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CPA

Consumer Protection Act Medical Negligence

Medical profession is the most pious and noble profession, doctors are considered as parallel to all mighty as they deal with human life. Recently Gujarat High Court applauded medico in this pandemic time and said “Doctors are personification of God on earth”. But the fact is gone are the days when patients considered doctors as god and trust them, now the Medical professionals owe a duty towards their patients and are bound by contract of services, cause of action against medical professional for negligence arises out of any breach in duty.

Medical Negligence basically is malpractice, an act or omission (failure to act) by a medical professional that deviates from the accepted medical standard of care.

Medical Negligence in India is both a criminal offence under the CRPC and a Civil Liability under the Law of Tort.

In India, a person aggrieved by medical negligence can file a civil or criminal suit, approach the state medical council, or file a complaint with a consumer court. However, civil suits are rarely filed as they require the payment of court fees which can often be prohibitive. Criminal complaints too are rare because of statutory safeguards, Patients however are in the notion that state councils are ineffective and biased in dealing with negligence cases.

Bail & Anticipatory Bail

It is noteworthy that the West Bengal medical council rejected the complaints against doctors in the landmark Saha’s case whereas the APEX court of India awarded the highest compensation of Rs. 6 crore for medical negligence in Kunal Shah’s case.

Most of the medical negligence cases in India fall under the ambit of consumer protection laws or we can say that the patient party is keener to sue the medical professionals under consumer protection act (CPA) as it includes the claim for damages suffered in form of compensation.

CPA, defines that a consumer is one who purchases goods or services for his personal use and not for resale and pays or promises to pay consideration for that goods or services.

The National Consumer Disputes Redressal Commission (NCDRC), has elaborated the definition in a recent case wherein the District Medical officer and in-charge of Government Bangar Hospital in Rajasthan’s Pali district were held guilty of negligence which resulted in the death of a road accident victim in 2001. The hospital has been ordered to pay Rs 10 lakh penalty by a bench comprising president Justice D K Jain and member M Shreesha.

The learned court held that “that patients who are treated for free at government hospitals also fall under the definition of 'consumers' and can file a case in consumer forums against hospitals for negligence”.

With the growth of consumer awareness with the punchline “Jago Grahak Jago”, medical negligence cases have spread like wildfire and courts sometimes decide the cases with a sympathetic mindset.

One needs to understand and open the dimension on what is negligence, all complications are not negligence. An extract from the landmark case of medical negligence Jacob Mathew:

"A surgeon with shaky hands under fear of legal action cannot perform a successful operation and a quivering physician cannot administer the end-dose of medicine to his patient."

AICL

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