MEDICAL DEFICIENCY AMOUNTING TO NEGLIGENCE

Medical  Deficiency   In   Services   Amounting   To   Negligence   In   Consumer Protection    Act

 Practice of medicine is as old as existence of human race. Originally, the priest functioned as preacher, teacher, judge as well as healer. He was the first physician and his relationship with his patients was unique and unquestioned. With the passage of time not only has practice of medicine graduated to become independent and noble profession, but his relationship has slowly shifted from 'Next to God' to 'Friend, Philosopher and Guide', to 'respected professional' and, today, to service provider. With increased consumer awareness, rising expectation, western trend of medical liability litigation, Consumer Protection Act, and judicial activism, increasing number of complaints are being filed by dissatisfied patients resulting in growing distrust between patients and doctors and increased cost of medical treatment.

 Over the last fifteen years there has been increased speculation on whether "Medical Services" are expressly or categorically included in the definition of term "services" under Section 2(1)(o) of the Consumer Protection Act.

 In Indian Medical Association v. V.P. Shantha and Ors the principal issue which arose for decision before the Supreme Court was whether a medical practitioner renders 'service' and can be proceeded against for 'deficiency in service' before a forum under the Consumer Protection Act, 1986. 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.

 However, in the observation made in the context of determining professional liability as distinguished from occupational liability, the Court has referred to authorities, in particular, Jackson and Powell and have so stated the principles, partly quoted from the authorities :-

 "In the matter of professional liability professions differ from occupations for the reason that professions operate in spheres where success cannot be achieved in every case and very often success or failure depends upon factors beyond the professional man's control. In devising a rational approach to professional liability

which must provide proper protection to the consumer while allowing for the factors mentioned above, the approach of the Courts is to require that professional men should possess a certain minimum degree of competence and that they should exercise reasonable care in the discharge of their duties. In general, a professional man owes to his client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services.

 The Court held that even though services rendered by medical practitioners are of a personal nature they cannot be treated as contracts of personal service (which are excluded from the Consumer Protection Act). They are contracts for service, under which a doctor too can be sued in Consumer Protection Courts.

 A 'contract for service' implies a contract whereby one party undertakes to render services (such as professional or technical services) to another, in which the service provider is not subjected to a detailed direction and control. The provider exercises professional or technical skill and uses his or her own knowledge and discretion. A 'contract of service' implies a relationship of master and servant and involves an obligation to obey orders in the work to be performed and as to its mode and manner of performance. The 'contract of service' is beyond the ambit of the Consumer Protection Act, 1986, under Section 2(1)(o) of the Act. The Consumer Protection Act will not come to the rescue of patients if the service is rendered free of charge, or if they have paid only a nominal registration fee. However, if patients' charges are waived because of their incapacity to pay, they are considered to be consumers and can sue under the Consumer Protection Act.