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The Consumer Protection Act, 2019 (CPA 2019), serves as the primary legislation for protecting consumer interests in India, replacing the older 1986 Act to address the complexities of the modern marketplace. Central to its application is the concept of "service," which determines whether a person can seek redressal for "deficiency" before Consumer Commissions.

What is Service?

Section 2(42): Service is an intangible benefit availed by the consumer from the service provider which includes facilities relating to banking, financing, insurance, telecom, transport etc. Service does not include any free service. It should be in paid form.

Examples of services are:

  1. Legal consultation is a service where a lawyer is a service provider.
  2. A medical check-up is a service where a doctor is a service provider.
  3. Internet facility is a service where a telecom company is a service provider.

What is Deficiency?

According to section 2(11), deficiency is any shortcoming, fault, imperfection, or defect in features, quality, amount, nature, authenticity, capacity, standard which is obligatory to be maintained and regulated as per laws and statutes in function or any agreement signed by the seller, including any act of negligence, omission by the seller, which causes loss to the consumer.

When we talk about service under CPA, we take it as a regular transaction. Thus, the service rendered under the contract of personal service are specifically excluded from the deficiency of service.

The term ‘contract of personal service’ is not defined under the act. In common, it means a contract to render service in private capacity to individuals.

Example:

  1. Where a landlord agrees to supply water to his tenant.
  2. Where a servant enters into a contract with a master for employment.

These are the examples of contract of personal service.

Contract ‘of’ Personal Service and Contract ‘for’ Personal Service

In contract of personal service, the service seeker can order or require what is to be done and how it should be done.

Example: A master can tell his servant to bring goods from a particular place.

But in a contract for personal service, the service seeker can tell only what is to be done. How the work will be done is at the wish of the service provider.

Example: You give your vehicle for service.

In CPA, contract ‘for’ personal service is considered.

Medical Services

The apex court has pronounced the landmark judgement, “Indian Medical Association v. V.P. Shantha” with special reference to medical services under the CPA. where medical services are covered under the definition of service. Doctors and hospitals fall within the scope of summary jurisdiction of CPA for the grant of compensation and other relief provided by the act.

In this case, the apex court held that the person suffering any loss on account of any negligence or deficiency in such service includes rendering of consultation, diagnostics, and treatment, both medical and surgical. Professional men should possess certain degree of competence and they should exercise reasonable care in discharge of their duties. Medical practitioner doesn’t enjoy immunity and they can be sued in contract of tort on the ground that they have failed to exercise reasonable skill and care.

Components of Medical Negligence

There are 3 main components of medical negligence:

  1. Existence of legal duty
  2. Breach of legal duty
  3. Damage caused by such breach of duty
  1. Existence of legal duty – In any industry, professionals have a duty of care to uphold a certain level of care as determined by their specific field. Equally a healthcare professional is expected to meet a certain standard of care towards patients, where this standard will vary according to specific healthcare situation. Guidelines for the applicable standard of care in a given situation will take into account the medical professionals’ speciality, traditional medical practices and the skills and care that an average physician would provide in similar circumstances.
  2. Breach of the legal duty – The next element of medical malpractice that needs to be proved in medical malpractice litigation is breach of legal duty. To prove that there was a doctors’ professional duty of care, we must establish that the doctor failed to exercise the standard of care or skill that would commonly be exhibited by a similar doctor in that situation. This takes into account what specialised knowledge a doctor in that situation would have. Typically, this requires expert testimony from another medical professional to establish that a standard of care was not met in your case.
  3. Damage caused by such breach of duty – For a medical malpractice case to be successful, the personal injury will also have to prove that the victim was harmed by the medical negligence, leading to losses and expenses. For example: a doctor incorrectly diagnosing your condition could require you to seek additional medical treatment following the new issues caused by the mis-diagnosis, as well as any medical treatment for your original condition. If you have been negatively affected by the medical mal-practice, you are within your rights to fight to recover compensation in a medical mal-practice claim.

What Does Not Amount to Medical Negligence?

If a patient has suffered an injury, the doctor might not be held liable in case of error of judgement. He shall not be charged against any such actions. Even doctors are humans and hence, are prone to make mistakes and therefore, they shall be allowed some relief.

When Does the Liability Arise?

A medical professional or hospital shall be held liable for all actions against the patient where they have not taken proper standard of care and it has resulted in suffering on the part of the patient. The burden of proof shall lie on the complainant to prove the case of negligence. They have to first establish that there was a duty of care on part of the accused and that there was breach of such duty.

Remedies for Medical Negligence

Following are the remedies for Medical Negligence:

  1. Medical council of India – An aggrieved party can file a complaint of negligence against their medical practitioner to the concerned state medical council, as they have the power to take action against the concerned doctor by cancelling or suspending their license. However, the Indian Medical Council Act does not give them the power to compensate the aggrieved party.

Note: - The Medical Council of India (MCI) has been replaced by the National Medical Commission (NMC) under the NMC Act, 2019.

  1. A civil liability – An aggrieved party can approach the consumer court to file a case against the accused person or hospital. In Indian Medical Association v. V.P. Shantha, the honourable Supreme Court observed that the medical practitioners are covered under the CPA, and the medical services rendered by them should be treated as service under Section 2(42). Any matter in medical negligence on the part of the service provider will be considered as deficiency under Section 2(11).
  2. Criminal liability – Under various provisions of IPC/BNS, any person who acts negligently that resulted in threat to human life or personal safety or result in death of a person, then the person shall be punished with imprisonment or fine, or both. However, the court observed that in a matter of negligence where a criminal case is being pursued, the element of men’s rea must be shown to exist.

Medical negligence causing death was previously under Section 304A of the IPC. Under the Bharatiya Nyaya Sanhita (BNS), it is now Section 106(1).

Section 106(1): Whoever causes death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to five years, and shall also be liable to fine; and if such act is done by a registered medical practitioner while performing medical procedure, he shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine.

Registered medical practitioner means a medical practitioner who possesses any medical qualification recognised under the National Medical Commission Act, 2019 and whose name has been entered in the National Medical Register or a State Medical Register under that Act.

Denial of Medical Services is a Violation of Human Rights

Parmanand Katara v. Union of India was one of the earliest and most landmark Supreme Court cases dealing specifically with medico-legal responsibilities and emergency medical treatment in India. In this case a public spirited person has filed a PIL under Article 32 of the Constitution. The honourable Supreme Court held that it is a right of citizen and also an obligation of the state to preserve life, and doctors at hospital are therefore required to provide medical assistance to save life. The judgement was the first initiative taken by the Supreme Court to protect the rights of the citizens as per Article 21.

In the case of “Consumer Education and Research Centre v. UOI”, the Supreme Court held that timely medical aid is an integral part of the right of life as per Article 21. Social Justice, which is a device to ensure life to be meaningful with human dignity, required for the state to provide to workmen, facilities and opportunities to reach a minimum standard of health, economic security, and civilised living.

The Supreme Court has held that denial of emergency medical care is a violation of Article 21. Hence, it is the fundamental right of the citizen to be provided with emergency services without any condition.