Aims Of CPA, 1986 This Act aims to provide better protection to the interests of the consumers To make provisions for the establishment of consumer councils and other authorities to provide speedy and cheap remedy to the consumers. It safeguards the rights of consumers.
TERMS AND TERMINOLOGY USED IN CPA, 1986 Complaint: An allegation shall constitute a complaint where the goods or services mentioned in the complaint suffer from deficiency in any regard. Complainant: Any consumer or voluntary consumer association registered under the Companies act, 1956; or under any other law for the time being in force; the central or state government
Consumer: Any person who buys any goods or avails of any service, for a consideration which has been paid or promised to be paid; either fully or partially or in some form of deferred payment. Consideration: Refers to fees or payment paid to the doctor/hospital. This may be paid; either by the patient or guardian any other person on behalf of patient; and in case of death of a patient; his legal heir
becomes the consumer. Service: “ means service of any description such as banking, financing, insurance, transport, processing, supply of electrical or other energy board or lodging, entertainment, Amusement or purveying of news or other information; but does not include the rendering of any service free of charge or under contract of perosnal service.”
Consumer Dispute: A dispute where a person against whom a complaint has been made denies the allegation. Medical negligence: Medical is falling short of reasonable medical care. Defect: any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force.
Deficiency: 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.
Consumer Protection Councils Under the Act, consumer protection councils have been established at central and state level. Central consumer protection councils consists of 150 members, is chaired by the minister incharge of food and civil supplies in centre and must meet at least thrice in a year: at such place and time as the chairman may think fit.
State Consumer protection council is chaired by Minister incharge of Consumer Affairs or Food and civil supplies. The numbers of members in the state council varies from state to state and it meets at least twice in a year.
Under the Act envisages setting upa three tier quasi judicial redressal mechanism: District forum: This is established by State Government with at least one forum in each district. Each forum consist of 3 members:(b)A person who has been, or is qualified to be a District Judge as the President.(c) A person of eminence in field of education, trade or commerce.(d)A lady social worker, each of whom hold office
for a term of five years or upto 65 years of age . The pecuniary jurisdiction of this is up to Rs. 5 lakhs. Its territorial jurisdiction extends throughout the local limits of the district. Any person aggrieved by an order passed by district forum may appeal to State Commissions within 30 days from date of issue of order.
State Commission: It is at the level of state and compromise of following members:(a) A person who is or has been a judge of a High court shall be the president.(b) Two others members who shall be persons of ability, integrity and standing and have adequate knowledge, or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration; one of whom has to be a woman.
State Commissions has jurisdiction to entertain complaints where value of goods/services exceeds 5 lakhs rupees but is less than Rs. 20 lakhs. Appeals against the orders of any District Forum in the state. To call for case records of district forum and pass appropriate orders in any consumer dispute pending before or decided by district forum. Any person aggrieved by an order made by state commission may appeal to National commission within 30 days.
National Commission It is situated at New Delhi and consists of 5 members as follows:(b)A person who is or has been a judge of supreme court shall be the president.(c) Four other members who shall be persons of ability, Integrity and standing and have knowledge or experience of, or have shown capacity in dealing with problems relating to economics, law, commerce, accountancy, industry, public affairs or administration, of which has to be a woman.
Jurisdiction is to entertain complaints where the value of goods/services and the compensation claimed is more than 20 lakhs. Appeals against the orders of any state commissions; to call for the case records and pass appropriate orders in any consumer dispute which is pending/has been decided by any state commissions. Any persons aggrieved by any order made by National Commission may appeal to supreme court within 30 days of date of order.
Other salient features Limitation period: The various redressal agencies shall not admit a complaint , unless it is filed within 2 years from the date on which the cause of action has arisen. It can be entertained even after 2 years provided there is sufficient cause for the same. Appeals: Appeals will be entertained by both State and National and also supreme courts even after the expiry date of thirty days, if it is satisfied that there was sufficient cause for not filling within that period.
Dismissal of frivolous or vexatious complaints: where a complaint before any of the fora/ commissions is found to be frivolous; it shall dismiss the complaint (reason to be recorded in writing) and pass an order that complainant should shall pay to opposite party such as cost, not exceeding an amount of Rs. 10,000. Penalties: a party or person failing to comply with any order made by District Forum, state or National commissions, shall be punishable :(a) With imprisonment for a term more than month up to three years.
(b) With fine not less than Rs. 2,000 to Rs. 10,000. Enforcement of orders: every order made by these three agencies may be enforced by these as the case may be, in the same manner as if it were a decree by the corresponding civil court. In the event of its inability to execute its own orders, it should send such orders to the corresponding court within the local limits of jurisdiction. Thereafter, the civil courts shall execute the order, as if it was a decree or order sent for execution.
Application of Consumer Protection Act In Hospitals As far as hospitals are concerned, the private hospitals or nursing homes or polyclinics which charge for the services provided, have been included under the ambit of the Act. However government run or aided hospital have been exempted as they do not charge the patients for services provided.
Recent judgement of supreme court A landmark judgement was delivered by the Hon’ble supreme court in 1996,wherein the following decisions were taken:(a) Service rendered to a patient by a medical practitioner (except where the doctor gives service, free of charge to every patient) by way of consultation, diagnosis or treatment (both medical and surgical) will fall within the ambit of service.
The fact that medical practitioners belong to a profession and are regulated by Medical Council Of India, does not exclude them from this act. Service rendered at a non government hospital/ nursing home where no charges are taken from any person availing the same and all patients (both rich and poor) are treated free, will be outside the purview of service. Payment of a “token” amount for registration purpose only will not alter the position.
Service rendered at a non goverenment hospital/nursing home where the charges are paid by those persons who are availing the facilities and are able to pay and other poor patients are treated free of cost shall also treated as ‘service’. Recipient of “free” service would also be a consumer. As regards government hospitals: those hospitals where no charge whatsoever is taken from any patient; rich or poor falls outside the purview of Act. Charging of a “token” amount for registration purposes only will not alter the position. However, services rendered at
government hospitals/dispensaries where some payment is taken from patients who can pay and poor patients are treated free will also fall within the purview of the Act. Service rendered by a medical practitioner or hospital or nursing home cannot be regarded as free of charge, if the person availing service has taken an insurance policy for medical care, where the charges for consultation, diagnosis and treatment are borne by insurance company.
In those cases where as a part of the condition of service, the employer bears the expenses of medical treatment of an employee and his/her dependent members, this would constitute “service” as per the act and could not be considered as being free of charge.
Implications For Health Professionals The doctor patient relationship is a “contract” under which the doctor must continue to provide “reasonable” care as long as the patient is being treated by him/her. There are some high risk which need caution:(b)Failure to attend to patients: Especially children with acute conditions.(c) Retention of objects in operation sites: Swabs, packs, instruments can be left behind if proper counting and retrieval is not done.
(c) Amputation of wrong limb or digit, extraction of wrong eye or tooth: The reasons are carelessness in hospital notes, errors in pre-operative skin marking and failure to check the name of patient in OT.(d) Therapeutic Hazards: These can be avoided by administration of the right drug in the right dose via the right route and informing patient/attendants of potential risk of treatment.
(e)Medical Case Records: It is extremely important to fill up the case sheets carefully and properly; as these can be produced in courts as evidence. In complicated cases, negative findings should be mentioned.(f) Consultations And referrals: These should be done in writing wherever required.(g) Channels of communications: it has often been found that lack or improper communication regarding patient health/illness, leads to litigations. Hence, it is important that patient or attendants should be informed about the diagnosis, treatment and prognosis in
Simple and understandable language.(h) Prescription of non specific/Ayurvedic preparation: It is advisable not to prescribe non specific or Ayurvedic preparation; as the knowledge regarding constituents is not known.
PREVENTION AT PERSONAL LEVEL 1. True and M.C.I. 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. We should refrain from claims of guarantee of results. 2. 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. Interpersonal behaviour: The human face of medical care decides the patients /attendants reaction towards on medical mishap/untoward reaction. The whole system of medical establishment should made courteous, and polite. The special training should be imported to staffs from HRD 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 CMEs, workshops and other academic sessions should also be organized to upgrade our junior staff and nursing team. Medical ethics laws: A through knowledge of medical ethics and laws is essential for all medical professionals. Unless we know about something we cant improve/correct our practice standards so We should always try to get feedback from our patients about our setup, our staff, charges etc.
PREVENTION AT PRACTICEThe reasonable skill & care: There are 3 aspects of reasonable skill and care 1. 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.2. 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. We may be very sincere but failure to exhibit these gestures may lead to doubts in the mind of patients and their relatives.(3) Legal Aspects: This includes documentation about exercising reasonable skill and care in consultation, diagnosis and treatment. This can be done by making good clinical notes of findings on examination and treatment given. (4) Proper Documentation: Please make sure that handwriting is legible.
PREVENTION BY PROFESSIONAL INDEMNITY Insurance cover: Profession 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.• Please clarify in detail about different individual premium rates of insurance in case of insurance, Doctor/nursing home/hospital with qualified staff and unqualified but trained staff because at time of paying compensation there
are many such enquiries are made by insurance company. The insurance companies not only pay the compensation to other party but also arrange for the legal help from advocates because they some time join hand with other party for monetary gains with an excuse that it’s the insurance not the doctor who is to pay the compensation.
GENERAL GUIDELINES FOR LEGAL DEFENSE Not defending yourself and hospital is negligence. We should always make all possible points in defense in first instance of making a reply to the complainant. Subsequent points during hearing of the case are liable to be rejected.(a) TECHNICAL DEFENSES: The medical service rendered was free of charge (now, this is applicable in certain situations only).
The complaints frivolous and vexatiousand liable to be dismissed under section 26of the Act.Inform your insurance company in writingwith a copy of the complaint.Complaint is time-barred.
FACTUAL DEFENSES Mention your qualifications, training, experience, expertise etc. Support with relevant documents. Mention hospitals infrastructure facilities, special facilities, back-up support, it with documents. Complainant has not come to the court with clean hands i.e. he has suppressed material facts, e.g. previous illness, treatment etc. Inconsistence between notices sent directly or through consumer groups and the complaint
Written evidence of consent of the patient/relative/attendant to assumption of inherent and special risks in the treatment. Circumstances of the case; viz. There was emergency, lack of facilities (e.g. rural area) no one to give history of patient’s illness etc. Consolation/treatment by patient from other doctor/other systems of medicine simultaneously. Reasonable knowledge, skill and care exercised (Rely/quote standard text books with