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Consumer protection act in Medical Profession

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Consumer protection act Medical Profession

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Consumer protection act in Medical Profession

  1. 1. Consumer Protection Act in Medical Profession DR HAR ASHISH JINDAL JR
  2. 2. Contents • Rights of a Consumer • Where can a Consumer complain?? • Definitions • Laws in Medical profession • Consumer Protection Act – 1986 (CPA) • Who is liable and Who is not? • Duties of a doctor • Prevention is better • SWOT Analysis
  3. 3. • The Consumers International (CI), former International Organisation of Consumer Unions (IOCU), the umbrella body, for 250 organisations in over 120 countries has endorsed 8 rights. • 1. Safety 2. Choose 3. Information 4. Heard • The Consumer Rights No. 1 to 6 are also enshrined in the Consumer Protection Act, 1986. Rights of a consumer 5. Consumer Education 6. Redress 7. satisfaction of basic needs 8. Healthy Environment
  4. 4. What if the doctor does not treat me right?? PatientDoctor
  5. 5. When a consumer has any complaint / grievance against a Doctor/ Hospital (either Government or Private Hospital) Complaint the Medical Superintendent of the concerned Hospital with copy to Chief Medical Officer of his area not satisfied with the reply of the concerned official then he should send his complaint to the State Medical Council of his area. not satisfied then he can send his complaint to the Medical Council of India. Criminal type complaint - effected consumer can file complaint with the local Police Station- the expert opinion will be required to register any police complaint. File a case with the Consumer Forum, Civil Court and Criminal Court for seeking compensation for damages arising out of wrong treatment or removal of sensitive body parts during operation.
  6. 6. Laws in Medical Profession • Doctors have been liable under laws such as Civil Procedure Code, Indian Penal Code, Law of Contractors, Law of Torts and other specific Legislation. • under Section 304-A of the Indian Penal Code (IPC), the doctor who commits criminal liability is punishable with imprisonment for a term which may extend upto two years, or with a fine, or both. • Civil liability- arises in case of medical service rendered on payment of fee, under section 73 and 74 of the Indian Contract Act 1986 • Under the Law of Torts (a wrong that is independent of contract) civil liability is applicable to doctors on the Grounds of professional misconduct.
  7. 7. Need for CPA Drawbacks Indian Penal Code, Law of Contracts, Law of Torts and other specific Legislation: • (i) Delay to decisions ; • (ii) High cost of bringing an actions; • (iii) limited access to the courts ; • (iv) Difficult to prove both negligence and causation. No provisions in the Indian Medical Council Act, 1956 ; • (i) to entertain any complaint from the patient ; (ii) to award any compensation, etc. in case the negligence is proved
  8. 8. Definitions Who is a Consumer in medical profession.. • A patient who pays to get services of doctor /hospital, • Any person who pays for the patient, legal heirs / representatives of such patients, • In case of death of patient who is a consumer, legal heirs (representatives) of the deceased will be considered as "consumer". • If the payment has been made by any person who is not a legal heir of the deceased he too will be considered as "consumer.
  9. 9. What is a Complaint? • Any allegation, in writing made by a complainant that the services hired or agreed to be hired or availed of by him suffer from deficiency in any respect. Who is a Complainant? • Complainant means - (i) a consumer ; or (ii)the Central Government or any State Government (iii) any registered voluntary consumer association (iv) one or more consumers, where there are numerous consumers having the same interests ; who or which makes a complaint. Definitions
  10. 10. Definition • Service means any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information but DOES NOT INCLUDE THE RENDERING OF ANY SERVICE FREE OF CHARGE OR UNDER A CONTRACT OF PERSONAL SERVICES.
  11. 11. Negligence • Professional negligence - the breach of a duty caused by the omission to do something which a reasonable man guided by those considerations would do or doing something which a prudent and reasonable man would not do. • Medical negligence or malpractice - lack of reasonable care and skill or willful negligence on the part of a doctor in the treatment of a patient whereby the health or life of a patient is endangered. Example : If a junior doctor is involved as part of a surgery, then his duty, as far as the exercise of the specialist skill is concerned, is to seek the advice or help of a senior doctor. He will have discharged his duty once he does this and will not be liable even if he actually commits the act which causes the injury ,anything apart from his duty has a liability of negligence .
  12. 12. Consumer Protection Act(CPA) • The CPA, 1986 is a benevolent social legislation that lays down the rights of the consumers and also provides means for their promotion and protection. • In 1993, the Supreme Court brought the medical profession under the Section 2(1) (o) of CPA. Features: • safeguard and protect the interest of consumers. • simplification of procedures for seeking redressal of grievances of patients or their relatives. • less expensive • within a limited time frame
  13. 13. How doctors are included in CPA?? • The National Consumer Disputes Redressal Commision’s order decreed that the doctor - patient relationship is a contract for personal service and it is not master - servant relationship. • The doctor-patient relationship is a contract for personal service and could not contract of personal service • Hence patients who had sustained injuries in the course of treatment can sue doctors in consumer protection courts for compensation.
  14. 14. Administration Consumer Protection Councils Central Councils Chairperson: Minister in- charge of the Department of Consumer Affairs in the Central Government State Councils Chairperson: Minister in- charge of the Consumer Affairs in the State Governments District Councils Chairperson: District Collector AIM: promoting consumer aware Resolution passed by these Councils are be recommendatory in nature.
  15. 15. 3 tier system of CPA State Commission District forum National Commission
  16. 16. Where is a complaint filed? District Forum • if the value of services and compensation claimed is less than Rs. 20 lakh State Commission • if the value of the services and the compensation claimed does not exceed more than Rs.1 crore. National Commission • if the value of the services and the compensation exceeds more than Rs 1 crore .
  17. 17. District Forum • Chairman : a person who is qualified to be a District Judge • Two or more members who have adequate knowledge or experience in dealing with problems relating to various fields, one of whom is a woman State Commission • Chairperson: a person who is or has been judge of a High Court, appointed by the State Government • two other members with qualifications and experience (as for District Forum) within the State National Commission • Chairperson: a person who is or has been a judge of the Supreme Court to be appointed by the Central Government. • 4 or more other members ,one of whom shall be a woman Chair person and Members
  18. 18. Location District Forum • Rohtak District Consumer Court/Consumer Forum • 3rd Floor Court No. 14 • New Judicial Complex Mini Secretariat • Rohtak,Haryana- 124001 • Ph: 01262-245550 State Commission • Haryana State Consumer Disputes Redressal Commission, Bays No3-6, Sector 4 Panchkula – 134112 • Ph:0172-2567601 National Commission • National Commission Upbhokta Nyay Bhawan,'F' Block, GPO Complex, INA, New Delhi-110 023 • Telephone Nos. 011-24608801
  19. 19. Who is liable? • All medical/dental practitioners doing independent medical/dental practice unless rendering only free service. • All Private hospitals charging patients. • All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals. • Medical/dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.
  20. 20. When is the doctor liable? Wrong Judgement Mere error in Judgement When a doctor takes a decision that turns out to be wrong but in that situation it seemed correct- inadvertent death All aspects covered but in retrospect highlights the cause of error Negligence Not all the scenarios were covered
  21. 21. How does adjudication of liability take place? Complainant files a written complaint the forum/ Commission, admits the complaint sends a written notice to the opposite party asking for a written version to be submitted within 30 days. proper scrutiny either filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and judicial decisions.
  22. 22. How does adjudication of liability take place? The Forum/ Commision is satisfied that any of the allegations contained in the complaint about the services are proved Issue an order to the opposite party directing him compensation to the consumerFee waiver To remove the deficiency in the services
  23. 23. I am innocent Where should I go?????
  24. 24. Provision of appeal !!! Within 30 days • An appeal against the decision of the District Forum can be filed before the State Commission. Within 30 days • An appeal against the decision of the State Commission to the National Commission Within 30 days • An appeal against the decision of the National Commission to the Supreme Court
  25. 25. TIME SCHEDULE FOR DISPOSAL OF COMPLAINTS/APPEALS • Every complaint  decided within  90 days from the date of receipt of notice by opposite party, where there is no requirement for testing of sample etc. In the event of such a requirement, the prescribed time is 5 months. • Appeals disposed of within a period of 90 days. • If a complaint/appeal is disposed of after the specified period, then the Forum/Commission records the reasons for the delay in writing.
  26. 26. FEE FOR FILING A COMPLAINT [Section 12(2)]
  27. 27. FEE FOR FILING A COMPLAINT [Section 12(2)]
  28. 28. Conditions of CPA Limitation Period • File the complaint within 2 years from the date on which the cause of action has arisen. Dismissal of frivolous or vexatious complaints • the case found to be frivolous or vexatious, the complaint is dismissed and an order is made that the complainant pays a cost , not exceeding 10,000 rupees, to the opposite part.
  29. 29. Conditions of CPA Penalties • Where the defendant or the complainant fails to comply, then it may be punishable with imprisonment for a term which is not be less than one month but which may extend to three years, or with fine which is not be less than Rs 2,000 but which may extend to Rs 10,000 or with both
  30. 30. Doctor - Innocent or guilty ???? • In order to achieve success in an action for negligence, the consumer must be able to establish to the satisfaction of the court that : – the doctor (defendant) owed him a duty to conform to a particular standard of professional conduct ; – the doctor was derelict and breached that duty ; – the patient suffered actual damage – the doctor’s conduct was the direct or proximate cause of the damage. • Failure to provide substantialize evidence on any one element may result in no compensation.
  31. 31. When is their a breach of duty ??
  32. 32. Duties of a doctor On the basis of Codes of Ethics (MCI, 2002) and Declarations, the duties of a doctor are - • 1. Duties to the Patient: These are : Standard Care, Providing Information to the Patient /Attendant , Consent for Treatment, and Emergency Care. 2. Duties to the Public. 3. Duties towards Law Enforcers. 4. Duties not to violate Professional Ethics. 5. Duties not to do anything illegal or hide illegal acts. 6. Duties to each other.
  33. 33. When does a question of duty arise? • Duty towards a patient begins the moment a doctor agrees to take on the case. He must not, therefore, abandon his patient1 • Supreme court ruling “every doctor, at the governmental hospital or elsewhere, has a professional obligation to extend his services with due expertise for protecting life”- restricted to situations where there is danger to the life of the person.2 1.Laxman Joshi v Babu Godbole, AIR 1969 SC 128 2.Parmanand Kataria vs. Union of India[1996]
  34. 34. Doctor - patient Contract • The doctor-patient contract is almost always of the implied type, except where a written informed consent is obtained. • An implied contract is where one person renders services under circumstances indicating that he expects to be paid and the other person knowing such circumstances, avails himself of benefit of those services Express consent • Express oral consent is obtained for relatively minor examinations or therapeutic procedures, preferably in the presence of a disinterested third party.
  35. 35. Informed Consent. • Express written consent is to be obtained for : (i) all major diagnostic procedures and surgical operations, (ii) general anesthesia, (iii) intimate examinations, (iv) examination for determining age, potency and virginity, and in medico-legal cases • Must be explained in comprehensible non-medical terms preferably in local language about the (a) diagnosis, (b) nature of treatment,(c) risks involved, (d) prospects of success, ( e) prognosis if the procedure is not performed, and (f) alternative methods of treatment.
  36. 36. Reasonable Care • It means that the degree of care and competence that an “ordinary competent member of the profession who professes to have those skills would exercise in the circumstance in question.” • Generalist and specialist are expected to take reasonable care but what amounts to reasonable care with regard to the specialist differs from what amount of reasonable care is standard for the generalist. • The law expects the specialist to exercise the ordinary skill of his speciality and not of any ordinary doctor.
  37. 37. Treat according to Reasonable Skill - Not to undertake any procedure beyond his skill I should go to a specialist!!!! MD TAKE HELP in • Any complicated cases • Performing an operation which may be dangerous to life or requiring amputation • Operating on a case in which there has been a criminal assault, • Performing an operation which may affect the intellectual or reproductive functions of a patient. MD
  38. 38. Professional Secrets • A professional secret is one which a doctor comes to learn in confidence from his patients, on examination, investigations or which is noticed in the ordinary privacies of domestic life. • A doctor is under a moral and legal obligation not to divulge any such secret except under certain circumstances. • Privileged communication is defined as a communication made by a doctor to a proper authority who has corresponding legal, social and moral duties to protect the public.
  39. 39. Duty not to violate Professional Ethics 1.. 2 3. Not. Not to run a medical store / open shop for sale of medical and surgical instruments. Not to indulge in self-advertisement Not to associate with unregistered medical practitioner and not allow them to practice Not to issue false certificates and bills India
  40. 40. Not to attend patient when under the effect of alcohol No fee sharing Not to talk loose about colleagues Not to refuse professional service on grounds of religion, nationality, race, party politics or social status.
  41. 41. Duty not to do anything illegal or hide illegal acts 1. Perform illegal abortions / sterilization’s 2. Issue death certificates where cause of death is not known. 3. Not informing police a case of accident, burns, poisoning, suicide, grievous hurt, gas gangrene. 4. Not calling Magistrate for recording dying declaration. 5. Unauthorized, unnecessary , uninformed treatment and surgery or procedure. Sex determination
  42. 42. Prevention • PREVENTION AT PERSONAL LEVEL • PREVENTION AT PRACTICE • PREVENTION BY PROFESSIONAL INDEMNITY • PREVENTION BY PEOPLE SUPPORT GROUPS
  43. 43. PREVENTION AT PERSONAL LEVEL • True and M.C.I. approved qualification, training & experience of recognized centers are the primary safeguards against any litigation. • Refrain from claims of guarantee of results.
  44. 44. PREVENTION AT PERSONAL LEVEL • Communication: This is the key to doctor-patient relationship. • Increasing crowds of patients and improper communication to patient about diagnostics and treatment procedures, complications and claims of guarantee success are main reasons for patient dissatisfaction. • Answer all queries of the patients/relative without getting irritated and patiently. • Do not be averse of any demand/suggestion for second opinion by patient/relatives. • Keep empathy
  45. 45. PREVENTION AT PERSONAL LEVEL Interpersonal behaviour • The whole system of medical establishment should be made courteous, and polite. • The special training should be imparted to experts about dealing with patients/relatives under grievous mental stress due to some loss/injury. Academic & technical up gradation • To keep pace with fast changing scenario of technical advancement, one should regularly attend CME’s, workshops and other academic sessions should also be organized to upgrade our junior staff and nursing team.
  46. 46. PREVENTION AT PERSONAL LEVEL • A thorough knowledge of medical ethics and laws is essential for all medical professionals. GET A FEEDBACK >>>>IMPROVE
  47. 47. PREVENTION AT PRACTICE • The key steps are exercising reasonable skill and care in diagnosis and treatment, documentation and legally valid informed consent. • The reasonable skill & care • There are 3 aspects of reasonable skill and care 1. Medical 2. Social 3. Legal
  48. 48. PREVENTION AT PRACTICE • Medical aspect First and foremost it is imperative for every doctor/hospital/nursing home to exercise reasonable skill and care expected of an average person with equivalent qualification and experience in similar circumstances. • Social aspect We should always exhibit our reasonable skill and care to the patient/attendants/relatives, through expressions, body language, actions and discussions. These must be visibly palpable
  49. 49. • Make good clinical notes of findings on examination and treatment given with specific dates and time. • Negative records act as important tool while defending the cases in court of law. • Please make sure that your handwriting is legible. PREVENTION AT PRACTICE(Legal aspects) DOCUMENTATION!!! DOCUMENTATION!!!DOCUMENTATION!!.
  50. 50. PREVENTION BY PROFESSIONAL INDEMNITY • " indemnity " means reimbursement, to compensate. Insurance cover • Provides the claim of compensation awarded against doctor/hospital • Gives a sense of mental security (even in cases of same negligence). • Arrange advocates for the legal help
  51. 51. PREVENTION BY PEOPLE SUPPORT GROUPS • Societies – – Provides social security – regular fellowship that prohibit the doctors speaking foul against their own colleague. • Acts as an update as time to time discussions about various provisions of acts, cases fought and their results and the lessons learnt from them. • Acts as a pressure group on the dissatisfied patient on moral and emotional grounds.
  52. 52. SWOT ANALYSIS
  53. 53. • Highly technical orientation of the Medical field • Declining credibility of medical Profession. • Professional jealousy. • Lack of objectivity and empirical nature of several regimens • Commercialization of medical profession. • Inept medical record keeping • Lack of staff • Pending cases • Corrupt lawyers • Valued as noble profession • Giant strides in the medical profession • Significant proportion of doctors committed to protect the Rights of the Consumers. • Strong consumer movement in the country. • Revives the Hippocratic Oath • Vigilant press. Strengths Weaknesses
  54. 54. • Low level of awareness among patient and doctors. • Illiteracy and low socio- economic status of patients. • Exaggerated claims encouraged by lawyers. • Tendency of insurance companies to opt for out of court settlements. • Growing urge to practice defensive medicine • Growing patient consciousness for quality care. • Successful application of the CPA to other services/goods. • Possibility of strengthening of MCI Agreeing to the application of CPA • Realisation of need for regular CME programmes. • Clinicopathological meets in instances of medical negligence. ThreatsOpportunities
  55. 55. Final verdict With CPA medical profession may seem vulnerable, but it forces the medical personnel's to be more responsible , accountable and remain upto date to serve the society in a more effective and an efficient way, though a legal assurance, ensuring protection from unnecessary and arbitrary complaints, is the need of the hour.
  56. 56. References: 1. Smreeti Prakash A comparitive analysis of various legal systems regarding medical negligence: Criminal Consumer & Torts law 2005 2. http://ncdrc.nic.in/ 3. Dr. Mukesh Yadav, "Criminal Negligence by Doctors-A Scenario of Aggressive Patients, Confused Doctors and Divided Judiciary!", IIJFMT 2(4) 2004. 4. N.Satyanarayana, G. Vijaya Kumar, "Consumer Protection Act and the Medical Profession", IndMedica, 2006. 5. Talha Abdul Rahman, "Medical negligence and doctors' liability", Indian Journal of Medical Ethics, April-June, 2005

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