penal Code (IPC), the doctor

who commits criminal liability is punishable with imprisonment for

a term which may extend upto two years, or with a fine, or both.

• Civil liability- arises in case of medical service rendered on payment

of fee, under section 73 and 74 of the Indian Contract Act 1986

• Under the Law of Torts (a wrong that is independent of contract)

civil liability is applicable to doctors on the Grounds of professional

misconduct.

Page 7: Consumer protection act in Medical Profession

Need for CPA

Drawbacks Indian Penal Code, Law of Contracts, Law of Torts

and other specific Legislation:

• (i) Delay to decisions ;

• (ii) High cost of bringing an actions;

• (iii) limited access to the courts ;

• (iv) Difficult to prove both negligence and causation.

No provisions in the Indian Medical Council Act, 1956 ;

• (i) to entertain any complaint from the patient ;

(ii) to award any compensation, etc. in case the negligence is

proved

Page 8: Consumer protection act in Medical Profession

Definitions

Who is a Consumer in medical profession..

• A patient who pays to get services of doctor /hospital,

• Any person who pays for the patient, legal heirs /

representatives of such patients,

• In case of death of patient who is a consumer, legal heirs

(representatives) of the deceased will be considered as

"consumer".

• If the payment has been made by any person who is not a legal

heir of the deceased he too will be considered as "consumer.

Page 9: Consumer protection act in Medical Profession

What is a Complaint?

• Any allegation, in writing made by a complainant that the services

hired or agreed to be hired or availed of by him suffer from

deficiency in any respect.

Who is a Complainant?

• Complainant means -

(i) a consumer ; or

(ii)the Central Government or any State Government

(iii) any registered voluntary consumer association

(iv) one or more consumers, where there are numerous

consumers having the same interests ; who or which makes a

complaint.

Definitions

Page 10: Consumer protection act in Medical Profession

Definition

• Service meansany 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 SERVICES.

Page 11: Consumer protection act in Medical Profession

Negligence

• Professional negligence - the breach of a duty caused by the

omission to do something which a reasonable man guided by

those considerations would do or doing something which a

prudent and reasonable man would not do.

• Medical negligence or malpractice - lack of reasonable care and

skill or willful negligence on the part of a doctor in the treatment

of a patient whereby the health or life of a patient is endangered.

Example : If a junior doctor is involved as part of a surgery, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury ,anything apart from his duty has a liability of negligence .

Page 12: Consumer protection act in Medical Profession

Consumer Protection Act(CPA)

• The CPA, 1986 is a benevolent social legislation that lays

down the rights of the consumers and also provides means for

their promotion and protection.

• In 1993, the Supreme Court brought the medical profession

under the Section 2(1) (o) of CPA.

Features:

• safeguard and protect the interest of consumers.

• simplification of procedures for seeking redressal of

grievances of patients or their relatives.

• less expensive

• within a limited time frame

Page 13: Consumer protection act in Medical Profession

How doctors are included in CPA??

• The National Consumer Disputes Redressal Commision’s

order decreed that the doctor - patient relationship is a contract

for personal service and it is not master - servant relationship.

• The doctor-patient relationship is a contract for personal

service and could not contract of personal service

• Hence patients who had sustained injuries in the course of

treatment can sue doctors in consumer protection courts for

compensation.

Page 14: Consumer protection act in Medical Profession

Administration

Consumer Protection Councils

Central Councils

Chairperson: Minister in-charge of the Department of

Consumer Affairs in the Central Government

State Councils

Chairperson: Minister in-charge of the Consumer

Affairs in the State Governments

District Councils

Chairperson: District

Collector

AIM:

promoting

consumer aware

Resolution passed by

these Councils are be

recommendatory in

nature.

Page 15: Consumer protection act in Medical Profession

3 tier system of CPA

State Commission

District forum

National Commission

Page 16: Consumer protection act in Medical Profession

Where is a complaint filed?

District Forum

• if the value of services and compensation claimed is less than Rs. 20 lakh

State Commission

• if the value of the services and the compensation claimed does not exceed more than Rs.1 crore.

National Commission

• if the value of the services and the compensation exceeds more than Rs 1 crore .

Page 17: Consumer protection act in Medical Profession

District Forum

• Chairman : a person who is qualified to be a District Judge

• Two or more members who have adequate knowledge or experience in dealing with problems relating to various fields, one of whom is a woman

State Commission

• Chairperson: a person who is or has been judge of a High Court, appointed by the State Government

• two other members with qualifications and experience (as for District Forum) within the State

National Commission

• Chairperson: a person who is or has been a judge of the Supreme Court to be appointed by the Central Government.

• 4 or more other members ,one of whom shall be a woman

Chair person and Members

Page 18: Consumer protection act in Medical Profession

Location

District Forum

• Rohtak District Consumer Court/Consumer Forum

• 3rd Floor Court No. 14

• New Judicial Complex Mini Secretariat

• Rohtak,Haryana-124001

• Ph: 01262-245550

State Commission

• Haryana State Consumer Disputes Redressal Commission, Bays No3-6, Sector 4 Panchkula –134112

• Ph:0172-2567601

National Commission

• National Commission Upbhokta Nyay Bhawan,'F' Block, GPO Complex, INA, New Delhi-110 023

• Telephone Nos. 011-24608801

Page 19: Consumer protection act in Medical Profession
Page 20: Consumer protection act in Medical Profession

Who is liable?

• All medical/dental practitioners doing independent

medical/dental practice unless rendering only free service.

• All Private hospitals charging patients.

• All hospitals having free as well as paying patients and all the

paying and free category patients receiving treatment in such

hospitals.

• Medical/dental practitioners and hospitals paid by an insurance

firm for the treatment of a client or an employment for that of

an employee.

Page 21: Consumer protection act in Medical Profession

When is the doctor liable?

Wrong Judgement

Mere error in Judgement

When a doctor takes a decision that turns out

to be wrong but in that situation it seemed correct-

inadvertent death

All aspects covered but in retrospect

highlights the cause of error

Negligence

Not all the scenarios

were covered

Trauma

Page 22: Consumer protection act in Medical Profession

How does adjudication of liability take place?

Complainant files a written complaint

the forum/ Commission, admits the complaint

sends a written notice to the opposite party asking for a written version to be submitted within 30 days.

proper scrutiny either filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and judicial decisions.

Page 23: Consumer protection act in Medical Profession

How does adjudication of liability take place?

The Forum/ Commision is satisfied that any of the allegations contained in the complaint about the services are proved

Issue an order to the opposite party directing him

compensation to the

consumerFee waiverTo remove the

deficiency in the

services

Page 24: Consumer protection act in Medical Profession

I am innocentWhere should I

go?????

Page 25: Consumer protection act in Medical Profession

Provision of appeal !!!

Within 30 days

• An appeal against the decision of the District Forum can be filed before the State Commission.

Within 30 days

• An appeal against the decision of the State Commission to the National Commission

Within 30 days

• An appeal against the decision of the National Commission to the Supreme Court

Page 26: Consumer protection act in Medical Profession

TIME SCHEDULE FOR DISPOSAL OF COMPLAINTS/APPEALS

• Every complaint decided within 90 days from the date

of receipt of notice by opposite party, where there is no

requirement for testing of sample etc. In the event of such a

requirement, the prescribed time is 5 months.

• Appeals disposed of within a period of 90 days.

• If a complaint/appeal is disposed of after the specified period,

then the Forum/Commission records the reasons for the

delay in writing.

Page 27: Consumer protection act in Medical Profession

FEE FOR FILING A COMPLAINT

[Section 12(2)]

Page 28: Consumer protection act in Medical Profession

FEE FOR FILING A COMPLAINT

[Section 12(2)]

Page 29: Consumer protection act in Medical Profession

Conditions of CPA

Limitation Period

• File the complaint within 2 years from the date on which the

cause of action has arisen.

Dismissal of frivolous or vexatious complaints

• the case found to be frivolous or vexatious, the complaint is

dismissed and an order is made that the complainant pays a

cost , not exceeding 10,000 rupees, to the opposite part.

Page 30: Consumer protection act in Medical Profession

Conditions of CPA

Penalties

• Where the defendant or the complainant fails to comply, then it

may be punishable with imprisonment for a term which is not

be less than one month but which may extend to three years, or

with fine which is not be less than Rs 2,000 but which may

extend to Rs 10,000 or with both

Page 31: Consumer protection act in Medical Profession

Doctor - Innocent or guilty ????

• In order to achieve success in an action for negligence, the

consumer must be able to establish to the satisfaction of the

court that :

– the doctor (defendant) owed him a duty to conform to a

particular standard of professional conduct ;

– the doctor was derelict and breached that duty ;

– the patient suffered actual damage

– the doctor’s conduct was the direct or proximate cause of

the damage.

• Failure to provide substantialize evidence on any one element

may result in no compensation.

Page 32: Consumer protection act in Medical Profession

When is their a breach of duty

??

Page 33: Consumer protection act in Medical Profession

Duties of a doctor

On the basis of Codes of Ethics (MCI, 2002) and Declarations, the

duties of a doctor are -

• 1. Duties to the Patient: These are : Standard Care, Providing

Information to the Patient /Attendant , Consent for Treatment, and

Emergency Care.

2. Duties to the Public.

3. Duties towards Law Enforcers.

4. Duties not to violate Professional Ethics.

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

6. Duties to each other.

Page 34: Consumer protection act in Medical Profession

When does a question of duty arise?

• Duty towards a patient begins the moment a doctor agrees to

take on the case. He must not, therefore, abandon his patient1

• Supreme court ruling “every doctor, at the governmental

hospital or elsewhere, has a professional obligation to extend

his services with due expertise for protecting life”- restricted to

situations where there is danger to the life of the person.2

1.Laxman Joshi v Babu Godbole, AIR 1969 SC 1282.Parmanand Kataria vs. Union of India[1996]

Page 35: Consumer protection act in Medical Profession

Doctor - patient Contract

• The doctor-patient contract is almost always of the implied type,

except where a written informed consent is obtained.

• An implied contract is where one person renders services under

circumstances indicating that he expects to be paid and the other

person knowing such circumstances, avails himself of benefit of

those services

Express consent

• Express oral consent is obtained for relatively minor examinations

or therapeutic procedures, preferably in the presence of a

disinterested third party.

Page 36: Consumer protection act in Medical Profession

Informed Consent.

• Express written consent is to be obtained for : (i) all

major diagnostic procedures and surgical operations, (ii)

general anesthesia, (iii) intimate examinations, (iv)

examination for determining age, potency and virginity,

and in medico-legal cases

• Must be explained in comprehensible non-medical terms

preferably in local language about the (a) diagnosis, (b)

nature of treatment,(c) risks involved, (d) prospects of

success, ( e) prognosis if the procedure is not performed,

and (f) alternative methods of treatment.

Page 37: Consumer protection act in Medical Profession

Reasonable Care

• It means that the degree of care and competence that an

“ordinary competent member of the profession who professes

to have those skills would exercise in the circumstance in

question.”

• Generalist and specialist are expected to take reasonable care

but what amounts to reasonable care with regard to the

specialist differs from what amount of reasonable care is

standard for the generalist.

• The law expects the specialist to exercise the ordinary skill of

his speciality and not of any ordinary doctor.

Page 38: Consumer protection act in Medical Profession

Treat according to Reasonable Skill - Not to

undertake any procedure beyond his skill

I should go to

a specialist!!!!

MD

TAKE HELP in

• Any complicated cases

• Performing an operation which may

be dangerous to life or requiring

amputation

• Operating on a case in which there

has been a criminal assault,

• Performing an operation which may

affect the intellectual or reproductive

functions of a patient.MD

Page 39: Consumer protection act in Medical Profession

Professional Secrets

• A professional secret is one which a doctor comes to learn in

confidence from his patients, on examination, investigations or

which is noticed in the ordinary privacies of domestic life.

• A doctor is under a moral and legal obligation not to divulge

any such secret except under certain circumstances.

• Privileged communication is defined as a communication

made by a doctor to a proper authority who has corresponding

legal, social and moral duties to protect the public.

Page 40: Consumer protection act in Medical Profession

Duty not to violate Professional Ethics

1..

2

3. Not.

Not to run a medical store / open shop for sale

of medical and surgical instruments.

Not to indulge in self-advertisement

Not to associate with

unregistered medical

practitioner and not

allow them to practice

Not to issue false certificates and bills

India

Page 41: Consumer protection act in Medical Profession

Not to attend patient when

under the effect of alcoholNo fee sharing

Not to talk loose about colleagues

Not to refuse professional service on

grounds of religion, nationality, race,

party politics or social status.

Page 42: Consumer protection act in Medical Profession

Duty not to do anything illegal or hide illegal acts

1. Perform illegal abortions / sterilization’s

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 and surgery or procedure.

Sex determination

Page 43: Consumer protection act in Medical Profession

Prevention

• PREVENTION AT PERSONAL LEVEL

• PREVENTION AT PRACTICE

• PREVENTION BY PROFESSIONAL INDEMNITY

• PREVENTION BY PEOPLE SUPPORT GROUPS

Page 44: Consumer protection act in Medical Profession

PREVENTION AT PERSONAL LEVEL

• True and M.C.I. approved qualification, training &

experience of recognized centers are the primary safeguards

against any litigation.

• Refrain from claims of guarantee of results.

Page 45: Consumer protection act in Medical Profession

PREVENTION AT PERSONAL LEVEL

• Communication: This is the key to doctor-patient relationship.

• Increasing crowds of patients and improper communication to patient about diagnostics and treatment procedures, complications and claims of guarantee success are main reasons for patient dissatisfaction.

• Answer all queries of the patients/relative without getting irritated and patiently.

• Do not be averse of any demand/suggestion for second opinion by patient/relatives.

• Keep empathy

Page 46: Consumer protection act in Medical Profession

PREVENTION AT PERSONAL LEVEL

Interpersonal behaviour

• The whole system of medical establishment should be made courteous, and polite.

• The special training should be imparted to experts about dealing with patients/relatives under grievous mental stress due to some loss/injury.

Academic & technical up gradation

• To keep pace with fast changing scenario of technical advancement, one should regularly attend CME’s, workshops and other academic sessions should also be organized to upgrade our junior staff and nursing team.

Page 47: Consumer protection act in Medical Profession

PREVENTION AT PERSONAL LEVEL

• A thorough knowledge of medical

ethics and laws is essential for all

medical professionals.

GET A FEEDBACK

>>>>IMPROVE

Page 48: Consumer protection act in Medical Profession

PREVENTION AT PRACTICE

• The key steps are exercising reasonable skill and care in diagnosis and treatment, documentation and legally valid informed consent.

• The reasonable skill & care

• There are 3 aspects of reasonable skill and care1. Medical2. Social3. Legal

Page 49: Consumer protection act in Medical Profession

PREVENTION AT PRACTICE

• Medical aspect

First and foremost it is imperative for every

doctor/hospital/nursing home to exercise reasonable skill and

care expected of an average person with equivalent qualification

and experience in similar circumstances.

• Social aspect

We should always exhibit our reasonable skill and care to the

patient/attendants/relatives, through expressions, body

language, actions and discussions. These must be visibly

palpable

Page 50: Consumer protection act in Medical Profession

• Make good clinical notes of findings on examination and

treatment given with specific dates and time.

• Negative records act as important tool while defending the cases

in court of law.

• Please make sure that your handwriting is legible.

PREVENTION AT PRACTICE(Legal aspects)

DOCUMENTATION!!! DOCUMENTATION!!!DOCUMENTATION!!.

Page 51: Consumer protection act in Medical Profession

PREVENTION BY PROFESSIONAL INDEMNITY

• " indemnity " means reimbursement, to compensate.

Insurance cover

• Provides the claim of compensation awarded against

doctor/hospital

• Gives a sense of mental security (even in cases of

same negligence).

• Arrange advocates for the legal help

Page 52: Consumer protection act in Medical Profession

PREVENTION BY PEOPLE SUPPORT GROUPS

• Societies –

– Provides social security

– regular fellowship that prohibit the doctors speaking foul

against their own colleague.

• Acts as an update as time to time discussions about various

provisions of acts, cases fought and their results and the

lessons learnt from them.

• Acts as a pressure group on the dissatisfied patient on moral

and emotional grounds.

Page 53: Consumer protection act in Medical Profession

SWOT ANALYSIS

Page 54: Consumer protection act in Medical Profession

• Highly technical orientation of the

Medical field

• Declining credibility of medical

Profession.

• Professional jealousy.

• Lack of objectivity and empirical

nature of several regimens

• Commercialization of medical

profession.

• Inept medical record keeping

• Lack of staff

• Pending cases

• Corrupt lawyers

• Valued as noble profession

• Giant strides in the medical

profession

• Significant proportion of doctors

committed to protect the Rights

of the Consumers.

• Strong consumer movement in

the country.

• Revives the Hippocratic Oath

• Vigilant press.

Strengths Weaknesses

Page 55: Consumer protection act in Medical Profession

• Low level of awareness among

patient and doctors.

• Illiteracy and low socio-

economic status of patients.

• Exaggerated claims encouraged

by lawyers.

• Tendency of insurance

companies to opt for out of

court settlements.

• Growing urge to practice

defensive medicine

• Growing patient

consciousness for quality care.

• Successful application of the

CPA to other services/goods.

• Possibility of strengthening of

MCI Agreeing to the

application of CPA

• Realisation of need for regular

CME programmes.

• Clinicopathological meets in

instances of medical

negligence.

ThreatsOpportunities

Page 56: Consumer protection act in Medical Profession
Page 57: Consumer protection act in Medical Profession

Final verdict

With CPA medical profession may seem vulnerable, but it forces the medical personnel's to be more responsible , accountable and remain upto date to serve the society in a more effective and an efficient way, though a legal assurance, ensuring protection from unnecessary and arbitrary complaints, is the need of the hour.

Page 58: Consumer protection act in Medical Profession
Page 59: Consumer protection act in Medical Profession
Page 60: Consumer protection act in Medical Profession

References:

1. Smreeti Prakash A comparitive analysis of various legal

systems regarding medical negligence: Criminal Consumer &

Torts law 2005

2. http://ncdrc.nic.in/

3. Dr. Mukesh Yadav, "Criminal Negligence by Doctors-A

Scenario of Aggressive Patients, Confused Doctors and

Divided Judiciary!", IIJFMT 2(4) 2004.

4. N.Satyanarayana, G. Vijaya Kumar, "Consumer Protection

Act and the Medical Profession", IndMedica, 2006.

5. Talha Abdul Rahman, "Medical negligence and doctors'

liability", Indian Journal of Medical Ethics, April-June, 2005


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