Q. Medical negligence is –

• Ill-defined offence (Ratan Lal Dheeraj Lal)
• Adjudicated by ill-defined consumer forums (CPA 1986)
• Following an ill-defined procedure of summary trial (Jacob Mathew)
• Under ill-defined legal provisions (Martin D'Souja)
• With ill-defined requirement of medical evidence (Dr. Suresh Gupta)
• Evidence Act being non-applicable (Nikhil Hospital)

Has resulted into a chaotic situation with devastating effects on the medical profession and treatment of patients. Will you please substantiate or controvert each of my submissions? AI response: Sure, let's break down each of your points and see if we can substantiate or controvert them:

• Ill-defined offence (Ratan Lal Dheeraj Lal): Medical negligence is indeed a complex and often ill-defined offence. It refers to a breach of duty of care by a medical practitioner, resulting in harm to the patient. The definition and scope of what constitutes medical negligence can vary, leading to ambiguity.
• Adjudicated by ill-defined consumer forums (CPA 1986): The Consumer Protection Act (CPA) of 1986 established consumer forums to address grievances, including those related to medical negligence. However, these forums often lack the specialized knowledge required to adjudicate complex medical cases, leading to inconsistent judgments.
• Following an ill-defined procedure of summary trial (Jacob Mathew): Summary trials are designed for speedy disposal of cases and involve a simplified procedure. However, the application of summary trials in medical negligence cases can be problematic due to the complexity and need for detailed examination of medical evidence.
• Under ill-defined legal provisions (Martin D'Souja): Legal provisions for medical negligence have evolved over time, but they remain somewhat ambiguous. The Indian Medical Council (Professional Conduct, Etiquette and Ethics) Regulations, 2002, provide guidelines, but the interpretation and application can vary.
• With ill-defined requirement of medical evidence (Dr. Suresh Gupta): The requirement for medical evidence in negligence cases is crucial but often ill-defined. Medical evidence is essential to establish the breach of duty and causation. However, the standards for what constitutes sufficient medical evidence can be inconsistent.
• Evidence Act being non-applicable (Nikhil Hospital): The Indian Evidence Act, 1872, is applicable in medical negligence cases, and medical evidence plays a significant role. However, there can be challenges in the admissibility and interpretation of medical evidence, leading to complications in legal proceedings.

In summary, your points highlight the complexities and challenges in addressing medical negligence within the current legal framework. The ambiguity in definitions, procedures, and evidence requirements can indeed lead to a chaotic situation, affecting both the medical profession and patient care.

Q. Statutory interpretation of the ambiguous language of Sec 2(1)(O)

"Service" means …. By the three-judge bench of SC in IMA vs V P Shantha, placed Medical Services under the CPA 1986 on the ground of inferred 'will of the Parliament'. The law was repealed, and CPA 2019 was enacted. Even though the language of Sec 2(1)(o) of CPA 1986 is the same in Sec 2(1)(m) of the 2019 Act, this is after deliberate exclusion of Medical Services from the CP Bill 2019 by the Parliament, after due deliberation and specifically overruling the IMA judgment. In the light of the express will of the Parliament, does it not call for statutory interpretation of CPA 2019 provision? Especially after the decision of the SC Bench in Bar of Indian Lawyers vs D K Gandhi? Will you please substantiate my submission?

AI Response:

Your submission raises important points about the statutory interpretation of the Consumer Protection Act (CPA) 2019, especially in light of the Supreme Court's decisions and the express will of the Parliament. Let's break it down:

• Statutory Interpretation of Sec 2(1)(O) in CPA 1986:
  • The Supreme Court in IMA vs V P Shantha interpreted the ambiguous language of Sec 2(1)(O) of the CPA 1986 to include medical services under the definition of "service" based on the inferred will of the Parliament.
• Repeal of CPA 1986 and Enactment of CPA 2019:
  • The CPA 1986 was repealed, and the CPA 2019 was enacted.
  • The language of Sec 2(1)(o) of CPA 1986 is similar to Sec 2(1)(m) of CPA 2019.
  • However, the Parliament deliberately excluded medical services from the CP Bill 2019 after due deliberation and specifically overruled the IMA judgment.
• Express Will of the Parliament:
  • Given the express will of the Parliament to exclude medical services from the CP Bill 2019, it calls for a statutory interpretation of the CPA 2019 provisions.
  • The deliberate exclusion indicates the Parliament's intention to not include medical services under the definition of "service" in the CPA 2019.
• Decision of the SC Bench in Bar of Indian Lawyers vs D K Gandhi:
  • The decision of the Supreme Court Bench in this case further supports the need for statutory interpretation of the CPA 2019 provisions.
  • The Court's interpretation should align with the express will of the Parliament, especially when there is a clear legislative intent to exclude certain services.

In summary, your submission is substantiated by the express will of the Parliament and the need for statutory interpretation of the CPA 2019 provisions, especially in light of the Supreme Court's decisions and the deliberate exclusion of medical services from the CP Bill 2019.

Q. How does the medical profession counter the persistent reluctance of SC to do the same? Any concrete suggestion or advised strategy?

AI Response:

The medical profession can adopt several strategies to counter the persistent reluctance of the Supreme Court (SC) to exclude medical services from the Consumer Protection Act (CPA). Here are some concrete suggestions:

• Engage in Advocacy and Lobbying:
  • Medical associations and professional bodies can engage in advocacy and lobbying efforts to influence legislative and judicial decisions.
  • By presenting well-researched arguments and evidence, they can highlight the unique nature of medical services and the need for specialized legal frameworks.
• Collaborate with Legal Experts:
  • Collaborating with legal experts and constitutional lawyers can help the medical profession build strong legal arguments.
  • These experts can assist in filing petitions, drafting legal documents, and representing the medical community in court.
• Raise Public Awareness:
  • Raising public awareness about the challenges faced by the medical profession under the CPA can garner public support.
  • This can be done through media campaigns, public discussions, and educational programs that explain the complexities of medical negligence cases.
• Seek Legislative Amendments:
  • The medical profession can work towards seeking legislative amendments to explicitly exclude medical services from the CPA.
  • This can involve drafting proposed amendments, engaging with lawmakers, and participating in parliamentary discussions.
• File Review Petitions:
  • Filing review petitions in the Supreme Court can be an effective strategy.
  • By presenting new evidence or highlighting errors in previous judgments, the medical profession can request the court to reconsider its stance on including medical services under the CPA.
• Strengthen Internal Regulations:
  • Strengthening internal regulations and disciplinary mechanisms within the medical profession can demonstrate a commitment to addressing medical negligence.
  • This can include setting up independent review boards, implementing stricter ethical guidelines, and ensuring accountability within the profession.

Engage in Dialogue with the Judiciary:
Engaging in constructive dialogue with the judiciary can help bridge the gap between the medical profession and the legal system. This can involve participating in judicial conferences, submitting amicus curiae briefs, and organizing joint workshops to discuss the nuances of medical negligence cases.

By adopting these strategies, the medical profession can effectively counter the reluctance of the Supreme Court and work towards a more balanced and fair legal framework for addressing medical negligence.

Q. By placing medical services under CPA 1986 the court created a special privileged class of paying patients entitled to preferential legal rights to claim compensation for medical negligence, leaving the non paying patients to seek the same under ordinary laws. The classification is based on no constitutional provisions. Is it not discriminatory? Is it not contravention of fundamental right of equality before the law? Your considered views?

AI response: The classification of medical services under the Consumer Protection Act (CPA) 1986 does raise important questions about equality and discrimination. The fundamental right to equality before the law, enshrined in Article 14 of the Indian Constitution, mandates that the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. This principle ensures that all individuals are treated equally and without discrimination.

However, the classification under CPA 1986, which provides preferential legal rights to paying patients for claiming compensation for medical negligence, while leaving non-paying patients to seek redress under ordinary laws, can be seen as creating a disparity. This distinction could be perceived as discriminatory, as it appears to favor one group over another based on their ability to pay for medical services.

The Supreme Court of India has recognized that medical professionals fall under the definition of "service" in the Consumer Protection Act, allowing them to be sued in consumer courts for providing defective service. This inclusion aims to protect consumers from unfair and unethical practices. However, the differentiation between paying and non-paying patients could be argued to contravene the fundamental right of equality before the law, as it does not provide similar treatment to similarly circumstanced persons.

In essence, while the intention behind the CPA 1986 is to safeguard consumers, the classification based on payment status may indeed raise concerns about discrimination and the violation of the fundamental right to equality. It is essential to ensure that all patients, regardless of their payment status, have equal access to legal remedies for medical negligence.

What are your thoughts on this issue? Do you think there should be a more equitable approach to addressing medical negligence claims?

Q. The court discriminated, the court should dediscriminate by removing paid medical services from the CPA. Let all victims of medical negligence seek justice under the ordinary laws. Do you agree?

AI Response:

• You raise a thought-provoking point. By removing paid medical services from the Consumer Protection Act (CPA) and ensuring that all victims of medical negligence, regardless of their payment status, seek justice under the ordinary laws, the court could potentially create a more equitable system.
• This approach would eliminate the distinction between paying and non-paying patients, thereby addressing concerns of discrimination and ensuring equality before the law.
• A more uniform legal framework for all medical negligence claims would ensure that every patient, regardless of their financial status, has equal access to legal remedies.
• This could help in upholding the fundamental right to equality and provide a fair chance for all victims of medical negligence to seek justice.
• However, it's also essential to consider the possible implications and challenges of such a change. The CPA was designed to provide consumers with quick and efficient redressal mechanisms, which might be more accessible and effective for some individuals.
• Balancing the need for equality with the efficiency of the legal process is crucial in any proposed reform.
• Ultimately, ensuring justice and fairness for all patients should be the primary goal.

What do you think about the potential impact of such a change on the overall legal and healthcare system?

Q. Declaring the medical services to be out of CPA, it will have no negative impact on the quality of treatment. All genuine victims of medical negligence, paying and non-paying, rich and poor, will have equal recourse to law with equitable, fair and just contest. In the light of emerging medical negligence jurisprudence and express will of the Parliament, the Hon'ble Supreme Court owes it to the country. Your views?

AI Response:

• Your argument touches on several important points regarding medical services and the Consumer Protection Act (CPA).
• While it's true that exempting medical services from the CPA might not directly impact the quality of treatment, there are some nuances to consider:
• Equitable Recourse to Law: Ensuring that all victims of medical negligence, regardless of their socio-economic status, have equal recourse to law is a noble goal. However, the accessibility and affordability of legal avenues outside the CPA need to be carefully evaluated. The CPA provides a relatively affordable and accessible platform for consumers to seek redressal.
• Emerging Jurisprudence: The development of medical negligence jurisprudence is crucial. Courts have increasingly recognized the complexities involved in medical negligence cases and have been evolving standards to address them. Removing medical services from the CPA could potentially slow down this evolution by limiting the number of cases that come before the courts.
• Express Will of the Parliament: Respecting the intent of the Parliament is essential in a democratic system. If there is a clear legislative intent to exclude medical services from the CPA, the Supreme Court must consider this. However, the Court must also ensure that such exclusions do not undermine the rights of individuals seeking justice.
• In essence, while there might be valid reasons to consider exempting medical services from the CPA, it is crucial to ensure that alternative mechanisms are in place to protect patients' rights and provide them with accessible and fair legal recourse.
• The Supreme Court has a significant role in balancing these interests and ensuring that justice is served for all parties involved.

Q. CPA is to provide easy access and expeditious remedies to consumers of goods and products. Inclusion of medical services has failed to provide the same to the patients.

Each case lasts about 5 years. Certainly, it is not cheap as for every medical negligence litigant, a thousand other patients have already paid lakhs to the physician and the hospital, which is then paid to lawyers, insurance companies, and as compensation to a few. An alternative legal mechanism has to be developed for this, as suggested by you. Continuing medical services under CPA is counterproductive, is my submission. The earlier it is done, the better it is for all, except, of course, for the lawyers. What are your views?

AI Response:

You bring up critical points about the shortcomings of including medical services under the CPA. Your perspective highlights several key issues:

• Delay in Resolution: With cases taking about five years to resolve, the primary goal of the CPA—to provide expeditious remedies—is not being met for medical negligence cases. This long duration can be mentally and financially exhausting for the victims.
• Financial Burden: The financial impact on patients is significant. As you pointed out, the cost of litigation is high, and the expenses are often transferred to other patients. This situation can create an additional burden on the healthcare system and patients who seek justice.
• Alternative Legal Mechanism: Developing a specialized legal mechanism to address medical negligence cases could potentially offer more targeted, efficient, and fair solutions. Such a system could be designed to handle the unique complexities of medical cases, thereby providing faster and more equitable outcomes.

Your submission that continuing medical services under the CPA is counterproductive has merit. Balancing the need for accountability in medical services with the practicalities of legal proceedings is essential. Ensuring that the legal process is accessible, efficient, and fair for all parties involved should be the ultimate goal. If excluding medical services from the CPA can help achieve this balance, then exploring alternative legal mechanisms is indeed a logical step forward. Shall we delve deeper into what an alternative legal framework might look like?

Q. What are some examples of successful alternative legal frameworks?

AI Response:

There are several successful alternative legal frameworks that have been implemented in various jurisdictions to address specific legal needs. Here are a few examples:

• Medical Tribunals: In some countries, specialized medical tribunals have been established to handle medical negligence cases. These tribunals are staffed with medical and legal experts who can provide more informed and efficient resolutions compared to general courts.
• Arbitration and Mediation: Alternative dispute resolution (ADR) mechanisms like arbitration and mediation are widely used to resolve disputes outside the traditional court system. These methods are often faster, less formal, and more cost-effective. For example, the United States has implemented ADR programs in various sectors, including healthcare, to resolve disputes efficiently.
• Specialized Courts: Some jurisdictions have established specialized courts to handle specific types of cases. For instance, the United Kingdom has the Technology and Construction Court (TCC) to deal with complex construction and technology disputes. These courts have judges with expertise in the relevant fields, leading to more informed and efficient decisions.
• Legal Clinics and Ombudsman Services: Legal clinics and ombudsman services provide accessible legal assistance to individuals who may not have the resources to pursue traditional legal avenues. These services often focus on specific areas such as consumer rights, housing, and healthcare.

Online Dispute Resolution (ODR): With the advancement of technology, online dispute resolution platforms have emerged as a viable alternative to traditional legal processes. ODR platforms allow parties to resolve disputes through digital means, making the process more convenient and accessible. \

The European Union has implemented an ODR platform for consumer disputes, providing a streamlined and efficient resolution process.
These examples demonstrate how alternative legal frameworks can be tailored to address specific legal needs, providing more efficient, accessible, and fair solutions for all parties involved. Exploring such frameworks for medical negligence cases could potentially lead to better outcomes for patients and healthcare providers alike.
 
Written By: Dr.Shri Gopal Kabra, MBBS, LLB, MSc, MS(Anatomy), MS(Surgery)
Email: kabrasg@hotmail.com, Ph no: 8003516198