Consumer protection actcpa the cpa, 1986 is a benevolent social legislation that lays down the rights of the consumers and also provides means for their promotion and protection. Medical negligence liability under consumer protection act. The post is an analytical study on medical negligence in the context of torts, criminal law, and consumer protection act, 1986 and lastly, the post gives suggestions regarding the same. It can be defined as misconduct by a medical practitioner or doctor, and causes many deaths and illnesses each year. Apr 15, 2010 after the consumer protection act, 1986, has come into force some patients have filed legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. Medical negligence and doctors liability indian journal of. Oct 08, 2017 under consumer protection laws, medical negligence is another form of deficiency in service. The law of contract, the consumer protection act and medical malpractice law posted on april 15, 2014 by bregmans the purpose of this article is to explore if the consumer protection act 68 of 2008 cpa will influence how the courts will look at exclusionary clauses in all contracts, and in respect of hospitals and doctors in particular. However, in some cases the patient died before he reached the hospital.
The question in this case before the consumer dispute redressal commission was whether by virtue of section 35 26 of advocates act, 1961, advocates are amenable to consumer protection act, 1986. In this article, shreya sahoo discusses medical negligence and the liability under the consumer protection act. In recent times, instances of malpractice and negligence in the medical field have increased fourfold. Act 68 of 1986 the consumer protection bill, 1986 was passed by both the houses of parliament and it received the assent of the president on 24th december, 1986. Introduction the advent of consumer law came about in the early 20th century, with a series of scandals over contaminated food which led to the passage of the pure food and drug acts and a number of other measures designed to protect consumers. This will bring south africa in line with foreign jurisdictions in regard to medical liability, specifically in respect of exclusionary clauses in hospital contracts. The law of torts is applied when a case is not covered by the consumer protection act for example, when the services are rendered for free. But there is stricter and broader liability in this situation as failure to exercise skill and care as is ordinarily expected of a medical practitioner is the test under consumer protection laws.
And in case of medical negligence mostly the doctor is the defendant. Lately, indian society is experiencing a growing awareness regarding patients rights. Oct 09, 2014 consumer protection actcpa the cpa, 1986 is a benevolent social legislation that lays down the rights of the consumers and also provides means for their promotion and protection. Many academics have applauded the act in this respect.
It is most akin to the liability under the law of torts. A critical study therefore, the plaintiff consumer has to establish that the wrongdoer owed to him a specific legal duty to take care of which he has made a breach. Shantha 1995 6 scc 651 doctors who administer the morphia or pethidine injection are often blamed and cases of medical negligence are filed against them. Legal practitioners liability for deficiency in service under. However in a resent case the supreme court has held that cases pertaining to theft of electricity are outside the jurisdiction of consumer fora. Consumer protection act, professional negligence, complainant, complaint. The supreme court held that electricity is a services within the meaning of services as envisaged under c. The consumer protection act it is likely that the cpa will entirely abrogate the principles laid down by the sca in the afrox case. Seven leading cases decided under consumer protection act medical negligence from marketing 103 at rourkela institute of managment studies. Therefore, the book on the medical negligence and consumer law is becomes purposeful in the scenario of consumerism and the law.
Although they are for internal self regulations of the profession, it is an obligation on the part of the professionals to fulfil certain rights, expectations of the patients. Also, these grounds have to be proved without any reasonable doubt. Pdf on jan 1, 2011, basavaraj patthi and others published consumer protection act and medical negligence a brief insight find, read and cite all the research you need on researchgate. Medical profession and consumer protection act selected. Medical profession is governed by code of medical ethics and etiquettes laid down by medical council of india. Pdf on jan 1, 2011, basavaraj patthi and others published consumer protection act and medical negligencea brief insight find, read and. The act in section 21 d define who is consumer and in section 2 1 o define what is service. Whilst deficiency is defined in the act, negligence has not been so defined. The consumer protection act is a benevolent piece of social welfare legislation providing for a simple, speedy and less expensive remedy for the redressal of consumer grievances in relation to defective goods and deficient services. In 1993, the supreme court brought the medical profession under the section 21 o of cpa. In 1995, the supreme court decision in indian medical association v vp shantha brought the medical profession within the ambit of a service as defined in the consumer protection act, 1986. Consumer protection act blessing or curse to medical. But today with the increase in medical negligence and malpractices this profession is looked upon with doubt and contempt. Medical negligence and law in india an analysis ipleaders.
Negligence a negligence theory requires the plaintiff to prove that the defendant owed a duty to the consumer. Consumer protection act regulations i, dr rob davies, minister of trade and industry, in terms of and under section 1201 of the consumer protection act, 2008 act no. Medical negligence cases under consumer protection act in the matter of. An act involving the above ingredients is a negligent act baron alderson defines negligence in btyth v. A study shows that there is a 110% rise in the number of medical negligence cases that are reported every year. The law of contract, the consumer protection act and medical. Medical negligence and consumer protection law by prashant r. The act sets out the minimum requirements to ensure adequate consumer protection in south africa. Negligence is an important branch of the civil wrongs or tort. Apr 15, 2014 the law of contract, the consumer protection act and medical malpractice law posted on april 15, 2014 by bregmans the purpose of this article is to explore if the consumer protection act 68 of 2008 cpa will influence how the courts will look at exclusionary clauses in all contracts, and in respect of hospitals and doctors in particular. Public awareness of medical negligence in india is growing. It came on the statutes book as the consumer protection act, 1986 68 of 1986.
It is very difficult to define negligence categorically since there is no consensus upon this. Medical negligence is punishable under various laws such as torts, ipc, indian contracts act, consumer protection act, etc. Consumer protection act cpa copra related to medical. A strict liability regime has therefore been created.
This act constitutes an overarching framework for consumer protection, and all other laws which provides for consumer protection usually within a particular. This article presents a summary of legal decisions related to medical negligence. Consumer protection act and medical profession the consumer protection act, 1986 in india has opened a new quasijudicial, cheap and convenient system of redress for the consumer of goods and services. December, 1986 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. Seven leading cases decided under consumer protection act.
A criminal complaint may be filed against a physician if. This defined the relationship between patients and medical professionals as contractual. The consumer protection act, 2008, no 68 of 2008 was signed into law on 24 april 2009. The realm of medical malpractice was brought under the consumer protection act, 1986, due to the landmark case of the indian medical association vs.
The national consumer dispute redressal commission answered the question in the affirmative and held that the service offered by the respondent to the. The study also brings out the fact that 12% of the cases decided by the consumer protection forum. The protection of women from domestic violence act, 2005 the marriage laws amendment bill, 2010 the prohibition of sexual harassment of women at workplace bill, 2010. Seema kashyap assistant professor, university institute of legal studies, shimla kirti sharma 9th semester, university institute of legal studies, shimla abstract were healer of distress of the sufferer and their fees was a mere feeling of gratitude shown towards their good deeds. Oct 07, 2011 medical negligence and consumer protection law. The act is a weapon in the hands of consumers to fight against. Indian penal code, 1860 sections 52, 80, 81, 83, 88, 90, 91, 92 304a, 337 and 338 contain the law of medical malpraxis in india.
Now with medical profession brought under the ambit of consumer protection act 1986. The act provides the same rights to anyone injured by a defective product, whether or not the product was sold to them. The judgment in this case defined medical care as a service that was covered under the act, and also clarified that a person seeking medical. The law of contract, the consumer protection act and. Under consumer protection laws, medical negligence is another form of deficiency in service.
Consumer protection regime primarily aims to protect against deficiency in services and defect in goods. A critical analysis of product liability under the consumer. Unless otherwise provided by another law, traders and service providers. The researcher through some case laws attempt to focus upon the judicial activism on medical negligence liability under the consumer protection act.
After the medical profession was brought under the consumer protection act vide indian medical association vs. Medical negligence and the liability under the consumer. Assent 26th may, 2006 commencement 1st july, 2006 1. Referring to the decision in the case of the india medical association v vp shantaha and others 1995 6 scc 651, the court noted that medical practitioners were covered under the consumer protection act and that negligence as a tort was the breach of a duty caused by omission to do something which a reasonable man would do or doing something. The consumer protection amendment act, 1991 34 of 1991. After the consumer protection act, 1986, has come into force some patients have filed legal cases against doctors, have established that the doctors were negligent in their medical service, and have claimed and received compensation. A person is only required to meet the standard of care where he has an obligation or a duty to be careful. This act shall be cited as the consumer protection act. With the advent of consumer protection act, 1986 creating consumer disputes. The consumer protection act 1987 removes the need to prove negligence. The veracity of laws relating to medical malpractice in india.
A criminal complaint may be filed against a physician if his or her negligent acts result in death. This paper covers the legal aspects and consequences of medical negligence, liability of. Medical negligence and the law indian journal of medical ethics. Contributory negligence of patients and limited liability of doctors under consumer protection act, 1986 mrs. Manufacturers do, in fact, owe a duty to the users of its products and to bystanders likely to be injured. Medical negligence liability under the consumer protection act. Often the deficiency in service or defect in goods is the outcome of negligence of the service. The consumer protection act, 1986, is one of the examples that is to be treated as a milestone in the history of socioeconomic legislation to protect the interests of the consumers in india. The medical profession, though one of the noblest of its kind, is not immune from negligence which, at times, leads to death of the patient or physical impairment. This act may be cited as the consumer protection act. Pdf consumer protection act and medical negligencea brief.
Medical negligence under consumer protection act professional negligence or medical negligence may be defined as want of reasonable degree of care or skill or willful negligence on the part of the medical practitioner in the treatment of a patient with whom a relationship of professional attendant is established, so as to lead to bodily injury. Pdf medical negligence and consumer rights an analysis. Winfield1has defined negligence as a tort which is the breach of a legal duty to take care which results in damage, undesired by the defendant to the plaintiff. This trend is clearly discernible from the recent spurt in litigation concerning medical professional or establishment liability, claiming redressal for the suffering caused due to medical negligence, vitiated consent, and breach of confidentiality arising out of the doctorpatient relationship. Negligence is predominantly a theory of liability concerning allegations of medical malpractice, making this type of litigation part of the tort law. Consumer protection act, no 68 of 2008 legal legal and. Medical negligence cases under consumer protection act.
Law of torts visavis consumer protection with special emphasis on medical negligence cases. Supreme court and medical negligence necessary protection. The consumer protection act 68 of 2008, in order to remedy this situation, provides the consumer with greater protection by no longer requiring a consumer to prove fault on the part of a supplier. As of now, the adjudicating process with regard to medical professional liability, be it in a consumer forum or a regular civil or criminal court, considers common law. Act a judicial approach by abhipsha mohanty download pdf. A customer can already sue a supplier, without proof of negligence, under the sale of goods law.
This act determines the rights of the consumers and the protection of these rights. Manufacturers do, in fact, owe a duty to the users of. Since 1990s there is a huge speculation and debate on whether medical services are explicitly or categorically included in the definition of services as enshrined under section 21o of the consumer protection act cpa. After the consumer protection act, 1986, came into effect, a number of patients have filed cases against doctors.
Medical negligence liability under the consumer protection. Consumer protection acts the consumer protection act 9 or zoos, lst june, 2005. Consumer protection act and medical profession indian penal. Dec 17, 2014 and in case of medical negligence mostly the doctor is the defendant. Contributory negligence of patients and limited liability of. Pdf consumer protection act and medical negligencea. The matter is still under consideration of honble supreme court pending for final.
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