Medical profession and consumer protection act: In past Doctors were considered as God and earned respect but with Commercialization and globalization ; Relationship has deteriorated considerably.With empowerment of Consumer Protection Act in 1986, litigation against doctors is on the increase.Every medical professional should have basic knowledge of the act to protect himself or herself from the fake allegation or any medical mishap.

2. Consumer Protection Act
&
Neurosurgeon
Speaker : .Lokesh suresh.
Chairperson : Prof. Malla Bhaskara Rao

3. •The Doctor patient relationship
• Doctors: God and earned respect
• Commercialization and globalization
• Relationship deteriorated considerably.
• Law of Torts, IPC etc
• Consumer Protection Act in 1986, litigation against doctors is
on the increase

4. Healthy doctor-patient relationship
•The paternal relationship
•The informative relationship
•The interpretative relationship
•The deliberative relationship

5. Difficult patients :
1. Oppositional
2. Manipulative
3. Hostile patients
4. Malingering patient

6. Certain guidelines to maintain doctors and patient
relationship
For the patient:
• Adequate and truthful information
• Medications
• Follow up
For the doctors:
• Advances in diagnosis
• Available for the care
• Short comings
• Be honest with the patient

7. In North America neurologists are the highest
indemnity paid per file among specialties of medicine
Reasons :
a)failure to diagnosed
b)lack of informed consent
c)absence of proper guideline for the treatment

8. •Good counseling
•Listening to the problem patiently ;empathy, which is
the ability to experience the feeling of the patient
• undergraduate or postgraduate curriculum

9. • Respect of autonomy of patient
• Medical record whenever he examines a patient
• Every detail : case sheet
• The day to day progress of patient
• The date and time of the examination

11. The Consumer Protection Act, 1986
Better protection of the interests of consumers
Make provision for the establishment of consumer
councils and other authorities for the settlement of
consumers' disputes and for matters connected
therewith
The purpose of the Act:
To protect the interest of the consumers of different
commodities available to them for which they pay but
do not get standard quality of service.
e.g. patient pay for the treatment but do not get
correct treatment.

13. PRELIMINARY
(1 ) This Act may be called the Consumer Protection Act, 1986.
(2) It extends to the whole of India except the State of Jammu
and Kashmir
(3) It shall come into force on such date as the Central
Government may, by notification, appoint and different dates may
be appointed for different States and for different provisions of this
Act
(4) Save as otherwise expressly provided by the Central
Government by notification, this Act shall apply to all goods and
services

14. “Complainant" means
(i) A consumer; or
(ii) Any voluntary consumer association registered under the
Companies Act, 1956 or under any other law for the time being
in force; or
(iii) The Central Government or any State Government;
(iv) One or more consumers, where there are numerous
consumers having the same interest who or which makes a
complaint
What is a complaint?
A complaint is an allegation in writing made by a Complainant,
i.e., a consumer that he or she has suffered loss or damage as a
result of any deficiency of service

15. Consumer
Any person who 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

16. What is deficiency of service?
Deficiency of service means any fault, imperfection, shortcoming ,
or inadequacy in the quality, nature, or manner of performance
that 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

17. Limit period:
• Within two years from the date on which the cause of
action has arisen
• Complaint may be entertained after the period specified
, if the complainant satisfies the District Forum, the State
Commission or the National Commission, as the case may
be, that he had sufficient cause for not filing the complaint
within such period

18. Penalties.

19. Where a trade or a person against whom a complaint is made
[or the complainant] fails or omits to comply with any order
made by the District Forum, the State Commission or the
National Commission, as the case may be
Trader or person [or complainant] shall be punishable with
imprisonment for a term which shall not be less than one
month but which may extend to three years
or
With fine which shall not be less than two thousand rupees
but which may extend to ten thousand rupees, or with both

20. Dismissal of frivolous complaints
If complaints found to be frivolous it should be recorded in
writing, dismiss the complaint and make an order that the
complainant shall pay to the opposite party such cost not
exceeding ten thousands rupees ,as may be specified in
order

22. CONSUMER PROTECTION COUNCILS
1)The Central Consumer Protection Council.—
The Central Council shall consist of the following members,
namely:—
(a) The Minister in charge of the consumer affairs in the Central
Government, who shall be its Chairman, and
(b) Such number of other official or non-official members
representing such interests as may be prescribed.

23. 2) State Consumer Protection Councils.-
(a) The Minister in charge of consumer affairs in
the State Government who shall be its Chairman
(b) Such number of other official or non-official
members representing such interests as may be
prescribed by the State Government

24. 3)The District Council :—
(a) The Collector of the district (by whatever
name called), who shall be its Chairman; and
(b) Such number of other official and non-
official members representing such interests
as may be prescribed by the State
Government

25. Is there any provision for appeal?
• An appeal against the decision of the District
Forum can be filed before the State Commission
• State Commission to the National Commission and
from the National Commission to the Supreme Court
• The time limit : 30 days

26. How does adjudication of liability take place?
• Written notice to the opposite party asking for a written
version to be submitted within 30 days
• Proper scrutiny
• Filing of an affidavit or production of evidence in the form of
interrogatories, expert evidence, medical literature, and
judicial decisions

27. Duration:
• A period of 90 days from the date of notice by opposite
party and
• Within 150 days if it requires analysis or testing of
commodities
Fees:
• No court fees.
• Lawyer not needed

28. The courts have great responsibility :
• To punish the guilty doctors and
• To protect the honest doctors from undue
harassment at the hands of patients.

29. Highlights of the Supreme Court of India judgment in
Indian Medical Association Vs V.P. Shantha and Others
As a result of this judgment, medical profession has been
brought under the CPA, 1986 .
Following categories of doctors/hospitals under this Section:
1. All medical / dental practitioners doing independent medical /
dental practice unless rendering only free service
2. Private hospitals charging all patients
3. All hospitals having free as well as paying patients and all the
paying and free category patients receiving treatment in such
hospitals

30. 4. Medical / dental practitioners and hospitals paid
by an insurance firm for the treatment of a client or
an employment for that of an employee.
It exempts only those hospitals and the medical /
dental practitioners of such hospitals which offer free
service to all patients

31. Duties Owed By Medical Practitioner
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 are
liable under the Consumer Protection Act

32. Duties which a doctor owes to his
patient are clear
1.Whether to undertake the case
2. What treatment to give
3. Administration of that treatment
A breach of any of these duties gives
a right of action for negligence to the
patient

33. Medical negligence:
• Failure on the part of the doctor to act in accordance with
the standard medical practice
• These standards are in accordance with those practiced by
an ordinary component person in same profession
• Reasonable degree of skill and care has to be exercised in
each case
• Background circumstances in question was given are also
considered

34. Winfield defined negligence as law of tort (common
knowledge) :
-existence of legal duty
-breach of legal duty
-damages cause by that breach
A doctor is not negligent if he is acting in accordance with a
practice accepted as proper by a responsible body of medical
men skilled in that particular art.( Bolam test)

35. The ‘Bolam’ test in Bolam vs. Frien hospital management
committee (1957)
• Mr. Bolam was advised electro convulsive therapy for
mental illness
• Two thoughts of opinions
• 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

36. • 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.

37. Medicine is an inexact science
No negligence has occurred if there is an error of
judgment, accident or therapeutic misadventure, error in
diagnosis, unavoidable complications, infections or
complication of drugs
However it is duty of doctor to diagnosed ,advised and
treat the patient

38. In the case of Indian Medical Association vs. Santha,
Apex Court has decided that :
-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

39. • 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.(Madhya Pradesh High Court in the case of Smt.
Sudha Gupta and Ors. vs. State of M.P.)
eg. A mishap during operation
• Negligence has to be established and cannot be presumed

40. • The Complainant does not examine any expert on the subject
• The Complainant needs to establish negligence
• The background of the circumstances in which the treatment
in question was given
• Likely to cause physical damage unless it is not done with
proper care and skill

41. • There is no question of warranty, undertaking, or
profession of a skill
• As per the law, a defendant charged with negligence can
clear himself if he shows that he acted in accordance with
the general and approved practice
• It is not required to have highest degree of skill
• A deviation from normal professional practice is not
necessary in all cases evident of negligence

42. Contributory negligence:
a) Not followed the instruction given by the doctor or
b) Taken treatment elsewhere which may have affected
the outcome or
c) Torn the patients records
Note to be made when patient deviate from prescribed
norms
eg. Did not take bed rest
Not using cervical color

43. Liabilities in medical practice:
• Primary liability is that of the treating doctor under whom the
patient was admitted
• Vicarious liability lies with the hospital or nursing home which
covers doctors,nurses,technitians and paramedics

44. To avoid litigation medical professional can use
various preventive measures:
1. Personal level
2. Practice level
3. Professional indemnity
4. Support groups
5. Defenses
a. Technical
b. Factual

45. Personnel level :
• Doctor should have MCI approved qualification,
training and experienced of recognized centre
• Prescription heads, signboards and advertisements
should mention the actual facilities available for the
diagnosis and treatment
• Sympathetic attitude towards patient
• Refrain from claims of guarantee of results
• Keep updated with CME'S,WORKSHOPS AND
Academic sessions

46. Practice level
• The doctor should exercise reasonable medical,
social and legal skill and care in diagnosis and
treatment, proper documentation of facts and legally
valid informed consent
• Good clinical notes of findings on examination and
treatment given
• Negative records
•These negative records act as important tool while
defending our cases in court of law

47. Arvind Shah (Dr.) v Kamlaben Kushwaha
Date of Decision: 30.04.2009
The complainant alleged that her deceased son, aged 20
years and otherwise healthy, died as a result of medical
negligence on the part of the appellant doctor (original
opposite party) who administered wrong treatment
• The State Commission awarded to the complainant a
compensation of Rs. 5 lakh with interest and costs
• The two prescriptions available on record did not mention
any of the patient's complaints/symptoms, the doctor's
clinical observations on examining the patient or his
diagnosis of the ailment
• Even the ordinary vital parameters like temperature, blood
pressure, pulse rate, etc., were not noted

48. To make some minimal record even for outpatients
Such a record would ordinarily include :
a)A summary of the history of illness
b) Current complaints/symptoms of the patient and
c) Clinical observations of the doctor
If the doctor considered none of the above as essential, he
would need to at least record a provisional diagnosis of the
patient's ailment in the prescription while advising further
diagnostic test or treatment (medicines/injections)

49. The Commission held that in line with the Apex Court's
decision in Samira Kohli v Dr. Prabha Manchanda
regarding need for valid prior consent of the patient for
his treatment by a doctor and the doctor's corresponding
duty of disclosure, it was essential for the doctor to write
a prescription with such necessary details and failure to
do so would constitute medical negligence.
The Commission further observed that
a) if a patient wanted to consult another, a prescription
with such details would be necessary
b) a prescription meeting these basic requirements
would also assist a doctor in demonstrating that he
had treated his patient with due care, if charged with a
wrong/false allegation of negligence by the patient.

50. 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

51. Support groups
•The Indian Medical Association, Medical college teachers
Welfare Society
•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

52. Defenses
Doctors/Hospitals should always make all possible points in
defense in first instance of making a reply to the complainant
A. Technical defenses:
1.Services were free of charge
2.Concurrent adjudication in another court
3.Complaint is time barred
4. Complicate issues involved, required recordings of evidence of
experts, hence case should be relegated to civil court. Such plea
must be taken at the beginning of trial
5. Complaints frivolous and vexations and liable to dismissed

53. 6.inform your insurance company in writing with copy of
the complaint
B. Factual defenses
1. Mention your qualifications, training, experience,
expertise etc. Support with relevant documents
2. Mention hospitals infrastructure facilities, special
facilities, back-up 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 etc

54. 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

55. 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 damage
11. Contributory negligence

56. WHAT IS A CONSENT?
Consent in the context of medical profession implies to
permission by the patient to perform an act on his body
either for diagnosis or therapeutic procedure

57. WHAT IS AN INFORMED CONSENT?
• Enable a patient to make a balanced judgment
• Should disclose nature and procedure of the treatment and its
purpose, benefits and effects
• Provide alternatives if available, substantial risk and adverse
consequences of refusal of treatment offered
• No need to explain the remote or theoretical risks which may
frighten the patient
• Consent from at least two persons. One from the patient and
other from spouse, Parents or close relative

58. WHAT SHALL BE THE IDEAL (REAL OR INFORMED)
COMPONENT OF CONSENT FORM
• Name of the patient with age
• Name of Principle surgeon and its team
• Name of anesthetist and team
• Name of staff nurses
• Diagnosis and nature of primary disease. Incorporate DM,
CAD, CVA, Asthma etc if so existing as risk factors

59. • Kind of surgery or procedure to be performed Elective or
emergency surgery
• Reasons for emergency if so
• Kind of anesthesia and risks
• The known and likely complications involved
• Need for harvesting bone, nerve, fascia etc
• Requirement of any implant or device
• Special risks in a particular patients e.g. Post op MI, DVT,
Asthma, aspiration, Need for ventilator, Recurrence, hematoma
etc

60. • The Supreme Court of India in a recent Judgment Samira
Kohli vs. Prabha Manchanda Dr. & ANR has elaborated various
aspects of consent taking
• The judgment was related to a Gynecological case where
Hysterectomy was done as an additional procedure
• While the initial consent was obtained for diagnostic
laparoscopy, hysterectomy and removal of both ovaries was
performed in the same sitting under general anaesthesia
• The consent for hysterectomy was however obtained from
the mother of the patient

61. • The Supreme Court held the doctor liable for malpractice
• The Supreme Court opined that additional surgery however
beneficial to the patient in saving time, expenses, pain and
suffering are no ground for defense

62. MEDICAL ETHICS AND THE TREATMENT OF ACCIDENT VICTIMS
In the case of Pravat Kumar Mukherjee vs. Ruby General
Hospital and Ors, the National Commission delivered a
landmark decision concerning treatment of an accident victim
by the hospital
The brief facts of the case are as follows young boy, Shri
Sumanta Mukherjee suffered RTA and was taken to some
hospital by public. He was conscious on arrival and treatment
was started on assurance of payment. But treatment was
discontinued after initial treatment on not paying requisite
amount. Patient was shifted to other hospital but during
transport patient died

63. • There need a qualitative change in the attitude of the
hospitals
• A human touch is necessary
• In emergency or critical cases, let them discharge their
duty/social obligation of rendering service without
waiting for fee or for consent
• Patients not allowed to leave the hospital for
treatment elsewhere without signing any document or
risk bond shown

64. • If emergency treatment is required to be given to a patient who
was brought in seriously injured condition there was no question of
waiting for consent
• Consent is implicit in such cases
• On the contrary, a surgeon who fails to perform an emergency
operation must prove that the patient refused to undergo an
operation not only at the initial stage but even after he was
informed about the dangerous consequences of not undergoing
the operation
• Waiting for consent of a patient or a passer-by who brought the
patient to the hospital is nothing but absurd and is apparent failure
of duty on the part of doctor

65. MEDICO LEGAL – SOME IMPORTANT ISSUES
•The death of a patient while undergoing treatment does not
amount to medical negligence
•Engaging a specialist when available is obligatory
•Hospital is vicariously liable for any wrong claiming on the part
of consultants
•Error of judgment in diagnosis or failure to cure a disease does
not necessarily mean medical negligence

66. NIMHANS
&
Consumer Protection Act

67. Importance of consent:
According to the complainant, he was assured that the surgery will be
performed by a neurosurgeon (Dr Hemant Bharti) but was actually
performed by an orthopaedic surgeon, (Dr Anand Sharma).
it is alleged, was an act of unfair trade practice, on the part of the
respondents. After this surgery, the condition of his wife deteriorated.
She lost sensation in the lower part of her body and became nearly
totally bed ridden. He therefore, shifted her to SMS Hospital,Jaipur.
The State Commission has noted that the letter of 25.10.2002,
pertaining to the consent for the surgery, clearly reveals that it was to
be conducted by Dr Arvind Sharma and Dr Sudhir Khurana and that
the consent was given by the complainant himself in writing by
putting his signature in English. The contention of the complainant that
he was given to understand that the surgery would be performed by Dr
Bharti, has been rejected by the State Commission “for want of cogent
and reliable evidence”.

68. based on the following –
a. “The disease known as Cauda Equina Syndrome is a disease which could
be cured or treated or operated by both an orthopaedic surgeon as well as by
a neuro surgeon.
b. To say that the surgery can only be performed by a neuro surgeon cannot
be accepted.
c. The surgery was performed by Dr Anand Sharma, an orthpaedic surgeon.
d. It is not the case of the complainant that Dr Sharma was not qualified to
perform such an operation.
e. If the treating orthopaedic surgeon feels that neurological examination
should be done before operation of such disease, he may do so. But, if he does
not think so, before operating, it cannot be said that he is guilty of
professional or medical negligence.
f. In this case, as the condition of the patient was not improving, Dr Anand
Sharma did advise on 17.12.2002 that her case should be examined by the
neuro surgeon, Dr Bharti.”

69. Take home message:
• Patients are our priority as all of us are part of noble profession
• Must do what is best for our patients and not necessarily best for
oneself
• Must ensure our decisions are scientific, humane,effective and in
the best of interest of the patient and family
• We should talk with patient and the family members and explain
every aspect in as simple a language as possible to win the
confidence of the patient

70. • We should maintain proper records to fulfill both medical
as well as legal criteria
•Once that has been done, there is no need to worry
about any individual, administration or tribunal
•We should maintain proper records to fulfill both medical
as well as legal criteria
•Once that has been done, there is no need to worry
about any individual, administration or tribunal

71. 10 c's to safeguard our interests:
• Competence
• Consent
• Communication
• Confidentiality
• Correct medical records
• Continued update of knowledge,
technology
• Consult colleagues
• Co operation
• Cover – Prof indemnity
• Confidence

72. Thanking you