“THE ‘CONTRACT of personal service’ is excluded from Consumer Affairs but service rendered under ‘contract for personal service’ does come under its ambit,” Consumer Commission (Bhopal) chairman Justice N K Jain said while speaking on ‘Medical Practice vis-à-vis Consumer.’
“A 1995 Supreme Court case apropos the Consumer Protection Act 1986 in deciding medical negligence had explained the difference between the two expressions.
There is no master-servant relation between the patient and the doctor and hence, it cannot be termed as service rendered under a ‘contract of personal service’ but under a ‘contract for personal service’ not excluded from within the definition of service in Consumer Protection Act,” Justice Jain said while addressing a meeting of Indore Obstetric and Gynaecological Society here last night.
Explaining what is negligence, Justice Jain said, “In law of tort, negligence is the breach of duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs would do.”
The definition comprises three constituents — a legal duty to exercise due care, breach of said duty and consequential damage, he said adding, “The practitioner must bring a reasonable degree of skill and knowledge and must exercise reasonable degree of care.””
Justice Jain also cited cases where negligence speaks for itself ‘res ipsa loquitur’ ranging from something as grave as leaving swab, instrument or other foreign object in the body; operating on wrong side or wrong organ; operating on wrong patient, removal of normal organ to practising in a pathy or administering treatment in which you are not trained, all of which may constitute negligence per se.
Concluding with giving tips to the doctors, the president of the Consumer Commission said a doctor should not be unduly alarmed or feel embarrassed if a complaint is filed against him. Further, medical practitioners should maintain and preserve treatment papers of every case, they should maintain total transparency and as far as possible the treating doctor should himself appear during the final hearing.
He also advised that the defendant doctor should insist for award of compensatory cost under section 26 of Consumer Protection Act if the case is found to be false.
Earlier, Dr Vidya Pancholia gave a scientific presentation on ‘Infection leading to pregnancy loss – Econova’.
A mock court with an advocate arguing against the doctors was also arranged which through case presentations highlighted the pitfalls doctors may fall into while treating the patients. Advocate R D Chabra was present to fight on behalf of the aggrieved consumers.
Four cases were presented where the doctors pleaded their own cases in the presence of Justice Jain and two medical experts as jury.
The cases which highlighted situations wherein patients died or suffered damage were discussed thoroughly to find out if the practitioner was really guilty of negligence or not.