Professional negligence or medical negligence may be defined as want of reasonable degree of care or skill or willful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to bodily injury or to loss of life.
Consumerism is now firmly established in the medical practice and the notion that blame may be attributed and compensated has a high priority
WHO IS A CONSUMER ?, WHAT IS A SERVICE ?, WHAT CONSTITUTES DEFICIENCY ?
A Consumer is any person who hires or avails of any services for a consideration, and includes any beneficiary of such service other than the person who hires or avails of the service, when such services are availed of with the approval of the first mentioned person.
Service means service of any description which is made available to the potential users, but does not include rendering of any service free of charge or under a contract of personal service.
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.
Duties Owed By Medical Practioner
In general, a professional man owes to its client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services. Medical practitioners from all fields of medicine such as Allopathic, Homeopathy, Naturopathy can be liable under the Consumer Protection Act. Duties which a doctor owes to his patient are clear.
- A duty of care in deciding whether to undertake the case,
- A duty of care in deciding what treatment to give.
A duty of care in the administration of that treatment.
A breach of any of these duties gives a right of action for negligence to the patient.
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 judge in the light of the particular circumstances of each case is what the law requires.
WHEN DOES A MEDICAL SERVICE FALL UNDER THE CONSUMER PROTECTION ACT
A medical service falls under the purview the Consumer Protection Act in the following cases:
- Service rendered to a patient by a medical practitioner (except where the doctor renders service free of charge to every patient or under a contract of personal service), by way of consultation, diagnosis and treatment, both medicinal and surgical.
- Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services.
- Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by persons who are in a position to pay and persons who cannot afford to pay are rendered service free of charge, irrespective of the fact that the service is rendered free of charge to persons who are not in a position to pay for such services. Free service, would also be "service" and the recipient a "consumer" under the Act.
- Service rendered at a Government hospital/health center/dispensary where services are rendered on payment of charges and also rendered free of charge to other persons availing such services irrespective of the fact that the service is rendered free of charge to persons who do not pay for such service. Free service would also be "service" and the recipient a "consumer" under the Act.
- Service rendered by a medical practitioner or hospital/nursing home if the person availing the service has taken an insurance policy for medical care whereunder the charges for consultation, diagnosis and medical treatment are borne by the insurance company.
- Where, as a part of the conditions of service, the employer bears the expenses of medical treatment of an employee and his family members dependent on him, the service rendered to such an employee and his family members by a medical practitioner or a hospital/nursing home would not be free of charge and would constitute service.
Services Not Covered
WHEN DOES A MEDICAL SERVICE NOT FALL UNDER THE UNDER THE ACT
A medical service does not fall under the purview of the Consumer Protection Act in the following cases:
- Where service is rendered free of charge by a medical practitioner attached to a hospital/Nursing home or a medical officer employed in a hospital/Nursing home where such services are rendered free of charge to everybody. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
- Where a service rendered at a non-Government hospital/Nursing home where no charge whatsoever is made from any person availing the service and all patients (rich and poor) are given free service. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the position.
REMEDIES AVAILABLE IN CASE OF MEDICAL NEGLIGENCE
A consumer has the option to approach the Consumer Forums to seek speedy redressal of his grievances or file a criminal complaint.
WHERE TO FILE A COMPLAINT
HOW TO FILE COMPLAINT
Checklist to File A Case
- Retain prescription, bills and references.
- Maintain medical history records.
- Consent given by the patient or close relative can be used as evidence in the court.
The patient was initially diagnosed as having Tuberculosis and treatment was given. However later on the basis of other symptoms it was found that he had Jaundice. Allegation that the hospital and attending doctors were negligent in their treatment and diagnosis. Complaint was held to be maintainable. (1993 Consumer Claims Journal 198)
NEGLIGECE IN CONDUCTING OPERATION
Doctors concerned did not conduct necessary tests at pre-operative stage and conducted surgery without a neurosurgeon resulting in spinal cord injury. Opposite parties could not explain why removal of benign tumor in chest wall resulted in spinal cord injury. Opposite party institute directed to pay Rs. 14,00,000/-as compensation. (1999 CCJ 1099) National Commission.
Complainant's left hand became disabled during treatment. Damage to ulnar nerve was caused during treatment for amoebic liver abscess. Complaint held to be maintainable. Hospital was directed to pay Rs. 1,25,000/- as compensation. (1999 CCJ 940) Chandigarh.
Death of a patient at the time of operation. Opposite parties had anticipated likely complications that might arise in a major surgery of an obese patient with a rare blood group. Opposite parties directed to pay Rs. 2,55,355/- as compensation. (1999 CCJ 391) National Commission
Foreign body left inside after operation of leg which was removed by another doctor. Opposite parties directed to pay Rs. 20,000/- as compensation. (1999 CCJ 99) National Commission.
Wrong administration of injection caused paralysis of leg of a child and the nurse who administered the injection was not qualified. Opposite parties directed to pay Rs. 1,05,00/- as compensation and treatment expenses.(1999 CCJ 960) Kerala.