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OPEN FORUM
Year : 1992  |  Volume : 38  |  Issue : 4  |  Page : 214-5

The Consumer Protection Act.


Dept. of Surgery, Seth GS Medical College, Parel, Bombay, India., India

Correspondence Address:
S Nagral
Dept. of Surgery, Seth GS Medical College, Parel, Bombay, India.
India
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Source of Support: None, Conflict of Interest: None


PMID: 0001307601

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Keywords: Consumer Organizations, Consumer Product Safety, legislation &jurisprudence,Human, India, Lobbying, Societies, Medical,


How to cite this article:
Nagral S. The Consumer Protection Act. J Postgrad Med 1992;38:214

How to cite this URL:
Nagral S. The Consumer Protection Act. J Postgrad Med [serial online] 1992 [cited 2019 Nov 17];38:214. Available from: http://www.jpgmonline.com/text.asp?1992/38/4/214/664




The judgements of the Kerala state and subsequently the national consumer disputes forum upholding the right of patients to file complaints against doctors under the Consumer Protection Act (CPA) has indeed shaken up the medical profession. What has probably come, as a bigger shock however is the almost simultaneous indictment of prominent and senior members of the profession by the consumer court as if to immediately exemplify the implications of the judgement. Multiple meetings have been held by various associations of medical professionals over the last few months where there have been heated and emotional discussions on the issue. The Indian Medical Association (IMA), the apex body of the medical profession in this country has already announced plans to move the Supreme Court against the judgement. The issue is being discussed and debated by the medical fraternity as never before and the majority seems to be opposed to the CPA. On the other hand, consumer bodies and health activists who have fought for long to make the medical profession more accountable have welcomed the development. Emboldened by the success of others more and more patients or their relatives are filing cases before the Commission with every passing day. The stage it seems is set for a showdown between those claiming to represent a profession once regarded as "noble" and those representing the public. Have the interests of the medical profession and patients become antagonistic? Why have things come to this pass and what could be the way out of this unfortunate confrontation?

The first thing to be realised is that it is not as if increased litigation against medical professionals in this country has coincided with the above judgement. Even before this development one has seen a steady rise of cases both in the medical council as well as civil courts on matters of medical negligence in the last few years. On certain issues public interest litigation by activist groups has led to courts intervening and asking the State to take action. For example in a recent landmark judgement[1] the Bombay High Court has directed the Municipal Corporation to set up minimum standards for the thousands of private nursing homes that exist in the city. In other instances the Government itself has been forced to enact new laws in response to a public uproar on issues like female foeticide and racketeering in organ transplantation. Thus increased medical litigation is a phenomenon that was on the rise and the CPA has just given a boost to it by making the process simpler for the litigant. Before going into the arguments against the CPA being applied to medical practice it would be important to look into factors responsible for this increased litigation as well as intervention from the judiciary in medical matters. On one hand there is the increased awareness of the patient and the public, which to some extent has been inspired by support form consumer and social organisations as well as the media. And on the other hand is of course the crass commercialisation of the medical profession coupled with its abject failure to self regulate itself. Any objective medical professional would admit that some of his/her colleagues have stooped to amazing levels of corruption and deceit thus ripping apart the cloak of nobility that had existed over the years. The argument advanced by many that this just reflects the overall commercialisation of society can at best be an explanation and not a justification. And have one is not talking pf negligence in the form of wrong diagnosis or wrong treatment decisions which can happen to the best of doctors with the best of intentions. With regard to a section of the medical profession today one is really talking of deliberate racketeering in the quest for profit. One is talking of instances where unindicated investigations and operations are performed, where demands are made for payment in "black" money to jump the queue for operation. One is talking of well-established nexuses between members of the profession to refer patients to each other for a percentage commission a practice otherwise known as "cut" practice. Of rackets where organs are bought from poor people at a price and transplanted into Arabs[2] who flock the cities hospitals and where doctors are a willing part of the game. The medical profession thus through it's own degradation has led the foundation for a backlash from the media and the public and anyone seeking to represent the medical professions interest in the context of the CPA would be better equipped to do so if he accepts this ground reality honestly.

There are many who do accept this reality but argue that it would be better if the medical profession self regulates itself to avoid "outsiders" passing erroneous judgement on their actions. This argument is faulty in principle because it is obvious that the members of any profession are likely to be protective about their colleagues and thus such mechanisms will always lack credibility. This is exactly what has happened to the actions of the medical councils where complainants have felt let down time and again and moved to other forums after being disappointed with the response of the medical council. And even if one were to accept the self-regulation argument in principle there has been a total lack of any such mechanisms amongst the various professional bodies claiming to represent various sections of the profession. The various medical associations, which are now crying foul over the CPA have never in their history either investigated or taken action against any of their members for unethical practices. So when the professional bodies themselves failed to assume a regulatory role, intervention form outside was the logical outcome. It would be pertinent to mention here that on the other hand organisations like the British Medical Association have regularly expelled many of their members found guilty of unethical practices. The criticism that "non medical" individuals preside over consumer courts and thus are ill equipped to deliver judgement on "medical" matters is faulty for nowhere in the world is medical litigation decided by doctors sitting as judges. In fact the judges in the consumer courts are senior retired high court judges and are likely to be more experienced.

Another argument advanced by the opponents of the CPA is that increased litigation leads to the practice of "defensive medicine" wherein doctors in order to “play it safe” may resort to excessive investigations and increase the financial burden on the patient. This is partially true. But simultaneously it will also lead to more informed consents and extra vigilance on the part of the treating doctor, which in some areas would get translated into better patient care. In any case it is unrealistic to draw a parallel between the situation in the USA where medical litigation is rampant and that in this country for the socio economic conditions and hence the nature of medical practice is entirely different. And one must also remember that no court really asks for over investigation and in fact unnecessary investigations under the guise of "defensive medicine" can in fact be held against the doctor,

There is a close like between excessive privatisation and excessive commercialisation of medical practice a fact no sufficiently appreciated and emphasised by many in the whole debate. For privatised medicine has profit, as it's primary motive, the methods of attaining which soon become secondary. When quick "returns" are expected against "investment" in medical practice, this could make sound economics but is a situation, which is potentially dangerous for the patient. How else does one explain managements of big give star hospitals turning a blind eye to the kidney transplant rackets that flourish in their institutes[2]? Or the fact that these hospitals assess their staff members from the amount of money they bring into the coffers rather than by other parameters? This is not to say that public hospitals are free from unethical practices. But the logic and economics of private medicine actually forces its practitioners to extract money from patients and hence unbridled privatisation could partially contribute to malpractice. Thus state policy, which has over the years neglected public medicine and at its cost helped private medicine to grow therefore must take its share of blame for the state of affairs. Also, by increasing the cost of medical education and by encouraging private capitation colleges the state may in one more way contribute to commercialisation for ultimately investment in medical education is also recovered from patients.

Therefore instead of a knee jerk and emotional response which only serves the purpose of heightening public suspicion we must accept that whether we like it or not the CPA is an act which is here to stay and its application to the medically profession can be repealed only by an act of parliament an extremely unlikely event. And then as individuals as well as collectively through our professional bodies we must indulge in some long overdue honest self-riticism and accept publicly that some of our colleagues have lowered themselves to abysmally low levels in their quest for money. For this it is extremely necessary that senior members of the profession break their silence for this will also give courage to many others. Having thus established our credentials we must start a campaign against unethical practices in the profession, which could be supported by various other social organisations. Having done this we must also ensure that honest and ethical doctors are not harassed and for this amendments in the CPA wherein deterrents against frivolous litigation are introduced should be demanded. On their part consumer and social organisations in addition to continuing to fight medical malpractice must expose the other factors like the spiralling cost of equipment and unnecessary promotion of "hightech" medicine, which are contributing to the monetary burden on the patient. They must also emphasis the link between excessive privatisation and commercialisation and defend the public health care system. For this will also ensure accessibility of cheap health care facilities, an issue which is getting sidelined but which is probably of more fundamental importance to a large majority of the population.

 
 :: References Top

1. Order of the Honourable High Court Bombay in appeal no 56 of 1991 in writ petition non 2269 of 1990, Yasmeen Tavaria and Medico-Friend Circle vs Municipal Corporation of Greater Bombay and others.  Back to cited text no. 1    
2.Salahudeen AK, Woods HF, Pingle A. High Mortality among recepients of bought living-unrelated donor kidneys. Lancet 1990; 336:725-728.   Back to cited text no. 2    



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Online since 12th February '04
© 2004 - Journal of Postgraduate Medicine
Official Publication of the Staff Society of the Seth GS Medical College and KEM Hospital, Mumbai, India
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