FINAL DRAFT ON
CASE: INDIAN MEDICAL ASSOCIATION VS.V.P. SHANTHA AND OTHERS
ACKNOWLEDGEMENT
I am obliged to our assistant professor has given me golden chance for this research project. I would also like to thank the almighty and my parents for their moral support and my friends who are always there to extend the helping hand whenever and wherever required. I further extend my thanks to library staff of D. !" "!NO#! $O#I%! N!&ION!$ $!' (NI)*+I&% who helped me in getting all the materials necessary for the project.
TABLE OF CONTENTS
,. $ist of !bbreviations -. Index of !uthorities . /reface 0. Introduction 1. #eading 2. +tatement of 3acts 4. Issues (nder 5onsideration 6. !rguments !dvanced 7. 3inal 8udgement ,9. 5ritical !nalysis ,,. 5onclusion ,-. :ibliography
LIST OF ABBREVIATIONS
AIR COPRA CPA Hon’ble IMA
All India Reporter Consumer Protection Act Consumer Protection Act Honourable Indian Medical Association
PIL SC v
Public Interest Litigation Supreme Court versus
INDEX OF AUTHORITIES
CASES REFERRED
:olam v 3riern #ospital "anagement 5ommittee ;,714< , '.$.. 16Dharangdhara 5hemical 'orks $td. v +tate of +aurashtra= !I ,714 +5 -20 $ucknow Development !uthority v ".>. ?upta= ,770 !I 464 5osmopolitan #ospitals vs ' +antha =,77-@-0AD8,9
STATUTES REFERRED
5onsumer /rotection !ct = ,762
PREFACE
&he doctors liability is clearly defined under torts law= however the doctors in contended their services being under the purview of the consumer protection act= the arguments put forth wereB
,. +ervices rendered by the doctor come under the exclusionary clause of contract of personal service under the consumer protection act @5/!A. -. &he Indian medical council governs doctors= so 5/! will not apply.
. 5onsumer courts are not competent to try medical negligence cases. 0. !s there is no need to pay court fee for a petition under the 5/!= malpractice suits against the medical professionals will flood the forums. 1. +uits will force the doctors to practice defensive medicine= which will increase the cost of health care services.
In 5osmopolitan #ospitals v )asantha / Nair , and 5osmopolitan #ospitals v ' +antha= the National 5ommission rejected all the above contentions= counter arguing that any hospital or medical professions who charges fees for their services come under the purview of the act. National commission also said that torts law covers the fields left unoccupied by the Indian medical council act in general and the 5/!= therefore the stand of I"5! will not change and will remain the same as before.
&he I"! went and appealed over the above order= it filed a writ petition stating that medical services should not be under the purview of the 5/! and the order was violative of articles ,0 and ,7@,A @gA of the constitution. &he I"! has been operative in states as well as central level against the medical practitioners for their professional misconduct. &he petition was rejected.
In the case of )./. +hantha= the facts of case were that the plaintiffCs husband died due to negligence of the doctors. &he treatment was done in government hospital no fees was charged therefore no compensation could be paid as government hospitals and other honorary authorities which render their services free of charges did not fall under the purview of the 5/!. &he case was dismissed and subsequently the plaintiff filed an appeal to the +upreme 5ourt of India. National commission contended that since free services do not come under the purview of the 5/!= &he National 5ommission was justified in dismissing the case. &he +upreme 5ourt agreed the contention and with these viewpoints laid down certain principles determining the liability of the doctors under this act. !lthough the +upreme 5ourt did not agree that just because the medical services have come under the 5/!= the doctors will start pursuing defensive medicine.
1 5osmopolitan #ospitals v )asantha / Nair = ,77-@-0AD8,9
INTRODUCTION
5onsumer /rotection !ct was enacted in ,762 as to protect consumer. &he 5onsumer /rotection :ill= ,762 seeks to provide for better protection o f the interests of consumers and for the purpose= to make provision for the establishment of 5onsumer councils and other authorities for the settlement of consumer disputes and for matter connected therewith. It seeks= inter alia= to promote and protect the rights of consumers such as &he right to be protected against marketing of goods which are haEardous to life and propertyF G &he right to be informed about the quality= quantity= potency= purity= standard and price of goods to protect the consumer against unfair trade practicesF G &he right to be assured= wherever possible= access to an authority of goods at competitive pricesF G &he right to be heard and to be assured that consumers interests will receive due con sideration at appropriateforumsF G &he right to seek redressal against unfair trade practices or unscrupulous explo itation of consumersF and G &he right to consumer education. !s there were increasing case relating to Doctor @"edicalA Negligence= and it was ambiguous that whether medical services are services under 5O/!= ,76 2 or not and whether hospital or doctor or medical practitioner is in the ambit of 5O/!= ,762 or not. !lso= there were different contrasting and conflicting decisions and rationale regarding this issue were given by various #igh 5ourts and other lower courts. "any a +pecial $eave /etition were filed in the +upreme 5ourt against decisions and judgments of subordinate courts. +upreme 5ourt faced very big flow of +$/s coming in. #ence= in this /I$= a writ was filed in +upreme 5ourt under !rticle - of 5onstitution of India= to decide upon +cope and 8urisdiction of the 5onsumer /rotection !ct= ,762.
HEADING
Equival!" Ci"a"i#!: !I,772+5119
!ppellantsB I!$ia! M$i%al A&&#%ia"i#! espondentB V.P. S'a!"'a a!$ O(&. H#!)*l +u$,&-C#(a: >uldip +ingh= +.5. !grawal and :.$. #ansaria= 88.
Decided OnB ,.,,.,771
STATEMENT OF FACTS
/.
&he plaintiffCs husband died due to negligence of the doctors.
0.
&he treatment was done in government hospital no fees was charged therefore no compensation could be paid as government hospitals and other honorary authorities which render their services free of charges did not fall un der the purview of the 5/!.
1.
&he case was dismissed and subsequently the plaintiff filed an appeal to the +upreme 5ourt of India. National commission contended that since free services do not come under the purview of the 5/!= the National 5ommission was justified in dismissing the case.
ISSUE UNDER CONSIDERATION
'hether the free medical services provided by the government hospitals covered under 5onsumer /rotection !ct of ,762 or notH
ARGUMENTS ADVANCED
3irst issue which was raised in petition dealt with services of medical practitioner are services under 5onsumer /rotection !ct= ,762. It was contended from the side of respondent I"! that law distinguishes between profession and occupation and the !ct include only occupational services not those of professional services under +ection -@,A@oA of the !ct. +o= medical profession being a professional service should not be covered under the !ct. &his argument was rejected by #onCble 8udge as h e said that medical practitioner should be held liable when they are negligent and to find out their negligence :olam test- is sufficient enough.
espondent argued that as +ection -@,A @gA contains certain basis on which service can be treated as deficient. +ince= these basis are limited and rigid= also have less application in medical services. &his contention was also rejected as section ,0 @,A @dA includes in finding court may award compensation on basis of damage suffered by negligence of opposite party. It was urged from side of respondent that medical services are 5ontract of personal service which implies that medical services are not services under +ection -@,A @oA as 5ontract of personal service is exclusionary part of the services. &his argument was ignored by referring a case Dharangdhara 5hemical 'orks $td. v +tate of +aurashtra= which distinguishes between 5ontract of service and 5ontact for service. "ere fiduciary relationship does not give effect to and since there is no master servant relationship between Doctor and /atient= it will not result into 5ontract of +ervice. Other argument which was raised by respondent was that serviceJ does not include any such term medical service= so medical service are not in the purview of the !ct. 2 :olam v 3riern #ospital "anagement 5ommittee ;,714< , '.$.. 16 Dharangdhara 5hemical 'orks $td. v +tate of +aurashtra= !I ,714 +5 -20
&his argument was rejected as definition of service is not limited but it is a having three parts i.e. "ain part= inclusionary part= exclusionary part. &hough main part does not include medical services but inclusionary part of the definition have wider scope and covers medical services. #ence= It was held by the 5ourt that medical services will be treated as services as in accordan ce with +ection -@,A @oA of the !ct= hereinafter the potential user will be said consumer of medical services. +econd issue which was raised questioned hospitals and nursing homes are in the scope of the !ct. &here were made three broad categories under which nature services of doctorsKhospital can be determinedB a. +ervices rendered free of charge to everybody. b. 5harges paid by all users. c. 5harges are required to be paid by all person except those= who cannot afford @services are rendered freeA &here is no difficulty in finding out liability in first two categories as when services are rendered free of charge there is no service rendered as according to +ection -@,A @oA of the !ct hence excluded by virtue of exclusionary clause of the +ection. !lso token money will be treated as no consideration paid. :ut it will not include those indepe ndent doctors who are rendering service free of charge. !nd in second category if a person is pa ying consideration it will come under jurisdiction of the !ct as medical services are services and consideration is paid to avail them. It was opined by #onCble 8udge that since patients= who are availing services free of charge= belonging to third category are beneficiary as patients who are paying consideration in that category are= actually= paying for nonpaying patients too. +o being b eneficiary they are under scope of the !ct. #ence are treated as consumer under +ection -@,A @dA of the !ct.
FINAL +UDGEMENT
,. "edical +ervices are treated as in ambit of servicesJ under +ection -@,A @oA of the !ct. L It is not contract of personal service as there is absence of master servant relationship. L 5ontract of service in +ection -@,A @oA can not be confined to contracts for employment of domestic servants only. &he services rendered to employer are not covered under the !ct. -. "edical +ervices rendered by hospitalKnursing home free of charge are not in the purview of +ection -@,A @oA of the !ct. . "edical +ervices rendered by independent Doctor free of charge are under +ection -@,A @oA of the jurisdiction of the !ct. 0. "edical +ervices rendered against payment of consideration are in the scope of the !ct. 1. ! medical service where payment of consideration is paid by third party is treated as in the ambit of the !ct. 2. #ospital in which some person are charged and some are exempted from charging because of their inability of affording such services will be treated as consumer under of +e ction -@,A @dA of the !ct.
CRITICAL ANAL2SIS
,. &his case gave effect to consumers who were suffering from medical negligence and including medical services in the ambit of 5onsumer /rotection !ct= ,762 enabled consumer to get more speedy and cheap justice. !s this is the main aim of the !ct. -. &his case also differentiated contract for service and contract of service= in respect of medical practice and profession. . +ystem of liability which it established is not appropriate in case where patients are not treated as consumer even in government hospital availing services free of charge. It is question of common conscience and equity as person who are availing services in government hospital are not economically sound that is why they are availing services in government hospital. It is point of reconsideration. 0. #ospital rendering services free of charge are outside the purview of the 5onsumer /rotection !ct= ,762. !s some charitable trust do not have profit motive they can be sued in either civil case but not in 5onsumer court.
CONCLUSION
&he service rendered free of charge by a medical practitioner attached to or employed by a hospital = whether governmental or nongovernmental = or a nursing home = or a health centre or a dispensary where no charge is made from any person availing of such service and all patients are given free service is excluded by exclusionary provision of section -@,A@oA. &he court held the above after rejecting the contentions that nominal registration fee or the medical officerCs salary for employment in the hospital or = the taxpayersC money contributing to functioning of government hospitals or health dispensaries = would co nstitute consideration for free services rendered in such cases. &he exclusionary part of the definition in section -@,A@oA does not obviously cover service rendered at a nongovernmental hospital or nursing home where charges are required to be paid by persons availing such services and therefore = falls within the purview of the expression services as defined under the !ct. It was held that services rendered at a government hospital = health centre or dispensary whe re such services are rendered on payment of charges and also rendered free of charge would fall within the scope of the !ct = the persons belonging to the poor class who were provided services free of charge were held to be the beneficiaries of the services which is hired or av ailed of by the paying class. #owever in the definition of consumers as under section -@,A@dA= a person can become a beneficiary only with the approval of the person who has paid the consideration. In this case = there is no approval which may be obtained and hence it is doubtful whether the concept of beneficiaries can be extended as has been done. If the concept of beneficiaries has thus been extended = then the court should not have had any hesitance in holding that the people who avail of free services when such services are not p aid for by any other recipient of the service can also be made consumers since they are the beneficiaries of the taxpayers = albeit without their approval.
BIBLIOGRAPH2
•
Indian "edical !ssociation v )./. +hantha M Ors on , November= ,771 *quivalent citationsB ,772 !I 119= ,771 +55 @2A 21,
•
httpBKKwww.legalservicesindia.comKarticleKarticleKindianmedicalassociationvvp shantha,974,.html
