CONTENTS

I. Introduction

II. About the consumer protection act

I. Structure of consumer forums

III. Other legal avenues available to aggrieved patients

IV. Do’s & Don’ts for doctors

V. Preventive measures to avoid litigation

VI. Conclusion

VII. Bibliography
INTRODUCTION

“Thou shall be free from envy, not cause another’s death, and pray for the
welfare of all creatures. Day and night thou shall not desert a patient, nor
commit adultery, be modest in thy attire and apperance, not to be derunkand
or sinful, while entering the patient’s house, be accompanied by a person
known to the patient. The peculiar customs of the patient’s household shall
not be made public”.

(Charaka’s Oath – 1000 B.C.)

Charaka’s Oath (1000 B.C.) and Hippocratic Oath (460 B.C.) illustrates the
duties and responsibilities of the persons who adopt the noble profession of
Medicine & Dentistry. However, the events, which have been taking place in
recent times, have raised doubts in minds of members of society on the
sincerity & commitment of those in profession to adhere to Hippocratic
Oath. In fact, dental & medical negligence is a matter of major concern
today only in India but all over the world.

Doctors are liable under prevailing laws such as Civil Penal Code, Indian
Penal Code, Law of Contractors, and Sale of goods Act. Law of Torts &
Other specific legislation. Under section 304-A of the IPC, the doctor who
commits criminal liability is punishable with imprisonment for a term,
which may extend up to 2 years or with a fine or both.

But such codes & laws were cumbersome and there was a need for an act
meant specifically for the medical or dental professionals.
 CONSUMER PROTECTION ACT
(CPA/COPRA)

The Consumer Protection Act, 1986 that came into force on 15th April 1987
is a milestone in the history of socio-economic legislation in the country. It
is one of the most progressive and comprehensive piece of legislations
enacted for the protection of consumers.

The main objective of the act is to provide for the better protection of
consumers. Unlike other laws which are punitive or preventive in nature,
the. provisions of this Act are compensatory in nature. The act is intended to
provide simple, speedy and inexpensive redressal to the consumers'
grievances, and relief of a specific nature and award of compensation
wherever appropriate to the consumer. The act has been amended in 1993
and in 2002 both to extend its coverage and scope and to enhance the powers
of the redressal machinery.

Who is liable?

1. All medical/dental practitioners doing independent medical/dental

practice unless rendering only free service.

2. Private hospitals charging all patients.
3. All hospitals having free as well as paying patients and all the paying
and free category patients receiving treatment in such hospitals.
4. Medical / dental practitioners and hospitals paid by an insurance firm
for the treatment of a client or on employment for that of an
employee.
Who is not liable?

It exempts only those hospitals and the medical/dental practitioners of such

SUPREME COURT
(Final Appeal)

NATIONAL COMMISSION
Appellate Authority over State Commission
Original Jurisdiction
Over Rs.20, 00,000

STATE COMMISSION
Appellate Authority for District Forum
Suo moto Revision
Original Jurisdiction over Rs. 5,00,000 up
to Rs. 20,00,000

DISTRICT FORUM
Original Jurisdiction up to Rs. 5,00,000

hospitals which offer free service to all patients.

The Act envisages three- tier quasi-judicial machinery at the National
(National Commission), State (State Commission) and District levels
(District Forum).

Structure of consumer forums / commissions and their jurisdictions:

As per the consumer Protection Rules, 1987, a complaint filed in the

Consumer Forum / Commission shall be adjudicated, within a period of 90
days from the date of notice by opposite party and within 150 days if it
requires analysis or testing of commodities.

The Consumer Protection (Amendment) Act, 1993 has introduced a new

section, stating that the forums shall not admit a complaint unless if it is
filed within 2 years from the date of cause of action.

Further, a complainant/opposite party can present his case on his own

without the help of a lawyer.

The Consumer Protection (Amendment) Act, 2002 has increased the claim
amount at different levels as,

National commission - over Rs. 1 crore

State commission to Rs. 1 crore - over Rs; 20 lakhs up

District forum - up to Rs. 20 lakhs

DISTRICT FORUM

This shall consists of:

1. A person who is, or has been or is qualified to be a District Judge,

who shall be its president
2. Two other members who shall be persons of ability, integrity and

standing and have adequate knowledge or experience of or shown

capacity in dealing with problems relating to economics, law,
commerce, accountancy, industry, public affairs or administration,
one of whom shall be a woman.

Jurisdiction of District Forum

The District Forum shall be jurisdiction to entertain complaints where the

value of goods or services and the compensation, if any, claimed does not
exceed rupees twenty lakhs.

A complaint may be filled with a District Forum by:

• The consumer to whom such service is provided or is agreed to be
provided.

• Any recognized consumer association, whether the consumer to

whom the service is provided or is agreed to' be provided is a number
of such association or not

• One or more consumer, where there are numerous consumers having

the same interest, with the permission of the district forum, on behalf
of, or for the benefit of, all consumers so interested
STATE COMMISSION

It shall consists of:

1. A person who is or has been judge of a High Court, appointed by the

State Government, who shall be its President.
2. Two other members with qualifications and experience (as for District
Forum) within the State.

Jurisdiction of State Commission

 The State Commission shall be jurisdiction to entertain complaints

where the value of goods or services and the compensation, if any,
claimed is between rupees twenty lakhs and rupees one crore.
 Revision, petitions against the District Forum.

Procedure of hearing appeal by State Commission:

Procedure of the State Commission for entertaining original complaints is

the same as for District Forum. Appeal may be decided ex parte in case the
opposite party fails to file a reply to the appeal and / or fails to repair himself
or through his agent / advocate on the date fixed. It may be decided on merit,
in case the appellant falls to appear on the date fixed for hearing.

Appeals against orders of State Commission

Any person aggrieved by on order made by the State Commission may

appeal against such order to the National Commission within a period of 30
days. The National Commission may entertain an appeal after 30 days if it is
satisfied that there was sufficient cause for not filling it within that period.
NATIONAL COMMISSION

This shall consists of:

1. A person who is or has been a judge of the Supreme Court to be

appointed by the Central Govemment who shall be its President.
(Appointment under this clause shall be made after consultation with
the Chief Justice of India).

2. Four other members (qualification: As for District Forum/State

Commission), one of whom shall be a woman.

The National Commission shall have jurisdiction:

1. To entertain

(a) Complaints where the {value of goods services &

compensation if any, claimed exceeds rupees one crore; and
(b) Appeals against the orders if any State Commission.

2. To entertain revision petitions against the State Commission.

Procedure to be followed by the National Commission:

A complaint containing one following particulars shall be presented by the

complainant in person or by his agent to the National Commission or be sent
by registered post, addressed to the National Commission:

1. The name, description and the address of the complainant

2. The name, description and address of the opposite party or parties

3. The facts relating to the complaint and when and where it arose
4. Documents in support of allegations contained in the complaint.
 5. The relief which the complainant claims

The remaining procedure is similar to that for State Commission.

Appeal against orders of the National Commission:

Any person aggrieved by order mode by the Notional Commission may

appeal against such order to the Supreme Court within 30 days from the dote
of the order.

The Supreme Court may entertain on appeal after 30 days if it is satisfied

that there was sufficient cause for not filing it within that period.

OTHER LEGAL AVENUES AVAILABLE TO AGGRIEVED

PATIENTS

a) Medical Council of India and Dental Council of India

b) Civil Courts
c) MRTP (Monopolies and Restrictive Trade Practices Commission)
d) Public Interest Litigation
e) Sections of Indian Penal Code, 1860

Medical Council of India / Dental Council of India

The affected person can complain to the Medical Council of India / Dental
Council of India or the state council.

Civil Courts

The aggrieved patients can file a case against the doctor for monetary
compensation for which the patient has to pay court fees that depends upon
the compensation sought.

The legal remedies are based on the law of Torts; Section 1 -A of the Fatal
Accidents Act, 185536 and the Section 357 of Cr. PC., 197337. But to avail
it, an aggrieved patient hove to wait for years and spend considerable
amount of money on litigations.

The civil court cases take the route of Sub Court, District Court, High Court
and Supreme Court.

Monopolies and Restrictive Trade Practices Act (MRTP), 1969

This Act is the precursor of CPA, 1986. Before the advent of CPA, this act
was the only resource to consumers against the unfair trade practices. The
commission that looks into the disputes brought under MRTP Act is based in
New Delhi

Public Interest Litigation (PIL)

An aggrieved patient can directly approach the High Court or the Supreme
Court when his/her grievances are n9t properly redressed. PIL's are usually
resorted when public health programs are not implemented properly.

Indian Penal Code and Medical Negligence

Indian Penal Code, 1860 sections 52, 80, 81,83,88,90,91,92 304-A, 337 and
338 contain the law of medical malpraxis in India.

A physician can be charged with criminal negligence when a patient dies

from the effects of a drug or other kind of treatment, if it can be proved that
the death was the result of malicious intention, or gross negligence. Before
the administration of any drug or performance of an operation, the medical
man" is expected to follow the accepted precautions. In such cases, the
physician should be able to prove that he used reasonable and ordinary care
in the treatment of his patient to the best of his judgment. He is, however,
not liable for on error judgment. The law expects a duly qualified physician
to use that degree of skill and care which an average man of his
qualifications ought to have, and does not expect him to bring the highest
possible degree of skill in the treatment of his patients, or to be able to
guarantee cures.

The Indian courts have been very careful not to hold qualified physicians
criminality (instances of quacks for criminal negligence are there) liable for
patients deaths that are the result of a mere mistake of judgment in the
selection and application of remedies and when the death resulted merely
from on error of judgment or an inadvertent death.

Do's for Doctors

Mention your qualifications/ training/ experience/ designation on the

prescription. Qualifications mean recognized degrees/ diplomas. Mention of
scholarships/ membership/ awards which are not qualifications should be
avoided.

• Always mention date and timing of the consultation.

• Mention age and sex of the patient. In a pediatric prescription, weight
of the patient must also be mentioned.
• Listen attentively. Look carefully. Ask questions intelligently.
• It after completing the examination, the patient/ attendant feels that
 something has been left out or wants something to be examined,
oblige him.
• Always face the patient. Do not stare. Some patients tolerate very
little eye contact. Learn to observe out of the corner of your eyes.
• In case you have been distracted/ inattentive during the history taking,
ask the patient/ attendant to start ell over again. He will never, mind it.
As far as possible, consultations should not be interrupted for non-
urgent calls.
• Ask the patient to come back for review the next day, in case you
have examined him hurriedly or if you are not sure about the
diagnosis/ treatment.
• Mention "diagnosis under review” until the diagnosis is finally settled.

• In complicated cases, record precisely the history of illness and

substantial physical findings about the patient' on your prescription.
• If the patient/ attendants are erring on any count (history not reliable,
refusing investigations, refusing admission) make a note of it or seek
written refusal preferably in local language with proper witness.
• Mention the condition specific/objective terms. Avoid vague non-
specific terminology.
• Record history of drug allergy.
• Write names of drugs clearly. Use correct dosages and mention
clearly method and interval of administration.
• Mention additional precautions, e.g., food, rest, avoidance of certain
drugs, allergens, alcohol, Smoking, etc., if indicated.
• Give instruction to the patient in comprehensible terms, making sure
that the patient understands both the instruction and the importance of
 strictly adhering to them,
• Mention likely side-effects, and action to be taken if they occur.
• Always advice the patient not to stop taking a drug suddenly, which is
required to be tapered before it is stopped.
• Mention if patient/ attendant is under effect of alcohol/ drugs.
• In case a particular drug/ equipment is not available, make a note.
• Mention whether prognosis is explained. If necessary take a signature
of patient/ attendant, after explaining the prognosis in written local
language.
• Mention where the patient should contact in case of your non-
availability/ emergency.
• Whenever referring a patient, provide him with a referring note.
• In case of emergency/ serious illness, ring .up the concerned doctor in
the patient's presence. Show your concern.
• Update your knowledge and skill from time to time. Update the
facilities and equipment according to prevailing current standards
in your area.
• Preferably employ qualified assistants.
• Always obtain a legally valid consent before undertaking surgical
diagnostic procedure. Learn the difference between "informed
persuasion" and "informed consent". The first is, legally wrong,
through at times it may be medically correct
• Routinely advise X-rays in injury/ diseases of bone and joints
• Always rule out pregnancy before subjecting the uterus to X-ray.
• Always read reports carefully and interpret the results of tests/ X-rays
properly and make a note of it.
• Always seek proper legal and medical advice before filing reply to the
 complaint referred to you from a consumer court.
While administering an injection/drug always check:

1. Name of the drug

2. Expiry date
3. Reconfirm the route of administration
4. If it is to be diluted, check the dilution factor.

5. Rate of administration (fast, slow, in drip, etc.)

6. That a disposable syringe and needle are used.
7. In case the patient is agitated/ not co operating, restrain him properly
with 1 or 2 assistants or wait until he calms down. It is not unusual for
a broken needle leaking to a claim for compensation
8. Confirm that it has been kept at the required temperature

Don'ts for Doctors

1. Don't prescribe without examining the patient, even if he is a close

friend or relative
2. Never examine a female patient without presence of female nurse/
attendant
3. Don't insist on the patient to tell the history of illness or be examined
in presence of others. He has right to privacy and confidentiality.
4. Do not permit considerations of religion, nationality, race, party,
politics or social standing to intervene between you and your patient.
5. Don't smoke while examining a patient.
6. Don't examine a patient when you are sick, exhauster, or under
influence of alcohol or any intoxicated substance.
7. Don't be overconfident. Don’t look overconfident.
8. Don’t' prescribe a drug pr indulge in a procedure of you cannot justify
its indication, or a drug which is banned
9. Don't write instructions on a separate slip. Don't allow substitutions.
10.Don't adopt experimental method in treatment. If there is some
rationale do it only after informed consent.
11.Don't do anything beyond your level of competence. Competence is
defined by your qualification, training and experience.
12.When you are not sure what and why to do, consult your senior/
specialist/ colleague.
13.Don't refuse if the patient/ attendants want to leave against medical
advice. It is their right. Document this properly.
14.Don't withhold information, however harsh and difficult. The doctors
and especially their assistants must train in the art of sensitive
communication. It would, be wise to take into confidence the family
members, close relatives and friends; this would often make the
acceptance easier and quicker.
15. Don't leave at the moment of death. There is a tendency especially on

the part of senior doctors to go away at this time when his presence
and experience are most needed.
16.Don't hesitate to extend your condolences and sympathies to the
bereaved persons.
17. Don't deny medical care to a patient with HIV infection/ AIDS.

Observe all necessary precautions.

18. Don't inform that the person is infected with HIV unless confirmatory

test results' are received. Don't give untrue, misleading or improper

reports, documents, etc.
19. Don't refuse the patient's right to examine and receive an explanation
 about your bill regardless of the source of payment; whether or not it
is reimbursed by the government or by his employer/ insurance
company.

PREVENTIVE MEASURES –

How To Avoid Litigation

1. True and MCI / DCI approved qualification

Training & experience of recognized centers are the primary

safeguards against any litigation. The prescription heads, signboards
and advertisements should mention the actual facilities available.
Refrain from claims of guarantee of results.

2. Communication / Interpersonal behavior

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 guaranteed success
are main reasons for patient dissatisfaction. So it is desirable for us to
give our behavior a human face with a sympathetic attitude. We must
answer all queries of the patients/relative without getting irritated and
patiently. We should not be averse of any demand/suggestion for
second opinion by patient/relatives. The right of patient/relatives to
seek explanation about the bill should not be denied.

The whole system of medical establishment should be made

courteous, and polite. Special training should be imported to the staff
about dealing with patients/relatives under grievous mental stress due
to some loss/injury.
3. Academic & technical upgradation

To keep pace with fast changing scenario of technical advancement,

one should regularly attend continuing education programs,
workshops and other academic sessions and should also organize
workshops to upgrade the auxiliaries.

4. Medical/dental ethics and laws

A through knowledge of ethics and laws is essential for all medical

professionals. This helps in improving/correcting the practice
standards. Feedback from patients about the setup, staff, charges etc,
will give an idea about further improvement/ improvisation. Proper
documentation is also an important factor.

5. Prevention by professional Indemnity (Insurance cover)

Professional indemnity insurance is a tool, which not only meets the

claim of compensation awarded against doctor/hospital but also gives
a sense of mental security that even if same negligence is proved the
insurance company will take care of it. The insurance companies not
only pay the compensation to the other party but also arranges for
legal help from advocates.
CONCLUSION

After the Consumer Protection Act, 1986, came into effect, a number of
patients have filed cases against doctors. Although, no human being is
perfect and even the most renowned specialist could make a mistake in
detecting or diagnosing the' true" nature of a disease, the doctor/ dental
surgeon can be held liable for negligence only if one can prove that she/ he
is guilty of a failure that no doctor with ordinary skills would be guilty of if
acting with reasonable.

BIBLIOGRAPHY

1. Essentials of preventive and community dentistry – SOBEN PETER

2. Text Book of Preventive & Community – JOSEPH JOHN

3. Internet