File - Department Of Pulmonary Medicine

Dr. Don Gregory
Junior Resident
Dept of Chest & TB
 The Consumer Protection Act, 1986 is a benevolent social
legislation that lays down the rights of the consumers and
provides their for promotion and protection of the rights of the
consumers. The first and the only Act of its kind in India, it has
enabled ordinary consumers to secure less expensive and
often speedy redressal of their grievances. By spelling out the
rights and remedies of the consumers in a market so far
dominated by organized manufacturers and traders of goods
and providers of various types of services, the Act makes the
dictum, caveat emptor (‘buyer beware’) a thing of the past.
 The Act mandates establishment of Consumer Protection
Councils at the Centre as well as in each State and District,
with a view to promoting consumer awareness.
 The Central Council is headed by Minister, In-charge of the
Department of Consumer Affairs in the Central Government and
the State Councils by the Minister In-charge of the Consumer
Affairs in the State Governments. It also provides for a 3-tier
structure of the National and State Commissions and District
Forums for speedy resolution of consumer disputes.
 To provide inexpensive, speedy and summary redressal of
consumer disputes, quasi-judicial bodies have been set up in
each District and State and at the National level, called the
District Forums, the State Consumer Disputes Redressal
Commissions and the National Consumer Disputes Redressal
Commission respectively.
 At present, there are 629 District Forums and 34 State
Commissions with the National Consumer Disputes Redressal
Commission (NCDRC) at the apex.
 Each District Forum is headed by a person who is or has been
or is eligible to be appointed as a District Judge and each State
Commission is headed by a person who is or has been a Judge
of High Court.
 The National Commission was constituted in the year 1988. It
is headed by a sitting or retired Judge of the Supreme Court of
India. V. Balakrishna Eradi was the First President of
NCDRC. The National Commission is presently headed by
Hon’ble Mr. Justice Ashok Bhan, former Judge of the Supreme
Court of India as President and has ten Members
 The provisions of this Act cover ‘goods’ as well as
‘services’. The goods are those which are manufactured or
produced and sold to consumers through wholesalers and
retailers. The services are in the nature of transport, telephone,
electricity, housing, banking, insurance, medical treatment, etc.
 A written complaint, can be filed before the District Consumer Forum
for pecuniary value of upto Rupees twenty lakh, State Commission
for value upto Rupees one crore and the National Commission for
value above Rupees one crore, in respect of defects in goods and or
deficiency in service.
 The remedy under the Consumer Protection Act is an alternative in
addition to that already available to the aggrieved persons/consumers
by way of civil suit. In the complaint/appeal/petition submitted under
the Act, a consumer is not required to pay any court fees but only a
nominal fee.
 Consumer Fora proceedings are summary in nature. The endeavor
is made to grant relief to the aggrieved consumer as quickly as in the
quickest possible, keeping in mind the provisions of the Act which lay
down time schedule for disposal of cases
 If a consumer is not satisfied by the decision of a District
Forum, he can appeal to the State Commission. Against the
order of the State Commission ,a consumer can appeal to the
National Commission and appeal to the Supreme court against
national commission, all being within 30 days of the order.
 In order to help achieve the objects of the Consumer Protection
Act, the National Commission has also been conferred with the
powers of administrative control over all the State Commissions
by calling for periodical returns regarding the institution,
disposal and pendency of cases.
 Functioning of District Forum, State Commission and National
Commission is consumer friendly, and thus a consumer can file
a complaint and also address arguments in person.
 The National Commission is empowered to issue instructions
(1) adoption of uniform procedure in the hearing of the matters
(2) prior service of copies of documents produced by one party to the
opposite parties
(3) speedy grant of copies of documents, and
(4) generally over-seeing the functioning of the State Commissions
and the District Forums to ensure that the objects and purposes of
the Act are best served, without interfering with their quasi-judicial
 The Registry of the National Commission is at INA, New Delhi
 It remains open on all working days.
 The filing timings are from 10.00 a.m. to 4.30 p.m.
 Every matter filed with the Registry is listed on the 7th day of its filing
for admission before the National Commission.
 In genuine cases where the complainant/ appellant/ petitioner before
the National Commission is unable to engage the services of an
advocate, legal aid is provided by the Commission free of charge.
• (i) a consumer
• (ii) any voluntary consumer association registered under the
Companies Act,1956
• (iii) the Central Government or any State Government
• (iv) one or more consumers, where there are numerous
consumers having the same interest
• (v) in case of death of a consumer, his legal heir or
2)Complaint :any allegation that includes
• An unfair trade practice
• Restrictive trade practice (manipulation of price or conditions/delay)
• Defective goods
• Deficiency of services
• Trader or the service provider has charged for the goods or for the
services mentioned in the complaint, a price in excess of the priceFixed by or under any law for the time being in force /displayed on
the goods or any package containing such goods/displayed on the
price list exhibited by him by or under any law for the time being in
Force/agreed between the parties
• Goods which will be hazardous to life and safety when used
3)Consumer: any person who
• Buys any goods for a consideration which has been paid or promised
or partly paid and partly promised, or under any system of deferred
• Hires or avails of any services for a consideration which has been paid
or promised or partly paid and partly promised, or under any system
of deferred payment
• Does not include a person who obtains such goods for resale or for
any commercial purpose
4) Person: includes
• (i) a firm whether registered or not
• (ii) a Hindu undivided family
• (iii) a co-operative society
• (iv) every other association of persons whether registered under the
Societies Registration Act, 1860 or not
5)Defect :
 Any fault, imperfection or shortcoming in the quality, quantity,
potency, purity or standard which is required to be maintained by or
under any law for the time being in force
 Under any contract, express or implied or] as is claimed by the
trader in any manner whatsoever in relation to any goods
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
7)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 or lodging or both, entertainment, amusement
or the purveying of news or other information
 Does not include the rendering of any service free of charge or under
a contract of personal service
 Medical services are covered under the definition of "service".
Service includes rendering of consultation, diagnosis and treatment,
both medical and surgical
NOTE: CPA is amended in 1991, 1993 and 2002
 CPA has been made applicable to “all goods and services” .Two types
of services have categorically been kept out of the purview of this
Act. These are:
• Services rendered free of charge; and
• Services rendered under a contract of personal service.
 "Contract of personal service" has to be distinguished from a
"contract for personal service“.
 Wherever, there is relationship like that of master and servant it
is a "contract of personal service" and is excluded from the
purview of the Act
 In the absence of relationship of master and servant between
the patient and the medical practitioner, the service rendered by
a medical practitioner to the patient cannot be regarded as
service rendered under a contract of personal service. It is
"contract for personal services".
 The right to be protected against the marketing of goods and
services which are hazardous to life and property;
 The right to be informed about the quality, quantity, potency,
purity, standard and price of goods so as to protect the
consumer against, unfair trade practices;
 The right to be 'assured, wherever possible, access to a
variety of goods and Services at competitive prices;
 The right to be heard and to be assured that consumer's
interests will receive due consideration at appropriate Fora;
 The right to seek redressal against unfair trade practices 3[or
restrictive trade practices or unscrupulous exploitation of
consumers; and
 The right to consumer education
Who can file a complaint?
1. An individual consumer
2. Recognized consumer bodies
3. A group of consumers with same interest
4.Central or State Governments.
Who cannot file a complaint?
1.Complaint by an individual on behalf of general public
2.An unregistered association cannot file a complaint
3.After expiry of limitation period
Time limit to file a complaint?
Within two years from the date on which the cause of action
has arisen
Filing a case
Sl No
Total value of goods or service and the
compensation claimed
Amount of fee payable
1) District Commission
Upto one lakh rupees – For complainants who are NIL
under the Below Proverty Line
Upto Rs.10,000/-
Upto one lakh Rupees – For complainants other Rs.100/than BPL
2) State Commission
3) National Commission
Above five lakh and upto ten lakh rupees
Above ten lakh and upto twenty lakh rupees
Above twenty lakh and upto fifty lakh rupees
Above fifty lakh and upto one crore rupees
Above one crore rupees
Above five crore rupees
Above ten crore rupees
The Consumer Complaint along with all the copies should be paginated
and duly indexed in the following seriatim:1. Index
2. List of Dates
3. Memo of Parties (with fresh complete addresses)
4. Complaint with Notarised attested affidavit
5. Supporting documents in favour of complaint e.g. receipt, voucher
etc. (All the Annexures must be attested as True Copy on the last
page with name & signature)
6. Application for condonation of delay with Notarised attested affidavit,
if beyond limitation. (2 years from cause of action)
7. Fee for making Consumer Complaint (In the form of Demand Draft)
Note: CPA extends to the whole of India except the State of Jammu and
Name of
Cases filed since
Cases disposed
of since
Cases Pending
% of total
Some Implications of the Act
• Persons buying goods either for re-sale or for use in large scale
profit making activity will not be `consumers’
• The insurance company is not a consumer.
• A lottery ticket holder is not "consumer“
• Applicant who merely applies for allotment of shares is not a
• If somebody does not perform his part of the contract, it amount
to deficiency in service
• Undue delay in declaration of examination result is obviously
deficiency in service
• The student is a consumer of service of educational institute
• When the case is not a simple case of deficiency in service and
involves determination of complex questions of facts and law,
which cannot be satisfactorily determined by the redressal
agency .In the time frame provided under the Rules, it would be
better for the complainant to seek redressal of his grievances in
a Civil Court
• If "fraud" is alleged, it is desirable that the complainant should
be directed to Civil Court as investigation about such fraud is
required to be done
• The party to be awarded compensation has not only to show
deficiency in service but also the negligence of the other party
and without the finding of negligence there cannot be any
Award compensation for loss or injury suffered due to
negligence; and/or order opponent to
 Remove deficiency in service
 Discontinue the unfair trade practice
 Pay sum towards loss or injury suffered by large number of
 Provide for adequate cost to parties
CPA For Professionals
• CPA is not in derogation of any other law. The provisions of this Act shall be
in addition to and not in derogation of the provisions of any other law for the
time being in force.
• All professionals — Advocates, Architects, Chartered Accountants,
Doctors, Engineers, Interior Decorators and others are covered under
the Consumer Protection Act, 1986. All the professionals are licenced
and covered under respective laws of the land. So it does not mean
that professionals are not liable for due compensation under the
Consumer Protection Act for their ‘negligence’ and ‘deficiency’ in
• A person who receives medical treatment in a Government hospital is not a
consumer under the Act; Consumer Unity & Trust Society v. State of
Rajasthan, (1991) I CPR 241.
• However, the State Commission of Orissa held that a patient is a Consumer
being the beneficiary of services in as much as the State Government is
paying the consideration amount in the form of salary to the doctors aI)d
hospital staff; Smt. Sukanti Behera v. Dr. Sashi Bhusan Rath, II (1993) CPJ
• Negligence is the breach of a duty caused by omission to
do something which a reasonable man guided by those
considerations which ordinarily regulate the conduct of
human affairs would do, or doing something which a
prudent and reasonable man would not do.
• For medical negligence of any kind to be proved it must be
shown that:
1) The defendant (doctor) owed a duty of care to the
2)That the defendant was in breach of that duty.
3)That the plaintiff suffered damage as a result which can
be measured and compensated for in terms of money.
 No doctor is expected to possess all current medical knowledge
or being able to apply all known diagnostic or therapeutic
techniques but a doctor of a particular standing as regards to
his degree and experience is expected to have a standard of
knowledge and capability commensurate with his status.
 Medical Negligence can only occur when a doctor-patient
relationship is established. A doctor is not negligent if he does
not offer his services in an emergency to a person.
• Burden of proof lies with the complainant. He has to provide
Higher standard of evidence to support an allegation of
negligence against a doctor & establish his claim.
Some acts that amounts to medical
 Failure to attend the patient
 Not attending complicated delivery
 Not revealing HIV positive status
 Unfitting dentures
 Injections/ drugs wrongly given
 Foreign body in the abdomen
 Failed tubectomy operation
 Perforation of uterus
 Contaminated blood transfusion
 Res ipsa loquitour
• Any professional does not assure his client of the result. The
only assurance which he can give or can be understood to have
given by implication is that he is possessed of the requisite skill
in that branch of profession which he is practising and while
undertaking the performance of the task entrusted to him he
would be exercising his skill with reasonable competence.
• Judged by this standard, a professional may be held liable for
negligence on one of two findings: either he was not possessed
of the requisite skill which he professed to have possessed, or,
he did not exercise, with reasonable competence /care in the
given case.
A mere deviation from normal professional practice is not
necessarily evidence of negligence. Let it also be noted that a
mere accident is not evidence of negligence. So also an error of
judgment on the part of a professional is not negligence per se.
Higher the acuteness in emergency and higher the
complication, more are the chances of error of judgment. So
long as it can be found that the procedure which was in fact
adopted was one which was acceptable to medical science as
on that date, the medical practitioner cannot be held negligent
merely because he chose to follow one procedure and not
another and the result was a failure.
• No sensible professional would intentionally commit an act
or omission which would result in loss or injury to the patient
as the professional reputation of the person is at stake. A
single failure may cost him dear in his career.
• Even in civil jurisdiction, the rule of res ipsa loquitur is not of
universal application and has to be applied with extreme
care and caution to the cases of professional negligence
and in particular that of the doctors. Else it would be counter
• Simply because a patient has not favourably responded to a
treatment given by a physician or a surgery has failed, the
doctor cannot be held liable per se by applying the doctrine
of res ipsa loquitur.
• A medical practitioner faced with an emergency ordinarily tries
his best to redeem the patient out of his suffering. He does not
gain anything by acting with negligence or by omitting to do an
act. Obviously, therefore, it will be for the complainant to clearly
make out a case of negligence before a medical practitioner is
charged with or proceeded against criminally.
• If the hands be trembling with the dangling fear of facing a
criminal prosecution in the event of failure for whatever reason whether attributable to himself or not, neither a surgeon can
successfully wield his life-saving scalper to perform an essential
surgery, nor can a physician successfully administer the lifesaving dose of medicine
• Discretion being better part of valour, a medical professional
would feel better advised to leave a terminal patient to his
own fate in the case of emergency where the chance of
success may be 10% (or so), rather than taking the risk of
making a last ditch effort towards saving the subject and
facing a criminal prosecution if his effort fails. Such timidity
forced upon a doctor would be a disservice to the society.
• The purpose of holding a professional liable for his act or
omission, if negligent, is to make the life safer and to eliminate
the possibility of recurrence of negligence in future.
Some Interesting Cases
1)Indian Medical Association v. V.P. Shantha and Ors. (1995) 6
SCC 651
• A three-Judge Bench decision.
• The principal issue which arose for decision by the Court was
whether a medical practitioner renders 'service' and can be
proceeded against for 'deficiency in service' before a forum
under the CPA.
• The Court dealt with how a 'profession' differs from an
'occupation' especially in the context of performance of duties
and hence the occurrence of negligence.
• The Court noticed that medical professionals do not enjoy any
immunity from being sued in contract or tort (i.e. in civil
jurisdiction) on the ground of negligence.
2) Poonam Verma v. Ashwin Patel and Ors., (1996) 4 SCC 332
• A doctor registered as medical practitioner and entitled to
practice in Homoeopathy only, prescribed an allopathic
medicine to the patient. The patient died.
• The doctor was held to be negligent and liable to compensate
the wife of the deceased for the death of her husband on the
ground that the doctor who was entitled to practice in
homoeopathy only, was under a statutory duty not to enter the
field of any other system of medicine and since he trespassed
into a prohibited field and prescribed the allopathic medicine to
the patient causing the death, his conduct amounted to
negligence per se actionable in civil law.
3) Bolam vs. Frien hospital management committee (1957)
• Mr. Bolam was advised ECT for mental illness.He was however,
not warned of the risks of fractures involved in the treatment.
• There were two bodies of opinion. One preferred the use of
relaxant drugs. Using relaxants, the patient sustained
dislocation of both hip joints with fracture of pelvis.
• The supreme court held that the doctor was not negligent
because he acted in accordance with practice accepted as
proper by a responsible body of medical men skilled in that art.
• The ‘Bolam’ principle implies that a doctor is not negligent if he
acts in accordance with a practice accepted at the time as
proper in diagnosis and treatment but also to advice and
warning by a “responsible body” of medical opinion even
though other doctors adopt a different practice.
• A doctor is not liable for taking one choice out of two for
favouring one line of treatment rather than another.
4)Tarun Kumar Pramanik vs. Dr. Kunal Chakraborty & Ors,
1995(2) CPR 545(WE SCDRC)
• The complainant alleged that during operation for left inguinal
hernia his left testis was removed negligently and without
consent. On account of this suffered and has become
• The State Commission on the basis of evidence placed on
record, and opinion of expert witness held that the removal of
testis was done of expert witness held that the removal of testis
was done to avoid gangrenous infection, operation was done
with reasonable care and skill and had not resulted in any
• Complainant was held to be vexatious and complainant liable
to pay cost of 1st opposite party.
5)P. Sudhakar Vs. Gowri Gopal Hospital, 2004(1) CPJ 329 (AP
• Surgery was done for acute appendicitis.
• During the post operative period, the patient expired after
administration of wrong drug” Fancuran Bromide ,2ml
,mistaking it for analgesic.
• As compensation Rs. 2 lac was awarded along with Rs.10,000
as costs for OP-hospital.
• Doctor and nurse were held jointly liable.
6)Jasbir Kaur v State of Punjab, AIR 1995 P&H 278
 In Shri Guru Teg Bahadur Hospital, Amritsar ,newly born baby
was missing from the bed
 Later on the child was found in profusely bleeding condition and
with one eye totally gouged out with the eyeball, near the wash
basin of the bathroom.
 Hospital authorities contended the mischief of cat which caused
 Defendants were held liable.
 Compensation was awarded to petitioners to the extent of
rupees one lakh for negligence, callousness and carelessness
of the respondents.
7) In Md. Aslam v/s Ideal Nursing Home and Ors., 1986-99
Consumer 4233 (NS) National Commission held as follows:
‘Death of a patient due to infection after operation and Medical
Negligence was alleged. No negligence on the part of the
Nursing Home or the Doctors attending the patient-patient did
not follow the advice given to her-appeal dismissed’
8) In Narasimha Reddy & Ors. v. Rohini Hospital & Anr. I(2006)
CPJ144(NC) ,National Commission held that where a patient
could not be operated due to critical condition, doctor can not
be held guilty of negligence if proper course of practice is
adopted and reasonable care is taken in administration of
treatment. Consequently the Revision petition filed by
Complainant was dismissed .
9)In Nihal Kaur v/s Director, P.G.I.M.S.R. III (1996) CPJ 112
where a patient died a day after surgery and the relatives found
a pair of scissors utilized by the surgeon while collecting the
last remains, a compensation of Rs. 1.20 lakhs was awarded by
the State Commission, Chandigarh on the grounds that
negligence was writ large on record in handling the case though
it was argued that arterial forceps and sponges were left behind
in an attempt to save the life of the patient and (the said things
were to be later removed, but could not be done as the patient
died) the same did not contribute to patient’s death.
10)In the case Mrs. Shantaben Muljibhai Patel & Ors. v. Breach
Candy Hospital and Research Centre & Ors. I(2005) CPJ 10
(NC) ,National Commission held that doctors are required to
take risk while performing their job and merely because a
patient dies to certain accidental eventualities does not
establish deficiency in service or negligence on the part of a
doctor or a hospital.
How to avoid litigations?
1. Personal level
2. Practice level.
3. Professional indemnity
4. Support groups
5. Defences
A. Technical.
B. Factual.
Personal level
A doctor should have M.C.I. approved qualification,
Training and experience of recognized centres.
The prescription heads, signboards and advertisements
should mention the actual facilities available for diagnosis and
The doctor should have a sympathetic attitude towards
patients and answer all queries without losing temper.
He should refrain from claims of guarantee of results.
He should keep himself updated of the latest development by
attending CME’s, workshops and academic sessions.
Practice level
• Exercising reasonable medical, social and legal skill and care in
diagnosis and treatment,
• Proper documentation of facts and legally valid informed
• This can be done by making good clinical notes of findings on
examination and treatment given.
• Where there is failure to follow instruction, refusal for any
investigation and failure to come for review on specified date
should always be recorded in underlined way.
• These negative records act as important tool while defending
our cases in court of law.
Professional indemnity
• Indemnity by the insurance companies gives a sense of
mental security to the doctor/hospital and if any medical
negligence is proved ,the company takes care of it.
Support groups
• By forming societies like the Indian Medical Association,
Medical college teachers Welfare Society, doctors not only get
a type of social security but regular fellowship will prohibit
the doctors speaking foul against their own colleague.
• Such forums can be used from time to time for discussion of
various provisions of acts, cases fought and their results and
the lessons to be learned from them.
• Doctors/Hospitals should always make all possible points in
defence in first instance of making a reply to the complainant.
A. Technical Defences
 Concurrent adjudication in another court.
 The court does not have pecuniary/territorial jurisdiction.
 Complaint is time-barred.
 Complicate issues involved, required recording of evidence of
experts, hence case should relegated to a civil court. Such a
plea must be taken at the beginning of the trial.
 The complaints frivolous and vexations and liable to be
dismissed under section 26 of the Act and may be fined upto Rs
 Inform your insurance company in writing with a copy of the
B. Factual defences
1. Mention your qualifications, training,experience, expertise etc.
Support with relevant documents.
2.Mention hospitals infrastructure facilities,special facilities, backup support, it with documents.
3. Complainant has not come to the court with clean hands i.e. he
has suppressed material facts, e.g. previous illness, treatment
4. Inconsistence between notices sent directly or through
consumer groups and the complaint made in the court.
5. Written evidence of consent of the patient/ relative/attendant to
assumption of inherent and special risks in the treatment.
6. Circumstances of the case; viz. There was emergency, lack of
facilities (e.g. rural area) no one to give history of patient’s
illness etc.
7. Burden of proof of: (i) duty of care; (ii)breach of that duty; (iii)
causation; (iv)damage, etc. Is on the complainant.
8. Reasonable knowledge, skill and care exercised (Rely/quote
standard text books with attested photocopies).
9. Consolation/treatment by patient from other doctor/other
systems of medicine simultaneously.
10. Many other reasons/more than one reason/for occurrence of
11. Contributory negligence
 After the consumer protection act has included the medical
professional in its ambit, it has proved to be double-edged
sword for a doctor.
 Only proper and ethical judgement , precautions and proper
documentation of all facts of the patient details, diagnostic tests
and treatment given and informed consent from the patient or
his guardian can save a doctor against any litigation.
 The relationship between Doctor/Hospital and Patients is a
relationship of trust; doctors are still known as healers!
There is no real alternative!!
Let not commercialization destroy the edifice of medical

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