Medical Negligence Before the Consumer Forum

In one line

A patient may complain to a consumer commission that medical treatment was a deficient service, and that route, opened in 1995, is how almost all Indian medical negligence is now litigated.

In the wording a student can write in an exam: in Indian Medical Association v. V.P. Shantha the Supreme Court held that service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, medicinal and surgical, falls within the definition of service under the consumer legislation, except where the service is rendered free of charge to every patient or under a contract of personal service.

The gateway case

Indian Medical Association v. V.P. Shantha, AIR 1996 SC 550.

Facts. The question was whether, and in what circumstances, a medical practitioner, a private hospital or a nursing home renders a service within the consumer law, so that a patient may complain to a consumer forum instead of suing. The medical profession argued that it was governed by its own disciplinary law and that treatment was not a service of the kind the Act contemplated.

Held. Service rendered to a patient by a medical practitioner by way of consultation, diagnosis and treatment, medicinal and surgical, falls within the definition of service, except where the doctor renders service free of charge to every patient or under a contract of personal service. Disciplinary control by the Medical Council does not exclude the Act. A contract of personal service, which is excluded, requires a relationship of master and servant and is different from a contract for personal services, which is not excluded, so an ordinary doctor and patient relationship is within the Act.

Why it matters. It gave the patient a forum that is cheap, does not require a lawyer, and decides on affidavits and documents. Almost every reported Indian medical negligence decision since is a consumer decision, and the argument that a profession's own disciplinary machinery displaces the general law was rejected in terms, which is a proposition of general importance for this whole topic.

The standard applied

Kusum Sharma v. Batra Hospital and Medical Research Centre, (2010) 3 SCC 480.

Facts. The complainants alleged that a patient died because of negligent treatment at a hospital, and the National Commission had rejected the claim. The appeal required the Supreme Court to restate the standard by which a charge of medical negligence is to be judged.

Held. The Court set out a list of principles to be kept in view in deciding cases of medical negligence, beginning with the classical definition of negligence as the omission to do something a reasonable man would do or the doing of something a prudent and reasonable man would not do, and ending with the proposition that medical professionals are entitled to protection so long as they perform their duties with reasonable skill and competence and in the interest of their patients, whose welfare must be paramount. It emphasised that doctors are not to be held negligent merely because a treatment did not succeed or because a different course might have been followed.