Can You Sue a Doctor in Consumer Court?

The Indian Medical Association and several private hospitals, including Cosmopolitan Hospital, challenged decisions that allowed consumer court cases against doctors. Their position was straightforward. Medicine is a profession rather than an ordinary occupation, and the doctor-patient bond rests on trust. They argued that Parliament could not have meant to bring medical practice before a consumer forum.

The patients and consumer advocates answered that a person who pays for consultation, diagnosis or treatment is buying a service. If that service falls short, the patient needs a speedy and inexpensive remedy. The National Commission agreed. It held that paid medical assistance is a "service" and that legal representatives of deceased patients can maintain a complaint.

The Madras High Court went the other way. It held that consultation, diagnosis and treatment by doctors and hospitals were not "service" under Section 2(1)(o), although para-medical services could still fall within the Act. Two forums, two opposite answers. The Supreme Court had to settle it.

The medical profession also raised a constitutional challenge. It argued that consumer forums were poorly equipped and too summary in procedure to decide complex negligence claims. The Court rejected that after looking at who heads the forums, who sits as members, and the appeals available above them.

Section 2(1)(o) defines "service" broadly as service of any description made available to potential users. It leaves out service rendered free of charge and service rendered under a contract of personal service. Doctors argued that both exclusions took medicine out of the Act altogether.

The National Commission read the main clause widely. The Madras High Court read it narrowly and confined the Act to para-medical services. The Supreme Court had to decide whether Parliament meant to protect patients as a class of consumers.

The Court leaned on its earlier decision in Lucknow Development Authority v. M.K. Gupta, which treated the word "any" in the definition as covering everything from one to all. It applied that wide reading to medicine. It also held that a deficiency in medical service has to be decided by applying the same test that is applied in an action for damages for negligence.

The Supreme Court settled the question in the patients' favour. One of its twelve conclusions reads:

The Court closed two loopholes:

• Professional status as a shield. Doctors argued that their regulated profession put them beyond the Act. The Court rejected this, holding that disciplinary control by the Medical Council of India or a State Medical Council does not remove a patient's right to seek redress.
• "Contract of personal service." The Court said the phrase excludes services rendered by an employee to his employer under a contract of employment, because an employer cannot be regarded as a consumer of services rendered by his employee. Such a contract involves a master and servant relationship. A doctor employed to treat the person who employs him falls in that excluded group. An ordinary doctor and patient have no master-servant relationship, so theirs is a contract for services and the Act covers it.

The final orders were mixed, because the Court was deciding many connected appeals together. Under the closing paragraphs of the judgment, the Court upheld the National Commission's judgment of April 21, 1992, which held that paid medical care is "service". It therefore dismissed Civil Appeals Nos. 688/93 and 689/93 and S.L.P. (Civil) Nos. 6885/92 and 6950/92, which were directed against that judgment. It also dismissed S.L.P. (Civil) Nos. 351/93 and 21348-21349/93 and Writ Petition (Civil) No. 16/94. It allowed Civil Appeal No. 254/94 and sent that case back to the National Commission, which had not examined whether the nursing home treated every patient free of charge.

The Court also allowed Civil Appeals Nos. 4664-65/94 and the Civil Appeals arising out of S.L.P. (Civil) Nos. 21755/94 and 18445-73/94. These set aside the Madras High Court judgment, and the writ petitions it had disposed of were dismissed. Finally, the Court allowed the appeal arising out of S.L.P. (Civil) No. 18497/93 and remitted Complaint Case No. 1 of 1988 to the State Commission.

• Show the treatment was not free. The Act covers a person who hires or avails of services "for a consideration which has been paid or promised". So gather whatever shows that charges were paid or payable. Where an insurance policy for medical care meets the charges for consultation, diagnosis and treatment, or the employer bears treatment costs as a condition of service, the policy or the service conditions are the records that show the care was not free.
• Know who may complain. The legal representatives of a deceased patient can maintain a complaint. The patient need not be the one who paid, because a beneficiary of the service, including a patient treated free at a hospital that also charges paying patients, counts as a consumer.
• Choose the forum. Complain to the Consumer Forum having jurisdiction: the District Forum, the State Commission or the National Commission, depending on the pecuniary limit of the claim. No court fee is required on a complaint. Section 14 allows compensation for loss or injury caused by negligence, and a refund of charges paid.
• Match the case to the forum. The Court described obvious faults that can be established easily and decided speedily: removal of the wrong limb, an operation on the wrong patient, an injection of a drug to which the patient is allergic given without looking into the out patient card containing the warning, use of the wrong gas during an anaesthetic, and swabs or other items of operating equipment left inside the patient after surgery. Where complicated issues need expert evidence, the complainant can be asked to approach the civil court.
• Avoid the token-fee mistake. Do not assume a token registration payment makes a hospital visit a paid service. The free-service exception turns on whether every patient is treated free, not on whether a nominal fee appears anywhere.