Author: Sloni Mathur, I year of B.B.A.,LL.B. from The NorthCap University
As per a study conducted by Harvard, there are 5.2 million cases of medical errors occurring annually in India.
In the past, many patients did not have an adjudicating or judging body to which they could consult regarding their grievances. The Indian Medical Council contains provisions punishment for misconduct, however, that was not very successful as the Indian Medical Council does not possess the power to provide compensation to patients and it was very hard for aggrieved patients to reach out to the Council and express their concerns. After the establishment of the Consumer Redressal Forum under the Consumer Protection Act 1986, the changes were not accepted by the medical professionals of the community, and this was even challenged by the Indian Medical Association in the case Indian Medical Association v. V.P. Shantha & Ors. In 1995, the Supreme Court delivered a very important decision that incorporated the medical profession under the purview of a service which is defined in Section 2(1)(o) of the Consumer Protection Act, 1986. This Consumer Protection Act 1986, was then replaced by the Consumer Protection Act 2019 and with that, the definition of service widened as well.
The first side of the story is supported by the medical community which believes that the medical profession should not be included within the ambit of service. Firstly, The Indian Medical Council is an already existing body that governs cases of medical negligence and hence there is no need for an external body to overlook such cases. Secondly, the panel which overlooks medical negligence cases has experts in the medical field. This suggests that the panel would be a better judge considering the expertise it holds. Thirdly, the relationship between a doctor and a patient cannot be compared to businesses that provide goods and services just to earn profit. Lastly, the panel which will be determining cases of medical negligence, would not be containing medical professionals which could lead to an unsuitable decision that could cause more damage to the patient or the family of the patient suing for medical negligence.
The second side of the story is supported by the majority of those who are not part of the medical community and agree with the judgement which states that the services provided by medical professionals fall into the ambit of a service that is defined by the Consumer Protection Act. Firstly, doctors may be timid at questioning doctors and holding them liable. If negligence is proven, it causes damage to the reputation of the hospital and other doctors working at the hospital because it creates a stereotype that all doctors working at this specific hospital or clinic are not skilled or qualified enough. Adding on, even if the panel agrees that there was a case of negligence, they might not testify against the doctors to protect group interests. A Parliamentary report published on the Indian Medical Council (Amendment) Bill of 2013, talked about the conflict of interests between the investigating panel and the doctors who are accused of medical negligence. The reports mention the leniency that is shown while investigating cases of medical negligence. There have been several recommendations such as the investigating panel should consist of more members of various fields. Secondly, fighting medical cases is a very tedious process for the patient and/or the family members. The costs, the mental stress and the questioning puts the members in a tough spot. Only those capable of fighting such cases would go to court so we can imagine the cases that are not taken into account because they were not registered due to the lack of resources hence such consumer redressal forums are necessary to hear the grievances of people.
The debate continues whether or not should the medical profession fall under the purview of the Consumer Protection Act. There are shortcomings in the medical profession and it is important for the government authorities and the Indian Medical Council to come up with strategies or a body that meets fulfils all the criteria and is in the best interests of both parties which are the patients and the Indian Medical Community.