Indian Medical Association vs V.P. Shantha & Ors
on 13 November, 1995 brought
the medical services under CPA declaring medical services to be services under
Sec. 2(1)(0) of the ACT. The medical services were equated with other commercial
services. The doctor-patient relation was declared to be a 'contract for
services', and the patient was now a 'client' who has paid for the services, and
the treating professionals were just body mechanics, the service vendors.
the treating team of medical and paramedical professionals and the hospital that
provided treatment facilities, the primary physician/surgeon was held accoutable
and liable for lapses of all. Deficiency in service (treatment) became medical
negligence which could be a civil or a criminal offence per discretion of the
The adjudicating medical negligence cases under the CPA was that of summary
trial on affidavit based submissions by the complainant and the respondent.
Though the summary trial, per this judgment, was to be available only for gross
negligence that needed no further medical evidence for judicial decision, (the
cases that needed adducing of medical evidence were excluded), over the years,
especially in Consumer Forums, all medical negligence complaints were considered
fit for summary trial.
Number of Supreme Court judgments - Suresh Gupta vs Government of NCT, Delhi,
Aug. 4, 2004, Jacob Mathew vs State Of Punjab & Anr on 5 August, 2005, Martin F.
D' Souza vs Mohd. Ishfaq on 17 February, 2009, M A Biviji v Sunita & Others,
2018 - have highlighted the fallacy of adjudicating medical negligence cases by
the affidavit based summary trial. The great harassment that it causes to
doctors, and the deleterious effect it has on medical profession, has been
pointed out. Guidelines have been laid down on how medical negligence cases are
to be adjudicated to avoid such injustice to the medical profession.
In the light of the above it is high time that the Indian Medical Association vs
V.P. Shantha judgment is revisited and reviewed.
The following is the opening statement of IMA v V P Shantha
the issues to be adjudicated.
"These appeals, special leave petitions and the Writ Petition raise a common
question, viz., whether and, if so, in what circumstances, a medical
practitioner can be regarded as rendering 'service' under Section 2(1)(o) of the
Consumer Protection Act, 1986 (hereinafter referred to as 'the Act']. Connected
with this question is the question whether the service rendered at a
hospital/nursing home can be regarded as 'service' under Section 2(1)(o) of the
Act. These questions have been considered by various High Courts as well as by
the National Consumer Disputes Redressal Commission [hereinafter referred to as
'the National Commission']."
Medical service vs service per Sec. 2(1)(o) of CPA
The Hon'ble court reviewed all the reasoned precedent judgments on the issue
whether or not paid medical services are to be construed as 'service' for the
purpose of Section 2(1)(o) of Act and the persons availing such services are
'consumers' within the meaning of Section 2(1)(d).
The Hon'ble court then proceeded to deal with the contentions and briefly take
note of the background and the scheme of the Act, provisions of which were
reproduced . Discussing Sction 13 of the Act their Lordships observed, " Section
13 of the Act which prescribes that the District Forum [as well as the State
Commission and the National Commission] shall have the same power as are vested
in a civil court under the Code of Civil Procedure in respect of summoning and
enforcing attendance of any defendant or witness and examining the witness on
oath; discovery and production of any document or other material object
producible as evidence; the reception of evidence on affidavits; the
requisitioning of the report of the concerned analysis or test from the
appropriate laboratory or from any other relevant source; issuing of any
commission for the examination of any witness; and any other matter which may be
"It is, therefore, necessary to set out the definition of the expression
`consumer' contained in Section 2(1)(d) insofar as it relates to services and
the definition of the expression `service' contained in Section 2(1)(o) of the
No immunity for medical practitioners
"Immunity from suit was enjoyed by certain profession on the grounds of public
"Medical practitioners do not enjoy any immunity and they can be sued in
contract or tort on the ground that they have failed to exercise reasonable
skill and care."
"It would thus appear that medical practitioners, though belonging to the
medical profession, are not immune from a claim for damages on the ground of
negligence. The fact that they are governed by the Indian Medical Council Act
and are subject to the disciplinary control of Medical Council of India and/or
State Medical Councils is no solace to the person who has suffered due to their
negligence and the right of such person to seek redress is not affected."
He who pays the piper calls the tune. Patient (consumer) pays.
"The new talk is of `producers and consumers' and the concept that `he who pays
the piper calls the tune' is established both within the profession and in its
relationships with patients. The competent patient's inalienable rights to
understand his treatment and to accept or refuse it are now well established."
"We are, therefore, unable to subscribe to the view that merely because medical
practitioners belong to the medical profession they are outside the purview of
the provisions of the Act and the services rendered by medical practitioners are
not covered by Section 2(1)(o) of the Act."
"Shri Harish Salve has also placed reliance on the definition of the expression
`deficiency' as contained in Section 2(1)(g) of the Act which provides as
follows : "Section 2(1)(g) : "deficiency" means any fault, imperfection,
shortcoming or inadequacy in the quality, nature and manner of performance which
is required to be maintained by or under any law for the time being in force or
undertaken to be performed by a person in pursuance of a contract or otherwise
in relation to any service;"
Deficiency in treatment/medical service difficult to judge.
"The submission of Shri Salve is that under the said clause the deficiency with
regard to fault, imperfection, shortcoming or inadequacy in respect of service
has to be ascertained on the basis of certain norms relating to quality, nature
and manner of performance and that medical services rendered by a medical
practitioner cannot be judged on the basis of any fixed norms and, therefore, a
medical practitioner cannot be said to have been covered by the expression
"service" as defined in Section 2(1)(o). We are unable to agree."
Composition of Consumer forums, competence to understand complex medical issues.
"Another contention that has been urged by learned counsel appearing for the
medical profession to exclude medical practitioners from the ambit of the Act is
that the composition of the District Forum, the State Commission and the
national Commission is such that they cannot fully appreciate the complex issues
which may arise for determination and further that the procedure that is
followed by these bodies for determination of issues before them is not suitable
for the determination of the complicated questions which arise in respect of
claims for negligence in respect of the services rendered by medical
" It cannot, therefore, be said that since the members of the Consumer Disputes
Redressal Agencies are not required to have knowledge and experience in
medicine, they are not in a position to deal with issues which may arise before
them in proceedings arising out of complaints about the deficiency in service
rendered by medical practitioners."
Procedure followed by Consumer Courts: Summary trial on affidavit based
"As regards the procedure to be followed by these agencies in the matter of
determination of the issues coming up for consideration it may be stated that
under Section 13(2)(b), it is provided that the District Forum shall proceed to
settle the consumer disputes (i) on the basis of evidence brought to its notice
by the complainant and the opposite party, where the opposite party denies or
the allegations contained in the complaint, or (ii) on the basis of evidence
brought to its notice by the complainant where the opposite party omits or fails
to take any action to represent his case within the time given by the Forum. In
Section 13(4) of the Act it is further provided that the District Forum shall
have the same powers as are vested in the civil court under the Code of Civil
procedure while trying a suit in respect of the following matters:
- the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
- the discovery and production of any document or other material object producible as evidence;
- the reception of evidence on affidavits;
- the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
- issuing of any commission for the examination of any witness and
- any other matter which may be prescribed.
"The same provisions apply to proceedings before the State Commission and the
Complicated questions requiring evidence of experts
It has been urged that proceedings involving negligence in the matter of
rendering services by a medical practitioner would arise complicated questions
requiring evidence of experts to be recorded and that the procedure which is
followed for determination of consumer disputes under the Act is summary in
nature involving trial on the basis of affidavits and is not suitable for
determination of complicated questions.
It is no doubt true that sometimes complicated questions requiring recording of
evidence of experts may arise in a complaint about deficiency in service based
on the ground of negligence in rendering medical services by a medical
but this would not be so in all complaints about deficiency in rendering
services by a medical practitioner.
Cases where no expert medical evidence is needed
There may be cases which do not raise such complicated questions and the
deficiency in service may be due to obvious faults which can be easily
established such as removal of the wrong limb or the performance of an operation
on the wrong patient or giving injection of a drug to which the patient is
allergic without looking into the out patient card containing the warning [as in
Chinkeow v. Government of Malaysia, (1967) 1 WLR 813 P.C.] or use of wrong gas
during the course of an anesthetic or leaving inside the patient swabs or other
items of operating equipment after surgery.
One often reads about such incidents in the newspapers. The issues arising in
the complaints in such cases can be speedily disposed of by the procedure that
is being followed by the Consumer Disputes Redressal Agencies
and there is no reason why complaints regarding deficiency in service in such
cases should not be adjudicated by the Agencies under the Act.
In complaints involving complicated issues requiring recording of evidence of
experts, the complainant can be asked to approach the civil court for
We are, therefore, unable to hold that on the ground of composition of the
Consumer Disputes Redressal Agencies or on the ground of the procedure which is
followed which by the said Agencies for determining the issues arising before
them, the service rendered by the medical practitioners are not intended to be
included in the expression `service' as defined in Section 2(1)(0) of the Act."
Need to review the judgment in IMA vs V P Shantha
It is this part of judgment that calls for a revisit and review, in the light of
Supreme Court Judgments, the decision to place medical negligence under CPA, to
be adjudicated by affidavit based summary trial.
The Hon'ble Court in IMA v V P Shantha
had agreed that medical negligence
cases are not suitable for CPA's summary trial. It stands substantiated of the
basis of Supreme Courts judgments based on the experience of past decades. The
IMA judgment had also accepted that easy recourse to file medical negligence
complaints, under CPA, may result into gross harassment of the physician with
Ultimate deleterious effect on the treatment of patients. This too has been
The original IMA judgment had specifically recommended that CPA be applied only
on self evident gross negligence cases, where no further medical evidence is
need for the Consumer Courts to decide, on the basis of affidavit based summary
trial. The rest of the cases that need expert medical evidence, virtually all
medical negligent acts, committed by a physician, who is, by definition an
expert in the field, were to go to the civil courts. Unfortunately, on the basis
of powers granted under Civil Procedure Code, all medical negligence cases are
being adjudicated by Consumer Courts. This has resulted into gross injustice to
the medical professionals, as highlighted in the subsequent SC judgments.
The scheme of the CPA, as discussed and approved in IMA case, was to provide
quick relief to poor 'victims' of medical negligence, it is now evident that the
consumer patient, who pays thousands for the treatment, and seeks lacs in
compensation, is not a poor patient, nor is relief quick - it takes years to be
The Hon'ble Supreme Court in Jacob Mathew and Martin D'Souja cases, ruled to
change the procedure to adjudicate medical negligence cases. They must be
implemented, modifying the decision in the IMA vs V P Shantha case.
Contract of service v/s contract for service:
The Hon'ble Court in IMA v V P Santha
"We may now proceed to consider the
exclusionary part of the definition to see whether such service is excluded by
the said part. The exclusionary part excludes from the main part service
rendered (i) free of charge; or (ii) under a contract of personal service.
Shri Salve has urged that the relationship between a medical practitioner and
the patient is of trust and confidence and, therefore, it is in the nature of a
contract of personal service and the service rendered by the medical
practitioner to the patient is not `service' under Section 2(1)(o) of the Act.
This contention of Shri Salve ignores the well recognized distinction between a
`contract of service' and a `contract for services'.
A `contract for services' implies a contract whereby one party undertakes to
render services e.g. professional or technical services, to or for another in
the performance of which he is not subject to detailed direction and control but
exercises professional or technical skill and uses his own knowledge and
A `contract of service' implies relationship of master and servant and involves
an obligation to obey orders in the work to be performed and as to its mode and
manner of performance.
Here also, the situation and context have changed. A physician has to take
informed consent for every act of medical intervention, diagnostic and
therapeutic. The patient decides and dictates what treatment is to be provided
to him. (He who pays the piper calls the tune) As such, medical services availed
by a paying patient, is under 'contract of service' and not under 'contract for
Contract of personal service
"By affixing the adjective `personal' to the word "service" the nature of the
contracts which are excluded is not altered. The said adjective only emphasizes
that what is sought to be excluded is personal service only. The expression
"contract of personal service" in the exclusionary part of Section 2(1)(o) must,
therefore, be construed as excluding the services rendered by an employee to his
employer under the contract of personal service from the ambit of the expression
Fee-for-services and services-for-fee contractual relationships
Not only the doctor-patient relationship has changed in the commercial set up,
but the physician-employer relationship has also completely changed. A physician
in a private hospital, corporate or otherwise, works (employed) under
fee-for-service contract. He is entitled to his pre-decided fee for every act of
service he provides to the patient using hospital facilities� consultation,
diagnostics and surgery.
The hospital charges for every service-product, as per the hospital charge
schedule. The physician does not charge the hospital-patient anything directly.
He only gets his share, which, on average, is approximately 20% of the total
bill. Hospital charges are under different heads of infrastructural and manpower
facilities provided. There is no direct nexus between what the hospital charges
and the primary
treating physician gets for the services provided. As such, to hold primary
physician liable for all lapses and deficiencies, is not just.
Contract of personal service, service provided by a doctor to his employer,
IMA vs V P Shantha judgment:
"There can be a contract of personal service if there is relationship of master
and servant between a doctor and the person availing his services and in that
event the services rendered by the doctor to his employer would be excluded from
the purview of the expression `service' under Section 2(1)(o) of the Act by
virtue of the exclusionary clause in the said definition."
"The salary that is paid by the hospital administration to the employee medical
officer cannot be regarded as payment made on behalf of the person availing the
service or for his benefit so as to make the person availing the service a
"consumer" under Section 2(1) (d) in respect of the service rendered to him. the
service rendered by the employee medical officer to such a person would,
therefore, continue to be service rendered free of charge and would be outside
the purview of Section 2(1)(o)."
Shri A.M. Singhvi has invited our attention to the following observations of
Lord Denning M.R. in White house v. Jordan & Anr., (1980) 1 All.E.R. 650 :
"Take heed of what has happened in the United States, 'Medical malpractice'
cases there are very worrying, especially as they are tried by juries who have
sympathy for the patient and none for the doctor, who is insured. The damages
are colossal. The doctors insure but the premiums become very high : and these
have to be passed on in fees to the patients.
Experienced practitioners are known to have refused to treat patients for fear
of being accused of negligence. Young men are even deterred from entering the
profession because of the risks involved. In the interests of all, we must avoid
such consequences in England. Not only must we avoid excessive damages. We must
say, and say firmly, that, in a professional man, an error of judgment is not
"The legal system, then, is faced with the classic problem of doing justice to
both parties. The fears of the medical profession must be taken into account
while the legitimate claims of the patient cannot be ignored."
In the light of aforesaid submissions there is a strong case for requesting
reconsideration of the decisions of IMA vs V P Shantha case.
Written By: Dr Shri Gopal Kabra,
MBBS, LLB, MSc, MS(Anatomy), MS(Gen.
15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur-302017, Ph no: 8003516198