Consumer Protection Act and the Medical Profession

Introduction

Charaks’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. “However, the events, which have been taking place in recent times, have raised doubts in the minds of members of society on the sincerity and commitment of those in the profession to adhere to the Hippocratic oath (460 B.C.).” In fact, medical negligence is a matter of major concern today not only in India but all over the world. For instance, malpractice litigation has become rampant in the U.S.A. with colossal damages being awarded. AT the standards in the medical profession are deteriorating.? Pursuits of money rather than the pursuit of excellence appears to be the most important motive force in patient care (Desh Pande, 1992).

Doctors are liable under the prevailing laws such as Civil Penal Code, Indian Penal Code, Law of Contractors, Sale of Goods Act, Law of Torts and other specific Legislation.? Under S\section 304-A of the Indian Penal Code (IPC), the doctor who committee 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 (L.D. Lele, 1992). Under the Law of Torts (a wrong that is independent of contract) civil liability is applicable to doctors of all categories, that is whether they provide their service for a fee or as charity without doctors committing professional misconduct and it can direct the removal of the name of any person enrolled on a State Medical Register on the Grounds of professional misconduct.? the above-mentioned laws have some drawbacks such as:-

1. 1. Delay in Justice?
   2. Huge legal fee
   3. Limited access to the courts
   4. Difficulties involved in proving both negligence and cause
   5. Deficiency in IMC Act; Such as:
      1. 1. Lack of Provision to receive complaints from patients.
         2. to award any compensation when negligence

       

Every profession has its guidelines and needs a scrutiny. Every professional body should ideally scrutinize whether their members are following the principles and practices as laid down by their ethics. Unfortunately MCI and other Associations have not been efficient, the only alternative is CPA 1986.

The CPA was passed by the Indian Parliament to safeguard and protection the interest of consumers. CPA aims at simplification of procedures for seeking redressal of grievances of patients or their relatives. The process can be initiated without any cost or without any court fee.

The principle of consumer protection is essentially the protection of the unwary customer against the trader, who might be unscrupulous in the quality of the saleable material to get rid off or the dictum of Cavest Emptor-Let buyer beware.

Who is liable:

1. Doctors with independent practice rendering only free services.
2. Private hospitals charging all.
3. All hospital having free as well as paying patients, they are liable to both.
4. Doctors/hospitals paid by an Insurance firm for treatment of a client or an employer for the treatment of an employee.

Who is not liable:

1. Doctors in hospitals which do not charge of their patients.
2. Hospitals offering free services to all patients.

Strength. weaknesses, opportunities & threats (swot) analysis of CPA:

SWOT analysis is the situational analysis in terms of strengths, weakness, opportunities and threats that can be studied for any questions has given ample scope for identifying, diagnosing and assessing the situation in the form of strengths, weakness, environmental threats and opportunities.

Swot Analysis of CPA

Prevention of Malpractice Litigations;

“Prevention is better than cure”. Prevention can be done in three levels.

A) – Primary Prevention:

1. – Good Communication and informed consent:

The concept of informed consent has come to the fore in recent years and many actions have been brought by patients who alleged that they did not understand the nature of the medical procedure to which they have given consent. All information must be explained in comprehensible non-medical terms, preferable in local languages about the

1. diagnosis
2. nature of treatment
3. risks involved
4. Prospects of success
5. Prognosis if the procedure is not performed, and
6. alternative methods of treatment.

The physician’s duty to disclose is subject to the exceptions;

1. if the patient prefers not to be informed, and
2. if the doctor believes in the exercise of coming to sound medical judgment, that the patient is so disturbed or anxious that the information provided would not be processed rationally or it would probably cause significant psychological harm. This is known as therapeutic privilege. In such a case it is advisable that the doctor should consult the patient’s family physicians. The revelation of risk is always a compromise between reasonable information and the danger of frightening off the patient from beneficial treatment, The three important components of such consent are information, voluntariness, and capacity.

2. – Defensive Medicine:

An off-shoot of protection against CPA is defensive medicine. Medical professionals of late started practicing defensive medicine in order to protect themselves against overzealous patient complaints. It is not easy to practice defensive medicine. The patient can also sue a doctor for overprescribing or unnecessary hospitalization. In the U.S.A. there is a system in which there are periodic checks to see if doctors are unnecessarily subjecting patients to a wide range of tests or keeping them in hospitals on flimsy minor grounds. In a country like India wherein the patients are by and large from lower socio-economic strata it becomes very difficult for treating physicians to go in for defensive medicine as it costs heavily to the patient who can ill afford such a treatment approach.

B) Secondary prevention:

Some cases of negligence or deficiency of services will come up to the Court or Forum even after adequate precautions are taken.

1. 1. The State Medical Council should be better empowered and have a separate complaints cell. It should ideally consist of:

1. Office bearer of MCI
2. Judge
3. Prominent public figure

This will stop unnecessary litigations and provide true justice.

2. Accreditation of Hospital – A system of accreditation of private hospitals and Nursing Homes has to be introduced in order to achieve and maintain the optimum standard of diagnosis and care.
3. Quality Assurance program: a system of quality assurance program is to be introduced as a regular feature in every hospital. The measurements involve two basic concepts.

They are:

1. Quality art of care
2. Technical art.

4. Proper Medical Records: the hospital should ensure the entries made in its medical records are thorough and proper.? The medical records are thorough and proper.? The medical record is often the single most important document available to the hospital in the defense of a negligent action and ordinarily is admissible as evidence of what transpired in the care of the patient.
5. Regular patient satisfaction surveys to detect early any areas of patient dissatisfaction and take prompt, preventive/corrective action.

Tertiary prevention:

The following innovative methods are being practiced in the Western world to counter the adverse outcome of the CPA, in India also these practices may be emulated.

A) Medical indemnity insurance:

It covers in respect of errors and omission on the part of professional rendering their services. The Insurer should send a proposal from and renew it for subsequent period. The policy will damnify any act committed by the insured who shall be a registered medical practitioner, giving rise to any legal liability to third parties. The limit of indemnity granted under the policy is for any one policy is Rs. 1000/- compulsory excess or voluntary excess applicable.

R.D. Lele, 1992 opines that the doctors should be careful in not disclosing the medical indemnity insurance coverage for the simple reason that, the patient may exploit it for litigation purposes.

B) Counter Suits:

In order to prevent harassment from overzealous patients, in some of the advanced countries the medical professionals have started the concept of counter suits. In this the doctors initiate counter suits against patients for being sued without valued grounds. In a survey in U.S.A. counter suing of patients by doctors brought down the incidence of malpractice suits by almost 75percent. This has encouraged many doctors to resort to a similar strategy and their lawyers who sue doctors without any rhyme or reason (R.D. Lele, 1992)

N.Satyanarayana, G. Vijaya Kumar

Share on Facebook

Tweet

Follow us

Save