Civil liability for deficiency in medical services with special reference to surgical treatments: a critique of consumer protection act, 1986

Abstract

Availability of legal remedies and access to justice are crucial in protection of rights generally, and particularly in addressing grievances of health and safety. With the opening up of economy and rapid advancement in technology, consumer has become more vulnerable. This vulnerability is absolute in health sector. This is a study on civil liability for deficiency in medical services with special reference to surgical treatment under general law and specifically under the provisions of Consumer Protection Act. A detailed study on vitiated consent and informed consent is attempted. An analysis of remedies available under general law and COPRA is specifically attempted as well. This study aims to suggest legal reforms through a comprehensive analysis of Consumer Protection Act, 1986. Health sector is booming as an industry in India. Along with that, cases of medical negligence are also increasing in number and extent. A patient, as a consumer is in a peculiar position. The medical terminology and technology is beyond the understanding for majority Indians. He is emotionally delicate, even if he is as empowered as the doctor, socially. Over and above, the innovative marketing strategies complicate the situation making him more and more powerless. Consumer Protection is one of the major concerns of twenty-first century and its implementation through enforcement of consumer rights is an accepted approach internationally. In all the earlier civilizations Medical Negligence was treated as a crime. The objective of legal machinery was to protect and vindicate the interest of public by punishing the wrong doer. No amount of compensation used to be awarded to the victims or their people. However as society progressed, the trend to consider negligence as a Tort (civil wrong) influenced judiciary and a practice of giving compensation to the victim has developed. Unlike the intentional Torts like, assault, battery and false imprisonment, Negligence which is an unintentional Tort, is relatively a modern legal development. During British rule, English common law was introduced in the administration of justice in India. Prior to the introduction of Constitution of India in 1950, a very large number of English legal principles were followed and applied by the Indian Courts. The trend is followed till date.