“Printed consent form for surgery: unfair, says National Commission: Supreme

court grants stay.”

FACTS
 The hospital in compliance with the legal formalities gets the consent forms signed
by their parents.
 According to my client hospital, they have got the consent forms printed with the
spaces to be filled in.
 In one of the case NCRDC has laid the law that use of the printed forms for taking
consent of the patients amounts to unfair practice.

QUERY
What are the legal grounds on which the said impugned order of the National
Commission could be challenged before the SC?

INTRODUCTION
The National Consumer Disputes Redressal Commission (NCDRC) has held that usage
of fixed preprinted forms for ‘informed consent cum undertaking’ by hospitals is unfair,
deceptive and amounts to unfair trade practice within the meaning of section 2(1)(r) of
the Consumer Protection Act, 1986. This order is likely to have wide ramifications since
most hospitals follow the pre-printed and fixed ‘informed consent cum undertaking’
format before carrying out any procedure on patients. The apex consumer commission
stated that a pre-printed, fixed ‘informed consent cum undertaking’ form, with blank
spaces for limited select handwritten entries and for the signatures was used by the
hospital. The main body of the form is pre-printed and fixed. It can fit into any procedure,
any doctor, and any patient, after filling up the blank spaces for the limited select
handwritten entries and getting the signatures. The forms can thus be misused after filling
up of blank spaces.
It also imposed a cost of Rs10 lakhs on the hospital for this reason. The Court said “The
uniform use of this pre-printed and fixed ‘informed consent cum undertaking’ form on
the part of the opposite party no. 1 (hospital) to be unfair trade practice within the
meaning of section 2(1)(r) of the act of 1986 and deem it just and appropriate to impose a
cost of Rs. 10 lakh on the opposite party no. 1 (hospital), to be deposited with the
Consumer Legal Aid Account of this Commission within four weeks of the
pronouncement of the reasoned judgement, and to direct the opposite party no. 1
(hospital) to discontinue its said unfair trade practice with immediate effect”.

The court however found no deficiency in service or medical negligence in the said case,
based on the entire medical record, the affidavits of the opposing parties and the expert
opinion of the medical board of Maulana Azad Medical College.
Case facts: In January 2010, a patient aged 65 years with some pain in the abdomen and
related difficulties was rushed to a private hospital in abdomen department of Fortis
Hospital , New Delhi. Thereafter, due to financial difficulties he approached (opposing
party 2), Dr. Anil Varshney at RG Stone Urology and Laparoscopy Hospital (opposing
party 1) for further treatment. Dr Varshney examined the patient and advised surgery,
which was performed on January 13, 2010. Later, the patient approached the hospital
with complaints regarding difficulties he faced after his surgery.

After examination, he was informed by the doctor that a complication occurred and was
advised to go for natural healing. The Complainant then approached Indraprastha Apollo
Hospital where he got admitted and took treatment from and incurred expenditure for the
treatment but did not get completely cured. He again reverted to Fortis Hospital for the
treatment and was visiting regularly.
As per the Complainant, he suffered negligent treatment, injury and complications
because of RG Stone Urology and Laparoscopy Hospital and Dr. Anil Varshney, and
moved before the Consumer Commission seeking compensation of Rs1,88,37,602/-.
The opposing parties denied the allegations and took preliminary objection of limitation
as the instant complaint was filed in year 2018, after 8 years of cause of action, which
happened in year 2010. They also presented that the Complainant had prior surgery of
hernia and appendix with a history of tuberculosis and HIV.

Order- The Commission noted that the patient was suffering from HIV and skin cancer,
and was fully aware about his immune-compromised status, despite which the doctor had
operated the patient with all due care and reasonable skill. However, the Complainant
with an ill intention published a story against the hospital in the ‘Hindustan Times’ to
influence the court, in its attempt to coerce the hospital and influence emotionally for out-
of-court settlement. Despite the HIV positive status, the doctor operated on the patient
with all due care and reasonable skill. However, the Complainant with his ill intention
published a story against the hospital in the ‘Hindustan Times’ to influence the court.

Thus, the Complainant was trying to force the hospital and influence emotionally for out-
of-court settlement. Considering the entirety, it is clear that the allegations of complainant
are completely after thought based on assumptions, surmises and perverse beliefs. The
complaint therefore is frivolous, bereft of merit and ill-conceived.

General Motors (India) Private Limited V. Ashok Ramnik Lal Tolat 2015 1SCC 429

Mere proof of “unfair trade practice” is not enough for claim or award of relief unless
causing of loss is also established. Punitive damages are awarded against a conscious
wrong doing unrelated to the actual loss suffered. Such a claim has to be specially
pleaded.
The question before court was to determine as to whether in the absence of any prayer
made in the complaint and without evidence of any loss suffered, the award of punitive
damages was permissible.
It was held that the Consumer Protection Act is a piece of social legislation to provide a
forum to the consumers who are taken for a ride by suppliers of goods and services. The
redress is provided to a consumer against any deficiency in service as well as against any
loss or injury arising out of “unfair trade practice”. By later amendment, scope of a
complaint can cover not only individual consumer but also consumers who are not
identifiable conveniently. However, the complainant has to make an averment and make
a claim. Section 12 of the Act permits not only a complaint by a consumer to whom
goods are sold or delivered but also any recognised consumer association or one or more
consumers on behalf of and for the benefit of all consumers but still, a case has to be
made out and the affected party heard on such issue. Accordingly, in order to protect the
interest of consumers, liberal and purposive interpretation has to be placed on the scheme
of the Act avoiding hyper technical approach. However, at the same time, fair procedure
is hall mark of every legal proceeding and an affected party is entitled to be put to notice
of the claim with such affected party has to meet.
Godfrey Philips India Ltd. V. Ajay Kumar 2339 Of 2008

It is to be noted that the National Commission itself noted that the respondent was not
representing a "Voluntary Consumer Association" registered under the Companies Act,
1956 or under any other law for the time being in force and was not entitled to file a
complaint about unfair trade practice to represent other consumers. Having said so, it is
not understandable as to how the National Commission even proceeded to deal with the
complaint. It also noted that the complainant had not moved any application or obtained
any permission under Section 13(6) of the Act and/or no such permission was granted. In
the circumstances, it was not permissible for the complainant to represent others. The
complainant's case right through was that he was filing a petition in public interest. After
having recorded that the complaint in that manner was not entertainable, the National
Commission could not have passed the impugned order.

Samira Kohli Vs. Dr. Prabha Manchanda And Ors. 2008 2 Scc 1

Consent:

Consent in the medical context refers to the permission given by the patient for the
performance of the doctor to perform a medical procedure such as a surgery, diagnostic
test etc. Consent can be implied or express, unless consent can be clearly and obviously
implied, express consent has to be obtained before the medical practitioner perform any
procedure.

Express consent is considered to be valid and "real" when:

The patient gives consent voluntarily without any coercion

The patient has capacity to give consent

The patient has adequate amount of information about the nature of the procedure he is to
undergo. This information includes the purpose of procedure, the risks involved, the
alternatives to the procedure etc. Medical negligence is an act or omission by medical
practitioner which deviates from normal practice, it is something which no professional
with ordinary skill would have taken if he had been acting with ordinary care and which
causes injury to the patient. Thus, when obtaining consent, the doctor needs to provide
information to such an extent which is accepted by a body of medical opinion. The
information provided to two different individuals for the same surgery may differ because
of the difference in physical and mental condition of the patient.

Deficiency in Service: Deficiency is defined under Section 2(11) of Consumer Protection

Act, 2019[3], Section 2(11) reads as;

"deficiency" means 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 and includes: any act of
negligence or omission or commission by such person which causes loss or injury to the
consumer; and deliberate withholding of relevant information by such person to the
consumer;

“This opinion is based on the Youtube video https://youtu.be/teZk1_RpcUc of Advocate

Jeevan Prakash , AOR , Supreme court”.