A survey was conducted to know the impact of Consumer Protection Act,1986 provisions with respect to medical negligence cases in the form of questionnaire. Set of questionnaire were distributed among the panel of Doctors, Judges, General Public and NGOs.
I am trying to give a critical analysis/response of the said survey in nutshell:
RESPONSE TO QUESTIONAIRE OF JUDGES, DOCTORS, GENERAL PUBLIC AND NGOs–
Among panel of judges 118 responses are recorded, 210 responses from the Doctors, 80 responses from the public and 3 responses from NGOs.
CRITICAL ANALYSIS on IMPACT OF CONSUMER FORAS ON MEDICAL NEGLIGENCE CASES –
As per question no.1 which speaks about the increase in medical negligence cases in consumer fora, 72% of the judges answered in affirmative and 29% answered in negative.
As regards question no.2 is concerned wherein it was asked, whether hospitals including those run by the Govt. or Charitable institute should be held liable under the Consumer Protection Act, 1986, 91% answered positively. In other words, as per their responses Govt. or Charitable Institution should also be held liable for medical negligence; however, 9% of the judges hold the view that such Hospital should not be held liable because Govt. or Charitable Institution provides services to the patient free of charge/nominal charges.
Further, approx. 58% of the Judges hold the view that medical negligence cases should be adjudicated/decided in a summary manner; however 42% of the Judges thinks that these kinds of cases should be adjudicated by the civil courts through proper appreciation of evidence.
Meanwhile, it was asked in question no. 4 whether a special training should be accorded to the members in Consumer Fora regarding medical negligencecases, 82 % of the judges responded positively while 18% of the judges dissented to this view that special training should be imparted to the members.
In question no.5 it was asked whether quantum of compensation as awarded for medical negligence is adequate, 55% of the judges answered YES while 45% of the judges said NO.
As per the Survey we got 70% of the judges hold the view that medical expert opinion is easily accessible in medical negligence cases while 30% of the judges do not think that expert opinion helps a lot the member concerned of the Consumer Fora in deciding the issue of medical negligence.
More than 50% of the judges think that medical expert opinion sometimes work as self-serving evidence in favour of the Doctors involved in the cases of medical negligence. According to them decisions on the basis of medical expert opinion violates the principle of natural justice.
It was also observed that approx. 60% of the judges feel, there is a need of medical professional (Doctor) as a member in the Consumer forum/Commission to decide the medical negligence matter while 40% do not feel the necessity of medical professional (Doctor) as a member in the Consumer Forum.
Furthermore, more than half of the majority responses as received from the judges it was found that there should be separate tribunals exclusively to decide medical negligence cases.
Last but not the least, when a query was put to the judges that Consumer Protection Act,1986 is effective in dealing with the cases of medical negligence, 86% responses were positive in nature while 14% opined that CPA is not that much effective in dealing with medical negligence cases.
POSITIVE AND NEGATIVE IMPACT OF THE SURVEY
|POSITIVE IMPACT||NEGATIVE IMPACT|
No doubt, there is increase in the medical negligence cases in the Consumer Forum in the present scenario which shows that the consumer are getting redressal of their grievance in the form of awarded compensation through Consumer Fora/Commission by holding Doctors/Hospital Concerned guilty of Deficiency in services or medical negligence.
|No fruitful result is available to the victim of the medical negligence cases, as the matter involves complicated question of law and facts which sometimes become difficult to be adjudicated in a summary manner. At worst situation, the outcome of the Consumer Fora may be wrong sometimes to decide these kinds of cases due to lack of medical jurisprudence among the members.|
|Since the Govt. Hospital or Charitable Institution provides services keeping in view the welfare of the public as their main objective and that too free of charge or by charging nominal fees. So exclusion of such Hospitals from the array of respondents is desirable, reason being if no negligence is proved on their part after no. of years, the very purpose/objective of running Govt. Hospital would be defeated as the Govt. would be reluctant to provide free medical services to the general public.||The demerit of not including the Govt. Hospital or Charitable Institution in the array of Opposite Parties just on the plea that they do not provide services for consideration would be fatal as it would put an umbrella on the said Institution by performing their services negligently. Moreover it is observed that in general parlance Doctors of Govt. or Charitable Institution least bothered to treat their patient properly as they have the impression of getting a pre fixed salary/honorarium from the Govt. even if they remain negligent or careless in rendering services to their patients/ concerned consumers.|
|Since the judicial members or members from Administrative background are not well versed with the technicalities of the medical cases, so special training to those members to adjudicate the medical negligence matter would prove effective.||But on the other side if we look into the working of the Consumer Fora system, the adjudicating concerned member holding the chair are already burdened with the quantum of cases/matters and they hardly got time to impart or get such sort of special training especially w.r.t. medical negligence cases. Moreover, such sort of special training would increase pendency of cases in the Commission which is the greatest lacuna of our judicial system. And the very purpose of CPA of adjudicating the cases by summary trial would be defeated.|
|Generally the victim of medical negligence cases are reluctant to sue the Doctors/Hospitals in Civil Courts, reason being delayed decision. As common saying we know –JUSTICE DELAYED IS JUSTICE DENIED So, adjudication of the Medical Negligence cases through summary trial where the victims/complainant got justice expeditiously andredressal of their grievance in the form of awarded compensation .It maintains the faith of the people in the judicial system that they will surely get justice. Moreover, no as such legal procedure technicalities are involved in filing a consumer complaint in comparison to filing of a suit before Civil Court.||However, in practicality it could be seen that member concerned of the Commission are not well versed with the medical sciences/ terminology and therefore sometimes it took more than 10 years for a just decision in medical negligence cases. And even when on appreciation of evidence after such a long time the decision in favour of the complainant or the respondents would somehow defeat the faith of the parties on the judicial system due to the fact that they already got harassed by putting appearance on N nos. of dates of hearing and there would be no calculation w.r.t. to the litigation expenses which both the parties were bound to bear. Furthermore, it would hamper the goodwill of the parties concerned against whom complaint was filed and at the end against whom the award was given by the Commission.|
|As we know, the death of any member of a family and loss as a consequence could not be reimbursed in monetary terms. But punishing a Doctor/Hospital for their medical negligence and awarding compensation would somehow help the victim family financially and it would prove as deterrent on the Doctors/Hospital who will think twice while treating their patient without following standard protocols and professional ethics.||Awarding quantum of compensation in my view would not be that much helpful in reduction of medical negligence on the part of the negligent Doctors/Hospital concerned, they might feel to pay that awarded compensation be paid by their authorities in the form of vicarious liabilities and they’ll continue their ill practices. Rather some sort of imprisonment or criminal liability should be imposed on them who are negligent in their professional actso thatsuch sort of negligence which could even take away the life of the patient be repeated.|
|Appointment of medical expert member in the Consumer Fora/Commission is a dire need of the Commission to adjudicate the medical negligence cases in a just and proper manner.||NO NEGATIVE IMPACT OF THIS POINT|
|It is necessary that separate tribunals be constituted to decide the matters of medical negligence effectively and the lacuna of delayed decision in said matters could be carved out.||As far as constitution of Separate Tribunals for medical negligence cases is concerned it is not that much desirable because the Commission already have medical expert members to decide the said cases effectively.|
PERSONAL OPINION ON THE SURVEY
The conduct of such sort of survey no doubt proves fruitful to look into the matters of medical negligence cases and to remove the defects from the judicial system.
As per my opinion, it is necessary that more number of medical expert members be appointed in the Consumer Forum/Commission to adjudicate the medical negligence cases because they are well versed with the medical terminology/technicalities and they are able to appreciate the medical literatures and case sheet/ summary of the complainant or the victim much better or in effective manner in comparison to members of non-medical background.
A special training programme should be conducted for the non-medical members but that too without prejudice to the routine office work of the members, so that in the absence of medical expert members they could be able to decide the medical negligence cases in just manner by appreciating the medical evidences.
It is nowhere disputed that medical negligence case takes much time for the outcome of the final decision due to the fact that members of the Commission are not well versed with the medical terms and complicated question of law and facts involves in those cases in comparison to other consumer complaints.
But in my view a reasonable time period/limit should be fixed within which the decision should be given by the concerned bench of the Consumer Foras/Commission where cases are put up. On the expiry of such period and after taking the reasons from the member of the said bench for not deciding the case within time limit, mattershould be transferred to the bench dealing with medical negligencecases as per the directions of the Presiding Member of the Consumer Fora/Commission.
Members of the Consumer Fora/Commission should have access to the medical journal and a regular medical negligence law reporter should be provided to them.
There should be a panel of Doctor to be appointed by the Department to assist the members in appreciating the evidence w.r.t. medical negligence cases so that said cases should be decided easily and expeditiously.
Lastly, I would emphasise that the complaint should be maintainable against the Govt./Charitable Institution and they should also be held liable for medical negligence cases, if any and for this purpose necessary amendments should be made in the definition of consumer u/s. 2(i)(d) of the Act by incorporating Govt. Hospitals as exception to the concept of availing free consideration service which put the complainant outside the purview of consumer in the Consumer Protection Act, 1986.
Moreover, campaign for consumer awareness programme should be organised to impart knowledge and relevant informationamong general public about their rights as a consumer and the benevolent provisions of the Consumer Protection Act, 1986.
Medical Ethics be made as a part of the Consumer Protection Act, 1986 to understand the matters of medical negligence cases in the curriculum subject of the law students.
I think that a panel of NGOs be constituted and established at every recognised Hospitals so that the victim or the complainant could easily approach them for redressal of their grievance directly to them instead of Consumer Fora/Commission and NGOs should filed complaint on behalf of the victims/complainant especially the illiterate ones.
Further, I think that some sort of medical expertise in the form of legal aid be provided to the complainant of medical negligence cases so that victims being a layman would be able to represent his/her case in a proper manner.
Also Read – How to remain Fit & Fine in this current time