Doctors Liability Under Consumer Protection Act: Review petition filed in SC
Supreme Court of India
New Delhi: Doctors have sought a review of the recent Supreme Court judgment upholding the liability of doctors under the Consumer Protection Act, 1986.
A review petition in this regard has been filed before the Apex Court bench by the Medico-Legal Society of India against the order dated November 7, 2024, through which the top court bench comprising Justices B.R. Gavai, Prashant Kumar Mishra, and K.V. Vishwanathan had refused to reconsider the 1995 judgment in the case of Indian Medical Association v VP Shantha, which brought medical professionals under the ambit of the Consumer Protection Act, 1986 (as re-enacted in 2019).
"Removing Doctors from the CPA will boost the doctors sinking morale, repair doctor patient relationships and prevent a healthcare delivery crisis in the near future," MLSI mentioned in their review petition.
"A doctor needs a certain element of trust from the patient for him to take risks and try to save life. Looking at every patient as a potential litigant has strained the doctor patient relationship. If doctors are dissuaded from their duty due to anxiety about litigation, and for fear of hefty compensations, society will be the ultimate sufferer. More patients seek treatment at hospitals than ever before. A large percentage of patients who would die in their homes try to access healthcare facilities in the last stages of disease as we do not have palliative care or hospice care available. It is not possible to save all these patients through treatment. If all those who cannot be saved approach courts for negligence, it will create chaos in healthcare delivery system in the country," the review plea added.
IMA Vs V.P. Shantha:
Back in 1995, a three-judge bench of the Supreme Court had delivered the judgment in the case of Indian Medical Association vs. V.P. Shantha & Others. It had held that the wide amplitude of the definition of 'service' in the main part of Section 2(1)(o) would cover the services rendered by the Medical Practitioners within the said Section 2(1)(o).
Section 2(1)(o) of The Consumer Protection Act says, “service” means service of any description which is made available to potential users and includes, but not limited to, 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 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.
In the 1995 judgment, the Supreme Court bench had concluded that 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 Act.
"The fact that medical practitioners belong to the medical profession and are subject to the disciplinary control of the Medical Council of India and/or State Medical Councils constituted under the provisions of the Indian Medical Council Act would not exclude the services rendered by them from the ambit of the Act," Supreme Court had held in the 1995 order.
Two-Judge Bench Order:
However, earlier this year, a two-judge bench of the Supreme Court comprising Justices Bela Trivedi and Pankaj Mithal had observed that the 1995 judgment required reconsideration "having regard to the history, object, purpose and the scheme of the CP Act and in view of the opinion expressed by us hereinabove to the effect that neither the “Profession” could be treated as “business” or “trade” nor the services provided by the “Professionals” could be treated at par with the services provided by the Businessmen or the Traders, so as to bring them within the purview of the CP Act."
The Court made such observation while considering a batch of pleas concerning the legal question of whether a complaint alleging "deficiency in service" against Advocates practising Legal Profession, would be maintainable under the Consumer Protection Act, 1986 as re-enacted in 2019.
The bench noted in respect of the legal profession that role of the Advocates was unique and could not be compared with any other profession. Amongst the arguments put before the Court, it was also submitted that just because the medical profession had been included under the Act through VP Shantha's case, by the same logic, the legal profession could not be included.
Also Read: Major setback to medical fraternity! Doctors Still Liable under Consumer Protection Act
Supreme Court Order dated November 7, 2024:
However, last month, a top court bench comprising Justices B.R.Gavai, Prashant Kumar Mishra and K.V. Vishwanathan held that the reference was not necessary. The bench also questioned the necessity of making such a reference in respect of another profession since the Court had already held that the legal profession was sui generis.
"We find that the issue before the Court was with regards to the legal profession and Court in unequivocal terms came to a conclusion that the legal profession is not covered by the provisions of Consumer Protection Act. Since the Court came to the aforesaid finding, irrespective of the finding of this Court in Shantha, the reference was not necessary. The question as to whether the other professionals excluding legal profession could be covered by the Consumer Protection Act can be considered in appropriate cases, having a factual foundation... In view of the matter, we dispose of the reference," the top court bench had noted in its order.
Grounds for Review Petition:
Filing a review petition, the Medico-Legal Society of India has prayed to the top court bench to review the decision of the three judge bench holding that there was no need to refer IMA vs V P Shantha at this stage to a larger bench. Further, the association sought permission from the top court bench to submit details with respect to a review of IMA Vs V P Shantha and need of Medical Tribunal to protect interest of both doctors and patients alike so that healthcare delivery in the country does not suffer.
It has been contended by the association that there was no legal reason in the November 7 order as to why the V.P. Shantha judgment should not be revisited in spite of the reference made in this regard by a two-judge bench.
As per the association, the medical profession involves complex decision-making under uncertainty, often with life-or-death consequences. It mentioned that the doctors cannot guarantee outcomes unlike other service providers as the same treatment can have totally different effects on different patients.
"The human response to any treatment can range from cure, no ef ect. complications, significant harm and death. An innocuous tetanus injection can cause death in susceptible healthy persons. Recommendations given in textbooks are based on statistics which never promise 100% cure but a significant chance of a cure. Should all patients who do not get a cure approach the court for negligence? The consumer friendly Act is encouraging this stance and causing adverse conditions for medical practice which is causing doctors to leave the profession, leave India. The stress of litigation in practice has taken many lives through suicide. Most doctors enter medical practice to do good for society. We beseech you to respect and protect these noble intentions," stated the review petition.
Arguing that removing doctors from the CPA would boost the doctors' sinking morale, the association further contended that the Supreme Court order dated November 7 was passed in violation of the principles of natural justice as MLSI was denied the opportunity to be heard as an intervener. Further, the association pointed out that the order was passed while accepting arguments about the medical profession without involving any association of doctors to clarify the facts.
"Petitioner understands that the power to review its own decisions is not an inherent power of the Supreme Court, but a protective measure against the fallibility of the apex institution of the judiciary so as to ensure the delivery of justice. It must therefore be exercised in a limited manner. Petitioner humbly submits that order passed without hearing properly filed intervention application has resulted into gross miscarriage of justice not only to Medico Legal Society of India but entire medical fraternity in particular and citizens of the country in general," stated the plea.
"...the decision by the Hon'ble Supreme Court will have undesirable consequences on healthcare delivery in the country and citizens will face difficulties when they are caught in emergency situation as doctors have already started refusing to treat serious patients and referring them to government hospitals which are ill-equipped to handle such patients for want of facilities," it added.
