g of Common Man

To, 20-05-2024

The Secretary

Ministry of Health & Family Welfare Government of India

Nirman Bhawan, New Delhi

Subject: Regarding Application of Consumer Protection Act for Doctors.

Dear Sir,

Greetings from Association of Healthcare Providers (India), which represent vast majority of Healthcare Providers and governed through 20-regional chapters covering entire India.

We are writing to draw your kind attention to the Hon Supreme Court deliberations of 14th May 2024, that advocates cannot be held liable under Consumer Protection Act 1986 (as re-enacted in 2019) for deficiency of services. The Court held that professionals have to be treated differently from persons carrying out business & trade.

Taking the same argument, it is our considered request to the Ministry of Health & Family Welfare, to bracket the doctors in the same category as they also deliver service as professionals like advocates. In face after 2019, there have been increasing number of cases filed against doctors. The end result of this has been exponential increase in treatment costs, mainly because of defensive medicine being practiced by the doctors.

We are enclosing detailed case for your kind perusal and request to exclude doctors from the ambit of consumer protection act, which will also be in larger interest of providing affordable healthcare to citizen at large.

With Regards,

Dr. Girdhar Gyani

Director General – AHPI

CC: Hon’ble Minister, MOHFW: For Kind Consideration as above

404, Ashoka Estate, Barakhamba Road, New Delhi – 110001 Telephone: +91-11-43095694; Email: contact@ahpi.in; Website: http://www.ahpi.in

SUBJECT: REPRESENTATION ON BEHALF OF THE ASSOCIATION OF HEALTH CARE PROVIDERS (INDIA) FOR BRINGING IN REFORMS AND MEASURES TO EXCLUDE MEDICAL PROFESSIONALS FROM THE AMBIT OF CONSUMER PROTECTION ACT

1. We are a Society of Health Care Providers of India. It works as a ‘not for profit’ organization and advocates with the Government, regulatory bodies and other stake holders on issues, which have bearing on enabling its members organizations to deliver appropriate healthcare services to community at large. The association functions through an empowered secretariat which facilitates the members organizations in improving their systems, processes and outcomes on continuous basis, in line with the vision, mission and objectives of the association. We further strive to fulfil its objectives of the International Convent on Economic, Social and Cultural Rights, to which India has acceded and by which society and community has right to health in terms of availability (quantity to meet needs), accessibility (non-discriminatory and affordable), acceptability (ethical) and quality (clinically sound).

2. We collaborate and partner with other associations, accrediting bodies, regulatory agencies, councils, research institutions, academic institutions solicit their support to realize their vision and mission as above. The Applicant further actively works with the Government, policy making institutions, various commissions and committees on proposed legislations/regulations and other reforms, which can enable healthcare providers to deliver affordable healthcare services, to promote and recognize the highest professional and ethical standards, healthcare service delivery, innovative medical technology and applied research for the betterment of patient safety and community well-being.

3. We are a conglomeration of entire healthcare providers in India, i.e., hospitals/nursing homes/clinics, diagnostic centers, medical equipment companies, insurance providers and all others that are accountable to the community and works closely with the key stake holders.

4. The Consumer Protection Act (CPA) was first passed in India 1986. For several years it was not clear whether the medical profession came under the ambit of the Act. The matter was settled when the Hon’ble Supreme Court held, in the case of Indian Medical Association v VP Shantha, that medical services would be treated as services under the Consumer Protection Act, 1986. This decision declared the doctor-patient relationship to be “contractual” in nature. On the other hand, the Consumer Protection Act was introduced to protect consumers from “unfair trade practices and unethical business practices only” and the legislature never intended to include any professional under the said act.

5. That professional occupations are often “skilled” work that require “mental rather than manual” effort and is different from other occupations as the result often depends on factors “beyond the professional man’s control”. Further, a relationship between the doctor and the patient is beyond the peripheries of contractual services. Medical care is not provided as a ‘contract of personal service’ as such contracts are limited to situations where there is an employer-employee or a “master and servant” relationship between the two parties. Therefore, since there is no relationship of master and servant between the doctor and the patient the contract between the medical practitioner and his patient cannot be treated as a contract of personal service.

6. The doctor-patient relationship, which forms the cornerstone of healthcare, has swung from the idealization of doctors to their devaluation. Violence against doctors has made newspaper headlines several times in the last two decades. This has led to insecurity on the part of doctors who have worked hard to earn their license to practice.

7. India has witnessed an alarming increase in medical litigation after the judgment in Indian Medical Association v VP Shantha. The ease of filing complaints under the Consumer Protection Act, 2019 and

the absence of any penalty for filing frivolous or false complaints has enormously increased in number of frivolous cases against doctors and other service providers.

8. The inclusion of medical professionals under the Consumer Protection Act (CPA) in India has sparked debates and concerns within the healthcare industry. While consumer protection is crucial, extending these laws to cover medical practitioners could have several negative repercussions. Moreover, there are many other avenues for patients’ grievance redressals.

9. The medical profession is considered to be a noble profession. While Indian medical infrastructure is being noticed and praised on the global map, yet within the country, the doctor–patient relationship is deteriorating and the medical setup is facing extensive problems with medical litigation fast becoming one of the most serious of all issues. We live in a culture in which displeased patients have increasingly turned to litigation as a means of obtaining redress from perceived deficiencies in the quality of care received from their treating physicians. Consumer cases are increasing not only for the medical branches dealing with life and death (emergency medical branches) or dealing with two lives (such as obstetrics and gynecology), but doctors working in outpatient department (OPD)/ daycare setup, like ophthalmology, dental surgery, dermatology, and diagnostic branches like radiology are also increasingly facing consumer cases/litigations.

10. The Consumer Protection Act and its applicability on the medical professionals have adversely affected them. The doctors and hospitals have taken a recourse of Defensive medicine which takes place when doctors prescribe unnecessary tests, procedures or specialist visits (positive defensive medicine) or avoid high risk patients or procedures (negative defensive medicine). Doctors have started to practice defensive medicine in order to reduce their exposure to medical malpractice litigation. A large number of legal initiatives taken by patients have induced many doctors to adopt a defensive “strategy” to avoid jeopardizing their careers. The threat of medical malpractice litigation constitutes a serious obstacle to improving the reliability of healthcare organizations and patient safety.

11. That increased legal expenses and rising insurance premiums due to malpractice lawsuits is significantly contributing to the overall spike in healthcare costs. The financial burdens often end up being passed on to patients, which can make healthcare services less affordable and accessible. Studies and reports from various sources support this assertion, highlighting the multi-faceted impact of malpractice litigation on the healthcare system. Healthcare providers face substantial legal costs when defending against malpractice claims. These costs include attorney fees, court fees, and other litigation-related expenses.

12. The threat of malpractice lawsuits is leading to higher malpractice insurance premiums for healthcare providers. Insurers increase premiums to cover the potential payouts from claims. The increased legal and insurance costs are often transferred to patients in the form of higher medical bills. Hospitals and clinics are raising fees for services to offset the financial burden of malpractice-related expenses.

13. In areas where malpractice insurance premiums are particularly high, some healthcare providers may choose to relocate to regions with lower premiums or leave the practice altogether. This can lead to a shortage of healthcare providers in certain areas, reducing access to care for patients.

14. Legal battles in India typically take 3-5 years to reach to a conclusion. This prolonged duration can be particularly challenging for those involved, especially when the stakes are high, as in the healthcare sector. In cases where medical practitioners are frequently sued as it has become so easy to file cases against a medical professional, the extended litigation period can lead to significant resource allocation towards legal defense. These resources, both financial and human, are diverted from their primary focus on patient care, leading to potential inefficiencies within the healthcare system. The

shift in focus from patient care to managing legal issues can detract from essential services. Medical practitioners may find themselves preoccupied with legal matters, reducing the time and attention they can devote to their patients.

15. Ultimately, this burden on the healthcare system hinders its overall efficiency and effectiveness. Prolonged legal battles and the strain they place on resources can compromise the quality-of-care patients receive, affecting the health outcomes and trust in the medical profession.

16. It is a known fact that even with a doctor with the best skills, things sometimes go wrong during medical treatment or in a surgery. A doctor is not to be held negligent simply because something went wrong because his control. The Doctor-patient relationship is very unique in itself. It requires lot of trust between doctors and patients. If there is trust deficit, it leads to litigation against the doctors. The inclusion of medical professionals under consumer protection laws may lead to a breakdown in trust between healthcare providers and patients. Suspicion and legalistic interactions could hinder effective communication and collaboration, impacting overall healthcare outcomes. Shifting the doctor-patient relationship from one based on trust and care to a legalistic dynamic could erode the foundation of effective healthcare delivery. Mutual trust and open communication between healthcare professionals and patients are essential for optimal treatment outcomes.

17. The fear of legal repercussions can significantly influence the behavior of medical professionals, often leading them to adopt an overly cautious approach in their practice. This heightened caution, while aimed at minimizing legal risks, can inadvertently compromise the quality of care provided to patients. When medical practitioners are primarily focused on avoiding litigation, they may shy away from innovative treatments and personalized approaches that, although beneficial, might carry higher risks of complications or less established outcomes.

18. Moreover, this defensive mindset can stifle medical advancement. Innovation in medicine frequently involves exploring new methods, technologies, and treatment protocols. However, the constant fear of legal consequences can deter healthcare providers from experimenting with novel approaches. This aversion to risk can result in a reliance on traditional, possibly outdated, methods that are perceived as safer from a legal standpoint but may not be the most effective for patient care.

19. Furthermore, personalized treatment approaches, which take into account individual patient circumstances and preferences, can be hindered by a fear of legal repercussions. Such treatments often require a tailored approach that deviates from standardized protocols. The reluctance to depart from established guidelines, due to fear of litigation, can result in a one-size-fits-all approach to healthcare, ultimately depriving patients of the benefits of customized care that addresses their unique needs.

20. Moreover, medical practitioners who aspire to serve the nation by working in areas of need may eventually withdraw from such services due to the constant fear of litigation. The apprehension that any mishap could lead to legal action against them creates a significant deterrent. In the medical field, every second is crucial, especially in regions where basic necessities like electricity and water are not consistently available. A power outage, even for a few seconds during surgery, could result in complications that might prompt patients to seek legal remedies under the Consumer Protection Act. This potential for litigation can lead to unnecessary harassment of doctors who are diligently performing their duties.

21. The constant threat of legal action can undermine the confidence of healthcare providers, making them hesitant to practice in these challenging environments. This fear is not unfounded, as the legal landscape can be unforgiving even when circumstances are beyond the control of the medical

professionals involved. The possibility of facing lawsuits for issues stemming from infrastructural deficiencies rather than medical negligence is a significant burden that many are unwilling to bear.

22. Consequently, this situation exacerbates the already critical shortage of healthcare providers in rural and underserved areas. The potential withdrawal of current practitioners, combined with the reluctance of new professionals to work in these regions, further diminishes access to essential healthcare services. This leads to a deterioration in the overall health of the community, as people are left without timely and adequate medical care.

23. Moreover, the absence of adequate medical services can create a vicious cycle. As healthcare access diminishes, the health outcomes of the community decline, leading to an increase in preventable illnesses and medical emergencies. These further strains the already limited healthcare resources, making the region even less attractive to potential healthcare providers

24. Recently, the Hon’ble Supreme Court of India in Bar of Indian Lawyers through Pits President Jasbir Singh Malik v. D.K. Gandhi PS National Institute of Communicable Diseases and barred the application of the Consumer Protection Act, 2019 on the legal profession.

25. The Hon’ble Supreme Court has observed that professionals have to be treated differently from persons carrying out business and trade.

26. The medical profession is sui generis in nature having regard to the nature and role of doctors and cannot be compared with other professions. The relationship between a patient and a doctor has unique attributes. Doctors are generally perceived to be life savers of their patients and owe fiduciary duties to them. Doctors have to respect the autonomy of the patients and are not entitled to make concessions or undertakings without specific instructions from their patients.

27. In conclusion, while the legal framework aims to protect patients and ensure accountability, the pervasive fear of legal action among medical professionals can have unintended negative consequences. It is essential to find a balance that allows healthcare providers to innovate and personalize care without the overbearing fear of legal repercussions. This balance is crucial for fostering an environment where quality of care and medical progress are not compromised by the defensive practices driven by legal anxieties.

28. Hence, we are requesting for your timely intervention in the matter and address these concern which require comprehensive legal and systemic reforms.

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