We are all consumers of goods and services in one way or the other. The moment we take birth on this earth we became consumers and are entitled to seek relief under the Consumer Protection Act. These days we see that consumers are cheated and harassed in many ways. At times,they are provided with inferior quality of goods, at times with less quantity than actually demanded whereas at other times the consumer is charged with excess prices than otherwise fixed for the commodity. The traders considers consumers as persons who are morons having paying capacity and can try to deceive them in every possible way. Therefore, there was a strong need felt to protect the consumers.
In India, consumer protection is specified in The Consumer Protection Act, 1986. Under this law, Separate Consumer Dispute Redressal Forums have been set up throughout India in each and every district in which a consumer can file his complaint on a simple paper with a nominal Court Fees and his complaint will be decided by the Presiding Officer of the District Level. The complaint can be filed by both the consumer of a goods as well as of the services. An appeal can be filed to the State Consumer Disputes Redress Commissions and after that to the National Consumer Disputes Redressal Commission (NCDRC). The procedures in these tribunals are relatively less formal and more people friendly and they also take less time to decide upon a consumer dispute when compared to the years long time taken by the traditional Indian judiciary.
Unfair Trade Practice :
The Act says that, unfair trade practice means a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely:-
(1) The practice of making any statement, whether orally or in writing or by visible representation which-
(i) falsely represents that the goods are of particular standard, quality, quantity, grade, composition, style or model;
(ii) falsely represents that the services are of a particular standard, quality or grade;
(iii) falsely represents any re-built, second-hand, renovated, reconditioned or old goods as new goods;
(iv) represents that the goods or services have sponsorship, approval performance, characteristics, accessories, uses or benefits which such goods or services do not have;
(v) represents that the seller or the supplier has a sponsorship or approval or affiliation which such seller or supplier does not have;
(vi) makes false or misleading statement concerning the need for, or the usefulness of, any goods or services;
(vii) gives to the public any warranty or guarantee of the performance, efficacy or length of life of a product or of any goods that is not based on an adequate or proper test thereof;
(viii) makes to the public a representation in a form that purports to be a warranty or guarantee of a product or of any goods or services; or a promise to replace, maintain or repair an article or any part thereof or to repeat or continue a service until it has achieved a specified result, if such purported warranty or guarantee or promise is materially misleading
if there is no reasonable prospect that such warranty, guarantee or promise will be carried out;
(ix) materially misleads the public concerning the price at which a product or like products or goods or services, have been or are, ordinarily sold or provided, and, for this purpose, a representation as to price shall be deemed to refer to the price at which the product or goods or services has or have been sold by sellers or provided by suppliers generally in the relevant market unless it is clearly specified to be the price at which the product has been sold or services have been provided by the person by whom or on whose behalf other representation is made;
(x) gives false or misleading facts disparaging the goods, services or trade of another person.
JURISDICTION OF CONSUMER FORUM
At first,identify the Jurisdiction of the Forum where the complaint is to be filed. This issue needs to be identified from two angles of jurisdiction i.e. Territorial and Pecuniary.
The Consumer has to take into consideration both the territorial and pecuniary jurisdiction of the tribunal in mind before filing his or her complaint and has to choose the correct forum.
Pecuniary Jurisdiction of the Consumer Forum1 District Forum upto Rs. 20 Lakhs
2 State Commission upto Rs. 20 Lakhs to Rs. 1 Crores
3 National Commission Exceeding Rs. 1 Crores
It is set up by the State Government and its jurisdiction is restricted to the boundaries of the state concerned. The Consumer Protection Act lays down the working of a State Commission as under: The State Commission shall consist of a President who either has been a Judge of a High Court and two other members. All the three shall be appointed by the State Government. Only those complaints can be filed where the value of goods or services and compensation claim comes in between Rs. 5 lakh and Rs. 20 lakh. The appeal against the order of any District Forum can also be filed before the State Commission.
A jeep was purchased to run it as a taxi. The question was whether the buyer of the jeep was a consumer under the Act. The Rajasthan State Commission held that to use the jeep as a taxi with the object to earn profits was a commercial purpose, and therefore, the buyer/user was not a consumer within the meaning of the Act. [Smt. Pushpa Meena v. Shah Enterprises (Rajasthan) Ltd. (1991) 1 CPR 229].
The State Commission is required to refer the complaint to the opposite party concerned and send the sample of goods for retesting in a laboratory, if necessary.The State Commission after being satisfied that the goods were defective can issue the same order as can be issued by the District Forum. Any person who is aggrieved by the order of the State Commission can appeal against such order to the National Commission within 30 days.
It is set up by the Central Government. The salient features and provisions of the Act pertaining to the National Commission are as under.It shall include a President who is or has been a Judge of the Supreme Court and four other members appointed by the Central Government. The identical complaints as can be filed in the District Forum and State Commission can be filed in the National Commission too. Appeal against the order of State Commission can also be filed before the National Commission. The National Commission shall have the same power as that of a Civil Court in dealing with cases and follow the procedure prescribed by the Central Government. It has the authority to issue orders for safety provisions and pay compensation for loss or injury cause. An appeal against the order of the National Commission can be filled to the Supreme Court within 30 days.
Role of Consumer Protection Council:
After the amendment of Consumer Protection Act 1986 in the year 2002 Consumer Protection Council became also converted into a three tier system mechanism which provides the establishment of a Central Consumer Protection Council, by the Central Government, State Consumer Protection Councils by the state Governments and the District Consumer Protection Councils by the state Governments. The councils are established to fulfill the original intention of the legislature behind the enactment of the Act; it is to safeguard the interest of the consumers at large within their respective jurisdiction. The main enshrined objectives of the councils are as follows:-
1. To protect the rights of the consumer;
2. To protect the interest of the consumer
Relief available against complaint [Sections 14 and 22] – A complainant can seek any one or more of the following relief under the Act:
(a) to remove the defect pointed out by the appropriate laboratory from the goods in question;
(b) to replace the goods with new goods of similar description which shall be free from any defect;
(c) to return to the complainant the price, or, as the case may be, the charges paid by the complainant;
(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party;
(e) to remove the defects or deficiencies in the services in question;
(f) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it;
(g) not to offer the hazardous goods for sale;
(h) to withdraw the hazardous goods from being offered for sale;
(i) to provide from adequate costs to complainant.
MEDICAL NEGLIGENCE AND CONSUMER PROTECTION ACT, 1986
Negligence is simply the failure to exercise due care. The three ingredients of negligence are as follows:
1. The defendant owes a duty of care to the plaintiff.
2. The defendant has breached this duty of care.
3. The plaintiff has suffered an injury due to this breach.Medical negligence is no different. It is only that in a medical negligence case, most often, the doctor is the defendant.Reasonable Degree of Care
Reasonable degree of care and skill 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.” At this stage, it may be necessary to note the distinction between the standard of care and the degree of care. The standard of care is a constant and remains the same in all cases. It is the requirement that the conduct of the doctor be reasonable and need not necessarily conform to the highest degree of care or the lowest degree of care possible. The degree of care is a variable and depends on the circumstance. It is used to refer to what actually amounts to reasonableness in a given situation.
Thus, though the same standard of care is expected from a generalist and a specialist, the degree of care would be different. In other words, both 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. In fact, the law expects the specialist to exercise the ordinary skill of this speciality and not of any ordinary doctor. Though the courts have accepted the need to impose a higher degree of duty on a specialist, they have refused to lower it in the case of a novice.
Another question that arises is with regard to the knowledge that is expected from a doctor. Should it include the latest developments in the field, hence require constant updating or is it enough to follow what has been traditionally followed? It has been recognized by the courts that what amounts to reasonableness changes with time. The standard, as stated clearly herein before requires that the doctor possess reasonable knowledge. Hence, we can conclude that a doctor has to constantly update his knowledge to meet the standard expected of him. Furthermore, since only reasonable knowledge is required, it may not be necessary for him to be aware of all the developments that have taken place.
We have, until now, examined the duty of a doctor in so far as treating a patient is concerned or in diagnosing the ailment. Doctors are, however, imposed with a duty to take the consent of a person/patient before performing acts like surgical operations and in some cases treatment as well. To summarize, any act that requires contact with the patient has to be consented by the patient. A duty of care is imposed on the doctors in taking the patient’s consent. Naturally, a question arises as to what is this duty of care. As per the judicial pronouncements, this duty is to disclose all such information as would be relevant or necessary for the patient to make a decision. Therefore, the duty does not extend to disclosing all possible information in this regard. Furthermore, this duty does not extend to warning a patient of all the normal attendant risks of an operation. The standard of care required of a doctor while obtaining consent is again that of a reasonable doctor, as in other cases.When there is No Liability
A doctor is not necessarily liable in all cases where a patient has suffered an injury. This may either be due to the fact that he has a valid defense or that he has not breached the duty of care. Error of judgment can either be a mere error of judgment or error of judgment due to negligence. Only in the case of the former, it has been recognized by the courts as not being a breach of the duty of care. It can be described as the recognition in law of the human fallibility in all spheres of life. A mere error of judgment occurs when a doctor makes a decision that turns out to be wrong. It is situation in which only in retrospect can we say there was an error. At the time when the decision was made, it did not seem wrong. If, however, due consideration of all the factors was not taken, then it would amount to an error of judgment due to negligence.
JUDICIAL INTERPRETATION OF MEDICAL NEGLIGENCE LIABILITY
By and large the following legal issues have been addressed and responded to by different forums and Courts in India.
Charge of Medical Negligence against Professional Doctors
From the time of Lord Denning until now it has been held in several judgments that a charge of professional negligence against the medical professional stood on a different footing from a charge of negligence against the driver of a motor car. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a known fact that with the best skill in the world, things sometimes went wrong in medical treatment or surgical operation. A doctor was not to be held negligent simply because something went wrong. The National Commission as well as the Apex Court in catena of decisions has held that the doctor is not liable for negligence because of someone else of better skill or knowledge would have prescribed a different treatment or operated in a different way. He is not guilty of negligence if he has acted in accordance with the practice accepted as proper by a reasonable body of medical professionals. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Trimbak, AIR 1969 SC 128, has held the above view that is still considered to be a landmark judgment for deciding a case of negligence. In the case of Indian Medical Association vs. Santha, the Apex Court has decided that the skill of a medical practitioner differs from doctor to doctor and it is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient. Therefore, a Judge can find a doctor guilty only when it is proved that he has fallen short of the standard of reasonable medical care. The principle of Res-Ipsa-Loquitur has not been generally followed by the Consumer Courts in India including the National Commission or even by the Apex Court in deciding the case under this Act. In catena of decisions, it has been held that it is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubts. Mere allegation of negligence will be of no help to the Complainant.
Proof of Medical Negligence
It has been held in different judgments by the National Commission and by the Hon’ble Supreme Court that a charge of professional negligence against a doctor stood on a different footing from a charge of negligence against a driver of a vehicle. The burden of proof is correspondingly greater on the person who alleges negligence against a doctor. It is a known fact that even with a doctor with the best skills, things sometimes go wrong during medical treatment or in a surgery. A doctor is not to be held negligent simply because something went wrong. It is an admitted fact that the Complainant’s eyesight was not restored after the operation was conducted by the Appellant but on this ground alone a doctor can not be held negligent because even after adopting all necessary precautions and care the result of the operation may not be satisfactory since it depends on various other factors. The contention of the Appellant was that the patient was suffering from diabetes and blood pressure and in many such cases eyesight is not restored after the operation however carefully it is done. In this case, there is nothing on record to show that something went wrong due to an act of the Appellant-doctor. There is no evidence to come to the conclusion that the Appellant fell below the standard of a reasonably competent practitioner in their field, so much so that their conduct might be deserving of censure. The Appellant cannot be liable for negligence because someone else of better skill or knowledge would have prescribed a different method of operation in different way. The evidence suggests that the Appellant has performed the operation and acted in accordance with the practice regularly accepted and adopted by him in this hospital and several patients are regularly treated for their eye problems. The Hon’ble Supreme Court in the case of Dr. Laxman Balkrishna vs. Dr. Triambak, AIR 1969 Supreme Court page 128 has held the above view and this view has been further confirmed in the case of the Indian Medical Association vs. Santha. The Apex Court and the National Commission has held that the skill of a medical practitioner differs from doctor to doctor and it is an incumbent upon the Complainant to prove that the Appellant was negligent in the line of treatment that resulted in the loss of eyesight. A Judge can find a doctor guilty only when it is proved that he has fallen short of a standard of reasonable medical care. The fact and circumstances of the case before us show that the Appellant has attended to the patient with due care, skill, and diligence. Simply because the patient’s eyesight was not restored satisfactorily, this account alone is not grounds for holding the doctor guilty of negligence and deficient in his duty. It is settled law that it is for the Complainant to prove the negligence or deficiency in service by adducing expert evidence or opinion and this fact is to be proved beyond all reasonable doubt. Mere allegation of negligence will be of no help to the Complainant.
The following cases of alleged medical negligence provide an insight into how the final decision is reached by the judicial bodies. “All medical negligence cases concern various questions of fact, when we say burden of proving negligence lies on the Complainant, it means he has the task of convincing the court that his version of the facts is the correct one”. No expert opinion has been produced by the Complainant to contradict the report of the Board of Doctors. The appeal of the Complainant was dismissed with costs as “No expert opinion has been produced by him. In a case of an improper union of the patella, no expert has been produced by the Complainant to prove negligence of the opposite party. Thus, it cannot be said with exactness that treatment of the Complainant by the opposite party was against the norms prescribed under the medical jurisprudence or that the opposite party in any way was negligent or deficient in the performance of his duties.“Allegation of medical negligence is a serious issue and it is for the person who sets up the case to prove negligence based on material on record or by way of evidence”. The complaint of medical negligence was dismissed because the applicant failed to establish and prove any instance of medical negligence.
“Merely because the operation did not succeed, the doctor cannot be said to be negligent” and the appeal of the doctor was allowed. “A mere allegation will not make a case of negligence unless it is proved by reliable evidence and is supported by expert evidence” and the appeal was dismissed. “The commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based” and the Revision petition of the doctor was allowed. In another case, an X-ray report indicated a small opacity that similar to an opaque shadow that becomes visible for many causes other than a calculus. It could not be assumed that still stone existed in the right kidney that had not been operated upon. Under the circumstances, we do not think that any case of negligence has been made by the Complainant. This petition is, therefore, allowed.
Consumer protection law or consumer law is considered as an area of law that regulates with private law relationships between individual consumers and the businesses that sell those goods and services. Consumer protection covers a wide range of topics, including but not necessarily limited to product liability, privacy rights, unfair business practices, fraud, misrepresentation, and other consumer or business interactions. It’s a way of preventing frauds and scams from service and sales contracts, eligible fraud, bill collector regulation, pricing, utility turnoffs, consolidation, personal loans that may lead to bankruptcy.
The following lists shows consumer legislation at the nation-state level. In the EU member states,Germany and the United Kingdom there is also the applicability of law at the EU level to be considered; this applies on the basis of subsidiarity.
Who is a Consumer?
Section 2(d) of the CPA defines “consumer” as a person who:
(a) Buys any goods 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 user of such goods other than the person who buys such goods for a consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;
(b) Hires or avails of any services for 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 a 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 purpose. It may, however, be noted that “commercial purpose” does not include use by a person of goods bought and services exclusively for the purposes of earning his livelihood by means of self-employment.
”Who file a Consumer Complaint in India ?
The Consumer Protection Act itself provides a list of persons who can file a complaint under the Act which is described herein under-
1. A Consumer himself or herself,
2. Any voluntary Association registered under the Companies Act, 1956, or under any other law for the time being in force,
3.The Central Government or the State Government,
4. One or more consumers, where there are numerous Consumers having the same interest.
Limitation Period for filing Complaint
A complaint should be filed at the earliest but not later than two years from the date on which the cause of action arose. However the Court may entertain the complaint after a period of 2 years if the complainant is able to satisfy the Court that there was a sufficient cause for the delay.
How to file a Consumer Complaint?
Before formally filing a Consumer Complaint, it is desired that the Consumer gives notice to the opposite party of the fact of any deficiency in service or of unfair trade practice etc to see if the trader is willing to make good for the loss suffered by either replacing the commodity or returning the value of the purchase. If yes, the issue resolves then and there. But, if the trader refuses or neglects here then the consumers needs to approach the Consumer Court.
Territorial Jurisdiction of the Consumer Forums :-
A complaint shall be instituted in a District Forum or State Commission or National Commission within the local limits of the respective jurisdiction,
a) the opposite party resides or carries on business or has a branch office or personally works for gain, or
b) If there are more than one opposite party, then any one of the opposite parties resides, or carries on business or has a branch office, or personally works for gain Provided that in such a case the permission of either District Forum, State Commission or National Commission as the case may be, or the opposite parties who do not reside in such place or carry on business or have a branch office or personally works for gain as the case may be, must be obtained , or ,
c) the cause of action arose.
The State Governments are required to establish District Forum in each district. The important features of District Forum are as follows:-
1.Each District Forum consists of a chairman and two members appointed by the State Government.
2.It has the power of a Civil Court for enquiring into any complaint.
A District Forum can receive consumer complaints where the value of goods or services and the compensation claimed is less than Rs. Five lakh (Rs.5,00,000).
The consumer can file complaint against the manufacturer for the malpractices. On receiving the complaint, the District Forum shall refer the complaint to the opposite party concerned (i.e. seller, manufacturer or the organization who is responsible for malpractice), and send the sample of goods for testing in a laboratory. If the other party is responsible for the default or some unfair trade practices, the District Forum can issue an order to them directing them to either resolve the defect or replace the goods, or return the price, or pay compensation to the consumer for loss or injury etc. An appeal against the order of the District Forum can be filed to the State Commission within 30 days.
The National Commission has jurisdiction to entertain appeals against the order of any State Commission. The appeal may be made within 30 days from the date of the order of the State Commission. However, the National Commission may entertain an appeal filed after the expiry of 30 days if it is satisfied that there was sufficient cause for not filing the appeal within the given time.
[SECTION 21(b)] – National Commission can call for the records and pass the appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission. It is of the view that the State Commission-1. has exercised jurisdiction which it was not entitled to, or
2. has failed to exercise such jurisdiction which it was entitled to, or
3. has exercised its jurisdiction illegally or with material irregularity.It is to be noted that the revisional jurisdiction is available to the National Commission only in the cases where there has been wrongful, illegal and improper exercise of jurisdiction or failure to exercise jurisdiction on the part of State Commission.
COMMITMENT TO THE UNITED NATIONS GUIDELINES ON CONSUMER PROTECTION (UNGCP)THE UNITED NATIONS GUIDELINES ON CONSUMER PROTECTION
(UNGCP) launched in 1985 was revised, after due deliberations by all stakeholders, in December 2015. The UN General Assembly on 22nd December 2015 approved the revised UNGCP 2015. India had actively participated in the process of revision of the UNGCP in 2015 and emphasized for having an oversight mechanism, which has been set up in the form of the Intergovernmental Group of Experts (IGE) under Guideline 95 of the revised UNGCP 2015. All the member states are de-facto members of the IGE. The first session of the Intergovernmental Group of Experts on Consumer Protection Law and Policy was held at the Palais des Nations in Geneva, on 17 and 18 October 2016 under the aegis of UNCTAD. Representatives from 66 countries and 5 intergovernmental organizations, including the heads of competition and consumer protection authorities, attended the high-level discussions. In the meeting, the Minister of State for Consumer Affairs, Food and Public Distribution, India, stated that the Intergovernmental Group of Experts provided a forum that facilitated engagement and mutual understanding, as well as the development of appropriate strategies to improve consumer protection. The Second IGE meeting held in July 2017, recognised the important role of relevant stakeholders, particularly with regard to the inclusive consumer protection policies to achieve the Sustainable Development Goals; It underlined the importance of designing and implementing specific measures aimed at the protection of vulnerable and disadvantaged consumers, recognizing that member States may adopt differing definitions to address specific domestic needs, and suggested further research in particular for this category of consumers in developing countries; It emphasized the importance of harnessing e-commerce to increase the welfare of consumers worldwide while limiting its potential risks and stressed the need to strengthen international cooperation, including informal collaboration, among agencies, to enhance consumer trust in e-commerce, and the initiatives taken to build trust in the digital economy.
Aimed at promoting the international cooperation in the field of Consumer Protection among the Asian countries, for mutual sharing of best practices, India in partnership with UNCTAD will be hosting a regional conference for South, South East and East Asian countries on 26 & 27 October, 2017.
When does a duty arise?
It is well known that a doctor owes a duty of care to his patient. This duty can either be a contractual duty or a duty arising out of tort law. In some cases, however, though a doctor-patient relationship is not established, the courts have imposed a duty upon the doctor. In the words of the Supreme Court “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life” (Parmanand Kataria vs. Union of India). These cases are however, clearly restricted to situations where there is danger to the life of the person. Impliedly, therefore, in other circumstances the doctor does not owe a duty.
What is the duty owed?
The duty owed by a doctor towards his patient, in the words of the Supreme Court is to “bring to his task a reasonable degree of skill and knowledge” and to exercise “a reasonable degree of care” (Laxman vs. Trimbak). The doctor, in other words, does not have to adhere to the highest or sink to the lowest degree of care and competence in the light of the circumstance. A doctor, therefore, does not have to ensure that every patient who comes to him is cured. He has to only ensure that he confers a reasonable degree of care and competence.
When does the liability arise?
The liability of a doctor arises not when the patient has suffered any injury, but when the injury has resulted due to the conduct of the doctor, which has fallen below that of reasonable care. In other words, the doctor is not liable for every injury suffered by a patient. He is liable for only those that are a consequence of a breach of his duty. Hence, once the existence of a duty has been established, the plaintiff must still prove the breach of duty and the causation. In case there is no breach or the breach did not cause the damage, the doctor will not be liable. In order to show the breach of duty, the burden on the plaintiff would be to first show what is considered as reasonable under those circumstances and then that the conduct of the doctor was below this degree. It must be noted that it is not sufficient to prove a breach, to merely show that there exists a body of opinion which goes against the practice/conduct of the doctor.
With regard to causation, the court has held that it must be shown that of all the possible reasons for the injury, the breach of duty of the doctor was the most probable cause. It is not sufficient to show that the breach of duty is merely one of the probable causes. Hence, if the possible causes of an injury are the negligence of a third party, an accident, or a breach of duty care of the doctor, then it must be established that the breach of duty of care of the doctor was the most probable cause of the injury to discharge the burden of proof on the plaintiff.
Normally, the liability arises only when the plaintiff is able to discharge the burden on him of proving negligence. However, in some cases like a swab left over the abdomen of a patient or the leg amputated instead of being put in a cast to treat the fracture, the principle of ‘res ipsa loquitur’ (meaning thereby ‘the thing speaks for itself’) might come into play. The following are the necessary conditions of this principle.
1.Complete control rests with the doctor.
2..It is the general experience of mankind that the accident in question does not happen without negligence. This principle is often misunderstood as a rule of evidence, which it is not. It is a principle in the law of torts. When this principle is applied, the burden is on the doctor/defendant to explain how the incident could have occurred without negligence. In the absence of any such explanation, liability of the doctor arises.
Normally, a doctor is held liable for only his acts (other than cases of vicarious liability). However, in some cases, a doctor can be held liable for the acts of another person which injures the patient. The need for such a liability may arise when the person committing the act may not owe a duty of care at all to the patient or that in committing the act he has not breached any duty. A typical example of a case where such a situation may arise is in the case of a surgery. If a junior doctor is involved as part of the team, 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. In such a case, it is the duty of the senior doctor to have advised him properly. If he did not do so, then he would be the one responsible for the injury caused to the patient, though he did not commit the act.
What Constitutes Medical Negligence?
Failure of an operation and side effects are not negligence. The term negligence is defined as the absence or lack of care that a reasonable person should have taken in the circumstances of the case. In the allegation of negligence in a case of wrist drop, the following observations were made. Nothing has been mentioned in the complaint or in the grounds of appeal about the type of care desired from the doctor in which he failed. It is not said anywhere what type of negligence was done during the course of the operation. Nerves may be cut down at the time of operation and mere cutting of a nerve does not amount to negligence. It is not said that it has been deliberately done. To the contrary it is also not said that the nerves were cut in the operation and it was not cut at the time of the accident. No expert evidence whatsoever has been produced. Only the report of the Chief Medical Officer of Haridwar has been produced wherein it said that the patient is a case of post-traumatic wrist drop. It is not said that it is due to any operation or the negligence of the doctor. The mere allegation will not make out a case of negligence, unless it is proved by reliable evidence and is supported by expert evidence. It is true that the operation has been performed. It is also true that the Complainant has many expenses but unless the negligence of the doctor is proved, she is not entitled to any compensation.
What is the Standard of Care?
It is now a settled principle of law that a medical practitioner will bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor the very lowest degree of care and competence judged in the light of circumstances in each case is what the law requires. Judged from this yardstick, post-operative infection or shortening of the leg was not due to any negligence or deficiency in service on the part of the opposite party Appellant. Deficiency in service thus cannot be fastened on the opposite party.
In a case that led to visual impairment as a side effect, the following observations were made. The literature with regard to lariago clearly mentioned that the side effect of this medicine if taken for a longer duration can effect eyesight but this is not a fact in this case. Besides, there is no expert evidence on record to show that use of this medicine caused damage to the patient’s eyesight. Even for argument’s sake, if it is accepted that this medicine caused damage to the patient’s eyesight, if the Respondent-doctor is one who has advised his patient to use this medicine after an examination in which he found the patient to be suffering from malaria, in that case as well the doctor-Respondent cannot be held guilty of negligence or deficient in his service. However, as stated above in this case the medicine has been used by the patient in low doses for a few days and there is no expert evidence to show that the use of medicine has affected his eyesight. Therefore, the Complainant-Appellant has failed to prove that the Respondent was negligent and deficient in his duty as a doctor.
The Need for Expert Evidence in Medical Negligence Cases
The Commission cannot constitute itself into an expert body and contradict the statement of the doctor unless there is something contrary on the record by way of an expert opinion or there is any medical treatise on which reliance could be based. In this case there was a false allegation of urinary stone not being removed as shown by a shadow in the x-ray. “The burden of proving the negligent act or wrong diagnosis was on the Complainant” and the appeal was dismissed in another case of alleged medical negligence as no expert evidence was produced. The case discussed below is not a case of apparent negligence on the part of the surgeon in conducting the operation, but about the quality of the plate used for fixing the bone. In the present case, the Complainant has not produced any expert witnesses to prove that there was any fault in the performance of the operations. Fixation of the bones by using plates is one of the recognized modes of treatment in the case of fracture of the bones. If the opposite party has adopted the aforesaid method, though subsequently the plate broke, negligence cannot be attributed to the doctor. This is not a case where the wounds of the operation were infected or any other complication arose. Breaking of the plate approximately 6 months after it was placed cannot be attributed towards a negligent act of the doctor in performing the operation.
The District Forum rightly held that the Complainant had failed to prove his case. There is nothing on the record to suggest that there has been any negligence and/or deficiency in service on the part of the Appellant except the oral submission of the Respondent/Complainant. In such cases, before coming to a positive finding, there must be expert evidence on record as has been held both by the National Commission as well as the Apex Court.
“As per the settled law, the onus to prove that there was negligence” deficiency in service on the part of the opposite parties, while diagnosing and treating the Complainant, lay heavily on the Complainant. In the given facts, the Complainant has failed to discharge the onus that was on him. The complaint was dismissed as the Complainant failed to discharge the onus to prove negligence or deficiency in service.
In medical negligence cases, it is for the patient to establish his case against the medical professional and not for the medical professional to prove that he acted with sufficient care and skill. Refer to the decision of the Madhya Pradesh High Court in the case of Smt. Sudha Gupta and Ors. vs. State of M.P. and Ors., 1999 (2) MPLJ 259. The National commission has also taken the same view observing that a mishap during operation cannot be said to be deficiency or negligence in medical services. Negligence has to be established and cannot be presumed. Refer to the decision of the National Commission in the case of Kanhiya Kumar Singh vs. Park Medicare and Research Centre, III (1999) CPJ 9 (NC) – (2000) NCJ (NC) 12. A similar view has been taken by the MRTP Commission in the case of P.K. Pandey vs. Sufai Nursing Home, I (1999) CPJ 65 (MRTP) – 2000 NCJ (MRTP) 268. Followed by this, refer to the Commission in Vaqar Mohammed Khan and Anr. vs. Dr. S. K. Tandon, II (2000) CPJ 169. Both the lower Fora have held that there is no evidence brought on record by the Complainant to show that there was any negligence by the Respondent while implanting the lens in the eye of the Complainant resulting in a persistent problem in the left eye.
The Complainant does not examine any expert on the subject to establish his allegation of negligence on the part of the doctor. Unfortunate though the incident is, the Complainant needs to establish negligence on the part of the doctor to succeed in a case like this. We may observe that there is hardly any cogent material to substantiate the allegation contained in the petition of Complainant. Under the circumstances, we cannot but hold that the Complainant has failed to prove the allegations against the opposite parties.
As held by the National Commission in Sethuraman Subramaniam Iyer vs. Triveni Nursing Home and anr,1998 CTJ7, in the absence of such evidence regarding the cause of death and absence of any expert medical evidence, the Complainants have failed to prove negligence on the part of the opposite parties.
Supreme Court’s Appreciation with Regard to Medical Negligence Liability
According to the Supreme Court, cases both Civil and Criminal as well as in Consumer Fora, are often filed against medical practitioners and hospitals complaining of medical negligence against doctors, hospitals, or nursing homes, hence the latter would naturally like to know about their liability. The general principles on this subject have been lucidly and elaborately explained in the three Judge Bench decisions of this Court in Jacob Mathew vs. State of Punjab and Anr. (2005) 6 SCC 1. However, difficulties arise in the application of those general principles to specific cases. For instance, in paragraph 41 of the decision, it was observed that: “The practitioner must bring to his task a reasonable degree of skill and knowledge and must exercise a reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the law requires.” Now what is reasonable and what is unreasonable is a matter on which even experts may disagree. Also, they may disagree on what is a high level of care and what is a low level of care. To give another example, in paragraphs 12 to 16 of Jacob Mathew’s case (Supra), it has been stated that simple negligence may result only in civil liability, but gross negligence or recklessness may result in criminal liability as well. For civil liability only, damages can be imposed by the Court but for criminal liability the Doctor can also be sent to jail (apart from damages that may be imposed on him in a civil suit or by the Consumer Fora). However, what is simple negligence and what is gross negligence may be a matter of dispute even among experts.
The law, like medicine, is an inexact science. One cannot predict with certainty an outcome in many cases. It depends on the particular facts and circumstances of the case, and also the personal notions of the Judge who is hearing the case. However, the broad and general legal principles relating to medical negligence need to be understood. Before dealing with these principles two things have to be kept in mind:
1. Judges are not experts in medical science, rather they are laymen. This itself often makes it somewhat difficult for them to decide cases relating to medical negligence. Moreover, Judges usually have to rely on the testimonies of other doctors, which may not be objective in all cases. Since like in all professions and services, doctors too sometimes have a tendency to support their own colleagues who are charged with medical negligence. The testimony may also be difficult to understand for a Judge, particularly in complicated medical matters and2. a balance has to be struck in such cases. While doctors who cause death or agony due to medical negligence should certainly be penalized, it must also be remembered that like all professionals doctors too can make errors of judgment but if they are punished for this no doctor can practice his vocation with equanimity. Indiscriminate proceedings and decisions against doctors are counter productive and are no good for society. They inhibit the free exercise of judgment by a professional in a particular situation.
The Hon’ble Mr. Justice Markendeya Katju has done yeoman service for society by rendering this judgment. On one hand, it sets at rest the speculative nature of our judicial adjudication of medical negligence liability and on the other, it abundantly clarifies that unless there is prima facie evidence indicating medical negligence, notice either to a doctor or hospital cannot be issued. At the same time, the core essence of the judgment makes it very clear that there cannot be an assumption that doctors cannot be negligent while rendering care and treatment. I think this timely intervention should be disseminated at a popular level so that the mandated Supreme Court’s prescription will be observed more in practice than in breach.
SECTORAL LAWS PROTECTING CONSUMERS IN INDIA
Besides the Consumer Protection Act 1986, various laws and Regulations in India protect the interests of consumers, some of which are:
1.The Bureau of Indian Standard Act 2016:
The Bureau of Indian Standards (BIS) Act 2016 establishes BIS as the National Standards Body of India. Besides containing provisions for establishing voluntary standards, the Act also contains provisions to bring under compulsory certification regime any article, process or service which it considers necessary from point of view of health, safety, environment, prevention of deceptive practices, security etc. Enabling provisions have also been made for making hallmarking of the precious metal articles mandatory. The Act allows multiple types of conformity assessment schemes, including Self Declaration of Conformity against any standard which provides simplified options to manufacturers to adhere to the standards and get certificate of conformity. It enables the Central Government to appoint any authority, in addition to the BIS, to verify the conformity of products and services to a standard and issue certificate of conformity.
3.The Essential Commodities Act 1955 :
The Act empowers the Government to regulate prices, production, supply, distribution etc. of essential commodities for maintaining or increasing their supplies and for securing their equitable distribution and availability at fair prices. Most of the powers under the Act have been delegated by the Central Government to the State Governments with the direction that they shall exercise these powers. Exercising powers under the Act, various Ministries/Departments of the Central Government and State Governments/UT Administrations have issued Control Orders for regulating production, distribution, pricing etc. and trading of the commodities declared as essential to the public. At present seven commodities have been retained under the Essential Commodities Act, 1955 to protect the interests of the consumers which include farmers, general population and the families below the poverty line.
5.The Contract Act 1872:
The Act binds people on their promises made in a contract. The Act also provides remedies available to parties in case of breach of contract.
7.The Competition Act, 2002:
The Act governs Indian competition law. It replaced the Monopolies and Restrictive Trade Practices Act, 1969. Under this legislation, the Competition Commission of India was established to prevent the activities that have an adverse effect on competition in India. It is a tool to implement and enforce competition policy and to prevent and punish anti-competitive business practices by firms and unnecessary Government interference in the market. Competition law is equally applicable on written as well as oral agreement, arrangements between the enterprises or persons.
9.The Drugs and Cosmetics Act, 1940:
The Act regulates the import, manufacture and distribution of drugs in India. The primary objective of the act is to ensure that the drugs and cosmetics sold in India are safe, effective and conform to state quality standards. The Drugs and Cosmetics Rules, 1945 framed under the Act contain provisions for classification of drugs under given schedules and there are guidelines for the storage, sale, display and prescription of each schedule. The Act defines the standards of quality for drugs and defines “misbranding”. A drug is considered misbranded if it claims to be of more therapeutic value than it actually is. The manufacturer of such a drug may be asked to suspend manufacture of the drug . the Act also deals with fake and adulterated drugs.
2.The Legal Metrology
Act 2009:The Act has come into force on 01.04.2011 and has repealed the Standards of Weights & Measures Act, 1976 & Standards of Weights & Measures (Enforcement) Act, 1985. The Government ensures through the Act that all weight and measure used for trade or commerce or for protection of human health and safety are accurate and reliable so that users are guaranteed for correct Weighment and Measurement. Provisions of the Act also empower regulatory and enforcement actions for ensuring that the consumer get the right quantity for which he has paid for.
4.The Food Safety and Standards Act, 2006:
The Act envisages regulation of manufacture, storage, distribution, sale and import of food to ensure availability of safe and wholesome food for human consumption and for consumers connected therewith. The Food Safety and Standards Authority of India (FSSAI) has been established under this Act for laying down scientific standards for articles of foods and to regulate their manufacture, storage, distribution, sale and import to ensure availability of safe and wholesome food for human consumption. The Food Safety and Standards (FSS) Act, 2006 was operationalized with the notification of Food Safety and Standards Rules, 2011 and six Regulations w.e.f the 5 August 2011. The setting of food standards is undertaken through a number of Scientific Panels and the Scientific Committee of the FSSAI and final approval by the Authority.
6.The Sale of Goods Act 1930:
The act provides safeguard and relief to customers in case goods are not complying with the expressed conditions and warranty
8.The Drugs and Magic Remedies (Objectionable Advertisements) Act, 1954-
The Act controls advertising of drugs in India. It prohibits advertisements of drugs and remedies that claim to have magical properties, and makes doing so a cognizable offence. The act defines “magic remedy” as any talisman, mantra, amulet or any other object, which is claimed to have miraculous powers to cure, diagnose, prevent or mitigate a disease in humans or animal. It also includes such devices that are claimed to have power to influence structure or function of an organ in humans or animals. It prohibits advertisements of drugs and remedies that claim to have magical properties, and makes doing so a cognizable offence.