Consumer Protection Act &

Neurosurgeon

Speaker : .Lokesh suresh.

Chairperson : Prof. Malla Bhaskara Rao

•The Doctor patient relationship

• Doctors: God and earned respect

• Commercialization and globalization

• Relationship deteriorated considerably.

• Law of Torts, IPC etc

• Consumer Protection Act in 1986, litigation against doctors is on the increase

Healthy doctor-patient relationship

•The paternal relationship

•The informative relationship

•The interpretative relationship

•The deliberative relationship

Difficult patients :

1. Oppositional

2. Manipulative

3. Hostile patients

4. Malingering patient

Certain guidelines to maintain doctors and patient relationship

For the patient:• Adequate and truthful information • Medications • Follow up

For the doctors:• Advances in diagnosis • Available for the care • Short comings • Be honest with the patient

In North America neurologists are the highest indemnity paid per file among specialties of medicine

Reasons :

a)failure to diagnosed

b)lack of informed consent

c)absence of proper guideline for the treatment

•Good counseling

•Listening to the problem patiently ;empathy, which is the ability to experience the feeling of the patient

• undergraduate or postgraduate curriculum

• Respect of autonomy of patient

• Medical record whenever he examines a patient

• Every detail : case sheet

• The day to day progress of patient

• The date and time of the examination

The Consumer Protection Act, 1986       Better protection of the interests of consumers

Make provision for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith

The purpose of the Act: To protect the interest of the consumers of different commodities available to them for which they pay but do not get standard quality of service. e.g. patient pay for the treatment but do not get correct treatment.

PRELIMINARY

(1 ) This Act may be called the Consumer Protection Act, 1986.

(2)  It extends to the whole of India except the State of Jammu and Kashmir

(3)  It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different States and for different provisions of this Act

(4)  Save as otherwise expressly provided by the Central Government by notification, this Act shall apply to all goods and services

“Complainant" means(i) A consumer; or(ii) Any voluntary consumer association registered under the Companies Act, 1956 or under any other law for the time being in force; or(iii) The Central Government or any State Government;(iv) One or more consumers, where there are numerous consumers having the same interest who or which makes a complaint

What is a complaint?A complaint is an allegation in writing made by a Complainant, i.e., a consumer that he or she has suffered loss or damage as a result of any deficiency of service

Consumer Any person who hires or avails of any services for a

consideration which has been paid or promised or partly paid and partly promised or under any system of deferred payment

What is deficiency of service?

Deficiency of service means any fault, imperfection, shortcoming , or inadequacy in the quality, nature, or manner of performance that 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

Limit period:

• Within two years from the date on which the cause of action has arisen

• Complaint may be entertained after the period specified , if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period

Penalties.

Where a trade or a person against whom a complaint is made [or the complainant] fails or omits to comply with any order made by the District Forum, the State Commission or the National Commission, as the case may be

Trader or person [or complainant] shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or

With fine which shall not be less than two thousand rupees but which may extend to ten thousand rupees, or with both

Dismissal of frivolous complaints

If complaints found to be frivolous it should be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost not exceeding ten thousands rupees ,as may be specified in order

 CONSUMER PROTECTION COUNCILS

1)The Central Consumer Protection Council.—

   The Central Council shall consist of the following members, namely:—

(a) The Minister in charge of the consumer affairs in the Central Government, who shall be its Chairman, and

(b) Such number of other official or non-official members representing such interests as may be prescribed.

 

2) State Consumer Protection Councils.- 

(a) The Minister in charge of consumer affairs in the State Government who shall be its Chairman

(b) Such number of other official or non-official members representing such interests as may be prescribed by the State Government

3)The District Council :—

(a)     The Collector of the district (by whatever name called), who shall be its Chairman; and

(b)   Such number of other official and non-official members representing such interests as may be prescribed by the State Government

Is there any provision for appeal?

• An appeal against the decision of the District Forum can be filed before the State Commission

• State Commission to the National Commission and from the National Commission to the Supreme Court

• The time limit : 30 days

How does adjudication of liability take place?

• Written notice to the opposite party asking for a written version to be submitted within 30 days

• Proper scrutiny

• Filing of an affidavit or production of evidence in the form of interrogatories, expert evidence, medical literature, and judicial decisions

Duration:

• A period of 90 days from the date of notice by opposite party and

• Within 150 days if it requires analysis or testing of commodities

Fees:

• No court fees.

• Lawyer not needed

The courts have great responsibility :

• To punish the guilty doctors and

• To protect the honest doctors from undue harassment at the hands of patients.

Highlights of the Supreme Court of India judgment inIndian Medical Association Vs V.P. Shantha and Others

As a result of this judgment, medical profession has been brought under the CPA, 1986 .Following categories of doctors/hospitals under this Section:

1. All medical / dental practitioners doing independent medical / dental practice unless rendering only free service

2. Private hospitals charging all patients

3. All hospitals having free as well as paying patients and all the paying and free category patients receiving treatment in such hospitals

4. Medical / dental practitioners and hospitals paid by an insurance firm for the treatment of a client or an employment for that of an employee.

It exempts only those hospitals and the medical / dental practitioners of such hospitals which offer free service to all patients

Duties Owed By Medical Practitioner

In general, a professional man owes to its client a duty in tort as well as in contract to exercise reasonable care in giving advice or performing services

Medical practitioners from all fields of medicine are liable under the Consumer Protection Act

Duties which a doctor owes to his patient are clear

1.Whether to undertake the case2. What treatment to give 3. Administration of that treatment

A breach of any of these duties gives a right of action for negligence to the patient

Medical negligence:

• Failure on the part of the doctor to act in accordance with the standard medical practice

• These standards are in accordance with those practiced by an ordinary component person in same profession

• Reasonable degree of skill and care has to be exercised in each case

• Background circumstances in question was given are also considered

Winfield defined negligence as law of tort (common knowledge) :-existence of legal duty-breach of legal duty-damages cause by that breach

A doctor is not negligent if he is acting in accordance with a practice accepted as proper by a responsible body of medical men skilled in that particular art.( Bolam test)

The ‘Bolam’ test in Bolam vs. Frien hospital management committee (1957)

• Mr. Bolam was advised electro convulsive therapy for mental illness

• Two thoughts of opinions

• The supreme court held that the doctor was not negligent because he acted in accordance with practice accepted as proper by a responsible body of medical men skilled in that art

• The ‘Bolam’ principle implies that a doctor is not negligent if he acts in accordance with a practice accepted at the time as proper in diagnosis and treatment but also to advice and warning by a “responsible body” of medical opinion even though other doctors adopt a different practice.

• A doctor is not liable for taking one choice out of two for favouring one line of treatment rather than another.

Medicine is an inexact science

No negligence has occurred if there is an error of judgment, accident or therapeutic misadventure, error in diagnosis, unavoidable complications, infections or complication of drugs

However it is duty of doctor to diagnosed ,advised and treat the patient

In the case of Indian Medical Association vs. Santha,

Apex Court has decided that :-Skill of a medical practitioner differs from doctor to doctor and

-It is incumbent upon the Complainant to prove that a doctor was negligent in the line of treatment that resulted in the life of the patient

Therefore, a Judge can find a doctor guilty only when it is proved that he has fallen short of the standard of reasonable medical care

• In medical negligence cases, it is for the patient to establish his case against the medical professional and not for the medical professional to prove that he acted with sufficient care and skill.(Madhya Pradesh High Court in the case of Smt. Sudha Gupta and Ors. vs. State of M.P.)

eg. A mishap during operation

• Negligence has to be established and cannot be presumed

• The Complainant does not examine any expert on the subject

• The Complainant needs to establish negligence

• The background of the circumstances in which the treatment in question was given

• Likely to cause physical damage unless it is not done with proper care and skill

• There is no question of warranty, undertaking, or profession of a skill

• As per the law, a defendant charged with negligence can clear himself if he shows that he acted in accordance with the general and approved practice

• It is not required to have highest degree of skill • A deviation from normal professional practice is not necessary in all cases evident of negligence

Contributory negligence:

a) Not followed the instruction given by the doctor or b) Taken treatment elsewhere which may have affected the outcome or

c) Torn the patients records

Note to be made when patient deviate from prescribed normseg. Did not take bed rest Not using cervical color

Liabilities in medical practice:

• Primary liability is that of the treating doctor under whom the patient was admitted

• Vicarious liability lies with the hospital or nursing home which covers doctors,nurses,technitians and paramedics

To avoid litigation medical professional can use various preventive measures:

1. Personal level

2. Practice level

3. Professional indemnity

4. Support groups

5. Defensesa. Technicalb. Factual

Personnel level :

• Doctor should have MCI approved qualification, training and experienced of recognized centre

• Prescription heads, signboards and advertisements should mention the actual facilities available for the diagnosis and treatment

• Sympathetic attitude towards patient

• Refrain from claims of guarantee of results

• Keep updated with CME'S,WORKSHOPS AND Academic sessions

Practice level

• The doctor should exercise reasonable medical, social and legal skill and care in diagnosis and treatment, proper documentation of facts and legally valid informed consent

• Good clinical notes of findings on examination and treatment given

• Negative records

•These negative records act as important tool while defending our cases in court of law

Arvind Shah (Dr.) v Kamlaben Kushwaha Date of Decision: 30.04.2009The complainant alleged that her deceased son, aged 20 years and otherwise healthy, died as a result of medical negligence on the part of the appellant doctor (original opposite party) who administered wrong treatment

• The State Commission awarded to the complainant a compensation of Rs. 5 lakh with interest and costs

• The two prescriptions available on record did not mention any of the patient's complaints/symptoms, the doctor's clinical observations on examining the patient or his diagnosis of the ailment

• Even the ordinary vital parameters like temperature, blood pressure, pulse rate, etc., were not noted

To make some minimal record even for outpatientsSuch a record would ordinarily include :

a)A summary of the history of illness

b) Current complaints/symptoms of the patient and

c) Clinical observations of the doctor

If the doctor considered none of the above as essential, he would need to at least record a provisional diagnosis of the patient's ailment in the prescription while advising further diagnostic test or treatment (medicines/injections)

The Commission held that in line with the Apex Court's decision in Samira Kohli v Dr. Prabha Manchanda regarding need for valid prior consent of the patient for his treatment by a doctor and the doctor's corresponding duty of disclosure, it was essential for the doctor to write a prescription with such necessary details and failure to do so would constitute medical negligence.

The Commission further observed thata) if a patient wanted to consult another, a prescription

with such details would be necessaryb) a prescription meeting these basic requirements

would also assist a doctor in demonstrating that he had treated his patient with due care, if charged with a wrong/false allegation of negligence by the patient.

Professional indemnity

Indemnity by the insurance companies gives a sense of mental security to the doctor/hospital and if any medical negligence is proved the company takes care of it

Support groups

•The Indian Medical Association, Medical college teachers Welfare Society

•Such forums can be used from time to time for discussion of various provisions of acts, cases fought and their results and the lessons to be learned from them

DefensesDoctors/Hospitals should always make all possible points in defense in first instance of making a reply to the complainantA. Technical defenses:1.Services were free of charge

2.Concurrent adjudication in another court

3.Complaint is time barred

4. Complicate issues involved, required recordings of evidence of experts, hence case should be relegated to civil court. Such plea must be taken at the beginning of trial

5. Complaints frivolous and vexations and liable to dismissed

6.inform your insurance company in writing with copy of the complaint B. Factual defenses1. Mention your qualifications, training, experience,

expertise etc. Support with relevant documents

2. Mention hospitals infrastructure facilities, special facilities, back-up support, it with documents

3. Complainant has not come to the court with clean hands i.e. he has suppressed material facts, e.g. previous illness, treatment etc

4. Inconsistence between notices sent directly or through consumer groups and the complaint made in the court

5. Written evidence of consent of the patient/ relative / attendant to assumption of inherent and special risks in the treatment

6. Circumstances of the case; viz. There was emergency, lack of facilities (e.g. rural area) no one to give history of patient’s illness etc.

7. Burden of proof of: (i) duty of care; (ii) breach of that duty; (iii) causation; (iv) damage, etc. is on the complainant

8. Reasonable knowledge, skill and care exercised (Rely/quote standard text books with attested photocopies).

9. Consolation/treatment by patient from other doctor/other systems of medicine simultaneously

10. Many other reasons/more than one reason/ for occurrence of damage

11. Contributory negligence

WHAT IS A CONSENT?

Consent in the context of medical profession implies to permission by the patient to perform an act on his body either for diagnosis or therapeutic procedure

WHAT IS AN INFORMED CONSENT?

• Enable a patient to make a balanced judgment

• Should disclose nature and procedure of the treatment and its purpose, benefits and effects

• Provide alternatives if available, substantial risk and adverse consequences of refusal of treatment offered

• No need to explain the remote or theoretical risks which may frighten the patient

• Consent from at least two persons. One from the patient and other from spouse, Parents or close relative

WHAT SHALL BE THE IDEAL (REAL OR INFORMED) COMPONENT OF CONSENT FORM

• Name of the patient with age

• Name of Principle surgeon and its team

• Name of anesthetist and team

• Name of staff nurses

• Diagnosis and nature of primary disease. Incorporate DM, CAD, CVA, Asthma etc if so existing as risk factors

• Kind of surgery or procedure to be performed Elective or emergency surgery

• Reasons for emergency if so

• Kind of anesthesia and risks

• The known and likely complications involved

• Need for harvesting bone, nerve, fascia etc

• Requirement of any implant or device

• Special risks in a particular patients e.g. Post op MI, DVT, Asthma, aspiration, Need for ventilator, Recurrence, hematoma etc

• The Supreme Court of India in a recent Judgment Samira Kohli vs. Prabha Manchanda Dr. & ANR has elaborated various aspects of consent taking

• The judgment was related to a Gynecological case where Hysterectomy was done as an additional procedure

• While the initial consent was obtained for diagnostic laparoscopy, hysterectomy and removal of both ovaries was performed in the same sitting under general anaesthesia

• The consent for hysterectomy was however obtained from the mother of the patient

• The Supreme Court held the doctor liable for malpractice

• The Supreme Court opined that additional surgery however beneficial to the patient in saving time, expenses, pain and suffering are no ground for defense

MEDICAL ETHICS AND THE TREATMENT OF ACCIDENT VICTIMS

In the case of Pravat Kumar Mukherjee vs. Ruby General Hospital and Ors, the National Commission delivered a landmark decision concerning treatment of an accident victim by the hospital

The brief facts of the case are as follows young boy, Shri Sumanta Mukherjee suffered RTA and was taken to some hospital by public. He was conscious on arrival and treatment was started on assurance of payment. But treatment was discontinued after initial treatment on not paying requisite amount. Patient was shifted to other hospital but during transport patient died

• There need a qualitative change in the attitude of the hospitals

• A human touch is necessary

• In emergency or critical cases, let them discharge their duty/social obligation of rendering service without waiting for fee or for consent

• Patients not allowed to leave the hospital for treatment elsewhere without signing any document or risk bond shown

• If emergency treatment is required to be given to a patient who was brought in seriously injured condition there was no question of waiting for consent

• Consent is implicit in such cases

• On the contrary, a surgeon who fails to perform an emergency operation must prove that the patient refused to undergo an operation not only at the initial stage but even after he was informed about the dangerous consequences of not undergoing the operation

• Waiting for consent of a patient or a passer-by who brought the patient to the hospital is nothing but absurd and is apparent failure of duty on the part of doctor

MEDICO LEGAL – SOME IMPORTANT ISSUES

•The death of a patient while undergoing treatment does not amount to medical negligence

•Engaging a specialist when available is obligatory

•Hospital is vicariously liable for any wrong claiming on the part of consultants

•Error of judgment in diagnosis or failure to cure a disease does not necessarily mean medical negligence

NIMHANS &Consumer Protection Act

Importance of consent:According to the complainant, he was assured that the surgery will be performed by a neurosurgeon (Dr Hemant Bharti) but was actually performed by an orthopaedic surgeon, (Dr Anand Sharma).

it is alleged, was an act of unfair trade practice, on the part of the respondents. After this surgery, the condition of his wife deteriorated. She lost sensation in the lower part of her body and became nearly totally bed ridden. He therefore, shifted her to SMS Hospital,Jaipur.

The State Commission has noted that the letter of 25.10.2002, pertaining to the consent for the surgery, clearly reveals that it was to be conducted by Dr Arvind Sharma and Dr Sudhir Khurana and that the consent was given by the complainant himself in writing by putting his signature in English. The contention of the complainant that he was given to understand that the surgery would be performed by Dr Bharti, has been rejected by the State Commission “for want of cogent and reliable evidence”.

based on the following –a. “The disease known as Cauda Equina Syndrome is a disease which could be cured or treated or operated by both an orthopaedic surgeon as well as by a neuro surgeon.b. To say that the surgery can only be performed by a neuro surgeon cannot be accepted.c. The surgery was performed by Dr Anand Sharma, an orthpaedic surgeon.d. It is not the case of the complainant that Dr Sharma was not qualified to perform such an operation.e. If the treating orthopaedic surgeon feels that neurological examination should be done before operation of such disease, he may do so. But, if he does not think so, before operating, it cannot be said that he is guilty of professional or medical negligence.f. In this case, as the condition of the patient was not improving, Dr Anand Sharma did advise on 17.12.2002 that her case should be examined by the neuro surgeon, Dr Bharti.”

Take home message:

• Patients are our priority as all of us are part of noble profession

• Must do what is best for our patients and not necessarily best for oneself

• Must ensure our decisions are scientific, humane,effective and in the best of interest of the patient and family

• We should talk with patient and the family members and explain every aspect in as simple a language as possible to win the confidence of the patient

• We should maintain proper records to fulfill both medical as well as legal criteria

•Once that has been done, there is no need to worry about any individual, administration or tribunal

•We should maintain proper records to fulfill both medical as well as legal criteria

•Once that has been done, there is no need to worry about any individual, administration or tribunal

10 c's to safeguard our interests:• Competence • Consent • Communication • Confidentiality • Correct medical records • Continued update of knowledge, technology • Consult colleagues • Co operation • Cover – Prof indemnity• Confidence

Thanking you