Consumer Protection in the Medical Field: Guidelines and Laws

The emergence of consumer law has evident in the twentieth century, with a sequence of scandals over adulterated food, which opened the gate for the Food and Drug Acts and various other measures in forms of legislation/acts enacted to protect the interest of consumers on various aspects. Prior to ordinances for the industrial houses, industrial houses could include any ingredients they desired, including known dangerous substances, and they could declare comprehensive claims about their goods and services without countering any litigation. Consumer law is a legal preposition that solely aims on providing shield to the consumers when they buy a product or service. This act is drafted to ensure that when consumers buy a product or service, he can be protected from different issues such as fraud, bad quality, under weight etc. This act also ensures that competitive markets work in a just, fair and equitable manner.

On April 9, 1985, the General Assembly of the United Nations, by Consumer Protection Resolution no. 39/248, embraced the guidelines to bestow a framework for Governments, particularly those of developing Nations, to use in detail, ostentatious and nourished consumer protection regulations and legislation. The aims of the said guidelines include helping countries in attaining or maintaining requisite protection for their citizens as consumers and uplifting high levels of ethical and moral conduct for industrial houses those engaged in the business of manufacturing and supplying of goods and services to the consumers. The legislature needs a platform according to which the guidelines framed by UN can be meet, include the protection of consumers dangerous and hazardous substance and provide safety and effective supply and Redressal system. Those legislation also ensure the safety and interest of the consumers.

Then, Consumer Protection Act was enacted by the Parliament in the year 1986. The whirlwind Industrial growth in the India in the said era lead to tremendous price competition between the industrial houses which further leads to downright falling of quality and quantity of goods and services provided by the said industrial houses and thus there was acute need of the time to enact specific and certain law despite of the other laws like Indian Penal Code, Sale of Goods Act, Drugs and Cosmetics Act for protection of rights and interest of the consumers. Hence, Consumer Protection Act, 1986 was enacted to save various rights and interest of consumer like Redressal against unfair trade practices, protection against the manufacturing of hazardous goods, consumer education etc. The Indian parliament enacted the Consumer Protection Act to be safeguard the consumer interest in compliance with these UN guidelines. By passing such legislation the Legislature has proposed speedy solution of the disputes of the consumer for the benefit of the people at large.

Since the enactment of Consumer Protection Act due to its veracity there were various muddled in the interpretation of the act and the inclusion and exclusion from the act. There were different views of the judiciary as well as medical fraternity regarding the implication of present Act in cases of medical negligence. The definition of service, consumer etc., as well as the medical negligence, enshrined in the Act and their inter relation with the context of medical practitioner was ambiguous. Various high courts also reached different conclusions at different point of time and interpret the definition and meaning according to the prevailing time.

This act also define the services under section 2(1)(0) which also includes medical services extended by the medical practitioner and invoke their liability in case of any negligence while performing their services but In Dr. A.S. Chandra v. Union of India before District Forum it was argued by Ld. Counsel that professional services rendered by medical practitioners do not fall within the purview 'service' as defined by Section 2(0) of the Act and it excludes professional services rendered by members of the medical profession. If the services rendered by a doctor for consideration are to be brought within the purview of Section 2(0) of the Act, it was contended that the same would be unconstitutional being voilative of Article 14 of the Constitution.

Some other judgments create further confusion. In Dr. C.S. Subramanian v. Kumarasamy and another, a Division Bench of the Madras High Court has, however, taken a different view. It has been held that the services rendered to a patient by a medical practitioner or by a hospital by way of diagnosis and treatment, both medicinal and surgical, would not come within the definition of 'service' under Section 2(1)(d) of the Act and a patient who undergoes treatment under a medical practitioner or a hospital by way of diagnosis and treatment, both medical and surgical, cannot be considered to be a `consumer' within the meaning of Section 2(1)(d) of the Act; but the medical practitioners or hospitals undertaking and providing paramedical services of all kinds and categories cannot claim similar immunity from the provisions of the Act and that they would fall, to the extent of such Para-medical services rendered by them, within the definition of `service' and a person availing of such service would be a `consumer' within the meaning of the Act.

The National Commission by its judgment and order has held that persons who avail themselves of the facility of medical treatment in Government hospitals are not 'consumers' and the said facility offered in the Government hospitals cannot be regarded as service 'hired' for 'consideration'. Whereas in another case the National Commission has held that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression `service' as defined in Section 2(1) (o) of the Act and that in the event of any deficiency in the performance of such service, the aggrieved party can invoke the remedies provided under the Act by filing a complaint before the Consumer Forum having jurisdiction. It has also been held that the legal representatives of the deceased patients who were undergoing treatment in the hospital are `consumers' under the Act and are competent to maintain the complaint.

The National Commission in Cosmopolitan Hospitals and another v. Smt. Vasantha P. Nair, and in the judgment dated November 16, 1992 in First Appeal No. 97 of 1991 observed that the activity of providing medical assistance for payment carried on by hospitals and members of the medical profession falls within the scope of the expression 'service' as defined in Section 2(1) (o) of the Act. The view of the state commission of Haryana, Karnataka, Delhi, Punjab, and Rajasthan was that medical services in a Government run hospital couldn’t be considered as services under the Act. Whereas the state commission of Orissa expressed the opposite view. In Indian Medical Association v. V.P. Shantha the Supreme Court cleared all those confusions. The Court held that:

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.
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.

According to Section 2(d) of the Consumer Protection Act, 1986 Consumer means any person who;

1. 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 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 commercial purpose.
2. (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 and includes any beneficiary of such service other than the person who (hires or avails of) the services for consideration paid or promised, or partly paid and partly promised or under any system of deferred payment when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.

A consumer is a person who enters in a legal relationship with a seller or a supplier of goods or services. It is clearly obvious that consumer has a duty to pay consideration but it is not a matter of law, which that consideration has been paid or promised or partly paid and partly promised, or under any system of deferred payment.

As per Section 2 (d), a patient is a costumer when he goes to a medical practitioner or hospital and pays for his treatment. He can claim compensation if there is any deficiency in the service and suffer any damage. The term consideration refers to the fees paid or even promised to be paid by the medical professional or health care institution for receiving medical treatment. Fees may be paid in part (advance) or in full. It may be paid by patient himself or his relatives. Irrespective of the amount of money paid, all patients enjoy the status of consumers under the Act and are eligible to claim compensation for the deficiency in service. The decision of Supreme Court of India to consider patients, as the medical community of India has not welcomed consumer wholeheartedly. Various medical associations debated and disputed this point strongly, but were left with no other option but accept the decision of the Apex Court.

Depending upon the context of the word, the term service has various meanings. According to the procedure law it means the formal delivery of a subpoena, writ, or other legal notice or process, the delivery of a writ, summons and complaint, criminal summons, or other notice or order by an authorized server upon another. Proper service thereby provides official notification that a legal action or proceeding against an individual has been commenced. In the area of domestic relations it meant the doing of something useful or helpful for another individual or for a company in exchange for a fee. The term refers to the uncompensated work, guidance, and upkeep an injured or deceased family member previously provided for the family; the injury or death of the provider of these services means that the work will have to be obtained from another source and at a price.

In this context the term traditionally was restricted to the 'services' of a wife under the theory that the husband's duty was to provide support and the wife's duty was to provide service. After injury to his wife, a husband could bring an action on his own behalf against the responsible party for compensation of the loss of her aid, assistance, comfort, and society. The modern view holds that a wife may also sue for the loss of assistance and society of her husband. Under feudal law, tenants had a duty to render service to their lords in exchange for use of the land. The service required could take many forms: monetary payments, farm products, loyalty, attendance upon the lord as an armed horseman, carrying the king's banner, providing a sword or a lance, or plowing or other farm labor done for the king. The term refers to the time spent in the military, as in, Amir khan is in the service of Indian Army. Consumer Protection Act provides that;

Almost all types of services that a medical professional rendered are considered services but some of them are outside of purview of the Act. The Supreme Court of India in the case of Indian Medical Association v. V.P. Shantha clarified the situation the Court held that:

The definition of `service' in Section 2(1) (o) of the Act can be split up into three parts - the main part, the inclusionary part and the exclusionary part. The main part is explanatory in nature and defines service to mean service of any description, which is made available to the potential users. The inclusionary part expressly includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical of other energy, board or lodging or both housing construction, entertainment, amusement or the purveying of news or other information. The exclusionary part excludes rendering of any service free of charge or under a contract of personal service. The inclusive part of the definition of 'service' is not applicable and we are required to deal with the questions falling for consideration in the light of the main part and the exclusionary part of the definition. The exclusionary part will require consideration only if it is found that in the matter of consultation, diagnosis and treatment a medical practitioner or a hospital/nursing home renders a service falling within the main part of the definition contained in Section 2(1) (o) of the Act.

The Supreme Court held that:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.

Where the treatment that was given to the complainant is totally free of any charge, it does not constitute `service' as defined under the Act and the complainant was not entitled to seek any relief under the Act. In the case of Vijay H. Mankar v. Dr.(Mrs.) Mangla Bansod. Complainant alleges medical negligence on the part of a lady doctor, she Alleges that she paid charges for treatment, Opposite party denied that allegations and contended that she did not receive any fee because of close relationship. The court held that:

The preliminary objection of the opposite party is that she has not received any payment as consideration from the complainant and that, therefore, 'service' rendered in the case is not covered by Section2(1)(0)of the Consumer Protection Act. However, in the order of the Supreme Court, Indian Medical Association v. V.P. Shantha & Ors., it has been inter alia stated that services rendered by 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 services free of charge would fall within the ambit of the expression 'Service' as defined in Section2 (1) (o) of the Act. It is true in the present case, opposite party's averment is that fees were not charges because the patient could not afford to pay.

Although in their order, the Supreme Court have not distinguished a case of 'free' service of the kind as in the case of hand, the spirit of their order is that expenses incurred for providing service free of charge to certain patients are met out of income earned by the doctors and hospitals from services rendered to paying patients and in this view of the matter the non-paying patients are beneficiary of the services which are hired or availed of by the paying patients. That apart, the Supreme Court observed that all persons who avail of the services of doctors are to be treated on the same footing irrespective of the fact that some of them pay for the services and other avail the same free of charge. Also, the complainant had deposed that opposite party had not given receipt for fees paid and that opposite party told his mother-in-law on 31.5.1990 that she would give consolidated receipt for all payments, after delivery. The mother-in- low has filed an affidavit to this effect. In view of the aforesaid discussion, this point need not detain us from proceeding with the adjudication of the complaint on merits.

Conclusion

Doctor being members of medical profession cannot be provided immunity and exempted from duty towards every citizen to help for justice. No one is above law and justice and it is duty of every medical practitioner to come before the court of justice and give their contribution without claiming it as wastage of time. Rather they should be acted as model citizens before all. Every patient should be entitled to right against medical negligence and must have right to adequate compensation for proven medical negligence. Hence there is serious doubt about this category of medical activities falling within the meaning and scope of Consumer Protection Act. On the other hand in India the High Courts had different versions regarding whether medical profession falls within the ambit of Consumer protection Act, recent decision of Hon’ble Supreme court in Indian Medical Association v. V.P. Shantha and Othersheld that medical services provided by all private hospitals and health centers except government hospitals are “contract for service” and fall within the ambit of CP Act. Justice not only seems to done but has to be done, medical practitioners cannot be summoned in a routine manner by the courts of law unless there should be clear and strong evidence of medical negligence were brought before the courts. More particularly in the consumer protection every citizen of India has right to claim his hard earned money back if there was a gross negligence on the part of the medical practitioners while performing his act.