Consumer Protection Act, 2019 & MEDICAL NEGLIGENCE:

Ms. Atishaya Kaushal, Advocate

(9891952134/atishayakaushal@gmail.com)

(Act is likely to be notified soon, Rules are being framed)

ALERT FOR DOCTORS:

- Patient’s Right to be informed expanded, 

- Word "negligence" inserted in the Act for the first time after 1986 law.

- The new law calls for improvised & two-way documentation. 

- Consent forms to be MORE INTERACTIVE, NOT PAPER TIGERS.

PLEASE NOTE:

1. DOCTORS ARE COVERED UNDER CPA 2019

2. DISCLOSURE IS NOW THE MANDATE ( information to consumer )

3. Word  “ NEGLIGENCE” has been specifically added in Definition clause 11 of section 2  in ‘deficiency’

As per Section 2 (11) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature, and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes:
(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the consumer

Definition of “deficiency “ not only talks of negligence but also information! DOCUMENTATION ASSUMES HUGE IMPORTANCE !! It may sound paradoxical, but per capita time spent while talking to patients,  taking history and making notes towards a clinical diagnosis is reflected by the extent of information mutually shared, and understood as well.

For some physicians, it may mean repeating the same thing over and over again with scores of patients in the OPD, but so long as it makes sense to the patient, it must be honored and is a lead to the future line of treatment. Irrespective of the level of information reaching the consumers from various multidimensional means, for the patient the description of the anatomy may be a first look about the inside of his own body. No one wants to be sick or continue to be ill for a long time and not at all prepared to die of the disease. The faith, trust, and confidence with which a patient approaches a doctor must be reciprocated by the doctor and its fiduciary texture reciprocated. Under the compulsions of commercial considerations for procrastinating the prognosis or to avail of the mediclaim policy coverage, no doctor will complete architecture an admission. But the negative feedbacks abruptly made decisions and the flashing media news keeps us under the spotlight. It is always in the best interest of all the parties to disclose to the patient all the options available and leave the choice to the patient. There should be no analogy to a forced treatment or medical detention.

It has never embarked upon the world, wisdom, rationale, and logic that while dealing with goods and services of all descriptions, so far as products are concerned, we can think of a manufacturer, manufacturing date, warranty, guarantee, repair, and replacement.  The human life, the human being is a life form born to a human being with peculiar anatomy, with or without congenital strengths or weaknesses. It is confronted with disease and death, injury, and disability on account of so many reasons, circumstances and factors. And the science that is responsible for prevention or aggravation of damage or depletion of the human body is learned under a highly specialized education system, practices are universally accepted.

It is also undisputed that medicine is an inexact science, yet behind any unsuccessful response to treatment, or exposure to inherent risks or trigger or complications that are very very innate to the human body system, a parallel is drawn searching for the flops and botch ups committed by the medical practitioner and the institutions providing health care services to fix the responsibility and either punish or penalize those proved wrong. Without getting into the proof of being wrong, we must acknowledge that the presentation, position, signs, and symptoms and all levels of diagnosis must be abundantly shared with the patients, attendants. It is not a question of being right or wrong. It is more about “CARE”. When we care, we must be able to document it!

4. JURISDICTION OF DISTRICT COMMISSION IS NOW UPTO 1 Crore

5. STATE COMMISSION IS FROM 1 to 10 Crore

6. NATIONAL COMMISSION IS OVER 1 0 Crore

7. In my view, doctors MUST ENHANCE THEIR RISK COVERS to meet any financial challenge in an action for alleged negligence!

8. AS A CONDITION PRECEDENT 50% OF THE DECRETAL AMOUNT HAS TO BE DEPOSITED IN APPEALS

9. CPA 2019: FINALITY OF ORDERS AND EXECUTION

Section 68 gives finality to orders if no appeal is filed ( so one has to file an appeal to avoid execution/ subject to deposit of 50% awarded amount.

10. Sections 71 & 72 provide for the execution of orders with the civil remedy of attachment & criminal remedy for fine and imprisonment up to 3 yrs.

11. THEREFORE, IT IS TIME FOR INTROSPECTION & NEED OF THE HOUR BASED BEST PRACTICE SOPs to be evolved without depending solely upon the exclusively evaluated medical accreditations.

12.      Section 37 has provided the facility of mediation to the parties, with other related provisions.

PLEASE ENSURE THAT QUALITY IS MAINTAINED IN THE ROLES THAT INVOLVE:

A. Communication between the doctors/clinical establishments on the one hand and the patients, attendants, and /or legal heirs on the other.

B. Promptness of the response to the grievances oral or written

C. Compassionate handling of all precipitated situations

D.  Excellent skills to do moderation at the hospital settings itself

E. Real-time and applied Public Relations model 24x7!

KINDLY VISUALISE A SITUATION IN THE BACKGROUND OF:

a. WELL MAINTAINED COMMUNICATION

b. AND VIOLENT FREE INTERACTION WITH THE PATIENT/ATTENDANTS/LEGAL HEIRS

c. WITHOUT ANY SHORTFALL OF TREATMENT RECORDS RELIGIOUSLY MAINTAINED, WELL DOCUMENTED AND  DELIVERED BACK-TO-BACK,  COVER-TO-COVER, AND

d. NO INTERVENTION OF THE POLICE OR CHIEF MEDICAL OFFICER, OR CIVIL SURGEON, OR SUB DIVISIONAL MAGISTRATE, STATE MEDICAL COUNCIL OR ANY OTHER AGENCY

e. TRANSPARENCY IN ALL RESPECTS, 

BUT DUE TO “internetopathy” or “Googlitis” or “hyper legal” or “hypermedical” advise or “psudomedicolegal syndrome” CONSUMER COMPLAINT IS STILL FILED, success in mediation is far far higher. MEDIATION NOT ONLY CAN TAPER THE COMPENSATION CLAIMS, TO AVOID A FINDING OF NEGLIGENCE ON OUR CAREER SHEET, HISTORY OF THE ESTABLISHMENT AND ALL STAFF.  IT ACTS AS A STOP GAP BEFORE THE TRIAL BECOMES AUTOMATED !!!