Can Patients sue Doctors & Hospitals under Consumer Protection Act ?

Can Patients sue Doctors & Hospitals under Consumer Protection Act ?

A Judgment that brought the Medical Services under the canopy of Consumer Protection Act… The Doctors always wonder as to why the they have been bought under the four corners Consumer Protection Act, 1986 (COPRA).
20 years back, a 3 Judges Bench of Hon. Apex Court in the Landmark case of Indian Medical Association V/s. V.P. Shanta, reported in AIR 1996 SC 550, discussed why services rendered to a patient by a Medical Practitioner (except where the Doctor renders services free of Charge to every patient or under a Contract of personal service) would fall within a the ambit of definition of “Service” of the Consumer protection act, 1986.
It was contended on behalf of the Doctors and their Associations that that there is distinction between a ‘profession’ and an ‘occupation’ and while a person engaged in an occupation renders service which falls within the ambit of Section 2(1) (o) of the Consumer Protection Act the and not the service rendered by a person belonging to a profession like Medical Practitioner. It was further contended that because medical services rendered by a medical practitioner cannot be judged on the basis of any fixed norms, medical practitioner is excluded from the definition of ‘service. The fear of increase in medical expenditure on account of insurance charges as well as tremendous increase in defensive medicine and that medical practitioners may refuse to attend to medical emergencies and there will be no safeguard against frivolous and vexatious complaints and consequent blackmail, all these contentions were also raised.

Can Patients sue Doctors & Hospitals under Consumer Protection Act ?
The Conclusions of the Judgment as mentioned in Para-56 may be reproduced are as under:
(1) 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, would fall within the ambit of ’service’ as defined in Section 2(1) (o) of the Act.
(2) The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered
by them from the ambit of the Act.
(3) a ’contract of personal service’ has to be distinguished from a ’contract for personal services’. In the absence of a relationship of master and servant between the patient and medical practitioner, the service rendered by a medical practitioner to the patient cannot be regarded as service rendered under a ’contract of personal service’. Such service is service rendered under a ‘contract for personal services’ and is not covered by exclusionary clause of the definition of ’service’ contained in Section 2(1) (o) of the Act.

Can Patients sue Doctors & Hospitals under Consumer Protection Act ?

(4) The expression ’contract of personal service’ in Section 2(1) (o) of the Act cannot be confined to contracts for employment of domestic servants only and the said expression would include the employment of a medical officer for the purpose of rendering medical service to the employer. The service rendered by a medical officer to his employer under the contract of employment would be outside the purview of ’service’ as defined in Section 2(1) (o) of

the Act.
(5) Service 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, would not be “service” as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(6) 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 – is outside the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/Nursing home would not alter the
position.

Can Patients sue Doctors & Hospitals under Consumer Protection Act ?
(7) Service rendered at a non-Government hospital/Nursing home where charges are required to be paid by the persons availing such services falls within the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act.
(8) 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 would fall within the ambit of the expression ’service’ as defined in Section 2(1) (o) of the Act 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.
(9) Service rendered at a Government hospital/health center/dispensary where no charge whatsoever is made from any person availing the services and all patients (rich and poor) are given free service – is outside the purview of the expression ’service’ as defined in Section 2(1) (o) of the Act. The payment of a token amount for registration purpose only at the hospital/nursing home would not alter the position.
(10) 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 would fall within the ambit of the expression ’service’ as defined in Section 2(1) (o) of the
Act 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.
(11) Service rendered by a medical practitioner or hospital/nursing home cannot be regarded as service rendered free of charge, if the person availing the service has taken an insurance policy for medical care where under the charges for consultation, diagnosis and medical treatment are borne by the insurance company and such service would fall within the ambit of ’service’ as defined in Section 2(1) (o) of the Act.
(12) Similarly, 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’ under Section 2(1) (o) of the Act.
I came across with this judgment while doing some other research and though of sharing with you… Well, in spite of this judgment, I feel the approach of Hon. Apex Court in Medical negligence cases has always been sound and impartial !!

 

Thanks and Regards
Adv. Rohit Erande
Pune…

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