Medicinal negligence and Consumer Protection Act (Nov 24)
Tips for making complaints.

The provisions of Consumer Protection Act in relation to medical services have been highlighted here in the form of easy tips specially in order to guide the consumer (patients or otherwise) in moving a complaint.

A doctor, when consulted by a patient owes him: a duty of care in deciding to undertake the case; a duty of care in the administration of that treatment. A breach of any of these three duties gives the right of action for medical negligence to the patient.

The main relief provided under the Consumer Protection Act is compensation for the damage caused due to deficiency in service, which in the case of medical services is negligence. Hence it is advisable for the complainant to bring about early in his complaint the following four elements for obtaining compensation:

i) Existence of duty of care
ii) Breach of that duty
iii) The damage injury/death which occurred and
iv) The breach was proximate cause of damage, injury/death.

In order to bring out these four elements in the complaint it is advisable to seek assistance from another doctor/specialist, person who is knowledgeable lawyers, standard textbook etc.

Which category of Medical Service can be complained of under CORPA?
A complaint can be brought against:
a) Medical service rendered at Government/Non-Government hospital, nursing home, clinic, diagnostic-center, home-visits nursing care etc for which a consideration, i.e. charge, fees have been paid.
b) Medical services rendered at a Government/Non-Government hospital, nursing home, clinic, diagnostic-center etc. where charges are required to be paid by some and others are rendered service free, even if free, fall within the ambit of CP Act, 1986.
c) Where as part of the conditions of service, the employer bears the expenses of medical treatment of the employee and his family members, the medical services provided to such persons would fall within the provision of the Act.
d) Where the cost of the medical treatment is borne by an insurance company.
e) Till now, service provided by ESI hospitals/SAIL or any other hospital/clinic run by an industrial house or company for the benefit of their employees and members of their families are covered under CP Act. But services provided by CGHS dispensaries /hospitals and such other dispensaries/hospitals where some token charges, such as membership fee/registration fee is charged but treatment and medicines are provided free are not covered under the said Act.

When to make a complaint?
A complaint can be made

When you feel or are able to prove that the charges levied are wrong (excluding doctor's fee) which seem to be not related to the services provided such as medico -legal charges, bed charges when bed facility is no - existent, unidentified surcharges etc. But no complaint can be made for alleged excessive fees regarding consultation, operation, diagnostic test, bed charges etc, and any other charges for services actually provided.

When there has been a deficiency in the medical service provided as breach of duty described above.

A writ lies even in a case when an emergency accident is not attended to or admission is denied as it amounts to breach of right of life.

When not to make a complaint under the CP Act?
A complaint can/should not be made in the following cases:
a) Services availed of at a Non - Governmental hospitals/Nursing home or at a Government hospital/Health center/Dispensary, where no charge whatsoever is made from any person availing the service and all patients are given free service.

b) The question about excessive fee of doctor is not a consumer dispute.
c) For breach of medical ethics.
d) Failure of family planning operation only on grounds of it having ailed in preventing another pregnancy. A complaint does lie in case death occurs/other complications occur.
e) When there is no evidence, documents, receipts, etc. whatsoever. No affidavits to support your complaint.
f) Where case has already been filed decided in a civil court for the same cause of action.

Who can file a complaint?
A complaint can be made by
a) A consumer for himself and/or for his beneficiary including parents, guardians for minors' wards, and children for parents etc. For the purpose of services, a consumer means a person belonging to the following categories:
i) one who hires or avails of any service or services for a consideration, which has been paid or promised or partly paid and partly promised, or under any system of deferred payment.
ii) It includes any beneficiary of such services other than the one who actually hires or avails of the service for consideration and such services are availed with the approval of such person.
iii) Any voluntary consumer association registered under the Companies Act or any other law for the time being in force.
iv) The Central Government or any State Government.
v) Class action complaints - one or more consumers, where there are numerous consumers having the same interest.


Where to file a complaint?
A Complaint should be filed:
a) In the District Forum, the State Commission or the State Commission or the National Commission depending on the value of the services and the compensation, if any claim Pecuniary Jurisdiction:
District Forum upto Rs 5 lakhs,
State Commission: More than Rs 5 lakhs and upto Rs 20 lakhs and National Commission: above Rs 20 lakhs.
Territorial Jurisdiction: A complaint can be instituted in a District Forum/State Commission within the local limits of the jurisdiction of the opposite party where he actually or voluntarily resides or carries on business or has a branch office or personally works for gain.
b) Provided that where there are more than one opposite parties in such a case either the permission of the District Forum is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain within the jurisdiction of such District Forum/State Commission, as the case may be.

Is there any Court fee?
No, no stamp paper etc. is required.
Even a plain paper would do unlike a civil suit for damages, where court fee is required to be paid depending on amount claim, no such court fee is required to be paid for a complaint under the CP Act
No stamp duty is required on affidavits. But it may be noted that the complainant may be asked to pay appropriate laboratory. However a fixed fee of Rs. 250/- is required to be paid.

Are lawyers required for filing a complaint? How to submit the complaint?
No, but it is advisable that legal advice before filing the case be invariably sought since in the event of the case appearing the matter to the consumer forum and then to switch to the civil suit. Alternatively one of the consumer organizations known or nearest to you could be approached for help for filing a complaint.

The complaints can be either hand written legibly or typed, but preferably typed. It may be in a local language, in which a particular Forum/Commission is working/accepting complaints. The complaint can be submitted in person, through agent/lawyers, or by registered post AD. The complaint should be filed within a period of two years from the date on which cause the action arose. But a complaint may be entertained after the said period if the complainant satisfies the court that there was sufficient cause for not filing the complaint within the limited period.

to be continued.....

(The author is a medico-legal consultant) 

(Courtesy: The Sangai Express)


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