A Shot in The Arm For Docs

The apex court bench recently declared that a 1995 judgment that had brought medical professionals under the Consumer Protection Act requires reconsideration

By Sujit Bhar

Indian doctors, who have been under the threat of alleged malpractice through the use of the Consumer Protection Act, are now seeing the light at the end of the tunnel, through a Supreme Court bench observation. The bench of Justices Bela M Trivedi and Pankaj Mithal recently said that the 1995 judgment in the case of Indian Medical Association vs VP Shantha, which brought medical professionals under the Consumer Protection Act, requires reconsideration.

Interpreting the wording of the Act, Justice Trivedi has said that there was nothing in it that suggests that the legislature ever intended to include a profession or a professional within the purview of the Act. The bench then said that the 1995 judgment that brought doctors under the purview of the Act requires reconsideration.

The verdict of the bench actually arose while deciding over an appeal on whether advocates should be held liable under the Consumer Protection Act for deficiency in services. The bench had heard the matter and had reserved its judgment on February 26. The decision came on May 14.

According to Justice Trivedi, the objective of the Consumer Protection Act of 1986 (re-enacted in 2019) was to provide protection to the consumer from unfair trade practices and unethical business practices only. That means that there is a big gap within the legislation, and nowhere has it been said that a professional and his/her profession would also come under purview of the Act.

Justice Trivedi said: “Having said that we have opined that the decision in Indian Medical Association vs VP Shantha’s (1995) 6 SCC 651 deserves to be revisited and we have requested the CJI to refer it to the larger bench for re-consideration. We have distinguished ‘profession’ from business and trade. We have said that a profession would require advanced education and training in some branch of learning or science.

“The nature of work is specialisation and skill, substantial part of which is mental, rather than manual. Having regard to the nature of work of a professional, which requires a high level of education and training and proficiency, and which involves skill and specialised kind of mental work operating in specialised spheres, where actual success depends on various factors beyond one’s control, a professional cannot be treated equally or at par with a businessman or a trader or a service provider of products or goods,” the bench concluded.

In 2007, the National Consumer Disputes Redressal Commission had ruled that the services rendered by lawyers were covered under Section 2 (o) of the Consumer Protection Act. This bench of the Supreme Court has overruled that judgment, saying that lawyers cannot be held liable under the Consumer Protection Act for deficiency of services.

Litigants had argued before the top court, saying the legal profession cannot be put under the Consumer Protection Act, just because the medical profession has been included under the Act through VP Shantha’s case. It was said that doctors are being subjected to a lot of harassment.

THE OPERATIVE PART

The operative part of this landmark judgment is in the bench drawing a fine line between a professional involved in a trade or profession, and the system that supports him/her and his/her profession. These systems, for the medical professional or doctor (as well as other medical professionals, such as paramedics), would include hospitals, medical or pharmaceutical companies, institutions that aid the doctors in their professions, medical equipment manufacturers, research facilities, insurers and many more.

That is the entire ecosystem of the medical industry and profession. While most medical professionals these days are directly employed by these hospitals and institutions (private practice of doctors are on the wane), these professionals are now fully answerable to the management of these massive hospitals or even hospital chains. That narrows the elbow space for a doctor. He/she is forced to write prescriptions for tests that may not be required, or might even be forced to prescribe operations and procedures that were not necessary. Not paying attention to the extreme profit motives of the hospital could end in the doctor losing his/her job and be blacklisted.

That, in fact, leaves the opportunity for the doctor to hold the hospital to account. That rarely happens, because the doctor has to earn a living within this ecosphere.

The other big culprit in this massive medical “scam” that India has been placed under, are the insurers. While the poor patient runs from pillar to post to have his TPA agree to foot some of the outlandish demands of the hospital, the insurer manages to see that the number of uninsured patients in a hospital falls.

The entire system is slanted against the patient, and in rebound, against the doctor and also against other medical professionals who come in direct contact of the patient party. Within this, the doctor was becoming the whipping boy, being castigated by the patient parties, as well as by the law, through the Consumer Protection Act.

POSSIBLE CHANGES

When the bench says that the 1995 judgment needs to be looked into, an unsaid component of this verdict comes to the fore. This component is the plight of the patient. Where does he/she go for redressal of the scam that the entire medical industry played on him/her? What was happening was that the doctor was the most readily available person to whip.

Now, it has to be seen if the court—as suggested, a larger bench—can come up with an alternative that will allow the patient to directly level charges against the hospital, the insurer and more within this industry. For that, the current legislations will need amendments to acquire more teeth, or a fresh legislation has to be brought into the picture.

This is essential because not only has the cost of treatment skyrocketed in India, the quality of treatment within and for post-operational care has gone down considerably. Apart from that, it is clear that the rise in medical expenses may be directly correlated with the demand of the insurer. There is no need to believe that these two components of the industry reside in two airtight bubbles.

Whatever the case, the Supreme Court bench has certainly set the ball rolling towards a better future.

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