UNIVERSITY OF PETROLEUM & ENERGY

STUDIES

School of Law

PROJECT ON

Indian Medical Association v. V.P. Shantha & others

ACADEMIC YEAR: 2017-2018

SESSION: JULY- NOVEMBER

Submitted to: Submitted by:

Monica Rani Saket Singh Rajput

B.COM LL.B (HONS.)

SEMESTER I

SAP NO: 500060579

ROLL NO: 74

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Table of Content

Introduction.......................................................................................................03

Essentials...........................................................................................................04

Negligence by Medical Professionals................................................................05

Medical Negligence - A Civil Wrong or Criminal Offence..............................06

Medical negligence and Hospital.......................................................................07

Medical profession: Whether comes under Consumer Protection Act.............08

Conclusion..........................................................................................................09
Bibliography..........................................................................................09

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Introduction
“An Act to provide for better protection of the interests of consumers
and for that purpose to make provision for the establishment of
consumer councils and other authorities for the settlement of
consumers' disputes and for matters connected therewith 1”. The
Consumer Protection Act, 19862 was the outcome of the adoption by
the United Nation of basic framework for the government of the third
world countries to strengthen consumer protection policies.3

Indian Medical Association v V.P Shantha was a landmark case under

the act. The issue addressed in the judgement was whether medical
profession, hospitals, dispensaries and paramedical services comes
under applicability of Consumer Protection act 1986.

Till the Pronouncement of the judgement, the accountability of medical

professionals and indemnification of aggrieved parties had become a
controversial issue. The decline in the fiduciary character of the Doctor-
Patient relationship coupled with communication of the services of the
medical establishment had led to the evolution of the concept of patient
as a consumer. Resultantly, the issue of interpreting the statute to allow
for medical services to be included with the scope of COPRA was
largely for the purpose of providing quick justice to patient having
grievances as consumer of medical services.

Essentials
Statues Referred:-

 Section 2(1) (d) of COPRA.

 Section 2(1) (g) of Consumer Protection Act, 1986,
 Section 14 (1) (d) of Consumer Protection Act, 1986,
 Section 2(1) (o) of Consumer Protection Act, 1986, which defines
“service” as service of any description which is made available to
potential (users and includes the provision of facilities in
connection with banking, financing insurance, transport,
processing, supply of electrical or other energy, board or lodging
or both, housing construction, entertainment, amusement or the

1
Preamble, THE CONSUMER PROTECTION ACT, 1986 [Act, No. 68 of
1986]
2
Henceforth referred to as COPRA
3
On 09/04/1985, the General Assembly of the U.N passed the Consumer
Protection Resolution ND 39/248

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 purveying of news or other information, but does not include the
rendering of any service free of charge or under a contract of
personal service.

Argument:-

First issue addressed before the bench was whether services of medical
practitioner are services under COPRA. Indian Medical Association4
contended that Law distinguish between profession and occupation and
the Act include only occupational services not those of professional
services under Section 2(1a) (o) of the Act. The Hon’ble Judge rejected
the argument of not including medical profession under the Act as
being professional services.

It was urged from side of respondent that medical services are Contract
of personal service which implies that medical services are not services
under Section 2(1) (o) as Contract of personal service is exclusionary
part of the services.

This argument was ignored by referring a case Dharangdhara Chemical

Works Ltd. v State of Saurashtra, which distinguishes between Contract
of service and Contact for service. Mere fiduciary relationship does not
give effect to and since there is no master servant relationship between
Doctor and Patient, it will not result into Contract of Service.

Other argument which was raised by respondent was that “service” does
not include any such term medical service, so medical service are not in
the purview of the Act.

This argument was rejected as definition of service is not limited but it

is a having three parts i.e. Main part, inclusionary part, exclusionary
part. Though main part does not include medical services but
inclusionary part of the definition have wider scope and covers medical
services.

Second issue which was raised questioned hospitals and nursing homes
are in the scope of the Act. There were made three broad categories
under which nature services of doctors/hospital can be determined:-

a. Services rendered free of charge to everybody.

b. Charges paid by all users.

c. Charges are required to be paid by all person except those, who

cannot afford (services are rendered free)

4
Henceforth referred to as IMA

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There is no difficulty in finding out liability in first two categories as
when services are rendered free of charge there is no service rendered
as according to Section 2(1) (o) of the Act hence excluded by virtue of
exclusionary clause of the Section. Also token money will be treated as
no consideration paid. But it will not include those independent doctors
who are rendering service free of charge. And in second category if a
person is paying consideration it will come under jurisdiction of the Act
as medical services are services and consideration is paid to avail them.

It was opined by Hon’ble Judge that since patients, who are availing
services free of charge, belonging to third category are beneficiary as
patients who are paying consideration in that category are, actually,
paying for non-paying patients too. So being beneficiary they are under
scope of the Act. Hence are treated as consumer under Section 2(1) (d)
of the Act.

Negligence by Medical Professionals

If a person is ready to give medical advice or treatment undertakes
(impliedly) that he has required skills and knowledge for the purpose.
He may or may not be a medical practitioner but when consulted by a
patient, owes him certain duties.

A patient can bring action for negligence if any of the following duty is
breached:-

 A duty of care in deciding whether he undertakes case

 What treatment to give
 His administration of that treatment

The Supreme Court of India has gone into details of what is the
meaning of negligence by medical professionals5. Considerations are
applied to infer negligence on the part of doctors. A simple lack of care,
an error of judgment or an accident, is not proof of negligence on the
part of a medical professional. A doctor cannot be held liable for
negligence merely because a better alternative course or method of
treatment was also available or simply because a more skilled doctor
would not have chosen to follow or resort to that practice or procedure
which the accused followed. He cannot be held liable as long as he
followes a practice acceptable to the medical profession.

A failure to use special or extraordinary precautions which might have

prevented the particular happening cannot be the standard for judging
5
Jacob Mathew v. State Of Punjab & Anr on 5 August, 2005

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the alleged negligence. When it comes to the failure of taking
precautions what has to be seen is whether those precautions were taken
which the ordinary experience of men has found to be sufficient.

So also, the standard of care, while assessing the practice as adopted, is

judged in the light of knowledge available at the time of the incident,
and not at the date of trial. Similarly, when the charge of negligence
arises out of failure to use some particular equipment, the charge would
fail if the equipment was not generally available at that particular time
(that is, the time of the incident) at which it is suggested it should have
been used.

Medical Negligence - A Civil Wrong or Criminal Offence:

The term negligence is employed for the aim of fastening
the suspect with liability beneath civil law (the law of torts) and, at
times, beneath the legal code. However typically it's alleged by the
plaintiffs that negligence is negligence which no distinction are
often drawn between the two thus far because it relates to breach of his
duty and resultant harm. Explaining the distinction between the two,
Lord Atkin in his speech6, stated: “… easy lack of
care appreciate can represent civil liability isn't enough for functions of
the legal code there area unit degrees of negligence; And a terribly high
degree of negligence is needed to be established before the crime is
established.” so for negligence to be associate degree offence,
the component of planning (guilty mind) should be shown to exist and
therefore the negligence ought to be gross or of terribly high degree.

In Criminal law, negligence or recklessness must be of such a high

degree as to be held gross. The apex court in Jacob Mathew v. State of
Punjab, has explained that; “the expression rash and negligent act
occurring in section 304 -A of the I.P.C should be qualified by the word
grossly. To prosecute a medical professional for negligence under
criminal law it must be shown that the accused did something or failed
to do something which in the given facts and circumstances no medical
professional in his ordinary senses and prudence would have done or
failed to do. The hazard taken by the accused doctor should be of such a
nature that the injury which has resulted was most likely imminent.

From the above it may be inferred that the distinction between civil and
criminal liability in medical negligence lies in the conduct of the doctor
which should be of gross or reckless or of a very high degree.

6
Andrews v. Director Public Prosecution
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The general law is that the medical professionals are liable for their
services individually as well as vicariously. The decision of the
Supreme Court in Indian Medical Association v. VP Shantha gives an
elaborate view on the civil liability that exists in case of medical
practitioners.

The accused professional must have committed an act of omission or

commission; this act must have been in breach of the person’s duty; and
this must have caused harm to the injured person. It is the obligation of
the complainant to prove the allegation against the doctor by citing the
best evidence available in medical jurisprudence and by presenting
expert scientific opinion along with other evidences. In some situations,
the complainant can invoke the principle of res ispa loquitur.

The launch of proceedings before the civil courts under the medical
negligence laws in India starts with the filing of the suit before the civil
court which can either be for claiming compensation from the medical
practitioner for the loss sustained or for claiming any other relief related
to the alleged act. The proceedings before the civil court are decided by
filing of the written statement by the medical practitioner and after the
leading of the evidence before court during which the court can
summon the evidence of the experts for deciding the said matters. The
final outcome of the proceedings before the civil court is by way of a
decree which is passed by the court based on the facts of the case and
after considering the entire evidence in the matter.

Medical negligence and Hospital

Hospital0s in India may be held liable for their services individually or
vicariously. They can be charged with negligence and sued either in
criminal/ civil courts or Consumer Courts. As litigations usually take a
long time to reach their logical end in civil courts, medical services
have been brought under the purview of Consumer Protection Act,1986
wherein the complainant can be granted compensation for deficiency in
services within a stipulated time of 90 -150 days.

Cases, which do not come under the purview of Consumer Protection

Act, 1986 (e.g., cases where treatment is routinely provided free of cost
at non-government or government hospitals, health centres, dispensaries
or nursing homes, etc.) can be taken up with criminal courts where the
health care provider can be charged under Section 304-A IPC for
causing damages amounting to rash and negligent act or in Civil Courts
where compensation is sought in lieu of the damage suffered, as the
case may be.

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Medical profession: Whether comes under Consumer
Protection Act
In Indian Medical Association v. V.P. Shantha and Ors , the apex court
has put an end to this controversy and has held that patients aggrieved
by any deficiency in treatment, from both private clinics and
Government hospitals, are entitled to seek damages under the Consumer
Protection Act, 1986. A few important principles laid down in this case
include:

1.Service rendered to a patient by a medical practitioner (except where

the doctor renders service free of charge to every patient or under a
contract of personal service) by way of consultation, diagnosis and
treatment, both medicinal and surgical, would fall within the ambit of
“service” as defined in section 2(1)(o) of the C.P. Act

2. The fact that medical practitioners belong to medical profession and

are subject to disciplinary control of the Medical Council of India and,
or the State Medical Councils

would not exclude the service rendered by them from the ambit of C.P.
Act.

3. The service rendered by a doctor was under a contract for personal

service rather than a contract of personal service and was not covered
by the exclusionary clause of the definition of service contained in the
COPRA

4. A service rendered free of charge to everybody would not be service

as defined in the Act.

5. The hospitals and doctors cannot claim it to be a free service if the

expenses have been borne by an insurance company under medical care
or by one’s employer under the service conditions.

Conclusion
After a detailed analysis of the case Indian Medical Association v. V.P
Shanth we can say that This case gave effect to consumers who were
suffering from medical negligence and including medical services in the

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ambit of Consumer Protection Act, 1986 enabled consumer to get more
speedy and cheap justice. As this is the main aim of the Act. This case
also differentiated contract for service and contract of service, in respect
of medical practice and profession. System of liability which it
established is not appropriate in case where patients are not treated as
consumer even in government hospital availing services free of charge.
It is question of common conscience and equity as person who are
availing services in government hospital are not economically sound
that is why they are availing services in government hospital. It is point
of reconsideration. Hospital rendering services free of charge are
outside the purview of the Consumer Protection Act, 1986. As some
charitable trust do not have profit motive they can be sued in either civil
case but not in Consumer court.

REFERENCES

1. Statutes

The Consumer Protection Act, 1986

The Medical Council Act, 1956

Indian Penal Code, 1860

2. Books

WHV Rogers,Winfield and Jolowicz on Tort, Sweet & Maxwell, International Student
Edition, 1998 .

Laxminath and M Sridhar, Ramaswamy Iyer‟s The Law of Torts, LexisNexis Butterworths,
Ninth Edn, 2003

M.K. Balachandran,Consumer Protection Act and Medical Profession, Department of

Consumer Affairs, Govt. of India in association with I.I.P.A., New Delhi, 2006, Reprint
2008.

3. Websites

http://legalservicesindia.com

http://medicolegalhelpline.blogspot.in

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