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Need to review IMA v V P Shantha that put medical professionas under CPA

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.

For 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 Judicial Officer.

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 judgment identifying 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 prescribed."

"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 Act"

No immunity for medical practitioners
"Immunity from suit was enjoyed by certain profession on the grounds of public interest."

"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 has been

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 practitioners"

" 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 submissions
"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 disputes

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:
  1. the summoning and enforcing attendance of any defendant or witness and examining the witness on oath;
  2. the discovery and production of any document or other material object producible as evidence;
  3. the reception of evidence on affidavits;
  4. the requisitioning of the report of the concerned analysis or test from the appropriate laboratory or from any other relevant source;
  5. issuing of any commission for the examination of any witness and
  6. any other matter which may be prescribed.

"The same provisions apply to proceedings before the State Commission and the National Commission."

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 practitioner;

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 appropriate relief.

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 substantiated.

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 decided.

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 discretion.

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 service'.

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 "service".

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´┐Ż 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, excluded

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 negligent."

"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. Surgery)
15, Vijay Nagar, D-bloc, Malviya Nagar, Jaipur-302017, Ph no: 8003516198

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