Impact of Consumer Protection Act 2019 on Medical practitioners

 

Dr. Shashank Shekhar received a legal notice. A case was filed against him in the district consumer court alleging medical negligence. The doctor’s first reaction was dismissive. He did not believe that the case had any legal basis, because he had not delivered any consumer service. After all he was providing medical advise, and not selling consumer goods. He searched for a lawyer, who had some experience with medico-legal cases, and was finally able to get hold of one in a few days. The lawyer clarified that health-care does comes under the purview of consumer courts. So, he is bound to reply to the notice, and defend himself.

The question whether health-care should be under the purview of consumer courts, has always drawn controversy. Doctors have fought vigorously against it but with limited success. In the landmark case of the Indian Medical Association (IMA) vs. V.P. Shantha 1995, the Supreme Court ruled that the service rendered by a doctor and a hospital falls under the definition of ‘Service Provider’ and will continue to be a service unless a monetary consideration is missing, say in the case of a charitable operation. Subsequently, when the Consumer Protection Act 2019 was enacted, several members of parliament objected to the inclusion of ‘healthcare’ under list of services. The minister then agreed to drop the term ‘health-care’ from CPA 2019, but did not specifically exclude health-care as a service. Consumer courts in the country continued to entertain cases of medical negligence against Doctors. To have this matter clarified, a group of Doctors recently filed a petition in the Bombay High Court. In 2021, the court ruled that “mere repeal of the 1986 Act by the 2019 Act, without anything more, would not result in exclusion of ‘health care’ services rendered by doctors to patients from the definition of the term ‘service’.” So, cases against doctors can be filed in consumer courts. And, any legal ambiguities about applicability of CPA 2019 for doctors has been put to rest.

CPA 2019 has far-reaching implications for Doctors. The Act is significantly more consumer friendly. Here are four major ways in which the Act favours the consumer. First, the CPA 2019 makes it easy for the consumer to file a case in a court at their place of residence. In the erstwhile Act the consumer had to file a case in court with jurisdiction of the service provider’s location. While this Act empowers the consumer, it can be worrisome for the doctor to receive a notice from distant places. Doctors who receive outstation patients remain particularly exposed. They would need access to a pan-India network of lawyers, who could defend them if the need arises. Second, the pecuniary jurisdiction of district courts has increased to Rupees 1 Crore which was Rupees 20 lakhs earlier. The threshold is set on the value of services rendered by the service provider. Since in most cases, charges for medical services would be well below this threshold, consumers can file all their cases in the District court, irrespective of the claim amount. This also gives an opportunity for consumers to file appeals in multiple forums, should the decision not be in their favour. Doctors would have to defend themselves in each of these subsequent forums. Third, in case the Doctor loses the case in the District court and wants to appeal, she would have to file 50% of the amount awarded by the court. Earlier such deposit was capped to Rupees 25,000, but there is no such limit now. Fourth, CPA 2019 has a specific provision for mediation cell. The objective of the cell is to encourage an out of court settlement. While this could lead to speedy settlement of the dispute, Doctors should ensure that their insurances should cover out of court settlement.

Further, CPA 2019 has a broad definition of ‘unfair trade practice’. Given the structure of a Doctor’s practice, it has opened up potential liabilities for them. For example, not issuing proper cash memo or bill for the services rendered is a part of unfair trade practice. Similarly, disclosing personal information of the consumer to any other person not in accordance with the prevailing laws is considered as unfair trade practice. Many doctors run a practice unlike a typical commercial establishment. Book-keeping and maintenance of patient health records are not strong points of many Doctors. Breach of confidential information could be a potential source of litigation for doctors.

Courts have now established precedents of high value awards against Doctors. In a recent case of Maharaja Agrasen Hospital vs. Master Rishabh Sharma of December, 2019 – a baby, Rishabh, was born pre-maturely at 32 weeks. Doctors had missed to prescribe Retinopathy of Prematurity test. The baby lost his eye sight in due course. The mother alleged medical negligence. She lost her case in junior courts, but eventually won on appeal. A compensation of Rupees 76 lakhs was awarded to the plaintiff. In another case of Dr. Kunal Saha vs. Dr. Sukumar Mukherjee, proceedings lingered for about 15 years. The wife of Dr. Kunal Saha had succumbed to death after being diagnosed with a life-threatening condition caused by the reaction of a drug prescribed for skin rashes. Plaintiff had lost the case in all junior forums, but the Supreme Court found in the plaintiff’s favour. The court awarded compensation of Rupees 5.96 Crores plus interest. While one case above was that of failure to prescribe diagnostics, other was about wrong prescription. Such awards set a high benchmark for future cases and establish precedents for a wide spectrum of cases.

Notwithstanding the above, a report published in 2019 reveals that only 15% of the alleged medical negligence cases actually involve a negligence. More than one-fourth of the medico-legal cases that arise are just because of patients’ unfulfilled expectations. What’s worse? In 85% of the medico-legal cases the doctors have paid the cost of legal consequences out of their own pockets. And there is an increasing tendency to blame the doctors when a patient dies or suffers a mishap.

A professional indemnity insurance is an effective way to deal with rising incidence of legal cases. SecureNow works with more than 25 medical associations and 10,000 doctors to help them avail professional indemnity insurance. Since the policy covers both cost of lawyer fees, and compensation awarded by the court, Doctors don’t need to buy a separate legal subscription. Premium is payable annually, and directly to the insurer. Because of the extensive work in the domain, SecureNow has been able to negotiate several special features. This includes coverage for loss of documents, breach of confidential information, our of court settlement, deposit of award in case of appeal, and pre-litigation lawyer cost. With experience of dealing hundreds of legal claims against Doctors, we are able to help clients suitably navigate litigation and ably defend them. We have now partnered with specialized medico-legal lawyers across the country. In case a doctor receives a legal notice, we are able to put in mitigating measures immediately, and provide a quick resolution.

Doctors like Shashank have much on their mind, an impending litigation should not be one of them. Unfortunately, a large number of doctors are not well versed with provisions under the law. With increasing number of patients filing cases against doctors, it leaves the profession highly vulnerable. It is imperative that various forums such as medical associations, insurance firms, and doctor communities, come together to raise awareness about medico-legal cases.

(The author is principal officer and managing director, Secure Now.in.)