Author : JAYAPRIYA.A, CHENNAI DR. AMBEDKAR GOVERNMENT LAW COLLEGE, PUDUPAKKAM
ABSTRACT:
The health care sectors are the backbone of sanitation in a country. They account for the recovery and prevention of health issues. This necessitates the extension of contractual obligation in a doctor patient relationship which eventually turned out in the inclusion of health care and medical service into consumer protection act , 2019. By a landmark case called Indian medical association vs. vp shantha , the term medical service too included in the ambit of service as these are availed by way of payment of consideration. Moreover, emerging litigations paved a broad way for medical negligence into consumer dispute. Recent judgment delivered by Justice Hima Koli confirmed this perspective.
INTRODUCTION:
The supreme court recently passed judgment against the order national consumer dispute redressal commission in favour of hospital which by negligence hand over dead of person to a wrong family who creamented it. By this news there arise a question that do medical service comes under consumer protection act? Does the medical service comes under the purview of service under consumer protection act? Everyone were consumer under an umbrella , where the process of buying and selling takes place. Every person who buy something or avails service in exchange of consideration is called as consumer under sec2(7) of Consumer Protection Act, 2019. Every consumer have several rights to be exercised in respect of object bought or service availed and these are termed as consumer rights.
MEDICAL SERVICE IN THE PURVIEW OF CONSUMER CLAIM:
In the draft bill of consumer protection act, 2019 the term health service is included in the definition of services, but not mentioned in the final draft. But it is clarified that the medical service is inclusive in the definition of service . The sec2(42) of consumer protection act, 2019 excludes the 2 types of service , service which is free of charge and service which are personnel. Although, medical service provided in free of cost also comes under service of consumer protection act. Hence, medical profession and health care mechanism comes under consumer protection act, 2019.
In the case of INDIAN MEDICAL ASSOCIATION V. VP SHANTHA , the supreme court held that medical services should be construed as service in the ambit of consumer protection act, 1986. This case gives an landmark judgment that the doctor – patient relationship to be an contractual relationship . by which every terms of a valid contract would apply. The core reason to claim consumer rights is the contract between buyer and seller. By making doctor – patient relationship as an contract , patients are empowered to raise claim regarding defect in service.
ACT & SERVICE:
After the case of INDIAN MEDICAL ASSOCIATION V. VP SHANTHA , the act provide for new provisions for the grounds of litigation. It include false endorsement of service, failure to provide bill or receipt to patient, failure to maintain confidentiality, misleading advertisement, failure to take informed consents, product liability and deficiency in service. It made free of cost to file litigation for service up to 5 lakhs and for more than 5 lakh nominal fee to be paid.
The 2019 act paved a way for mediation for redressal mechanism but it doesn’t extend it to the medical negligence which cause hurt, death and others.
The 2019 act revised the pecuniary jurisdiction as, litigation up to one crore to district consumer dispute redressal commission and rupees one crore to ten crore to state consumer dispute redressal commission and litigation for more than 10 crore to national consumer dispute redressal commission.
In the case of BALRAM PRASAD V. KUNAL SAHA & ORS the supreme court ordered a compensation of rupees 6,08,00,550 with 6% interest per annum from the receipt of complaint to the date of payment for death caused by medical negligence. Generally for calculating compensation the multiplier method used in motor accidents tribunals were used . but in this case the court stated that the common method used will not be applicable to medical negligence death and It would only rely on lower compensation. Court relied on the statement that , hefty compensation ensure the accountability of doctors and hospitals to refrain from negligence and unethical medical practice.
The act include telemedicine in the consumer protection act 2019, which made easier and beneficial. It ruled out the guidelines to be followed to ensure safe practice. By way of e-filing for the consumer disputes , made easier the process of recovery of claims.
RECENT SUPREME COURT CASE:
ERNAKULUM MEDICAL CENTRE VS. DR. P. JAYASHREE
In this case the supreme court upheld the order of Kerala state consumer dispute redressal commission and held against the order of national consumer dispute redressal commission. In the case , on 30th December 2009 Mr. Purushothaman was admitted in the alleged hospital and eventually died in night . The family told hospital to keep the body in mortuary. On 28th December 2009 Lt.Col.A.P. Kanthi was admitted and he died on 31st December 2009. Unfortunately , to relatives of deceased Kanthi , the body of Purushothaman was given and they cremated it by rituals . On 1st January 2010 the relatives of Purushothaman claimed for his body and found out that the body was wrongly delivered. Therefore the relatives of deceased Purushothaman filed complaint in the Kerala state consumer dispute redressal commission against the hospital for deficiency in service at a rate of compensation of 1 crore. After several investigations the SCDRC ordered the respondent to pay 25 lakhs along with 12% interest per annum from the date of complaint as a sufficient and equitable compensation. Against this order , the hospital appealed in the NCDRC, and they grant order of compensation to pay 5 lakhs to the complainant and deposit sum of 25 lakhs in the consumer legal aid account of state commission. Against this order both parties appealed by way of special leave petition to the supreme court. The supreme court bench comprised of Justice. Hima Koli and Justice. Sandeep Mehta delivered a judgment in favour of the complainant by upholding the order of SCDRC. But the supreme court made some changes as order to pay sum of 25 lakhs along with 7.5% of interest to the complainant.
CONCLUSION:
By including medical service into the consumer protection act, the burden of court slightly decreased. It extend the scope of medical cases under the purview of consumer disputes. It create an obligation to the doctors and hospitals to act with due diligence regarding the quality of service provided. It made the Indian laws to blow on the global level. The impact of extending consumer protection to medical service includes transparency, quality of care, patient rights protection, price regulation, insurance coverage , better accountability.
FAQ:
1. Which is the 1st case to include medical service into the ambit of service?
The case of Indian medical association vs. vp shantha is the landmark case , which include the medical service in the ambit of service under consumer protection act
2. Does the mechanism of mediation applicable to medical negligence cases?
The mediation in consumer grievance redressal doesn’t applicable for medical negligence which cause death or hurt.
