NAME:ALAMITI MISHRA

ROLL NO:14
DEPARTMENT:LAW
YEAR:1ST
SEMESTER:2ND
SUBJECT:CONSUMER PROTECTION
LAW
 ACKNOWLEDGEMENT

I would like to convey my heartfelt gratitude to Mr. Puranjay Das for his
tremendous support and assistance in the completion of my assignment. I would
also like to thank him for providing me with this wonderful opportunity to work
on an assignment with the topic “An analysis of medical negligence in India
under consumer protection Act.”. The completion of the Assignment would
not have been possible without his help and insights.
 CONTENTS

SL NO DESCRIPTION PAGE NO
1. INTRODUCTION 1
2. MEDICAL NEGLIGENCE -DEFINITIONAL ASPECT 1
3. MEDICAL NEGLIGENCE UNDER CONSUMER PROTECTION 2-4
ACT

4. 4
CONCLUSION

5. BIBLIOGRAPHY 4
Introduction
“Negligence is the omission to do something which a reasonable man, guided upon those considerations
which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and
reasonable man would not do.”

Similarly medical negligence may be defined as want of reasonable degree of care or skill or wilful
negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of
professional attendant is established, so as to lead to bodily injury or to loss of life.

The medical profession has reached new horizons, facing many ethical and legal challenges in the practice
of profession. Unfortunately, with the technological advancement in the medical field which provides a
better quality of life, there has been a corresponding shift in the standard of medical profession -it seems to
be declining.

In order to maintain standard and bring in accountability, every professional while performing his duties is
subject to be inquired about his misconduct by Medical Council, civil liabilities of compensation by way of
consumer and civil suits for negligence and finally the criminal liability for any offence, if committed.

Medical Negligence -Definitional Aspect

Negligence is simply the failure to exercise due care. The three ingredients of negligence are:

 The defendant owes a duty of care to the plaintiff.

 The defendant has breached this duty of care.
 The plaintiff has suffered an injury due to this breach.

Medical negligence is no different. It is only that in a medical negligence case, most often the doctor is the
defendant. It is an outcome of doctor-patient inter se conduct and relationship, which lacks uniformity.

Negligence resulting from the failure on the part of the doctor to act in accordance with medical standards,
which are being practiced by an ordinary and reasonably competent man, practicing on the same branch of
medicine or surgery can be termed as medical negligence.

What is the duty owed?

 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 such as Allopathic, Homeopathy, Naturopathy can be liable under the consumer protection
Act. Duties which a doctor owes to his patient are clear.
 A medical practitioner has a duty of care
i. In deciding whether to undertake the case.
ii. In deciding what treatment to give; and
iii. In the administration of the treatment.

A breach of any of the above mentioned duties gives a right of action for negligence to the patient.

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Medical Negligence under Consumer Protection Act
The Consumer Protection Act, 1986 in India has opened a new quasi-judicial, cheap and convenient system
of redress for the consumer of goods and services. The Act in section 2(1) (d) define who is consumer and in
section 2 (1) (o) define what is service. The definition of service is not an exhaustive one, so if health service
is not specifically mentioned in the provision it has been interpreted that the provision includes such
services, inspite of existence of professional regulatory bodies.

The Supreme Court in Indian Medical Association v. V.P. Shantha1,1995 brought negligence by the
medical practitioners within the ambit of this Act.

Narrower than law of torts as it covers “services rendered in lieu of some consideration or fees” only.Does
not cover services rendered for free.

1.Medical Services are treated as in ambit of “services” under Section 2(1) (o) of the Act. ·

 It is not contract of personal service as there is absence of master servant relationship. ·

 Contract of service in Section 2(1) (o) cannot be confined to contracts for employment of
domestic servants only. The services rendered to employer are not covered under the Act.

2. Medical Services rendered by hospital/nursing home free of charge are not in the purview of Section 2(1)
(o) of the Act.

3. Medical Services rendered by independent Doctor free of charge are under Section 2(1) (o) of the
jurisdiction of the Act.

4. Medical Services rendered against payment of consideration are in the scope of the Act.

5. A medical service where payment of consideration is paid by third party is treated as in the ambit of the
Act.

6. Hospital in which some person are charged and some are exempted from charging because of their
inability of affording such services will be treated as consumer under of Section 2(1) (d) of the Act.

In Nihal Kaur v. Director, P.G.I.M.S.R.2 a patient died a day after surgery and the relatives found a pair of
scissors utilized by the surgeon while collecting the last remains. The doctor was held liable and a
compensation of Rs. 1.20 lakhs was awarded by the state consumer forum, Chandigarh.

Recently the Supreme Court in Malay Ku. Ganguly v. Sukumar Mukharjee3, exhaustively dealt with
„medical negligence „and‟ the standard of care „that is required to be exercised by a doctor the court framed
certain principles and observed that there cannot be, however, by any doubt or dispute that for establishing
medical negligence or deficiency in services, the courts would determine the following:

 No guarantee is given by any doctor or surgeon that the patient would be cured.
 The doctor however must undertake a fair reasonable and competent degree of skill, which may not
be the highest skill.

1. 1995 (6) SCC 651.

2. (1996) CPJ 112.
3. AIR 2010 SC 1162.

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  Adoption of one of the modes of treatment, if there are many and treating the patient with due care
and caution would not constitute any negligence.
 Failure to act in accordance with the standard, reasonable degree of case and skill and knowledge
which he possesses. Failure to use due skill in diagnosis with the result that wrong treatment is given
would be negligence.
 In a complicated case, the Court would be slow in attributing negligence on the part of the doctor, if
he is performing his duties to be best of his ability.

The Court further took the view that informed consent after evaluating the risks is increasingly becoming a
requirement keeping the developments in medical science in view and opined that no communication was
made in this case by the doctors about the risks involved in the line of treatment, whereupon the patient
would decided whether to opt for such treatment or not.

Doctor-Patient Relationship
The relationship between doctor and patient is based on certain degrees of mutual trust and confidence.In
recent times, the doctor patient relationship has undergone serious changes.

Commercialization has made almost all professional fields corrupt and hollow and the medical profession is
no exception to the case.

Liability of Hospitals and Nursing Homes

 The liability of a hospital in cases of medical negligence could be direct or vicarious.
 Direct liability in this sense would mean a deficiency in the services provided by the hospital thus
making it unsafe and not suitable for treatment.
 Vicarious liability, on the other hand, would refer to the liability of the hospital as an employer for
the negligent acts of its employees.
 An exception to the above principle is seen in the “borrowed servant doctrine” according
 to which the employer shall not be liable for acts of an employee when that employee is working
under the direct supervision of another employer.
 For example, when a surgeon employed by one hospital visits another for conducting a surgery, the
other hospital where the surgery is performed would be seen liable for the acts of the surgeon.

Recent Judicial Interpretations

No Cure/No Success is not Negligence.

Dr. M. KocharvsIspitaSeal,I(2018)CPJ41(NC)

In this recent case, the National Consumer Dispute Redressal Commission(NCDRC) was confronted with
the issue of failure in IVF procedure. The complainant in the case complained of failure in IVF procedure
and demanded compensation from the Doctor on account of medical negligence.The National Commission
in the case held that 9“No cure/ no success is not a negligence”,thus fastening the liability upon the treating
doctor is unjustified.

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No straightjacket formula to determine as to when the cause of action has accrued to
the Customer
V.N.Shrikhande vs Anita SenaFernandes,2011 In this case, the Supreme Court had held that

In cases of medical negligence, no straitjacket formula can be applied for determining as to when the
cause of action has accrued to the consumer.Each case is to be decided on its own facts. If the effect of
negligence on the doctor‟s part or any person associated with him is patent, the cause of action will be
deemed to have arisen on the date when the act of negligence was done. If, on the other hand, the effect of
negligence is latent, then the cause of action will arise on the date when the patient or his representative-
complainant discovers the harm/injury caused due to such act or the date when the patient or his
representative-complainant could have, by exercise of reasonable diligence discovered the act constituting
negligence.

Conclusion
The concept of medical negligence as we have seen is simply one the principle of which is deeply engrained
in Tort Law. The present legal position in regard to Criminal Liability of a doctor is that it cannot be fixed
upon the doctor unless there is a prima facie of gross negligence and recklessness. On the basis of the
interpretation of the judicial decisions of the Supreme Court certain principle have been provided which can,
if implemented effectively help the courts to develop the law on medical negligence which at the present is
faced with many obstacles and has seen frequent deadlocks in several cases. The Consumer Protection Act
provides an inexpensive and speedy remedy for adjudication of such claims. No court fee is needed for any
claim made before the consumer courts. Thus poor person who have been given deficient services by
medical practitioners, hospitals or nursing homes can conveniently seek redress.

Bibliography
Statute:
Consumer protection Act,1986

Books:
Ratanlal and Dhirajlal,The Law of Torts 24th edition,2002, edited by Justice G.P.Singh.
Law of Torts by DR.R.K. BANGIA

Websites:
https://blog.ipleaders.in/medical-negligence-liability-consumer-protection-act/
https://www.scribd.com/presentation/392113228/Medical-Negligence
https://www.iurisjura.com/post/medical-negligence-under-consumer-protection-act

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