ISSUES BEFORE THE MEDICAL PROFESSION
Legal aspects of medical practice have always constituted an important component
of medical education. Standard books on Medical Jurisprudence contain excellent
Chapters on "The Law in Relation to Doctors." Thus, from an early stage the 'would
be doctors' are made conversant with the legal issues inherent in medical practice.
The application of the Consumer Protection Act to the Medical Professionals has
only served to bring into focus some of the legal liabilities of the doctors.
Mere mention of the Consumer Protection Act at any get-together or scientific meeting
of doctors evokes their instant attention and all other conversation cases, giving
rise to passionate exchange of opinion, experiences, fears, etc. and questions being
asked about the implications of the application of the Act to the Medical Profession.
Recently, the Act has been amended by the Consumer Protection (Amendment) Act, 1993,
w.e.f. 18.6.1993. We shall deal selectively with provisions of the Act which are
relevant to the Medical Profession, as they exist as on today. The meaning of legal
terms are being restricted to such terms only as concern the Medical Profession.
Definitions
Complaint Means :
- a consumer ; or
- any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force
- the Central Government or any State Government ;
- one or more consumers, where there are numerous consumers having the same interests ; who or which makes a complaint.
Complaint Means - Any allegation, in writing made by a complainant
that the services hired or availed of or agreed to be hired or availed of by him
suffer from deficiency in any respect.
Complaint Means - Any "person" who hires or avails of any services
for a consideration which has been paid or promised or partly paid and partly promised
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.
Comment
Consideration means fees /payment. Fees may have been fully paid in cheque or cash
, or undertaking that it will be paid, which is accepted by the doctor/hospital.
The fees may have been given partly (as advance) with the understanding that the
remaining bill will be paid subsequently. The payment may be done by the patient
himself, or by someone else for the patient, e.g., father for his child, husband
for wife, any person for someone.
A person who receives medical treatment in Government hospital or charitable hospital
free of cost is not a consumer under the Act.
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."
Complaint Means - Any fault, imperfection, shortcoming or inadequacy
in the quality, nature, and manner of the 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.
Comment
Deficiency/negligence means fault, imperfection, shortcoming or inadequacy in quality,
nature and manner of performance of the medical service rendered by a hospital and
/or member of the medical profession. Person includes -
* a firm whether registered or not;
* a Hindu undivided family;
* a co-operative society
* every other association of persons whether registered under the Societies Registration
Act, 1860 or not.
Service 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 of 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.
Although medical profession has not been included under the term "service" but in
many of the decided cases medical services have been deemed to be included in the
definition of service in view of the expression ; "service means service of any
description."
Charge Means - Fee / payments with element of profit making motive
involved. As Government hospitals/certain charitable hospitals do not charge fees,
hence such services rendered are exempted from this Act. In certain situations where
hospitals are charging nominal stamp fees, contributions are made by Govt. employees
to the CGHS , payments are made for cottage wards, diagnostic tests are done under
auto-finance scheme, such services do not have any element of profit motive. Hence
the persons availing of these services are not consumers and the services rendered
do not fall under the Act, as there is no consideration paid for hiring of such
services.
It has been held by the National Consumer Disputes Redressal Commission ( National
Commission) on April 21,1992 in the case of Cosmopolitan Hospitals and Anr. v. Vasantha
P. Nair [ 1 (1992) CPJ 302 (NC) ] that the medical treatment rendered to a patient
by a private doctor or clinic for consideration is clearly a service falling within
the ambit of section 2 (1) (o) of the Consumer Protection Act. It is not a contract
of personal service but a contract to render professional service. It is now well
settled that hospital authorities rendering service for consideration are liable
to the patient for injury caused by him by the negligence or other fault of the
doctors, surgeons, nurses, anesthetists and other members of the hospital in the
course of their work. The liability of the hospital authorities extends to the faults
of doctors and other employees whether their employment is permanent or temporary
or casual, paid or honorary, whole or part-time as happens in the case of visiting
physicians/surgeons.