They are “Gods” for us. They are saviours and they heal humanity. They are friends. These words revolve around us as we find our health requiring medical help.
Sometimes, when in rare cases, we come across instances of death during treatment or botched up results, we turn to castigate and malign an entire profession by indulging in a blame game.
We all know that the medical practice is a highly specialized field, involving complicated assessment of the condition of a patient, deciphering medical reports, deciding the line of treatment, carrying out the medical procedure and then follow up and post-operative treatment.
A question that arises is, whether it is appropriate to subject these highly specialised professionals to the common law?
A recent Judgement of the Kerala High Court held that medical services provided by Doctors would be covered under the provisions of the Consumer Protection Act, 2019.
In this matter several doctors approached the Kerala High Court, contending that the Consumer Fora under the Consumer Protection Act, 2019 do not have jurisdiction to take cognizance of complaints in respect of medical negligence and deficiency in medical service, as medical profession and practice do not come within the purview of the term ‘service’ defined under Section 2(42) of the Consumer Protection Act, 2019.
In the Kerala Case, a complaint was filed by a patient in the District Consumer Disputes Redressal Commission, Kannur. She was diagnosed with a cataract in her left eye and underwent a cataract procedure with the concerned Doctor. After the treatment, the complainant lost sight of her left eye. The complainant alleged that loss of eyesight was due to medical negligence and sought compensation of Rs 32,52,000.
The Doctors, who got together to file the Petition argued that the medical service/practice is not included in the illustrations in the inclusive definition of the term 'service' under Section 2(42) of the Consumer Protection Act, 2019 and hence the intention of the Parliament is clear that the Parliament did not want to include medical services/profession within the purview of the term 'service'.
An important point they argued was that the lawmakers were convinced about the unfairness and injustice of adjudicating the complicated disputes relating to medical negligence/deficiency of medical services in summary proceedings under the Consumer Protection Act. The Consumer Protection Courts do not have medical experts as Members, except in the National Commission. Therefore, when the intention of the Legislature is clear, District and State Commissions should have held that the provisions of the Act do not apply to Doctors.
The question of whether medical negligence/ deficiency in medical services would fall within the ambit of ‘service’ came up for consideration before the Hon’ble Apex Court, in the case of V.P. Shantha, where considering identical definition, the Hon’ble Supreme Court held that the Act would cover Medical Services also.
The Kerala High Court negatived all the contentions of the Doctors and held that all services which are made available to potential users would fall under Section 2(42), except those services rendered free of charge or under a contract of personal service.The words “but not limited to” appearing in Section 2(42) clarify the intention of the Parliament. The medical services therefore would indeed fall within the ambit of Section 2(42), unless of course the service is free of charge or is under a contract of personal service.
